UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5139

GERALD PHILLIPS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-93-455-JFM)

Argued: April 5, 1996

Decided: June 27, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and

MICHAEL, Senior United States District Judge

for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part and vacated in part by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Christopher Bittner, Glen Burnie, Maryland, for

Appellant. Jefferson McClure Gray, Assistant United States Attorney,

Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,

United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gerald Phillips was convicted by a jury of bank robbery, 18 U.S.C.

§ 2113(a), and bank larceny, 18 U.S.C. § 2113(b). The district court

sentenced Phillips to 210 months imprisonment on the bank robbery

count and to 120 months imprisonment on the bank larceny count, the

bank larceny term to run concurrent with the bank robbery term. Phillips challenges his convictions on the grounds that the prosecutor

made improper and prejudicial comments in closing argument. Phillips also challenges several evidentiary and legal rulings made by the

district court. For the reasons stated herein, we affirm in part and

vacate in part.

I.

The government ultimately secured conviction of Phillips after two

unsuccessful attempts. The first trial ended in a mistrial after a detective made an inadvertent reference during direct examination to Phillips's having a "record." The defendant moved for a mistrial based

upon the remark and the district court granted the motion. A second

trial was held but the jury could not reach a verdict. Phillips was convicted after a third trial.

The evidence adduced at the third trial, viewed in the light most

favorable to the government, shows that at 12:30 p.m. on November

15, 1993, Phillips and his sister engaged the services of a "hacker"

taxi-driver who operated a Ford van. The driver eventually drove

Phillips and his sister to the vicinity of a branch office of the Mercantile Bank and Trust Company.

At 1:25 p.m., the robber entered the bank and approached the teller

station of Lee Boatwright. The robber asked Mr. Boatwright for some

quarter and nickel coin wrappers. Mr. Boatwright handed two

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bunches of wrappers to the robber who then stepped away to a service

counter. Mr. Boatwright noticed that the man requesting the wrappers

had a chipped and decayed upper front tooth. A few moments later,

the robber approached the teller station of Patricia Wood. He handed

her a note which read, "There's a gun pointed at you put money in

the bag and no dye packs or I start shooting Big bills only!" Wood

surrendered approximately $1,600 in small bills to the robber whom

Wood recognized to be the person who had asked Mr. Boatwright for

the coin wrappers. The robber took the money and fled the bank. Mr.

Boatwright and another teller ran after the robber and saw him jump

into a parked Ford van. The tellers were able to take down part of the

van's license plate number which was later found to match the van

that Phillips had hired.

Phillips spent the afternoon of November 15 at the apartment of his

former girlfriend, Lynette Davis. After learning that the police suspected him of the robbery, Phillips left Ms. Davis's apartment and

went to the apartment of Corliss Matthews, a friend of Ms. Davis.

Phillips was eventually found hiding in a closet in Matthews's apartment and was placed under arrest.

After the arrest, investigators secured the consent of Ms. Davis to

search her apartment. The search revealed a dozen or more nickel and

quarter wrappers that matched the appearance of those Mr. Boatwright had given the robber. The government produced evidence at

trial that the coin wrappers at issue were used almost exclusively by

the Mercantile Bank & Trust Company -- few other banks in the area

used the same type of coin wrapper. Ms. Davis testified that she had

not seen the coin wrappers in her apartment before the afternoon of

the robbery. The search of Ms. Davis's apartment also turned up $205

in small bills hidden in a tennis shoe belonging to Phillips.

Based upon this evidence, the jury returned a verdict of guilty to

both the bank robbery and bank larceny counts.

II.

Phillips asks that we vacate his conviction due to allegedly

improper statements made by the prosecutor in his closing argument.

Specifically, Phillips maintains that the prosecutor made statements

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(1) that improperly appealed to the jurors' sympathy for the bank

teller witnesses and (2) that impermissibly suggested that the defendant had a burden of producing evidence. As we have noted previously, "[t]he test for reversible prosecutorial misconduct has two

elements: (1) whether the prosecutor's remarks or conduct was

improper, and (2) whether such remarks or conduct prejudicially

affected the defendant's substantial rights so as to deprive [him] of a

fair trial." United States v. Francisco, 35 F.3d 116, 120 (4th Cir.

1994), cert. denied, 115 S. Ct. 950 (1995). In addition, because

defense counsel did not raise objections at trial to the remarks now

challenged, we will vacate Phillips's conviction"only if the prosecution's improper conduct constituted plain error." United States v.

Mitchell, 1 F.3d 235, 239 (4th Cir. 1993). We address Phillips's two

prosecutorial misconduct arguments separately below.

A.

Phillips first maintains that the prosecutor, by remarking in his

closing statement about protecting bank tellers from robbers, improperly asked the jury to make a general statement about its frustration

with bank robberies through its verdict in the case. The prosecutor's

comments in this regard are reproduced here at length:

Now this is a case that, as Judge Maletz said at the beginning, is important for the defendant and for the United

States. It is important for the defendant for obvious reasons.

The charge of bank robbery by intimidation is a serious

charge. And his interests are, therefore, protected by the

requirement of proof beyond a reasonable doubt. And what

I want to explain to you in the course of my argument this

afternoon is why that standard has been met beyond a reasonable doubt.

Now the case is also important to the United States, and

to the people of the United States. And let's talk for a

moment about why that is. There is an awful lot of talk

about crime, especially in an election year like this one. But

most of us can still hope that as we go about our daily lives

and we take reasonable precautions and try to watch where

we go and what time of day we do it and things like that,

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ordinarily we can avoid being victims of crime most of the

time. Occasionally, it will happen, that is the nature of

things in modern society. For the most part, our experiences

[with] crime are comparatively infrequent experiences for

most of us, bad negative[ ] ones when they happen but, not

something that happens periodically.

But, of course, for the tellers that were witnesses in this

particular case that is not the way it is at all. Because they

are people who work at an urban bank, and that puts them

on the front lines where crime is going on for them. It is not

a question of if, but when they are next going to be victims

of crime.

You heard a number of them, I believe, Mr. Spence testified he has been in six or seven robberies. Mr. Boatwright

was only in the bank for only two years and he has been in

about four. For them when they go through one robbery they

know that it is three months, four months, something like

that and they are going to be facing another robbery.

But one of the most important function[s] that our system

has is protecting people who are on the front line, the way

these tellers are, where they are exposed to crime and people

who are desperate and will do what they have to do to get

money. That is why this is a very important case for the

United States as well.

J.A. at 350-51.

Phillips contends that by these remarks, the prosecutor, in essence,

asked the jury to convict him based not upon the facts of the case, but

upon an emotionally charged, collective desire to send a message that

bank robbers will be dealt with severely. Thus, Phillips argues that the

issue of whether he was factually guilty of the specific crimes named

in the indictment was pushed to the periphery by the prosecutor's

comments, effectively becoming a non-issue. In this way, Phillips

maintains, the comments were both improper and prejudicial.

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It is clear that prosecutors may ask jurors to act as the "conscience

of the community" as long as the comments are not intended to

inflame the passions of the jury. United States v. Koon, 34 F.3d 1416,

1444 (9th Cir. 1994), cert. granted in part, 116 S. Ct. 39 (1995);

United States v. Sanchez-Sotelo, 8 F.3d 202, 211 (5th Cir. 1993), cert.

denied, 114 S. Ct. 1410 (1994); United States v. Solivan, 937 F.2d

1146, 1151 (6th Cir. 1991); United States v. Smith, 918 F.2d 1551,

1562-63 (11th Cir. 1990). Thus, prosecutors in narcotics cases "may

stress to the jury the seriousness of drug charges and comment on the

gravity of this country's drug problem." United States v. Dominguez,

835 F.2d 694, 700 (7th Cir. 1987).

Nevertheless, it is equally clear that prosecutors may not suggest

through their closing comments that the jury should convict merely

to make a statement against crime in general or to deter future crime

as a matter separate and apart from the defendant's factual guilt. Such

argument is improper because "[t]he amelioration of society's woes

is far too heavy a burden for the individual criminal defendant to

bear." United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir.

1984), cert. denied, 470 U.S. 1085 (1985). Thus, in United States v.

Pupo, 841 F.2d 1235 (4th Cir.), cert. denied , 488 U.S. 842 (1988), we

held improper the prosecutor's urging of the jury to"make that statement so that we can address these types of conspiracies that are taking

place in our community." Id. at 1240. Such explicit references to the

jury "making a statement" are patently inappropriate since they

unabashedly invite the jury to indulge its passions by looking beyond

the evidence before it in rendering a verdict. Accord, Arrieta-Agressot

v. United States, 3 F.3d 525, 527 (1st Cir. 1993) (vacating conviction

because "[t]hroughout his closing argument the prosecutor urged the

jury to view this case as a battle in the war against drugs, and the

defendants as enemy soldiers"); United States v. Johnson, 968 F.2d

768, 771 (8th Cir. 1992) (holding improper prosecutor's urging jury

in narcotics case to act as a "bulwark against . . . putting this poison

on the streets"); Solivan, 937 F.2d at 1148 (holding improper prosecutor's comment, "And I'm asking you to tell her and all of the other

drug dealers like her that we don't want that stuff in Northern Kentucky . . .").

A balance must be struck within these parameters. In the instant

case, the trial court ruled that the prosecutor's comments "clearly

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crossed the line" of propriety. J.A. at 56. Specifically, the trial court

held that the prosecutor's suggestion "that the witness bank tellers,

some of whom were visibly upset during their testimony, might again

be robbed, coupled with his assertion that the government has a strong

interest in protecting them and other bank tellers, could well have

indicated to the jurors that, regardless of whether the defendant's guilt

had been proven beyond a reasonable doubt, they should convict him

so as to try to prevent future bank robberies." Id.

Although we have reservations about the trial court's conviction in

this regard, we need not definitively decide whether the prosecutor's

remarks were improper because we conclude, as did the trial judge,

that the remarks did not substantially prejudice Phillips so as to

deprive him of a fair trial. Francisco, 35 F.3d at 120.

The court considers several factors in determining whether a prosecutor's comments deprive a defendant of a fair trial:

(1) the degree to which the prosecutor's remarks have a

tendency to mislead the jury and to prejudice the accused;

(2) whether the remarks were isolated or extensive; (3)

absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether

the comments were deliberately placed before the jury to

divert attention to extraneous matters.

United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983), cert.

denied, 466 U.S. 972 (1984). After considering these factors, the trial

court concluded that Phillips was not prejudiced by the prosecutor's

closing argument. Specifically, the trial court found:

The evidence against the defendant, although largely circumstantial, was very strong. The prosecutor's improper

remarks were not extensive and in the court's view were not

placed before the jury to [divert] its attention. The majority

of government counsel's closing argument was focused on

the evidence in the record, which as stated above, was quite

strong. Under these circumstances, the court does not

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believe that the improper comments prejudiced the defendant in any way.

J.A. at 57 (footnote omitted).

We agree with the trial court that the prosecutor's comments did

not substantially prejudice Phillips. First, it perhaps understates both

the weight and scope of the evidence offered by the government to

characterize it as "strong." An abridged recounting of the evidence

introduced at trial suffices to make the point. Mr. Boatwright testified

that the robber had a badly chipped and decayed front tooth similar

to that of the defendant. In addition, Mr. Boatwright testified that he

saw the robber jump into a van, identified through a license plate

check as the van hired by Phillips on the day of the robbery and present at the scene. Furthermore, bundles of coin wrappers of the type

used almost exclusively by the Merchants Bank were found in

Lynette Davis's apartment where Phillips spent most of the afternoon

following the robbery. Ms. Davis testified that she had never seen the

wrappers before that afternoon. Finally, cash was found stuffed in a

sneaker belonging to Phillips at Ms. Davis's apartment. Such evidence of Phillips's guilt is compelling.

Second, the challenged comments were a minor part of the prosecution's closing. Indeed, the remarks consist of only a page and a half

of the trial transcript while the closing argument itself is comprised

of almost thirty pages of transcript. Thus, the court can only characterize the remarks as isolated and not extensive.

Third, we credit the trial court's conclusion that the challenged

comments were not made with the intent to divert the attention of the

jury. Rather, they were made to exhort the jury to consider the government's law enforcement interest together with the defendant's liberty interest in the case. In considering the challenged argument,

quoted supra, we find first an explication of the defendant's interest

as protected by the standard of proof beyond a reasonable doubt. Next

we find an explication of the prosecution's interest in law enforcement generally and in avoidance of crime generally. Only then is

there any reference to the particular status of tellers in relation to

criminal acts.

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Finally, although the remarks may have had an emotional bent,

appealing to the jurors to consider those on the"front lines" of a

potent criminal advance, this factor standing alone does not warrant

a new trial in this case in light of the other factors discussed. See

United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995) (finding

that although prosecutor's erroneous remark that defendant had pled

guilty to one of the charges in the indictment certainly could have

misled the jury by implying that defendant tacitly admitted he was

guilty of other charges in the indictment, reversal was unwarranted

where other Harrison factors militated against finding of substantial

prejudice), cert. denied, 116 S. Ct. 749 (1996). In short, Phillips cannot show that he was substantially prejudiced by the prosecutor's

closing remarks about the evils regularly visited upon bank tellers.1

Accordingly, his argument here is unavailing.

B.

Phillips also argues that the prosecutor improperly shifted the burden of proof to the defendant through some of the other comments

made in closing argument. Specifically, Phillips objects to a line of

argument employed by the prosecutor that highlighted the failure of

defense counsel to establish certain facts concerning the coin wrappers. The challenged argument is reproduced below:

Now Mr. Bittner brought out on his cross-examination of

Agent Graves, he said, well, isn't it true that the guy that

make[s] this kind of wrapper[ ] make[s] like three quarters

of a billion of them, something like that. But it was interesting that Mr. Bittner did not come forward with any evidence

to show you, well, okay where do the people that manufac-

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1 We note that even if Phillips could show that the prosecutor's comments substantially prejudiced him, he would additionally be required to

show that the prosecutor's misconduct constituted plain error since he

objects to the comments for the first time on appeal. Mitchell, 1 F.3d at

242. "The plain error doctrine is to be employed only in `those circumstances in which a miscarriage of justice would otherwise result.'" Id. at

239 (internal quotations omitted) (quoting United States v. Young, 470

U.S. 1, 15 (1985)). We do not believe such circumstances are present in

this case.

 9
ture the wrappers sell them? The evidence shows very

clearly they don't sell them around here. They may sell

them all over the rest of the country but here Boise Cascade

controls the market.

And there was, Mr. Bittner also asked Mr. Graves, well,

did you go to other places like credit unions [to see if they

used the wrappers in question]? Yes, sir, I did. Isn't it interesting there was no follow up question for Mr. Bittner at that

point. You may have been sitting there thinking, okay, well,

what is the question: What did you find at the credit unions?

Mr. Bittner wasn't about to ask that question of Agent

Graves.

J.A. at 365-66.

Phillips asserts that these comments suggested to the jury that the

defendant had a burden to produce evidence of his innocence. We disagree. It is true that the prosecutor was arguing an inference that the

reason defense counsel did not elicit particular testimony from Special Agent Graves was because the testimony would have undermined

the defendant's account of events. However, "[a]n inference is a way

to carry the burden, and no more changes it than does damning evidence." United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.

1987), cert. denied, 484 U.S. 1068 (1988). Furthermore, although the

prosecutor may not ask the jury to infer guilt from the fact that the

defendant has invoked his fifth amendment privilege not to testify,

Griffin v. California, 380 U.S. 609 (1965),"[a] prosecutor may properly comment upon a defendant's failure to present witnesses so long

as it is not phrased as to call attention to defendant's own failure to

testify," United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir.),

cert. denied, 459 U.S. 1044 (1982); see also United States v. Parker,

903 F.2d 91, 98 (2d Cir.) (noting that a prosecutor is "entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case, . . . as well as his failure to

support his own factual theories with witnesses") (alteration in original) (quoting United States v. Bubar, 567 F.2d 192, 199 (2d Cir.),

cert. denied, 434 U.S. 872 (1977)), cert. denied, 498 U.S. 872 (1990);

Sblendorio, 830 F.2d at 1391 (noting that "[t]he defendant's decisions

about evidence other than his own testimony do not implicate the

 10
privilege, and a comment on the defendant's failure to call a witness

does not tax the exercise of the privilege"). Certainly it follows that

a prosecutor may comment upon a defendant's failure to elicit certain

testimony on cross-examination as long as the comment does not

highlight the defendant's decision not to testify. Because Phillips does

not argue, nor could he, that the prosecutor's comments improperly

accentuated his invocation of the fifth amendment privilege against

self-incrimination, Phillips cannot show that the challenged remarks

were improper.2 His argument on this point, therefore, fails.

III.

Phillips pressed two other grounds for reversal at oral argument.

First, Phillips contends that the trial court erred by allowing Special

Agent Graves to testify, during re-direct examination, concerning the

absence of fingerprints at the crime scene after the court had denied

a motion in limine brought by the government seeking the admission

of such evidence. Second, Phillips asserts that the trial court erred by

denying defense counsel's motion for a mistrial after Ms. Davis made

reference in her direct testimony to the fact that Phillips was housed

in a halfway house pending trial on the bank robbery count. Both

arguments lack merit.

_________________________________________________________________

2 Phillips points out that the jury submitted a series of notes to the trial

court asking, in essence, whether the government was required to turn

over exculpatory information to the defendant. From these questions,

Phillips infers that the jury was under the mistaken impression that the

defendant shoulders the burden of producing evidence of his innocence.

We are not as certain as Phillips as to the meaning of the jury's queries.

Indeed, the notes may manifest anything along a broad continuum, from

idle curiosity to the belief that the defendant was"sandbagged." Moreover, the jury was clearly instructed that the burden of proof rests exclusively with the government, never shifting to the defendant to prove his

innocence. J.A. at 409. Indeed, the prosecutor in rebuttal made the same

point, stating that "there is no burden or obligation on the part of the

defense to produce evidence." Id. at 405. Thus, we cannot accept Phillips's contention that the jury was misinformed about the nature of the

government's burden.

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A.

The government, in a motion in limine, sought to have Special

Agent Graves qualified as an expert witness to testify about the infrequency with which fingerprints are left at the scene of a bank robbery.

The motion was denied and the government was barred from seeking

the admission of the expert fingerprint evidence. On crossexamination, however, defense counsel asked Special Agent Graves

a series of questions regarding the absence of fingerprints inside the

bank. J.A. at 312-14. On re-direct, the government, over the objections of defense counsel, elicited testimony from Special Agent

Graves as to why fingerprints might not have been found inside the

bank. Phillips argues that the admission of this evidence constituted

error since Special Agent Graves had not been qualified as an expert

witness.

Although Phillips is correct that the testimony could not be

received as expert evidence, it was admissible as opinion testimony

by a lay witness pursuant to Fed. R. Evid. 701. District courts have

broad discretion to admit lay evidence -- such evidentiary rulings

will be disturbed on appeal only for an abuse of discretion. United

States v. Heater, 63 F.3d 311, 320-21 (4th Cir. 1995), cert. denied,

116 S. Ct. 796 (1996). Defense counsel opened the door to the fingerprint testimony by suggesting on cross-examination that because Phillips's fingerprints were not found inside the bank, it was less likely

that Phillips was the robber. Under these circumstances, it was not

error to allow the government an opportunity to rebut the inference

floated by defense counsel and to leave it to the jury to accept or

reject Special Agent Graves's testimony. Accordingly, the trial court

did not abuse its discretion by admitting the challenged testimony into

evidence.

B.

During direct examination, Lynette Davis, an adverse government

witness, made reference to the fact that Phillips was stationed in a

halfway house while awaiting trial. Defense counsel immediately

moved for a mistrial. The court denied the motion, opting instead to

give a curative instruction as follows:

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Well, very frequently an individual who has been accused

of a crime, I emphasize accused of a crime, such an individual is often times required to reside in a halfway house

pending trial. That is precisely what occurred with respect

to Mr. Phillips. He was accused by an indictment returned

by a grand jury and given that he was pending trial required

to reside in a halfway house.

Now what is most significant is that Mr. Phillips's residency in a halfway house is completely irrelevant to

whether he is guilty or not guilty of the crime with which

he is charged, and that consideration will be completely disregarded by the members of the jury in reaching a determination of the case.

J.A. at 229. Phillips believes this instruction was insufficient to cure

the alleged prejudice and that a mistrial was warranted.

The denial of a motion for a mistrial is reviewed on appeal for an

abuse of discretion. United States v. West, 877 F.2d 281, 287-88 (4th

Cir.), cert. denied, 493 U.S. 959 (1989). The instruction given by the

trial court in this case satisfactorily quelled any potential prejudice

flowing to Phillips from the inadvertent comment. See United States

v. Moore, 710 F.2d 157, 159 (4th Cir.) (holding that reference by FBI

agent to defendant as a "fugitive," by itself, not sufficient to show

prejudice where curative instruction given by trial court), cert. denied,

464 U.S. 862 (1983). Thus, the trial court did not abuse its discretion

in denying Phillips's motion for a mistrial.

IV.

Phillips raises three additional arguments in his papers, all of which

lack merit. First, Phillips argues that his second trial on the current

charges, the one ending in a hung jury, was prosecuted in violation

of the Double Jeopardy Clause because the prosecutor intentionally

elicited prejudicial testimony from a detective during the first trial (to

the effect that Phillips had a "record") for the sole purpose of "goading" defense counsel to move for a mistrial. See Oregon v. Kennedy,

456 U.S. 667, 676 (1982). The trial court rejected this contention. Its

factual finding concerning the prosecutor's intent is reviewed on

 13
appeal for clear error. United States v. Borromeo, 954 F.2d 245, 247

(4th Cir.), cert. denied, 505 U.S. 1212 (1992).

Phillips has not made even a colorable argument that the prosecutor

intentionally elicited the offending evidence as a mechanism to sabotage the trial. The prosecutor simply asked the detective how he

located the defendant after the robbery. J.A. at 81-82. It defies common sense to suggest that the prosecutor's innocuous question was

calculated to elicit a response concerning Phillips's record. Accordingly, the trial court's determination that the detective's statement evidenced inadvertence rather than misconduct on the part of the

prosecutor will not be disturbed.

Second, Phillips asserts that the third trial violated the Double

Jeopardy Clause because jeopardy attached after the court committed

reversible error during the second trial -- specifically, Phillips contends that the district court erroneously failed to authorize the production of transcripts of the first trial on an expedited basis so as to allow

counsel for Phillips to prepare effectively for the second trial -- an

error which Phillips maintains prevents the government from seeking

a third trial.

After the conclusion of the first trial, defense counsel moved to

have a transcript of the proceedings produced to aid in preparation for

the second trial which was scheduled to commence four days hence.

The court denied the motion with the caveat that if witnesses testified

differently at the second trial, the court would order a delay to allow

transcripts to be produced and would give defense counsel an opportunity to re-call any witnesses to the stand for additional crossexamination based upon the transcripts. Inevitably, during the second

trial defense counsel asserted that a witness was testifying differently.

As advertised, the court ordered the transcript prepared and defense

counsel was allowed an opportunity to finish cross-examination with

the aid of the transcript.

The trial court did not commit error. Indeed, defense counsel ultimately did not cross-examine the witness on the alleged inconsistencies. Defense counsel maintains, however, that the court's initial

failure to order the transcripts prepared was so prejudicial that double

jeopardy attached after the second mistrial. This argument is specious.

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Finally, Phillips maintains that the trial court erred by admitting

certain photographs into evidence. Mr. Boatwright, the teller whom

the robber approached and asked for coin wrappers a few minutes

before presenting his demand note to an adjacent teller, recalled that

the robber had a badly chipped, decayed eyetooth adjacent to his

upper incisors. Before the first trial, the government sought to have

photographs taken of Phillips's teeth. Eventually, Phillips allowed the

photographs to be taken (he was uncooperative at first). However,

unbeknownst to the government, Phillips arrived at the photo session

wearing crowns on his teeth that effectively concealed the chipped

nature of his teeth. After discovering the ruse, and after the second

mistrial, the government was able to get a second set of photographs

of Phillips's teeth, this time without the crowns. The government then

moved both sets of photographs into evidence at the third trial, over

the objections of defense counsel, in part to show Phillips's consciousness of guilt. This was a proper use of the photographs and the

trial court did not abuse its discretion in so admitting them. Heater,

63 F.3d at 320-21. Moreover the trial court gave an appropriate limiting instruction delineating the proper use of such evidence. See Supplemental Appendix at 23.

V.

Although we affirm Phillips's bank robbery conviction, we vacate

the bank larceny conviction. We recently noted in United States v.

Walker, 75 F.3d 178 (4th Cir. 1996), that "[i]t is undisputed that bank

larceny is a lesser-included offense of bank robbery." Id. at 180. We

cited United States v. Amos, 566 F.2d 899 (4th Cir. 1977) (per

curiam), for that proposition. Indeed, in Amos itself we held "[i]t was

not the intent of Congress by the various sections of 18 U.S.C. § 2113

to create a number of distinct crimes for a single bank robbery . . .

and it is impermissible to impose sentence under more than one section of a single transaction . . . . It is just as impermissible to impose

concurrent sentences as it is to impose consecutive sentences . . . ."

Id. at 901 (alteration in original) (quoting Walters v. Harris, 460 F.2d

988, 994 (4th Cir. 1972), cert. denied, 409 U.S. 1129 (1973)); see

also United States v. Carter, 540 F.2d 753, 754 (4th Cir. 1976)

(observing that "[l]arceny, in fact, is generally regarded as a necessarily included offense in the crime of robbery"); United States v.

Brittain, 41 F.3d 1409, 1415 (10th Cir. 1994) (holding that bank lar-

 15
ceny is a lesser included offense of bank robbery). Contra United

States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989) (reasoning that

since bank larceny "contains a specific intent element which need not

be proved in the bank robbery context," bank larceny is not a lesserincluded offense of bank robbery). Accordingly, we vacate Phillips's

conviction for the lesser-included offense of bank larceny. See Amos,

566 F.2d at 901.

AFFIRMED IN PART AND VACATED IN PART

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