UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4671

WAYNE E. JACKSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 98-4686
DANIEL L. SPENCE, a/k/a Daniel L.
Johnson,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-98-34-S)

Argued: May 7, 1999

Decided: July 6, 1999

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Elizabeth Linn Pearl, Assistant Federal Public Defender,
James Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant Jackson; John Augustine Bourgeois, KRAMON & GRA-
HAM, P.A., Baltimore, Maryland, for Appellant Spence. Thomas
Michael DiBiagio, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: James P. Ulwick, KRAMON &
GRAHAM, P.A., Baltimore, Maryland, for Appellant Spence. Lynne
A. Battaglia, United States Attorney, Baltimore, Maryland, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In May 1998 Wayne Jackson and Daniel Spence were convicted in
the District of Maryland for attempted bank robbery, certain firearms
violations, victim tampering, and arson. They appeal on several
grounds, and we affirm.

I.

Around 8:00 p.m. on December 11, 1997, Peter and Stacy Giani-
odis returned to their home in Howard County, Maryland. When they
entered the house, they were confronted by two armed men. One of
the men wore a dark leather jacket. The other wore a sweater and had
a waist pouch that said "Newport Pleasure" on it. Both men wore ski
masks, although at various times each of the men rolled the masks up
above their eyes. The intruders handcuffed and tied the Gianiodises
with duct tape. Then, the man in the sweater (who turned out to be
Spence) began asking questions about the vault at the bank where
Peter Gianiodis worked. After questioning Peter Gianiodis, the man

                    2
in the sweater took Stacy Gianiodis upstairs. He told her he had "cut
up his arm real bad" while crawling through the basement window.
He then sexually assaulted her. Several hours later, the men took the
Gianiodises' ATM cards and PIN numbers. Thereafter, the men left
the house, and after a brief time at least one of the men returned,
retied the victims, and set a gasoline fire in the basement. The arsonist
(or arsonists) left when the fire alarm sounded. The Gianiodises were
able to escape.

In the early morning hours of December 12, 1997, there were three
ATM transactions in the Gianiodises' account. Jackson's fingerprint
was found on the receipt from one of the transactions. Jackson and
Spence were also captured on the surveillance video of one transac-
tion. The following morning, Spence called an old girlfriend and told
her he had entered the home of a Howard County couple in order to
get the combination to a bank vault.

In a search of Spence's house, police found a waist pouch with
"Newport Pleasure" written on it. A search of Jackson's house turned
up a black leather jacket. A 15-year-old boy testified that on Decem-
ber 12, 1997, he had rented a car from Jackson for 30 dollars. The car
belonged to the Gianiodises. Finally, a police evidence technician tes-
tified that he saw a number of cuts on Spence's arm several weeks
after the crime.

Based on this evidence, Wayne Jackson and Daniel Spence were
convicted of attempted bank robbery in violation of 18 U.S.C.
§ 2113(a) and (f) (1994), two counts of using and carrying a firearm
in violation of 18 U.S.C. § 924(c) (1994), conspiracy in violation of
18 U.S.C. § 371 (1994), victim tampering in violation of 18 U.S.C.
§ 1512 (1994), and arson in violation of 18 U.S.C. § 844(h) (1994).
Spence was sentenced to 59 years and 5 months imprisonment. Jack-
son was sentenced to life plus 35 years.

Jackson and Spence appeal on several grounds. They contend that
the district court erred by denying Jackson a Franks hearing, by deny-
ing their motions to sever, by allowing testimony about Stacy Giani-
odis's sexual assault, by refusing to give several of their requested
jury instructions, by denying their motions for acquittal, by allowing

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conviction on two firearms counts, by sentencing Spence as a career
offender, and by holding the federal three-strikes law constitutional.

II.

Jackson argues that the district court should have suppressed the
fruits of the search of his house. Specifically, he argues that the dis-
trict court erred in denying him a hearing under Franks v. Delaware,
438 U.S. 154 (1978). In Franks the Supreme Court determined that
a defendant may challenge a facially sufficient warrant affidavit, and
must receive a hearing, if he can make a "substantial preliminary
showing" that the affiant acted with reckless disregard for the truth
and that, had truthful information been given, probable cause could
not have been sustained. See id. at 171-72. As this court has previ-
ously said, "[t]he Franks test also applies when affiants omit material
facts with the intent to make, or in reckless disregard of whether they
thereby made, the affidavit misleading." United States v. Colkley, 899
F.2d 297, 300 (4th Cir. 1990) (internal quotation marks omitted).

Here, Jackson contests the validity of the affidavit used to support
the warrant issued for the search of his house, contending that the
affiant omitted important information when he applied to a state judge
for the warrant. The district court denied the motion for a hearing,
holding that "there was sufficient probable cause. . . and there would
have been, even had the matters that [Jackson] claims were wrong-
fully omitted been included in the affidavit."

The district court was correct. When the prosecution sought the
warrant against Jackson, it relied on two statements that suggested his
involvement in the crime: (1) the statement of a 15-year old boy
detailing how Jackson had rented him a car, a car that belonged to the
Gianiodises, and (2) the identification by Jackson's wife of her hus-
band in an ATM surveillance video taken when the victims' card was
used.

Still, Jackson argues that the affiant omitted several important facts
that would have shown the unreliability of the proffered information.
First, Jackson claims that the affiant should have told the court that
the 15-year old gave his statement in the presence of a man who, at
the time, was a suspect in the case. Second, Jackson claims that the

                    4
affiant should have fully disclosed Mrs. Jackson's identity. According
to Jackson, that would have revealed that she worked for the Mary-
land Department of Corrections and that she violated Department reg-
ulations by marrying Jackson (a former inmate under her supervision)
without notifying the Department. Had the state court known these
facts, Jackson argues, probable cause for the warrant would have been
defeated.

We disagree. We cannot say that the affiant's omission of this
information showed a reckless disregard for the truth. In addition,
probable cause simply requires that "there is a fair probability that
contraband or evidence of a crime will be found in a particular place."
Illinois v. Gates, 462 U.S. 213, 238 (1983). The prosecution met this
standard by presenting evidence of Mrs. Jackson's identification of
her husband in an ATM surveillance video and by noting the state-
ment of the 15-year old who rented the Gianiodises' car from Jack-
son. The affiant's failure to mention the additional information
Jackson discusses did not make the affidavit misleading; nor would
that information have defeated probable cause.1 The district court
therefore did not err in denying Jackson's request for a Franks hear-
ing.

III.

Jackson and Spence next argue that the district court abused its dis-
cretion when it denied their motions to sever. Rule 14 of the Federal
Rules of Criminal Procedure provides that a "court may . . . grant a
severance" when "it appears that a defendant .. . is prejudiced by a
joinder." Fed. R. Crim. P. 14.

The Supreme Court has elaborated on the level of prejudice neces-
_________________________________________________________________
1 Jackson also argues that the affiant neglected to mention that Spence
resembled Jackson in the ATM photo and that there was a discrepancy
between the victims' descriptions of Jackson (more than 6 feet tall and
age 25-35) and Jackson's actual appearance (5'10" and early 40s). This
argument was not raised below, but in light of the information that was
provided by the affiant, the addition of this particular information about
resemblances, descriptions, and actual appearance would not have been
sufficiently material to defeat probable cause.

                    5
sary for severance. Severance is required when there is "a serious risk
that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about
guilt or innocence." Zafiro v. United States , 506 U.S. 534, 539 (1993).
This is not an easy threshold for a defendant to meet. We have noted
that "a certain amount of conflict among defendants is inherent in
most multi-defendant trials," United States v. Smith, 44 F.3d 1259,
1267 (4th Cir. 1995), and that a defendant must show that "the jury
will unjustifiably infer that this conflict alone demonstrates that both
are guilty," United States v. Spitler, 800 F.2d 1267, 1273 (4th Cir.
1986) (internal quotation marks omitted). The defendants have not
made such a showing here.

Jackson argues that he was entitled to a severance because he and
Spence presented inconsistent defenses. Spence presented an alibi
defense. He testified that he had spent part of the evening visiting
with his sister and nephew and talking to a friend. He said that he
went downtown late in the evening with Jackson, his neighbor.
According to Spence, Jackson was present when two men approached
and asked Spence to withdraw cash from ATM machines using the
Gianiodises' bank cards. Jackson, who did not take the stand, argues
that Spence's testimony was incompatible with his (Jackson's)
defense: Jackson's counsel attempted to suggest that Jackson was
nowhere near the scene of the crime that night.

Jackson's argument fails. Spence testified only that Jackson had
been present downtown at the ATM machines; the testimony did not
place Jackson at the Gianiodises' house. Spence's story therefore did
not implicate Jackson in the crimes charged, even if the jury believed
what Spence said about him. Moreover, the district court emphasized
to the jury that, for it to convict, each defendant had to have been
present at the place where the offenses occurred, that is, the house.
Thus, we conclude that Jackson has failed to establish that a jury
would "unjustifiably infer" from Spence's testimony that Jackson was
guilty. See id.

Spence mainly objects to the cautionary instruction the judge gave
to avoid any prejudice to Jackson from Spence's defense. The judge
told the jury: "you could not, if you should disbelieve Mr. Spence's
defense, simply on that basis, convict Mr. Jackson, because Mr. Jack-

                    6
son must be found guilty or not guilty based on the evidence pertain-
ing to him, not simply on whether or not you put credence in Mr.
Spence's defense." Similarly, Jackson's attorney told the jury, "You
heard Mr. [Spence's] story, and I think you know that that is not our
evidence. That is not what I am asking you to consider regarding
Wayne Jackson. Please separate the two." Spence also objects to these
statements because he believes they cast doubt on his credibility and
prejudiced his opportunity for a fair trial. The cautionary instruction
and the comment by Jackson's attorney are fairly unremarkable in the
context of the entire trial. We do not believe they caused the jury to
decide that Spence was guilty.

The district court did not abuse its discretion when it refused to
grant the defendants' motions for severance.

IV.

Spence next argues that the district court erred in allowing Stacy
Gianiodis to testify about her sexual assault. Spence argues that the
testimony should have been excluded under Rule 403 of the Federal
Rules of Evidence because the "probative value[of the evidence was]
substantially outweighed by the danger of unfair prejudice." Fed. R.
Evid. 403. The district court acknowledged that testimony about the
assault would be inflammatory but allowed it because it was related
to "an entire course of conduct" and was admissible under Fed. R.
Evid. 404(b). The court also supported its ruling by noting the rele-
vance of the sexual assault to the victim tampering charge.

In light of the broad deference we afford to trial courts on issues
of admissibility, see United States v. Love, 134 F.3d 595, 603 (4th
Cir.), cert. denied sub nom. Sheppard v. United States, 118 S. Ct.
2332 (1998), we conclude that the district court did not abuse its dis-
cretion in allowing this testimony. First, the sexual assault was rele-
vant to identification because it was one of the only times Mrs.
Gianiodis saw Jackson and Spence without their masks. Second, as
the district court recognized, the sexual assault was relevant to the
victim tampering charge.

Finally, there was other strong evidence against Spence. His "New-
port Pleasure" waist pouch was found at his house; he admitted to his

                     7
old girlfriend that he had been at the scene; Mrs. Gianiodis identified
him; and he appears in a surveillance photo taken at one of the ATM
machines.

V.

Jackson and Spence next argue that the district court erred by
refusing to give several requested instructions. First, Jackson argues
that the court should have given a "missing witness" instruction. Jack-
son wanted Warren Lamont Jackson, a man who was once a suspect
in this case, to testify. A missing witness instruction is available when
a party can show (1) that it is particularly within the power of the
opposing party to produce the witness and (2) that the witness's testi-
mony "would elucidate the transaction[s]" in issue at trial. See United
States v. Brooks, 928 F.2d 1403, 1412 (4th Cir. 1991). Jackson has
not established either element of this test. His argument that Warren
Lamont Jackson could have contradicted the 15-year-old boy's testi-
mony about the car rental is purely speculative. In addition, it is not
clear that the government had any more ability than defendant Jack-
son to produce Warren Jackson to testify. It was not error to refuse
the missing witness instruction.

Both defendants claim that the district court erred in failing to grant
their request for a theory of defense instruction. This point is without
merit because the court delivered the substance of the requested
instruction. Their argument that the court should have defined reason-
able doubt is likewise without merit. Under the law in this Circuit, no
such instruction is authorized "absent a specific request for . . . a defi-
nition from the jury." United States v. Oriakhi, 57 F.3d 1290, 1300
(4th Cir. 1995). The jury did not ask that reasonable doubt be defined.

Finally, Jackson contends that the judge should have delivered a
stronger instruction about identification. The district court instructed
the jury to consider whether "the witness [had] the ability to see the
offender at the time of the offense." Jackson argues that the judge
should have advised the jury to "scrutinize the identification with
great care" and to consider "how long or short a time was available,
how far or close the witness was, how good were lighting conditions,
whether the witness had had occasion to see or know the person in
the past." United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974).

                     8
Holley, the case relied on by Jackson, is distinguishable. It requires
a stronger identification instruction "in the context of a case that con-
tains no evidence of identification except eyewitness testimony." 502
F.2d at 275. Here, unlike in Holley, there is ATM surveillance film
that shows Jackson, shortly after the events at the Gianiodis home,
wearing the leather jacket that Mrs. Gianiodis described; there is evi-
dence that Jackson rented the Gianiodises' car to someone on the
morning following the crime; and, in a search of Jackson's home,
police found a leather jacket resembling the one described by Mrs.
Gianiodis. Because there was independent (non-eyewitness) identifi-
cation evidence, the Holley instruction was not required.

VI.

Jackson asserts that the district court erred in denying his motion
for acquittal because the evidence was insufficient to link him to the
crimes. The following standard governs our sufficiency analysis:
"[t]he verdict of [the] jury must be sustained if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942).

There was sufficient evidence to allow a reasonable juror to convict
Jackson. First, Jackson was captured on surveillance footage using the
victims' ATM cards shortly after the crime. Second, the photo reveals
that Jackson was wearing a rolled up ski mask and jacket fitting the
description given by Mrs. Gianiodis. Third, Jackson rented Mrs.
Gianiodis's car to a young boy the day after the crimes. Fourth, a
leather jacket was found in Jackson's home several days after the
crime. And finally, Mrs. Gianiodis identified Jackson in court as one
of the two perpetrators. Given this range of evidence, we believe the
district court correctly denied Jackson's motion for acquittal.

VII.

Spence argues that the district court erred by refusing to grant his
motion for acquittal, claiming that there was insufficient evidence to
support his conviction for victim tampering (here, attempted murder
by arson).2 We disagree. In order to prove Spence guilty of victim
_________________________________________________________________
2 In addition, Spence argues that, should we reverse his victim tamper-
ing conviction, we should also reverse his convictions on the related
charges of arson and use of a firearm in connection with victim tamper-
ing. See App. brf. at 49.

                     9
tampering in this case, the government was required to show (1) that
Spence attempted to kill the Gianiodises and (2) that he attempted to
kill the Gianiodises to prevent their communication with federal law
enforcement authorities about his possible violations of federal law.
See 18 U.S.C. § 1512 (1994). To prove attempted murder, in turn, the
government had to show that Spence intended to kill the Gianiodises
and that he took a substantial step toward doing so. See United States
v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) (discussing the definition
of attempt generally).

The government met both prongs of the test for attempted murder.
First, Mrs. Gianiodis testified that she heard her fire alarms activate
before either perpetrator left the house. That testimony alone would
have allowed a reasonable juror to conclude that Spence had the req-
uisite intent and took a substantial step necessary to constitute
attempted murder. Second, even if we assume that one man left
before the fire started, there was still sufficient evidence to convict
Spence. Indeed, evidence of intent is plentiful. For example, Spence
told Mrs. Gianiodis that he and his companion would kill her if she
contacted the police. Spence also told Mrs. Gianiodis that they would
kill her if they had to kill her husband. Moreover, Mrs. Gianiodis tes-
tified that Spence (the man in the sweater) returned to her bedroom
shortly before the fire was set, retied her, stuffed a sock in her mouth,
and turned up the radio. Those actions were essential to the success
of any scheme to burn the victims alive, and they constitute the sub-
stantial step necessary to sustain the victim tampering conviction. For
these reasons, we decline to set aside Spence's conviction for victim
tampering.

VIII.

Jackson and Spence also challenge their firearms convictions on
several grounds. They argue that the district court erred by allowing
the government to prosecute each of them on two separate 924(c)
counts, one in connection with the attempted bank robbery count and
one in connection with the victim tampering count.

We have previously allowed prosecution and sentencing for multi-
ple uses of a firearm during one criminal episode. See United States
v. Camps, 32 F.3d 102, 106 (4th Cir. 1994). The defendants ask this

                     10
panel to reject Camps, something we cannot do. See United States v.
Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (noting that only an en
banc court may overturn a previous panel's published decision).

The defendants also argue that there is no evidence that they used
or carried firearms in connection with the victim tampering charge.
The defendants were armed throughout the evening and used the guns
to subjugate their victims. This alone, as the district court noted,
might suffice to "satisfy the offence." But, as the district court also
noted, it was reasonable to infer that the defendants were carrying the
guns at the time of the arson. Mrs. Gianiodis testified that the man
who retied her prior to the activation of the fire alarm was armed. In
fact, Mrs. Gianiodis testified that the men were always armed. From
this evidence, a reasonable jury could have concluded that Spence and
Jackson executed the arson while armed.

IX.

Spence argues that the district court erred by sentencing him as a
career offender. Specifically, Spence objects to the court's treatment
of one of his prior convictions as a crime of violence for sentencing
purposes. On this issue, we review the district court's determination
de novo. See United States v. Kirksey , 138 F.3d 120, 122 (4th Cir.),
cert. denied, 119 S. Ct. 122 (1998).

To sentence a defendant as a career offender, a district court must
find that the defendant has had "at least two prior felony convictions
of either a crime of violence or a controlled substance offense."
U.S.S.G. § 4B1.1. The Sentencing Guidelines define a "crime of vio-
lence" as "any offense . . . punishable by imprisonment for a term
exceeding one year, that . . . has as an element the use, attempted use,
or threatened use of physical force against the person of another."
U.S.S.G. § 4B1.2.

Sometimes it is relatively easy to determine whether a prior convic-
tion constitutes a crime of violence. Homicide, for instance, necessar-
ily involves "the use of physical force against the person of another."
Sometimes, however, it will not be clear from the conviction itself
whether the underlying conduct would render it a crime of violence.
In such circumstances, we have held that a district court may look to

                    11
the charging papers to aid in its determination. See Kirksey, 138 F.3d
at 124-25. In this case, one of Spence's prior convictions was for
common law battery. Because common law battery "embraces a wide
range of conduct," see id., the district court looked to the charging
papers underlying the conviction. Those papers revealed that the
charges had been brought because Spence had hit his girlfriend in the
mouth and his baby in the head. Spence pled guilty to those charges.
Given these circumstances, it is proper to count Spence's common
law battery conviction as a crime of violence.

X.

Finally, Jackson argues that the federal three-strikes law, 18 U.S.C.
§ 3559(c)(1) (1994), under which he received a life sentence, violates
his substantive and procedural due process rights. He cites no cases
on point, and we reject his argument.

XI.

The convictions and sentences of Wayne Jackson and Daniel
Spence are affirmed.

AFFIRMED

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