UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4729

LESTER ALFONZA WINSTEAD,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-95-232)

Submitted: February 24, 1998

Decided: March 17, 1998

Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas H. Johnson, Jr., GRAY, NEWELL & JOHNSON, Greens-
boro, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Timika Shafeek, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Lester A. Winstead was convicted by a jury of robbery of a post
office, 18 U.S.C.A. § 2114 (West Supp. 1997). He appeals his convic-
tion and eighty-four month sentence, claiming that the district court
erred in denying his motion to dismiss the indictment, denying his
motion to suppress a pretrial identification, and enhancing his sen-
tence for use of a dangerous weapon, USSG § 2B3.1(b)(2)(D).1 We
affirm.

I.

Winstead's indictment charged in Count One that he"did assault
a person having lawful charge, custody and control of United States
mail matter, money and other property of the United States, and did
rob, such person of said money." In Count Two, Winstead was
charged with using and carrying a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C.A.§ 924(c) (West Supp.
1997). Winstead moved to dismiss Count One of the indictment based
on the failure of the Government to allege criminal intent. The motion
was denied, and trial by jury was had.

At trial, the evidence showed that Winstead entered the post office,
while his co-defendant Leroy Clayton, Jr., waited in the car. Winstead
carried an object covered with a towel. He pointed it at the clerk and
said, "I have a gun. I want the money. Just give me the money." When
the clerk opened the cash drawer, Winstead leaned over the counter
and poked the clerk with the object as he began grabbing bills. The
clerk testified that she glimpsed part of the object under the towel
when Winstead leaned over the counter and that it appeared to her to
be a gun barrel. The object carried by Winstead was not recovered.
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1 U.S. Sentencing Guidelines Manual (1995).

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In his statement to the police, Clayton first said he did not know what
Winstead had carried; later he said it was a sheetrock hatchet.

The jury returned a guilty verdict as to Count One but were dead-
locked on the firearm charge. The court declared a mistrial as to
Count Two, and the Government subsequently dismissed the charge.
At sentencing, the district court determined that a four-level enhance-
ment was in order because Winstead displayed an object which
appeared to be a dangerous weapon.

II.

Winstead first argues that his indictment failed to include a formal,
express allegation of criminal intent. We are not so persuaded. The
Supreme Court, in Hagner v. United States, 285 U.S. 427, 431 (1932),
held that the test of the sufficiency of an indictment was whether it
contained all the elements of the offense charged. Here, the indict-
ment, for all practical purposes, traced the exact language of the stat-
ute. An indictment which follows the language of the statute is
ordinarily sufficient unless the statute omits an essential element of
the offense. See United States v. Guthrie, 387 F.2d 569, 571 (4th Cir.
1967).

The term "rob" implies, by its very legal nature, some kind of will-
ful purpose and wrongful intent in the violent taking of property. See
United States v. Lester, 541 F.2d 499, 501-02 & n.4 (5th Cir. 1976)
(discussing conversion). The purpose of the indictment in criminal
proceedings is to apprise the defendant of the charges he must be pre-
pared to meet and enable the defendant to plead double jeopardy as
a defense in a future prosecution for the same offense. See United
States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997). We agree with
the Government that the allegation "did rob" could not have confused
the defendant. We find that the indictment in this case was sufficient
to apprise the defendant of the charges against him and sufficient to
imply an allegation of wrongful intent.

III.

Winstead also assigns as error the district court's denial of his
motion to suppress the clerk's pre-trial identification of him. Immedi-

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ately after the robbery at issue, the clerk gave the Sheriff a description
of the vehicle, the license plate, the suspect, and his clothing. The
Sheriff determined that the vehicle used during the robbery was regis-
tered to Winstead's mother. Winstead's mother gave the Sheriff a
photograph of Winstead, which the Sheriff took back to the post
office to show the clerk. According to the Sheriff's testimony, he told
the clerk, "[t]his is for the process of elimination. Is it or is not this
the person who robbed you?" The clerk stated,"That's him."

The clerk testified at the suppression hearing that, during the rob-
bery, a three and one-half foot tall, three foot wide counter separated
her from Winstead. Winstead was in the post office approximately
three minutes. His face was "clearly visible," and the post office was
lighted by florescent and natural daylight. As soon as Winstead left,
the clerk wrote down the identifying information. The clerk viewed
the photograph of Winstead twenty-five to thirty minutes after the
robbery. At the suppression hearing, the clerk reaffirmed her certainty
that Winstead was the man who robbed her.

The Due Process Clause protects a suspect from unnecessarily sug-
gestive identification procedures. See Manson v. Brathwaite, 432 U.S.
98, 104 (1977). To sustain a challenge to an identification, the defen-
dant must first show that the procedure used to elicit it was imper-
missibly suggestive. See id. at 110-14. If the defense meets this
burden, the court must determine whether the identification may be
held reliable even though the pretrial identification procedure was
suggestive. See United States v. Dorta, 783 F.2d 1179, 1183 (4th Cir.
1986). In assessing reliability, the district court should balance the
following factors: (1) the witness's opportunity to view the suspect
during the crime; (2) the witness's degree of attention; (3) the accu-
racy of the witness's description of the suspect; (4) the witness's level
of certainty; and (5) the amount of time elapsed between crime and
identification. See Manson, 432 U.S. at 114.

The trial court did not err in failing to suppress the clerk's identifi-
cation of Winstead. While the Government concedes that the identifi-
cation procedure was suggestive, we find that the totality of the
circumstances, including the clerk's opportunity to observe the rob-
ber, her contemporaneous, accurate description of the defendant, and

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her certainty as to her identification, show that the clerk's pretrial
identification was sufficiently reliable.

IV.

Finally, Winstead argues that the sentencing enhancement should
be disallowed because the jury acquitted him of the firearm charge.
While Winstead concedes that acquitted conduct may be the basis for
a sentencing enhancement, see, e.g., United States v. Hunter, 19 F.3d
895, 897 (4th Cir. 1994), he asserts that the Government failed to
prove that he had a firearm.

We agree that the enhancement was proper. Under USSG
§ 2B3.1(b)(2)(D), a four-level increase is made if a dangerous weapon
was used.2 The term "dangerous weapon" is defined in Application
Note 1(d) to USSG § 1B1.1, which directs that when a object was dis-
played or brandished which resembled an instrument capable of caus-
ing death or serious injury, the object should be treated as a dangerous
weapon. The clerk testified that Winstead carried an object that
looked like a gun. In fact, Winstead told her he had a gun, and he car-
ried the object as though it were a gun. He also pointed the object at
the clerk and poked her in the stomach with it. Given this testimony,
the district court did not err in enhancing Winstead's sentence.

V.

Accordingly, we affirm Winstead's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED
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2 USSG § 2B3.1(b)(2)(C) provides a five-level enhancement if a fire-
arm was brandished, displayed or possessed. Winstead's sentence was
not enhanced under this section.

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