                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5180


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JIMMY BRICE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00218-RJC-1)


Submitted:   February 17, 2010            Decided:   March 5, 2010


Before KING, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Matthew Martens, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Jimmy Brice was convicted of bank robbery, armed bank

robbery, possession of a firearm during a crime of violence, and

possession of a firearm by a convicted felon.                   He received an

aggregate sentence of 480 months in prison.                  Brice now appeals,

raising three issues.       We affirm.



                                         I

             At   trial,    the   district          court    overruled     Brice’s

objections to the testimony of several witnesses about their and

others’ reactions during the robbery.                Among other things, the

witnesses    testified     that   they       were   “scared,”   “nervous,”     and

“shocked,” and a customer appeared “terrified.”                  Brice contends

that the introduction of such testimony was irrelevant and that,

given its cumulative and repetitive nature, the evidence was so

prejudicial and inflammatory as to warrant reversal.                     We review

the district court’s evidentiary ruling for abuse of discretion.

United States v. Blake, 571 F.3d 331, 346 (4th Cir. 2009), cert.

denied, --- S. Ct. ---, 2010 WL 58699 (U.S. Jan. 11, 2010) (No.

09-7788).

             In a prosecution for bank robbery, the Government must

prove that the defendant took money or property from a bank “by

force and violence, or by intimidation.”                    18 U.S.C. § 2113(a)

(2006).     We have stated:

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     The intimidation element of § 2113(a) is satisfied if
     an ordinary person in the teller’s position reasonably
     could infer a threat of bodily harm from the
     defendant’s  acts, whether    or  not   the  defendant
     actually intended the intimidation.   Under this test,
     the subjective courageousness or timidity of the
     victim is irrelevant; the acts of the defendant must
     constitute intimidation to an ordinary, reasonable
     person.

United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008)

(internal quotation marks and citations omitted).

            We conclude that the district court did not abuse its

discretion        in   permitting    the       testimony    at   issue.         Courts

routinely    admit      such    testimony      as   probative    of   intimidation

under § 2113(a).         See, e.g., United States v. Burnley, 533 F.3d

901, 903 (7th Cir. 2008) (“How the teller who encountered the

defendant felt . . . is probative of whether a reasonable person

would have been afraid under the same circumstances, even though

the ultimate standard is an objective one.”) (internal quotation

marks and citations omitted); United States v. Caldwell, 292

F.3d 595, 596 (8th Cir. 2002) (“Whether the defendant’s actions

did induce fear . . . is not conclusive, but is probative of

whether his actions were objectively intimidating.”).                      We agree

with this reasoning and conclude that the testimony in question

was properly admitted as probative of intimidation.

            Nor        was     the   testimony       unduly      prejudicial       or

inflammatory.          Other    testimony      at   trial   presented      objective

evidence     of    possible      intimidation:      Brice    wore     a   ski   mask,

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carried a weapon, and shouted and used profanity and abusive

language.     The evidence to which Brice objects — that certain

persons     were   “terrified”    —        is     nonetheless   relevant   in

demonstrating subjective intimidation.               Both forms of evidence

assist the jury in determining whether a reasonable person would

likely be intimidated, and the exclusion of either form would

impede the jury’s determination.                We find the presentation of

such evidence to be neither unduly prejudicial nor inflammatory.



                                      II

            Brice next contends that a supplemental instruction on

Count Three (possession of a firearm during a crime of violence)

constructively amended the indictment.

            Count Three charged that Brice,

      during and in relation to a crime of violence, that
      is, bank robbery, . . . did use, carry, and brandish a
      firearm, and in furtherance of said crime, did
      knowingly possess said firearm, that is, a handgun, in
      violation of Title 18, United States Code Section
      924(c)(1).

When the court instructed the jury on this count, the court read

the charge verbatim, read the pertinent portion of the statute,

and   instructed    on   the   elements         of   the   offense.   During

deliberations, the jury asked for clarification of the phrase

“and in furtherance of said crime” and asked if this applied




                                      4
only to occurrences inside the bank.                  In response, the district

court gave the following supplemental instruction:

        [T]he definition that I gave you earlier was that, to
        prove the defendant possessed a firearm in furtherance
        of a crime of violence, the Government must prove that
        the defendant possessed the firearm that furthers,
        advances, or helps forward the crime of violence.

        You asked a secondary question; does this only apply
        to what occurred inside the bank?

        The short answer to that is “no.” . . . [T]he escape
        phase . . . is part of the crime of bank robbery.

             “A constructive amendment to an indictment occurs when

.   .   .   the   government       (usually     during    its       presentation    of

evidence     and/or      its    argument),      the   district      court    (usually

through its instructions to the jury), or both, broadens the

possible    bases     for      conviction   beyond     those    presented     to   the

grand jury.”        United States v. Floresca, 38 F.3d 706, 710 (4th

Cir.    1994).      “A    constructive      amendment     is    a    fatal   variance

because the indictment is altered to change the elements of the

offenses charged, such that the defendant is actually convicted

of a crime other than that charged in the indictment.”                         United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal

quotation marks and citation omitted).                 A constructive amendment

is error per se, and, given the Fifth Amendment right to be

indicted by a grand jury, “must be corrected on appeal even when

not preserved by objection.”           Floresca, 38 F.3d at 714.




                                            5
           When considering a constructive amendment claim, “it

is the broadening [of the bases for a defendant’s conviction]

that is important - nothing more.”       Id. at 711.     The key inquiry

is whether the defendant has been tried on charges other than

those made in the indictment.     See id.

           In United States v. McCaskill, 676 F.2d 995 (4th Cir.

1982), we determined that a defendant who was unarmed but who

drove the getaway car was properly convicted of armed robbery as

an aider and abettor in part because “[t]he escape phase of a

crime is not . . . an event occurring after the robbery.          It is

part of the robbery.”    Id. at 1000 (internal quotation marks and

citation omitted).      More recently, the Third Circuit observed

that case law within the courts of appeals consistently treats

escape as part of bank robbery.        United States v. Williams, 344

F.3d 365, 372-73 (3rd Cir. 2003).

           Brice was charged in Count Three with possession of a

firearm in furtherance of a crime of violence.              Because the

crime of violence — the bank robbery — continued during Brice’s

escape,   the   supplemental   instruction   did   not    constructively

amend the indictment by changing the elements of the offense

against which he had to defend.




                                   6
                                           III

                Brice’s     final    claim         is    that     the     Government

consistently advanced the theory that he possessed the firearm

while      in    the      bank,   thereby        constructively    narrowing      the

indictment, so that he was forced to forego any defenses he

might otherwise have asserted.                  In United States v. San Juan,

545 F.2d 314 (2nd Cir. 1976), the jury instruction permitted a

broader theory of guilt than the theory unequivocally advocated

for and defended against at trial.                 Here, the Government did not

unequivocally advance one theory of guilt to the exclusion of

all others.        Indeed, in both opening and closing arguments, the

Government referred to Brice’s possession of the gun both inside

the bank and during the escape phase of the robbery.                      Similarly,

the Government elicited testimony that Brice displayed the gun

while in the bank and that the gun was discovered inside a

backpack Brice was carrying when he was captured.                       We hold that

there was no constructive narrowing of the indictment.



                                           IV

                We accordingly affirm.           We dispense with oral argument

because the facts and legal contentions are adequately presented

in   the    materials       before   the    court       and   argument    would   not

significantly aid the decisional process.

                                                                            AFFIRMED

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