                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0069n.06
                           Filed: November 4, 2004

                                          No. 03-4181

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
      Plaintiff-Appellee,
                                                    On Appeal from the
               v.                                   United States District Court for
                                                    the Northern District of Ohio
OCEANUS PERRY,
     Defendant-Appellant.

______________________________/

Before: KENNEDY, GILMAN, Circuit Judges; HOOD, District Judge*


Kennedy, J. A jury convicted Defendant Oceanus Perry of one count of armed bank robbery

under 18 U.S.C. § 2113(a)(d) and one count of using a firearm during and in relation to a crime

of violence under 18 U.S.C. § 924(c)(1)(A)(II). Both charges stemmed from a bank robbery of

Bank One in Liberty, Ohio on January 26, 2002. Defendant was indicted on both counts on

March 12, 2002 after having been arrested on February 8, 2002. His trial began on April 28,

2003. Defendant appeals four issues. First, he claims that insufficient evidence exists to

support either conviction. Second, he claims that the weight of the evidence does not support his

conviction. Third, he claims that his indictment and trial suffered from violations of the Speedy

Trial Act. Finally, he claims that the trial court made several evidentiary errors. Because we




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
find no errors in defendant’s conviction or sentence, we AFFIRM the judgment of the district court.


                                        BACKGROUND

       At trial, the defendant was identified by one of the Bank One tellers as the perpetrator of

the crime. The teller who was robbed selected defendant from a photographic spread a few days

after the robbery, but could not identify him at trial fifteen months later. The defendant was

further identified by a teller at another bank, the Metropolitan Bank, a short distance from Bank

One, where the defendant attempted to use his mother’s ATM card minutes before the robbery at

Bank One occurred. The teller at the second bank identified him after police broadcast a

description of the Bank One robber on the nightly news. Police found the ATM card in question

in defendant’s possession. Defendant had access to his mother’s card and evidence indicated that

the defendant used it at Ohio State where he attended school.

       Finally, the police found a gun in the room of a friend’s apartment at which defendant

was staying. Police arrested Defendant in that apartment. The gun had a red coloring on it

similar to the color of the dye contained in the dye pack the teller gave to the robber. According

to the testimony of the teller, the defendant placed the gun in a black shoulder bag, along with

the money and the dye pack. Finally, the government’s expert found that money found in the

parking lot of Bank One as well as the gun in defendant’s room had red dye MRAQ and CS tear

gas in a combination that is unique to bank dye packs.

                                           ANALYSIS

A.     The evidence provided at trial was sufficient for the jury to convict the defendant.

       In reviewing the sufficiency of the evidence, we must, after reviewing the evidence in a

light most favorable to the prosecution, determine whether any rational trier of fact could have

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found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992).

       In this case, a rational trier of fact could have found, beyond any reasonable doubt, the

essential elements of the crimes. To be convicted of armed bank robbery under § 2213(a)(d), a

defendant must, under part (a): take something of value, owned or under the control of a bank,

by threat of force or intimidation, from another person. Under part (d) that person must commit

the offense described in (a) through an assault, or by putting the life of someone else in jeopardy

through the use of a dangerous weapon or device. Here, a jury could find that defendant took

money, belonging to or under the control of Bank One, from the teller by threat of force or

intimidation. They could find these elements because the evidence indicated that the teller was

threatened with a gun and that she was intimidated into giving the defendant money that was

owned or under the control of Bank One. Furthermore, the presence of a gun in any bank

robbery puts someone’s life in jeopardy. Sufficient evidence therefore exists for a jury to

convict defendant of armed bank robbery.

       Section 924(c)(1)(A)(ii) sets a minimum sentence of seven years if a firearm is

brandished during the commission of a crime of violence. Here, testimony indicated that

defendant brandished his gun. The teller who was robbed accurately described and identified the

gun in question. Finally, armed bank robbery is a crime of violence. There was sufficient

evidence to convict defendant of this second crime.

B.     The conviction was not against the weight of the evidence.

       Defendant argues that the district court abused its discretion when it denied his motion

for a new trial. In that motion, defendant argued that the verdict was against the manifest weight


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of the evidence. We review the district court’s denial of defendant’s motion for an abuse of

discretion. Woodbridge v. Dahleberg, 954 F.2d 1231, 1234 (6th Cir. 1990). The district court,

in weighing the evidence must compare the opposing proofs and set aside the verdict if it is

convinced that it is against the clear weight of the evidence. Id. It should deny the motion if the

jury reached a verdict that could have reasonably been reached. Id.

       In this case, although the district court did not provide a written opinion, nor did it

provide any indication on the record as to why it denied the motion, we cannot say that the

district court abused its discretion in denying defendant’s motion. As discussed above, there was

evidence of defendant’s guilt and a reasonable jury could easily have used the ample evidence,

including the eye witness identification, the presence of a red substance on the gun, the

independent photographic line-up identifications, as well as the corroborating ATM transaction

in reaching the conclusion that defendant did, indeed, rob Bank One. Therefore the district court

did not abuse its discretion in denying defendant’s motion.

C.     No Speedy Trial Act violations occurred.

       Defendant argues that the government failed to indict him within thirty days of his arrest

as required by 18 U.S.C. § 3161(b). Defendant also alleges that the government failed to bring

him to trial within seventy days of his indictment as required by 18 U.S.C. § 3161(C)(1). The

district court addressed the arguments raised by defendant concerning his Speedy Trial Act

claims in a Memorandum and Order filed on May 3, 2003. Apx. p. 60. It found both claims to

be without merit. Because we find no error in the district court’s consideration of both issues,

we adopt the reasoning of the Memorandum and Order as our own.



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       We note that it was the defendant who demanded four different lawyers before the case

began. There is no indication that the government or the district court engaged in any undue

delay or was, at any time, unprepared to try the case. Any blame for delay in this trial rests

almost solely with the defendant.

D.     Defendant waived his other objections.

       Because Defendant did not make an objection to the entry of either the red dye evidence

or the testimony of Christina Will concerning the gun during his trial, we will not consider these

objections. Under the rule of this Circuit, we will only address issues not properly preserved for

appeal in exceptional circumstances or where application of the rule would result in a plain

miscarriage of justice. United States v. $100,375.00 in United States Currency, 70 F.3d 438, 441

(6th Cir. 1995).

       We find no such exceptional circumstances here, nor would a miscarriage of justice result

from our declining to rule on either of these questions. The evidence upon which defendant’s

conviction rests is sound. The objections to that evidence, made by defendant, distort the record.

The fact that the government did not prove that the red substance found on defendant’s gun was

from the same dye pack given to the robber is irrelevant. The fact that a red substance was on

the gun was circumstantial evidence of the defendant’s guilt and was thus likely to be highly

relevant and not so prejudicial as to require its exclusion. Additionally, the government did

provide evidence (albeit contested evidence) that the red substance likely came from a Bank One

dye pack. Similarly, the failure of the teller who was robbed to identify the defendant as the

robber at trial (fully 15 months after the incident) is of no moment. She identified him in a

photographic spread a few days after the crime. Furthermore, the defendant was identified by

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another witness to the crime during the trial. Therefore, because no clear injustice would result

from our declining to rule on the admissibility of the evidence in question, we decline to do so.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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