UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-7721

THOMAS EUGENE SWANN, SR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4952

THOMAS EUGENE SWANN, SR.,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-97-128, CA-99-991-AMD)

Submitted: April 28, 2000

Decided: May 17, 2000

Before LUTTIG, MOTZ, and KING, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Thomas Eugene Swann, Sr., Appellant Pro Se. Gregory Welsh, Assis-
tant United States Attorney, Harvey Ellis Eisenberg, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thomas Swann appeals an order of the district court 1 granting par-
tial relief on his 28 U.S.C.A. § 2255 (West Supp. 1999), motion to
vacate on grounds of ineffective assistance of counsel his convictions
for aiding and abetting bank robbery and armed bank robbery (Counts
One and Two), and for aiding and abetting his co-defendant in using
and carrying a firearm in a crime of violence (Count Three). After a
hearing on the § 2255 motion, the district court vacated Swann's con-
viction under Count Three, see 18 U.S.C.A.§ 924(c) (West Supp.
1999), 18 U.S.C. § 2 (1994), and Count One, see 18 U.S.C.A.
§ 2113(a) (West Supp. 1999), leaving only the conviction for armed
bank robbery under Count Two. See 18 U.S.C.A. § 2113(d) (West
Supp. 1999). Swann has also filed with this court a petition to remand
the case for a hearing on his allegations of fraud and prosecutorial
misconduct relating to the vacated Count Three. We deny the petition
to remand, deny a certificate of appealability, and dismiss the appeal.

Swann first alleges that he received ineffective assistance of coun-
sel at trial and at the § 2255 hearing. To establish that his counsel was
ineffective, Swann must show that the attorney's performance fell
below an objective standard of reasonableness and that the attorney's
deficient performance was prejudicial. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984). A number of Swann's claims relate to
his § 924(c) conviction under Count Three. 2 Because that conviction
_________________________________________________________________
1 In addition to a notice of appeal, Swann filed a document titled "Writ
of Mandamus" which was construed as another notice of appeal.
2 Swann claims that his trial attorney failed to determine that the shot-
gun used in the bank robbery was an antique, failed to object that Count
Three did not define "short-barreled shotgun," and failed to object when
the district court erred in instructing the jury on the dimensions of a
short-barreled shotgun. He argues that his attorney in the § 2255 pro-
ceeding was ineffective in refusing to assert these claims.

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has been vacated, Swann cannot show prejudice, and the claims are
thus meritless.

The government conceded at the § 2255 hearing that the short-
barreled shotgun carried by Swann's co-defendant was an antique. As
such, it is not a "firearm" as the term is defined in 18 U.S.C.
§ 921(a)(3) (1994), but it may constitute a"dangerous weapon" for
purposes of § 2113(d), armed bank robbery, the charge in Count Two.
See United States v. Hamrick, 43 F.3d 877, 882-83 (4th Cir. 1995)
(unloaded, inoperable, or fake weapon may constitute dangerous
weapon for purposes of armed bank robbery statute) (citing
McLaughlin v. United States, 476 U.S. 16, 17-18 & n.3 (1986)); see
also United States v. Kirvan, 86 F.3d 309 (2d Cir. 1996) (affirming
conviction for bank robbery committed with antique weapon). Thus,
Swann has not established that his attorney was ineffective with
respect to Count Two in failing to realize that the gun was an antique.

Swann further claims that his § 2255 attorney was ineffective at the
§ 2255 hearing in permitting an amendment of Count Two to bank
robbery with a dangerous "device" rather than with a dangerous
weapon. Section 2113(d) prohibits robbery with a dangerous weapon
or device, but Count Two charged robbery by means of a dangerous
weapon. Because an antique weapon is a "dangerous weapon" under
§ 2113(d), any reference to a dangerous device made at the § 2255
hearing did not amount to a constructive amendment of the indict-
ment.

Last, Swann claims that he was denied a fair trial when another
judge took over briefly during jury deliberations. During this time,
and while defense counsel was at lunch, the jurors asked to see the
shotgun. The substitute judge decided to delay sending in the gun
until defense counsel returned, but before that happened the jurors
sent out a second note saying that they had reached a verdict and did
not need to see the gun. As discussed above, because the § 924(c)
conviction was vacated and the § 2113(d) conviction is valid even
though the gun was an antique, Swann has not shown that the absence
of the trial judge violated his right to a fair trial.

We therefore deny a certificate of appealability and dismiss the
appeal. We construe the petition pursuant to Rule 60(b) as a motion

                    3
to remand the case and deny the motion. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

DISMISSED

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