PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 94-5837

WYNN ROBERT WALKER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-126-6)

Argued: November 3, 1995

Decided: February 14, 1996

Before RUSSELL and HALL, Circuit Judges,
and MICHAEL, Senior United States District Judge
for the Western District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Hall and Senior Judge Michael joined.

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COUNSEL

ARGUED: Fred R. Harwell, Jr., DAVIS & HARWELL, P.A.,
Winston-Salem, North Carolina, for Appellant. Scott Patrick Mebane,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney,
Greensboro, North Carolina, for Appellee.

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OPINION

RUSSELL, Circuit Judge:

Wynn Robert Walker appeals the district court's judgment of con-
viction entered upon the jury's verdict finding Walker guilty of bank
robbery in violation of 18 U.S.C. § 2113(a). Walker assigns error to
the district court's refusal to instruct the jury on the lesser-included
offense of bank larceny, 18 U.S.C. § 2113(b). Because the trial evi-
dence did not support such an instruction, we affirm Walker's convic-
tion.

I.

In March 1994, Walker entered a Wachovia bank in North Carolina
and stole money from a teller station. The bank teller testified that
Walker approached her and said, "this is a bank robbery, . . . I have
a gun. Don't pull no bait, push no alarms." Although the teller never
saw Walker with a gun, she testified she was very scared and believed
he had a gun because he told her so and because his hand was in his
jacket pocket during the incident.

Walker did not testify at trial. The Government, however, intro-
duced a statement he gave after he was arrested. The statement read:

          I, Wynn Walker, walked into a bank and asked the lady
          teller to give me all one hundred, fifty, and twenty dollar
          and walk[ed] out. I didn't have a gun or a note when I was
          in the bank of Wachovia. This happened two days ago.

At the close of evidence, Walker requested a jury instruction on the
lesser-included offense of bank larceny. His request was denied, and
the jury subsequently returned a verdict of guilty of bank robbery.
Walker received a 105-month sentence of incarceration.

II.

Walker contends the district court committed reversible error in
failing to instruct the jury on the lesser-included offense of bank lar-

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ceny. It is well-settled that a defendant in a criminal trial may be
found guilty of a lesser offense necessarily included in the offense
charged. A defendant, however, is not entitled to such an instruction
as a matter of course. Rather, a lesser-included offense instruction is
warranted only where the evidence supports a conviction for the
lesser-included offense. Keeble v. United States , 412 U.S. 205, 208
(1993). More specifically, to receive a lesser-included offense instruc-
tion, the proof of the element that differentiates the two offenses must
be sufficiently in dispute that the jury could rationally find the defen-
dant guilty of the lesser offense but not guilty of the greater offense.
United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). To be
sufficiently in dispute, we have held that the testimony on the distin-
guishing element must be sharply conflicting, or that the conclusion
as to the lesser offense must be fairly inferable from the evidence
presented. See id. at 1259 (quoting United States v. Medina, 755 F.2d
1269, 1273 (7th Cir. 1985) (citation omitted)).

The relevant elements of bank robbery are as follows:

          [w]hoever, by force and violence, or by intimidation, takes
          . . . from the person or presence of another . . . any property
          or money . . . belonging to, or in the care, custody, control,
          management, or possession of, any bank, credit union, or
          any savings and loan association . . . shall be fined not more
          than $5,000 or imprisoned not more than twenty years or
          both.

18 U.S.C. § 2113(a). In contrast, the relevant elements of bank lar-
ceny are as follows:

          [w]hoever takes and carries away, with intent to steal or pur-
          loin, any property or money . . . belonging to, or in the care,
          custody, control, management, or possession of any bank,
          credit union, or any savings and loan association, shall be
          fined under this title or imprisoned not more than ten years,
          or both.

18 U.S.C. § 2113(b). It is undisputed that bank larceny is a lesser-
included offense of bank robbery. See United States v. Amos, 566
F.2d 899, 901 (4th Cir. 1977) (defendant cannot be sentenced for both

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bank robbery and bank larceny arising from single offense because
the bank larceny conviction merges into the bank robbery conviction).
The element distinguishing the two crimes is the use of force and vio-
lence, or intimidation to complete the crime (hereinafter "intimidation
element").

Our prior precedents illustrate the type of evidence necessary to
sustain the Government's burden of proof on the intimidation element
for a bank robbery conviction. Thus, for instance, we upheld a bank
robbery conviction where the evidence demonstrated that a defendant
entered a bank, kept his hand in his pocket, and told the teller to hand
over the money and not to sound the alarm. See Amos, 566 F.2d at
901. Similarly, we upheld a conviction where the defendant handed
the teller a note stating "this is a holdup" and placed his hand in his
pocket in such a way that the teller assumed he had a gun. See United
States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976). As these cases
demonstrate, the evidence is sufficient to sustain a conviction on the
intimidation element if the defendant's conduct was reasonably calcu-
lated to produce fear. See United States v. Wagstaff, 865 F.2d 626,
627 (4th Cir. 1989). We think it clear, and Walker does not contend
otherwise, that the bank teller's testimony in the instant case was suf-
ficient to sustain a conviction for bank robbery. She testified that
Walker approached with his hand in his pocket and told her that this
was a robbery, that he had a gun and she should not give him any bait
money or pull an alarm.

Accordingly, Walker would have been entitled to a jury instruction
on the lesser-included offense of bank larceny only if some other evi-
dence of record placed the intimidation element sufficiently in dispute
such that the evidence was sharply conflicting or that the conclusion
as to the lesser offense fairly could be inferred. We have found none.
Walker's argument that the evidence was sharply conflicting is based
solely on his statement, introduced by the Government at trial, that he
was not carrying a gun during the commission of the crime. However,
closer examination of that statement fails to reveal the necessary evi-
dentiary dispute because Walker only denied "possessing" a gun. He
did not deny either that he told the teller he possessed a gun or that
he feigned hiding a gun by placing his hand in his pocket.

Our holding in United States v. Carter, 540 F.2d 753 (4th Cir.
1976), in which we reversed and remanded a defendant's bank rob-

                    4
bery conviction based on the district court's failure to instruct the jury
on the lesser-included offense of bank larceny, provides no support
for Walker. In Carter, the bank teller testified that Carter walked into
the bank, demanded money, stated he had a gun, and kept his hand
in his pocket. Id. at 753. We found error in the district court's refusal
to give a bank larceny instruction because Carter testified that when
he entered the bank he had an amiable conversation with the teller at
the end of which he requested the money. Carter maintained that he
neither had a gun nor told the teller he had a gun. Carter insisted "that
the jury should have been left free to view his demeanor, language
and conduct as insufficient to intimidate the bank teller." Id. at 755.
We found Carter's testimony to be sufficient to create the necessary
evidentiary dispute on the intimidation element because it rebutted all
of the Government's evidence on that element.

In the instant case, the evidence of record does not demonstrate the
type of dispute apparent in Carter. Although the jury might have
believed Walker's statement that he never had a gun, evidence that
Walker told the teller he possessed a gun and acted as though he pos-
sessed a gun went undisputed. Hence, the evidence clearly was not
sharply conflicting. Walker contends, however, that the conclusion as
to the lesser offense fairly could be inferred from his statement intro-
duced by the Government at trial. By telling the police he did not
have a gun, Walker contends the jury could infer that he never told
the teller he had one or acted like he had one. We do not believe this
inference flows from Walker's statement. In fact, we can envision
many a bank robber who, unable to procure a weapon, would none-
theless pretend they possessed one to further their efforts to liberate
the bank of its deposits. We certainly cannot say that Walker's state-
ment denying possession of a gun, without more, placed the evidence
on the intimidation element of robbery sufficiently in dispute.*
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*In reaching this holding, we do not intend to take issue with our prior
favorable citation to D.C. Circuit precedent holding that any evidence,
however weak, bearing upon the lesser included offense will suffice to
create an entitlement to a lesser included offense instruction. United
States v. Baker, 985 F.2d at 1248 (quoting United States v. Gibbs, 904
F.2d 52, 58 (D.C. Cir. 1990)). We view this as a separate inquiry from
the question whether the evidence is sufficiently in dispute. For instance,
a defendant may present evidence that is weak in the sense that it is

                     5
For this reason, we find no error in the district court's decision to
deny Walker's request for a jury instruction on the lesser-included
offense of bank larceny. Walker's conviction is, accordingly,

AFFIRMED.
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implausible or uncorroborated, but yet he still may be entitled to a lesser
included jury instruction because the evidence either sharply conflicts
with the Government's evidence on an element of the offense, or because
the lesser included offense is fairly inferable if the defendant's "weak"
evidence is believed. Walker's evidence to create a sufficient dispute on
the intimidation element of bank robbery was not merely weak, it was
nonexistent.

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