           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0059P (6th Cir.)
                    File Name: 00a0059p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                               ;
                                
 UNITED STATES OF AMERICA,
                                
           Plaintiff-Appellee,
                                
                                
                                             No. 98-5609
            v.
                                
                                 >
 JESSIE LEE WALDON,             
          Defendant-Appellant. 
                               1

       Appeal from the United States District Court
    for the Western District of Kentucky at Louisville.
    No. 97-00064—John G. Heyburn II, District Judge.
                  Argued: December 10, 1999
             Decided and Filed: February 17, 2000
  Before: BATCHELDER and MOORE, Circuit Judges;
             O’MALLEY, District Judge.*
                      _________________
                           COUNSEL
ARGUED:     Frank P. Campisano, JARRETT &
CAMPISANO, Louisville, Kentucky, for Appellant. John L.

    *
     The Honorable Kathleen O’Malley, United States District Judge for
the Northern District of Ohio, sitting by designation.

                                  1
2       United States v. Waldon                            No. 98-5609         No. 98-5609                    United States v. Waldon      19

Caudill, ASSISTANT UNITED STATES ATTORNEY,                                                           CONCLUSION
Louisville, Kentucky, for Appellee. ON BRIEF: Frank P.
Campisano, JARRETT & CAMPISANO, Louisville,                                         The district court properly denied Waldon’s motion to
Kentucky, for Appellant. John L. Caudill, Terry M. Cushing,                    suppress, his motion to instruct the jury on the lesser offense
ASSISTANT UNITED STATES ATTORNEYS, Louisville,                                 of bank larceny, and his motion for mistrial. In addition,
Kentucky, for Appellee. Jessie Lee Waldron, Beaver, West                       when the district court sentenced Waldon, it properly added
Virginia, pro se.                                                              two points for obstruction of justice and three points pursuant
                                                                               to §4A1.1(f). Accordingly, Waldon’s conviction and sentence
                        _________________                                      are both AFFIRMED.
                            OPINION                                              IT IS SO ORDERED.
                        _________________
   O’MALLEY, District Judge. Jessie Lee Waldon appeals
his conviction and sentence for bank robbery in violation of
18 U.S.C. §2113(a). On appeal, Waldon raises five issues.
First, Waldon challenges the district court’s denial of his
motion to suppress evidence. Second, Waldon challenges the
district court’s failure to instruct the jury that, as an
alternative to convicting him of bank robbery, it could convict
him of the lesser included offense of bank larceny. Third,
Waldon asserts the district court should have granted his
motion for a mistrial, after two jurors observed him in
handcuffs and shackles as he was being transported from the
courthouse. Fourth, Waldon argues the district court erred
when it enhanced his sentence for obstruction of justice,
pursuant to U.S.S.G. §3C1.1. And fifth, Waldon asserts the
district court erred when it added an additional 1three criminal
history points pursuant to U.S.S.G. §4A1.1(f). Because we


    1
       The first four grounds for appeal listed above were raised by
Waldon’s appellate counsel. Waldon then filed a motion pro se seeking
leave to add additional grounds for appeal. In this motion, Waldon
suggested that his additional grounds included, inter alia: (1) the district
court’s failure to exclude certain expert trial testimony; (2) defense
counsel’s ineffective assistance for failing to (a) include evidence of
police radio transmissions in connection with the motion to suppress, and
(b) allow Waldon to assist in his own defense; and (3) other of the district
court’s evidentiary rulings. This Court granted Waldon leave to file a
supplemental brief. In his supplemental brief, however, the only
additional issue Waldon raised is whether the district court erred during
18   United States v. Waldon                     No. 98-5609      No. 98-5609                      United States v. Waldon         3

interpreted §3C1.1 properly and did not err when it enhanced      find none of Waldon’s assertions of error are well-taken, we
Waldon’s sentence for obstruction of justice.                     AFFIRM both the conviction and the sentence in this case.
E. Multiple Related Offenses Under U.S.S.G. §4A1.1(f).                                   JURISDICTION
  Finally, Waldon filed a pro se supplemental brief in which        The district court had subject matter jurisdiction over this
he argues the district court erred when it added an additional    case pursuant to 18 U.S.C. §3231, and this Court has
three criminal history points, pursuant to U.S.S.G. §4A1.1(f),    jurisdiction over Waldon’s timely appeal pursuant to 28
based on his conviction for five counts of bank robbery in        U.S.C. §1291 and 18 U.S.C. §3742(a).
August of 1989. Sentencing Guideline §4A1.1(f) states that
a district court should:                                                          FACTUAL BACKGROUND
  Add 1 point for each prior sentence resulting from a              On July 18, 1997, at 10:21 a.m., a man wearing a black ski
  conviction of a crime of violence that did not receive any      mask entered the Fifth Third Bank in Louisville, Kentucky,
  points under (a), (b), or (c) above because such sentence       and ordered the bank’s employees and customers to get down
  was considered related to another sentence resulting from       on the floor. The man told several bank tellers to open their
  a conviction of a crime of violence, up to a total of 3         cash drawers, from which he took approximately $5,405. The
  points for this item. Provided, that this item does not         man made no comments regarding a weapon, nor did he
  apply where the sentences are considered related because        display a weapon during the robbery. As the man left the
  the offenses occurred on the same occasion.                     bank, a dye pack that had been disguised as a roll of twenty-
                                                                  dollar bills exploded, covering the money with red dye.
U.S.S.G. §4A1.1(f) (emphasis in original).
                                                                     Based on descriptions that were given by several bank
   In this case, Waldon’s criminal history includes five          employees, the police identified the suspect as being an
robbery convictions for offenses that he committed on             African-American male of slender or medium build, between
separate occasions, but which were consolidated for               5'7" and 6'0" tall, and weighing between 140-150 pounds. He
sentencing and treated as related. Because Waldon received        was wearing a blue baseball cap, gloves, a nylon jacket, blue
a fifty-five month sentence of imprisonment for each of these     jeans, and tennis shoes. The police also knew – thanks to the
five robberies (which Waldon served concurrently), the            work of a loyal bank customer who followed the robber as he
district court properly added a total of three points for the     left the crime scene – that the suspect was driving a green
prior sentence, pursuant to §4A1.1(a). See U.S.S.G.               Ford Mustang that was last seen traveling on LaGrange Road.
§4A1.1(a) (“[a]dd 3 points for each prior sentence of
imprisonment exceeding one year and one month”).                    After hearing a police radio dispatch about the bank
Furthermore, the district court properly added an additional      robbery, George Stewart, a Jefferson County police officer
three points pursuant to §4A1.1(f), because four of these five    who was patrolling in the area, began driving down LaGrange
sentences did not result in any additional points under           Road looking for the green Mustang. Officer Stewart also
§4A1.1(a). See U.S.S.G. §4A1.1(f), applic. note 6 (providing
an example that is virtually identical to this case). Thus, the
district court did not err when it added an additional three
                                                                  sentencing when it applied Sentencing Guideline 4A1.1(f). The Court
criminal history points when sentencing Waldon, pursuant to       does not address the other issues listed in Waldon’s pro se motion
§4A1.1(f).                                                        because he did not discuss them in his supplemental brief.
4    United States v. Waldon                     No. 98-5609      No. 98-5609                     United States v. Waldon      17

learned from the dispatch that the suspect had discarded his      to the time of the crime and arrest, as opposed to during the
nylon jacket, and that the red dye pack had exploded. As he       criminal investigation afterwards. Waldon notes that he made
was driving, Officer Stewart noticed a man standing at a bus      his telephone call to Simmons as soon as he was able, after he
stop, on the opposite side of the road, who generally matched     was arrested, and before the police had pursued the bulk of
the description of the bank robber. The person at the bus stop    their criminal investigation.
was an African-American male of medium build who, like the
bank robber, was wearing a blue baseball cap and blue jeans.         The Sentencing Guidelines make clear that neither of
Officer Stewart also noticed that the man was unwilling to        Waldon’s arguments is well-taken. The application notes to
make eye contact with him. Suspecting that the man might be       §3C1.1 provide the following example of the type of conduct
the bank robber, Officer Stewart drove to the next                that warrants an enhancement for obstruction of justice:
intersection, turned around, and entered a church parking lot     “directing or procuring another person to destroy or conceal
behind the bus stop.                                              evidence that is material to an official investigation . . . or
                                                                  attempting to do so.” U.S.S.G. §3C1.1, applic. note 4(d)
   Officer Stewart then approached the man from behind,           (emphasis added). That Waldon was unsuccessful in his
greeted him, explained that he was investigating a bank           attempt to persuade Simmons to hinder the criminal
robbery, and asked if he could see identification. As the man     investigation does not relieve Waldon from the mandate of
took his wallet from his pants pocket and removed his             §3C1.1. Further, note 4(d) states that, if the defendant’s
driver’s license from the wallet, Officer Stewart noticed that    obstructive actions “occurred contemporaneously with arrest
there were red dye stains on his fingertips, on his pants, and    (e.g., attempting to swallow or throw away a controlled
around his pockets. The man tendered his wallet, but Officer      substance), it shall not, standing alone, be sufficient to
Stewart never took possession of the wallet or driver’s           warrant an adjustment for obstruction unless it resulted in a
license, even briefly; rather, Officer Stewart asked the man to   material hindrance to the official investigation or prosecution
remove his identification from the wallet, and then viewed the    of the instant offense or the sentencing of the offender.” Id.
driver’s license as the man held it out.                          (emphasis added). The district court found that Waldon made
                                                                  the telephone call at issue in this case six hours after his
  Upon seeing the red dye stains on the man’s hands and           arrest. Based on this finding, the district court concluded that
clothing, Officer Stewart called for backup. Shortly              Waldon’s actions were not an immediate attempt to jettison
thereafter, two other officers arrived at the scene. One of the   or hide inculpatory evidence that occurred at or near the time
other officers, Robert Flynn, observed a bulge in the man’s       of his arrest. We agree.
sock. Concerned that the bulge might be a weapon, Officer
Flynn lifted the man’s pant leg and discovered a roll of money       In this case, Simmons testified that Waldon called him from
in the man’s sock, amounting to approximately $2,000.             jail and asked him to report as stolen the Ford Mustang that
Officer Stewart then arrested the man, defendant Jessie           Waldon had used as the getaway vehicle. This telephone call
Waldon.                                                           clearly qualifies as an attempt on the part of Waldon to direct
                                                                  another person to conceal evidence material to the
  Subsequently, Officer Flynn located a green Ford Mustang        investigation. Further, it is clear that Waldon made this
across the street from the bus stop, in an apartment complex      attempt to conceal material evidence long after he was
parking lot. The license plates on the Mustang matched the        arrested, not at the time Officer Stewart arrested him at the
plates that had been recorded by a witness at the scene of the    bus stop. Accordingly, we conclude that the district court
crime. The Mustang was registered in the name of Louis
16   United States v. Waldon                      No. 98-5609      No. 98-5609                     United States v. Waldon        5

both jurors regarding any potential prejudice to Waldon, and       Simmons. Later that same day, Waldon made a telephone call
the two jurors assured the district court that their view of       from jail to Simmons and asked Simmons to report that the
Waldon in handcuffs and shackles made no difference                Mustang had been stolen. Simmons refused, and, instead,
whatsoever in their decision. Under these circumstances,           informed the police he had received the telephone call from
Waldon cannot carry his burden of showing actual prejudice.        Waldon.
The district court did not abuse its discretion when it denied
Waldon’s motion for mistrial.                                        A federal grand jury charged Waldon with bank robbery in
                                                                   violation of 18 U.S.C. §2113(a). Prior to trial, Waldon
D. Obstruction of Justice Under U.S.S.G. §3C1.1.                   moved to suppress all evidence discovered after Officer
                                                                   Stewart approached him at the bus stop. A Magistrate Judge
   Waldon argues the district court erred when it enhanced his     recommended that the motion be denied, and the district court
sentence for obstruction of justice, based on his unsuccessful     followed this recommendation. The case then went to trial
attempt to persuade Simmons, the owner of the green                before a jury. During the trial, Waldon requested the district
Mustang, to report the car as stolen. Sentencing Guideline         court to instruct the jury that it could choose to convict him of
§3C1.1 provides that a defendant’s offense level should be         the lesser offense of bank larceny, a violation of 18 U.S.C.
increased two levels “[i]f the defendant wilfully obstructed or    §2113(b), instead of bank robbery. The district court denied
impeded . . . the administration of justice during the             this motion, and the jury began its deliberations on the bank
investigation, prosecution, or sentencing of the instant           robbery charge. After the first day of deliberations had ended,
offense.” A district court’s determination that a defendant has    two jurors were leaving the courthouse to return home when
obstructed justice is a mixed question of law and fact. This       they happened to observe Waldon, in handcuffs and shackles,
Court reviews all determinations of fact for clear error, and it   as he was being placed into a police vehicle. The next day,
reviews the application of the sentencing guidelines to those      Waldon moved for a mistrial. The district court denied this
facts de novo. United States v. McDonald, 165 F.3d 1032,           motion, and the jury subsequently convicted Waldon of the
1034 (6th Cir. 1999).                                              bank robbery charge.
  In a Presentence Investigation Report to the district court,       The district court sentenced Waldon to serve seventy
the United States Probation Officer concluded that a sentence      months of incarceration followed by a three-year period of
enhancement for obstruction of justice was inappropriate.          supervised release, and to pay restitution of $1,390. In
The district court disagreed and imposed a two-level               computing Waldon’s sentence, the district court included a
enhancement for obstruction of justice. Waldon insists the         two level enhancement for obstruction of justice, pursuant to
probation officer was correct and that the court erred when it     Sentencing Guideline §3C1.1, based on Waldon’s attempt to
imposed the enhancement. Waldon advances two bases for             persuade Simmons to report the green Mustang as stolen. The
his position. First, Waldon asserts that a district court may      district court also added an additional three criminal history
enhance a sentence for obstruction of justice only when            points to Waldon’s sentence, pursuant to Sentencing
obstruction actually occurred. Waldon notes that there was no      Guideline §4A1.1(f), based on Waldon’s earlier conviction
actual obstruction of justice in this case, because his actions    for five counts of bank robbery in August of 1989.
did not actually hinder the criminal investigation – Simmons
did not follow Waldon’s suggestion. Second, Waldon argues
that a court may not enhance a sentence for obstruction of
justice when the allegedly obstructive actions occurred close
6     United States v. Waldon                      No. 98-5609      No. 98-5609                    United States v. Waldon      15

                         ANALYSIS                                     prejudice where “[t]he conditions under which
                                                                      defendants were seen were routine security measures
A. Motion to Suppress.                                                rather than situations of unusual restraint such as
                                                                      shackling of defendants during trial.” * * *
  Waldon argues that the district court erred when it adopted            In the instant case, defendants were inadvertently
the Magistrate Judge’s recommendation and denied his                  observed in shackles while being transported by the
motion to suppress the evidence that Officer Stewart                  marshals and the jury learned of defendants’ custodial
discovered during his encounter with Waldon at the bus stop.          status through trial testimony. The record fails, however,
This Court reviews the district court’s factual findings in a         to support defendants’ claims of inherent prejudice
suppression hearing for clear error and reviews the district          warranting mistrial. Their claims are further undermined
court’s conclusions of law de novo. United States v. Leake,           by the district court’s instruction to the jury that the
95 F.3d 409, 416 (6th Cir. 1996). Furthermore, this Court             custodial status of the defendants was not indicative of
reviews de novo the district court’s determination as to              guilt or innocence and, therefore, should be disregarded.
whether certain facts establish a seizure or detention in             There is the presumption that juries will follow such
violation of the Fourth Amendment. United States v.                   curative instructions. * * * Because defendants failed to
Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). “[A]s a                 show prejudice, we find defendants’ contention that the
general matter determinations of reasonable suspicion and             district court abused its discretion in denying their
probable cause should be reviewed de novo on appeal.”                 motions for mistrial meritless.
Ornelas v. United States, 517 U.S. 690, 699 (1996).
                                                                    Moreno, 933 F.2d at 368 (some citations omitted).
  This Court has explained that there are three types of
permissible encounters between the police and citizens: “(1)           Critically, in Moreno, we cited with approval United States
the consensual encounter, which may be initiated without any        v. Pina, 844 F.2d 1 (1st Cir. 1988). In Pina, the First Circuit
objective level of suspicion; (2) the investigative detention,      Court of Appeals undertook the following analysis:
which, if non-consensual, must be supported by a reasonable,
articulable suspicion of criminal activity; and (3) the arrest,       only three of the jurors saw the defendant in shackles and
valid only if supported by probable cause.” United States v.          the exposure was very brief. Each of the three jurors was
Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted).         individually questioned by the judge and each insisted
In this case, Waldon argues that his encounter with Officer           that the encounter would have no effect on their capacity
Stewart was an investigative detention from the moment that           to remain unbiased. They were also instructed not to
Officer Stewart first approached him at the bus stop. Waldon          discuss the matter with anyone. Under these
thus contends that, unless Officer Stewart can articulate a           circumstances, the exposure was not “so inherently
reasonable suspicion of criminal activity, any evidence seized        prejudicial” as to deny the defendant a fair trial.
during and after this encounter must be suppressed.
                                                                    Id. at 8.
   The primary basis for Waldon’s assertion that his
interaction with Officer Stewart was, from the start, an               In this case, only one juror actually saw Waldon in
investigative detention and not a consensual encounter is that      shackles, and that juror mentioned it contemporaneously to
Officer Stewart suspected him of wrongdoing even before             only one other juror; the two jurors spoke about it with no one
their interaction began. Essentially, Waldon suggests that it       else. The event occurred outside of the courtroom as part of
is the nature of the police officer’s suspicions, rather than the   a routine security measure, the district court properly queried
14    United States v. Waldon                      No. 98-5609      No. 98-5609                     United States v. Waldon        7

  The next day, the jury deliberated for another half hour and      nature of the interaction between the officer and the citizen,
announced it had a verdict. Just before the district court took     that defines the character of the encounter. This is simply
the verdict, Waldon revealed what had happened the night            wrong. We have held that law enforcement officers may
before. The district court then called the foreman and the          approach an individual and ask general questions without
other juror, separately, to sidebar – before the verdict was        having any reasonable suspicion of criminal activity, so long
disclosed – and asked for their versions of what happened.          as the officers refrain from the type of intimidating behavior
Both stated that it was a brief event and they had not              that would lead a reasonable person to believe that the person
mentioned it to any other jurors. When the district court           was not free to leave. See United States v. Peters 194 F.3d
asked if, at the time they saw Waldon, they had already made        692, 698 (6th Cir. 1999) (“[a]bsent coercive or intimidating
up their minds about the verdict (which the district court still    behavior which negates the reasonable belief that compliance
did not know), they each said yes; when the court asked if          is not compelled, the [officer’s] request for additional
their having seen Waldon in handcuffs had affected their            identification and voluntarily given information from the
decision in any way, they each said no. The district court then     defendant does not constitute a seizure under the Fourth
asked for and accepted the jury’s guilty verdict and denied         Amendment”); see also Florida v. Bostick, 501 U.S. 429,
Waldon’s subsequent motion for mistrial. This Court will not        434-35 (1991) (explaining that “even when officers have no
disturb a district court’s denial of a defendant’s motion for a     basis for suspecting a particular individual, they may
mistrial absent a showing of an abuse of discretion. United         generally ask questions of that individual, ask to examine the
States v. Moreno, 933 F.2d 362, 367 (6th Cir. 1991), cert.          individual’s identification, and request consent to search his
denied sub nom Morris v. United States, 502 U.S. 895 (1991).        or her luggage – as long as the police do not convey a
                                                                    message that compliance with their requests is required”)
   Generally, a criminal defendant “should not be compelled         (citations omitted). Whether an encounter between a police
to go to trial in prison or jail clothing because of the possible   officer and a citizen is consensual depends on the officer’s
impairment” of the presumption of innocence guaranteed as           objective behavior, not on any subjective suspicion of
part of a defendant’s due process right to a fair trial. Estelle    criminal activity. We know of no legal precedent suggesting
v. Williams, 425 U.S. 501, 504 (1976). This holding extends         a police officer can engage in a consensual encounter only
to a defendant’s appearance in handcuffs and shackles. Based        with citizens whom he does not suspect of wrongdoing. See
on Estelle, this Court has set out a specific mode of analysis      Whren v. United States, 517 U.S. 806, 813 (1996)
for Waldon’s “prison garb” claim:                                   (“[s]ubjective intentions play no role in ordinary,
                                                                    probable-cause Fourth Amendment analysis”); United States
     We will not disturb the district court’s denial of             v. Rose, 889 F.2d 1490, 1493 (6th Cir. 1989) (“t]he subjective
  defendants’ motion for mistrial absent a showing of               intent of the officers is relevant to an assessment of the fourth
  abuse of discretion. Exposure of the jury to a defendant          amendment implications of police conduct only to the extent
  in shackles requires a mistrial only when the exposure is         that that intent has been conveyed to the person confronted”)
  so “inherently prejudicial” as to deny the defendant’s            (citing United States v. Mendenhall, 446 U.S. 544, 554 n.6
  constitutional right to a fair trial. United States v. Pina,      (1980).
  844 F.2d 1, 8 (1st Cir. 1988). We have distinguished the
  inherent prejudice to a defendant who is shackled while              The error of Waldon’s argument is amply demonstrated in
  in the courtroom from a defendant who has been                    our case law. In Peters, for example, a law enforcement
  observed in shackles for a brief period elsewhere in the          officer dressed in civilian clothing approached an individual
  courthouse. Defendants are required to show actual                at a train station, identified himself as a police officer, and
8    United States v. Waldon                      No. 98-5609      No. 98-5609                     United States v. Waldon      13

asked to see the individual’s bus ticket, train ticket, or other   down on the floor, and demanded money from the tellers.
identification. Peters, 194 F.3d at 695, 698. The officer did      This is exactly the type of behavior that is reasonably
not “engage in any overbearing or coercive activity in making      calculated to put other persons in fear and create the
these requests” and there was no evidence suggesting the           impression that resistance would be forcefully overcome. It
officer conveyed a message that compliance with his requests       is immaterial that Waldon did not brandish a weapon. In
was required. Id. at 698. Based on the officer’s conduct, this     Perry, the defendant demanded money from a teller and
Court concluded that the conversation at the train station was     opened his coat, implying he had a weapon in his pocket, but
a consensual encounter. We did not in any way examine the          never actually brandished a weapon. The Perry court
officer’s suspicions before the encounter, or suggest any such     concluded:
suspicions might be relevant.
                                                                     We need not reach the issue of whether bank larceny is
   Similarly, in this case, Officer Stewart simply approached        a lesser included offense of bank robbery, since there is
Waldon at the bus stop, mentioned that he was investigating          no evidence in the record to support a finding that the
a bank robbery, and asked Waldon what he was doing in the            lesser included offense of bank larceny, which lacks the
area. Nothing in the record indicates that Officer Stewart           element of force and violence or intimidation, was
conducted himself in an intimidating or coercive manner.             committed while the greater offense of bank robbery was
Moreover, Officer Stewart gave Waldon no indication he was           not. In short, no rational jury could have found that the
not free to leave and to refuse to respond to questioning. For       teller in this case handed over the money to the defendant
example, when Officer Stewart asked Waldon for his                   out of any other motivation than fear, and the district
identification, Waldon voluntarily took out his wallet and           court did not err in refusing to give the requested
attempted to hand it over. Officer Stewart, however, refused         instruction.
to take the wallet directly from Waldon; instead, he asked
Waldon to take the identification out of his wallet on his own,    Id. at 310-311 (footnote and citation omitted).
thereby avoiding any limit on Waldon’s freedom to leave. It
was at this point that Officer Stewart noticed the red dye           The analysis in Perry applies equally to the circumstances
stains on Waldon’s fingertips. Because law enforcement             in this case. Waldon cannot show that a rational jury could
officers may approach individuals and ask them questions           convict him of bank larceny but acquit him of bank robbery.
without having any reasonable suspicion of criminal activity,      Thus, the district court did not err when it refused to give to
and because Officer Stewart did not act in any way that            the jury an instruction on bank larceny, regardless of whether
suggested Waldon was not free to leave, we must conclude           bank larceny is properly characterized as a lesser included
that the conversation between Officer Stewart and Waldon           offense of bank robbery.
was a consensual encounter – at least until the point when
Officer Stewart noticed the red dye stains on Waldon’s             C. Motion for a Mistrial.
fingertips, pants, and around his pockets, which heightened
the officer’s level of inquiry.                                      At the end of the first day of deliberations, the jury foreman
                                                                   and another juror exited the courthouse together and walked
  Once Officer Stewart noticed these red dye stains, he            to their cars. In the process, the foreman saw Waldon,
certainly had reasonable suspicion to believe that Waldon had      wearing shackles and handcuffs, being placed into a police
been involved in the robbery. A law enforcement officer has        car. The foreman mentioned this to the other juror, who did
reasonable suspicion to conduct an investigative stop if he is     not see it herself. Other than the foreman’s announcement of
                                                                   his observation, the two jurors did not discuss the issue.
12       United States v. Waldon                           No. 98-5609        No. 98-5609                     United States v. Waldon        9

U.S. 120 (1998) (discussing at length the analyses of this                    able to articulate “‘some minimal level of objective
question undertaken by different courts).                                     justification’ for making the stop.” United States v. Sokolow,
                                                                              490 U.S. 1, 7 (1989) (quoting INS v. Delgado, 466 U.S. 210,
  This Court has not yet decided whether the elements of                      217 (1984)). Within minutes of approaching Waldon, Officer
bank larceny are a subset of the elements of bank robbery.                    Stewart obtained several pieces of objective evidence making
Indeed, we once had the opportunity to examine this issue, but                it reasonable for him to conduct an investigative stop: (1)
affirmatively declined to do so.3 United States v. Perry, 991                 Waldon had red dye stains on his fingertips, pants, and around
F.2d 304, 311 (6th Cir. 1993). We will again decline to do                    his pockets; (2) Waldon was near the area where the bank
so here, because Waldon cannot meet the second prong of the                   robber was last seen; (3) Waldon generally matched
two-part test for entitlement to a charge of a lesser included                witnesses’ descriptions of the bank robber; and (4) Waldon
offense.                                                                      gave evasive answers when asked what he was doing in the
                                                                              area. Thus, Officer Stewart was justified in quickly changing
   Even if we agreed with Waldon that the elements of bank                    his consensual encounter with Waldon into an investigatory
larceny are a subset of the elements of bank robbery, Waldon                  stop.
is still not entitled to a bank larceny jury instruction unless he
can also show that the evidence at trial would allow a rational                  Waldon also argues that, even if his encounter with Officer
jury to find him guilty of bank larceny but not guilty of bank                Stewart was initially consensual, it was still inappropriate
robbery. Waldon cannot make this showing. “Intimidation                       because Officer Stewart approached him at the bus stop based
in the context of 18 U.S.C. §2113(a) is defined as an act by a                solely on his race. The facts of this case make it clear,
defendant ‘reasonably calculated to put another in fear,’ or                  however, that Officer Stewart did not engage in illegal “racial
‘conduct and words . . . calculated to create the impression                  targeting” or “racial profiling” when he approached Waldon.
that any resistance or defiance by the [individual] would be                  Common sense dictates that, when determining whom to
met by force.’” United States v. Lajoie, 942 F.2d 699, 701                    approach as a suspect of criminal wrongdoing, a police officer
n.5 (10th Cir. 1991), cert. denied, 502 U.S. 919 (1991)                       may legitimately consider race as a factor if descriptions of
(citations omitted). The evidence at trial was that Waldon                    the perpetrator known to the officer include race. Officer
wore a mask over his face, ordered everyone in the bank to lie                Stewart approached Waldon because his clothing, appearance,
                                                                              location, and race coincided with published descriptions. The
                                                                              district court did not err when it refused to suppress the
     3
                                                                              evidence that Officer Stewart discovered as a result of his
      On a few occasions, this Court has assumed that bank larceny is a       encounter with Waldon at the bus stop.
lesser offense included in bank robbery, e.g. United States v. Smith, 1993
WL 303359 at *1 (6th Cir. Aug. 9, 1993) (the defendant “entered a plea        B. Jury Instruction for a Lesser Included Offense.
of not guilty to the charge of bank robbery” and “admitted his guilt to the
lesser included offense of bank larceny”); United States v. Langh, 1993
WL 20547 at *2 (6th Cir. Feb. 1, 1993), cert. denied, 508 U.S. 919 (1993)        The jury convicted Waldon of violating 18 U.S.C. §2113(a)
(the defendant “was found guilty of the lesser included offense of bank       (bank robbery). When the district court met with the parties
larceny”), but we have never examined the first prong with the same level     to discuss jury instructions, Waldon asked the court to instruct
of analysis as have the Mosley, Brittain, and other courts. This              the jury that it could convict him, instead, of a lesser included
assumption has more recently been cast into doubt, moreover, because we       offense, 18 U.S.C. §2113(b) (bank larceny). Waldon argues
have affirmatively concluded that specific intent is not an element of bank
robbery under §2113(a). See United States v. Gonyea, 140 F.3d 649, 654        that the district court erred when it refused.
(6th Cir. 1998) (“we hold that the first paragraph of §2113(a) describes
a general intent crime”).
10       United States v. Waldon                            No. 98-5609         No. 98-5609                      United States v. Waldon       11

   Waldon is correct that, if a defendant asks for a lesser                       any savings and loan association . . . . [s]hall be fined not
included offense instruction, it is generally reversible error                    more than $5,000 or imprisoned not more than twenty
not to give it. See Keeble v. United States, 412 U.S. 205, 208                    years, or both.
(1973) (“it is now beyond dispute that the defendant is
entitled to an instruction on a lesser included offense if the                  (Emphasis added). In contrast, 18 U.S.C. §2113(b), provides
evidence would permit a jury rationally to find him guilty of                   in relevant part:
the lesser offense and acquit him of the greater”). The reason
for this is to “ensure[] that the jury will accord the defendant                  Whoever takes and carries away, with intent to steal or
the full benefit of the reasonable-doubt standard.” Beck v.                       purloin, any property or money or any other thing of
Alabama, 447 U.S. 625, 634 (1980). A defendant is not                             value exceeding $100 belonging to, or in the care,
entitled to a lesser offense instruction, however, unless he can                  custody, control, management, or possession of any bank,
meet both prongs of a two-part test: (1) the elements of the                      credit union, or any savings and loan association, shall be
lesser offense are a subset of the elements of the charged                        fined not more than $5,000 or imprisoned not more than
offense; and (2) the evidence would allow a rational jury to                      ten years, or both.
find the defendant guilty of the lesser offense but not guilty of
the charged offense. Schmuck v. United States, 489 U.S. 705,                    (Emphasis added). Those Circuits that hold bank larceny is
716 (1989); Keeble, 412 U.S. at 208; see Fed. R. Crim. P.                       not a lesser included offense base their rulings on the fact that
31(c) (permitting a jury to convict a defendant of a lesser                     the element of specific intent is explicitly contained in
offense as long as it is “necessarily included in the offense                   §2113(b), but not §2113(a). Those Circuits reaching the
charged”). “Where the lesser offense requires an element not                    opposite conclusion, on the other hand, generally premise
required for the greater offense, no instruction is to be given                 their conclusion on the belief that specific intent to steal is an
under Rule 31(c).” Schmuck, 489 U.S. at 716.                                    implied element of bank robbery. As the Tenth Circuit Court
                                                                                of Appeals explained in United States v. Brittain, 41 F.3d
   Regarding the first prong – whether the elements of bank                     1409 (10th Cir. 1994):
larceny are a subset of the elements of bank    robbery – the
federal Circuit Courts of Appeals are split.2 The offense with                    in circuits in which specific intent is not an element of
which Waldon was charged, 18 U.S.C. §2113(a), provides in                         section 2113(a), section 2113(b) is not technically a
relevant part:                                                                    lesser included offense of section 2113(a). This is
                                                                                  because each offense would have an element that the
  Whoever, by force and violence, or by intimidation,                             other lacked: section 2113(a) would require a finding that
  takes, or attempts to take, from the person or presence of                      the defendant accomplished the taking either by using
  another any property or money or any other thing of                             force or violence or by acting in an intimidating manner,
  value belonging to, or in the care, custody, control,                           while section 2113(b) would require a finding that the
  management, or possession of , any bank, credit union, or                       defendant acted with an intent to steal while section
                                                                                  2113(a) would not.

     2
                                                                                Id. at 1415 n.7 (quoting Modern Fed. Jury Instrs. ¶53.01 at
      This split may soon be resolved. See Carter v. United States, 120         53-22 (Matthew Bender 1994)). See also United States v.
S. Ct. 613 (1999) (granting a petition for a writ of certiorari to the United   Mosley, 126 F.3d 200 (3rd Cir. 1997), cert. granted in part,
States Court of Appeals for the Third Circuit, which concluded that bank
larceny, 18 U.S.C. 2113(b), is not a lesser-included offense of bank            118 S. Ct. 1298 (1998), order granting cert. vacated, 525
robbery, 18 U.S.C. 2113(a)).
