UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4128

LARCELLE MCWILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4159

LEROY ANTHONY THOMAS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-111-HNM)

Submitted: October 8, 1999

Decided: November 10, 1999

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Frederick J. Sullivan, Bowie, Maryland; Thomas W. Farquhar, Alex-
andria, Virginia, for Appellants. Lynne A. Battaglia, United States
Attorney, James C. Howard, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Larcelle McWilliams and Leroy Anthony Thomas
of bank robbery and related offenses. On appeal, McWilliams alleges
that the district court erred by denying his motion to suppress dye-
stained money found on his person. Thomas claims that his Sixth
Amendment right to confront witnesses was violated when the prose-
cutor summarized the expected testimony of a co-defendant during
his opening statement, but the witness did not testify during the trial.
Finding no error, we affirm.

On February 9, 1998, three men, at least one of whom was armed,
robbed a Signet Bank in Baltimore County, Maryland. Although the
men wore masks and hoods, they wore distinctive clothing and had
clearly defined physical builds. Witnesses observed the men escape
through a hole in a chain link fence and drive away with a fourth per-
son in a gold Toyota Avalon. One witness was able to get the license
number of the getaway vehicle and furnish it to the police. The wit-
ness also observed a dye pack explode during the escape.

Baltimore County police officers found the Avalon parked in front
of a private residence and set up surveillance. Shortly thereafter,
police observed McWilliams and another man ("Stokes") arrive at the
residence in a Nissan Altima.1 The officers noticed that McWilliams
and Stokes matched the descriptions of two of the robbers. While Bal-
_________________________________________________________________
1 The residence belonged to Stokes' sister. The Avalon belonged to
Stokes' mother, but his sister regularly drove it.

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timore County police watched, Baltimore City police approached
McWilliams and Stokes to question them in connection with another
investigation.2 The questioning took only a few minutes, and, after the
officers left, McWilliams and Stokes entered the house, carrying a
large plastic bag and some other items in with them.

A short time later, McWilliams and Stokes reemerged from the
home and left in the Altima. Baltimore County officers radioed for
assistance in stopping the Altima, which was registered to Thomas.
They also notified responding units that the individuals in the car
were suspects in an armed bank robbery. A Baltimore City police
officer stopped the vehicle. While conducting a protective frisk for
weapons, the officer noticed, in plain view, large wads of dye-stained
cash in the shallow pockets of the sweat pants worn by McWilliams
and Stokes. The officer seized the money and arrested McWilliams
and Stokes.

Police ultimately conducted consent searches of Stokes' and his
sister's homes. Inside, officers found weapons, clothing, and money
associated with the robbery. Police also discovered Thomas, who
matched the description of the third robber.

We review for clear error factual determinations made at a suppres-
sion hearing, while legal conclusions are reviewed de novo. See
United States v. Han, 74 F.3d 537, 540 (4th Cir. 1996). McWilliams
raises three grounds upon which he claims the district court should
have suppressed the money seized from himself and Stokes. First,
McWilliams claims that police lacked probable cause to stop them the
second time. He further alleges that the money was not in "plain
view." Finally, he asserts that even if the money was visible, its
incriminating nature was not readily apparent. We find McWilliams'
arguments unpersuasive.

In determining whether the second stop was justified, "our inquiry
is a dual one -- whether the officer's action was justified at its incep-
tion, and whether it was reasonably related in scope to the circum-
_________________________________________________________________
2 Baltimore County and Baltimore City are separate and distinct juris-
dictions. There is nothing in the record to suggest that either police force
was aware of the other's investigation at the time of this initial stop.

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stances which justified the interference in the first place." United
States v. Swann, 149 F.3d 271, 274 (4th Cir. 1998) (citation and inter-
nal quotation marks omitted). It is well settled that a brief, investiga-
tory, warrantless stop of an automobile is permissible if an officer has
a reasonable suspicion, based on specific and articulable facts, that the
occupants of the car have committed a crime; incontrovertible proof
that the suspects are guilty is not necessary. See Terry v. Ohio, 392
U.S. 1 (1968).

McWilliams claims that the second stop was based solely on obser-
vations made by the officers in the first stop. 3 We find that this con-
tention is not supported by the record. First, there is no evidence that
the first officers communicated their observations to the officer mak-
ing the second stop prior to the stop. Second, the stop was made at
the request of Baltimore County investigators, who had been conduct-
ing surveillance on the getaway vehicle and the private residence it
was parked in front of. McWilliams and Stokes matched the descrip-
tions of two of the robbers and went inside the residence carrying var-
ious items. Based on these facts, we find that Baltimore County
investigators had a reasonable basis to suspect that McWilliams and
Stokes were involved in the robbery and to request assistance in stop-
ping them. Moreover, because investigators informed the arresting
officer that McWilliams and Stokes were suspects in an armed bank
robbery, we find that the officer was fully justified in asking them to
exit the Altima and conducting a protective frisk for weapons.

In addition to the obvious requirement that items must be plainly
visible, evidence may be seized under the "plain view doctrine" under
three conditions: (1) the seizing officer must be lawfully present at the
scene; (2) the officer must have a lawful right to the seized items; and
(3) the incriminating nature of the items must be readily apparent. See
United States v. Legg, 18 F.3d 240, 242 (4th Cir. 1994). We find that
the money was properly admitted in this case. The arresting officer
testified that, without any manipulation whatsoever, he was able to
clearly see large wads of dye-stained cash in McWilliams' and
Stokes' shallow pockets. This testimony was corroborated by an in-
court demonstration in which McWilliams wore the same sweat pants,
_________________________________________________________________
3 The officers making the first stop noticed that McWilliams and Stokes
were carrying large amounts of cash and had no identification.

                    4
and the wad of cash, which was a Government exhibit, was plainly
visible in the pocket. For the reasons discussed above, we find that
the seizing officer lawfully stopped and frisked McWilliams and
Stokes. While McWilliams is correct that money by itself is not inher-
ently incriminating, the money here appeared, in the officer's experi-
ence and judgment, to be stained by a dye pack. Given this
observation and the fact that the officer knew that the suspects were
wanted in connection with a bank robbery, we find that the incrimi-
nating nature of these particular wads of cash was readily apparent.
Finally, under the circumstances, we find that the officer had a lawful
right to seize the money.

Prior to trial, Stokes pled guilty and agreed to cooperate with
authorities. Part of this cooperation included testifying against
McWilliams and Thomas at trial. Relying on this agreement, the pros-
ecutor, in his opening statement, informed the jury that Stokes had
confessed to being one of the robbers and that he would testify that
McWilliams and Thomas were the other two. Halfway through the
trial, Stokes changed his mind and refused to testify against McWil-
liams and Thomas. After a hearing outside the presence of the jury,
the district court declared Stokes unavailable. The court informed the
jury that Stokes was unavailable due to no fault of either party and
would not be testifying.

While McWilliams and Thomas requested an instruction advising
the jury that it should disregard all references to Stokes' expected tes-
timony, they did not request a mistrial or raise a Confrontation Clause
issue at trial. As a result, we review the prosecutor's remarks for plain
error and find none. See generally United States v. Olano, 507 U.S.
725, 732-34 (1993). The facts of this case are almost identical to those
in Frazier v. Cupp, 394 U.S. 731, 733-35 (1969) (affirming the trial
court's denial of a motion for a mistrial). As in Frazier, the prosecutor
here objectively summarized the evidence he expected to present,
including Stokes' testimony, without emphasizing any portion more
than any other. Moreover, the court gave a proper limiting instruction
advising the jury that the comments and arguments of counsel were
not evidence.

Thomas also challenges the prosecutor's request during closing
argument that the jury focus on the "donut and not the hole;"

                    5
expressly referring to the absence of Stokes' testimony. Neither
Thomas nor McWilliams objected to this comment at trial, and we do
not find it so obviously prejudicial that it amounts to plain error. Dur-
ing closing, defense counsel attempted to downplay the evidence and
Stokes' guilty plea by arguing that McWilliams and Thomas should
not be convicted simply because they associated with Stokes. How-
ever, the evidence against the Defendants, even without Stokes'
expected testimony, was overwhelming. We find that, when taken in
context, the prosecutor's comment was merely intended to get the
jury to focus on the weight of the evidence.

Accordingly, we affirm McWilliams' and Thomas' convictions.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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