UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4170

BRYANT JONES,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-00-240)

Argued: April 5, 2002

Decided: May 16, 2002

Before WILKINSON, Chief Judge, and MICHAEL and

TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Richard Joseph Link, Jr., Silver Spring, Maryland, for

Appellant. Justin W. Williams, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States

Attorney, Alessandra DeBlasio, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

A jury convicted Bryant Jones on all three counts of an indictment

charging him with conspiracy to commit bank robbery, see 18

U.S.C.A. § 371 (West 2000) ("Count I"), bank robbery, see 18

U.S.C.A. §§ 2113(a), (d) (West 2000) ("Count II"), and using and carrying a firearm during and in relation to a crime of violence, see 18

U.S.C.A. § 924(c) (West 2000) ("Count III"). Jones appeals, and

although he is represented by counsel on appeal, we previously

granted Jones leave to file a pro se informal brief. By way of his formal and informal briefs, Jones raises numerous assignments of error.

We find his contentions meritless and affirm his convictions and sentences. 

I.

We will set out briefly only those facts necessary to understand the

primary issues Jones raises on appeal. The charges against Jones were

based on the armed robbery of a Central Fidelity Bank in Prince William County, Virginia, by Jones and his associates. At trial, the district court allowed the prosecution to introduce evidence that Jones

had been involved with some of the same associates in the robbery

of a Hechinger’s department store approximately one month prior to

the Central Fidelity robbery, and also allowed evidence that approximately one month after the charged robbery, Jones had played a part

in disposing of the .380 handgun used in the Central Fidelity robbery

("the gun disposal evidence"). All three of Jones’s co-conspirators

testified against him at trial, including John Lewis, who had been the

first to confess to the Central Fidelity robbery and whose confession

implicated all of his alleged co-conspirators, including Jones. In

cross-examining Lewis, defense counsel suggested that Lewis was

fabricating his testimony against Jones in order to obtain favorable

treatment for himself. Accordingly, the prosecution, over defense

2 UNITED STATES v. JONES
counsel’s objection, called FBI Agent Paul Timko, to whom Lewis

had confessed, to testify that Lewis’s prior statements to Agent Timko

were consistent with Lewis’s trial testimony. 

After closing argument, the court gave the jury its instructions —

instructions that counsel agreed were correct — and the jury retired

to deliberate. During deliberations, because Count III of the indictment specified that the weapon used or carried was a .380 semiautomatic pistol, the court received a question from the jury, asking

whether it needed to specifically find that such a weapon was used.

After hearing argument from counsel, the court called the jury in and

reread two of its earlier instructions. The court reiterated to the jury

that to establish a violation of § 924(c) the prosecution was required

to prove (1) that Bryant Jones committed a crime of violence and (2)

that during and in relation to that crime of violence, Jones knowingly

used or carried a firearm (or aided and abetted another person in

doing so). The court also reminded the jury that "the term ‘firearm’

means any weapon, including a starter gun, which will or is designed

to, or may readily be converted to expel a projectile by the action of

an explosive." J.A. 607. The court rejected defense counsel’s request

that it instruct the jury that it must find that Jones used or carried a

.380, but the court reminded the jury that its verdict must be based

only on the evidence presented at trial. 

After his conviction, Jones filed several pro se motions, including

a Rule 33 motion for a new trial based on newly discovered evidence.

The court denied the motions and the case proceeded to sentencing.

At the sentencing hearing, Jones argued for a three-level downward

departure based on substantial post-offense efforts at rehabilitation,

but the district court refused to depart on that basis. The court sentenced Jones to 60 months and 87 months, respectively, on Counts I

and II, to run concurrently, and 60 months on Count III to run consecutively to the sentences on the first two counts. 

II.

Jones first contends that under Rule 404(b) of the Federal Rules of

Evidence, the district court erred in admitting evidence of the Hechinger’s robbery and the gun disposal evidence. Rule 404(b) provides

that "[e]vidence of other crimes, wrongs, or acts is not admissible to

UNITED STATES v. JONES 3
prove the character of a person in order to show action in conformity

therewith." Such "other crimes" evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). To be admissible, prior acts evidence

must be (1) relevant to some issue other than character; (2) necessary;

(3) reliable; and (4) such that its probative value is not substantially

outweighed by the possibility of confusion or unfair prejudice. See,

e.g., United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). A district court’s decision to admit evidence under Rule 404(b) is discretionary, and will not be overturned unless it was "arbitrary or

irrational." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.

1995). 

A.

The evidence of the Hechinger’s robbery satisfies the requirements

for admissibility under Rule 404(b). First, it was relevant to an issue

other than character. Jones was charged with conspiracy to commit

bank robbery, an essential element of which is an agreement between

two or more persons to commit that crime. See United States v. Ellis,

121 F.3d 908, 922 (4th Cir. 1997). "The more similar the extrinsic act

. . . is to the act involved in committing the charged offense, the more

relevance it acquires," Queen, 132 F.3d at 996, and there are many

similarities between the Hechinger’s robbery and the Central Fidelity

robbery that make evidence of the former relevant to the agreement

element of the conspiracy charge. 

The most critical similarity was that Jones committed the Hechinger’s robbery with two of the same three people with whom he had

committed the Central Fidelity robbery, namely Seneca Elliot and

John Lewis. In addition to the identity of the perpetrators, the modus

operandi of both robberies was virtually the same. Elliot carried the

same .380 handgun in both the Hechinger’s robbery and the Central

Fidelity robbery, and Jones was also armed in both. Lewis was the

getaway driver in both robberies, and in both the Hechinger’s robbery

and the Central Fidelity robbery the group used a stolen car as the getaway vehicle. During both robberies, the perpetrators wore dark

clothes and masks, and both were early morning robberies that took

place shortly after the target businesses opened. Furthermore, the

4 UNITED STATES v. JONES
development of both the Hechinger’s robbery and the Central Fidelity

robbery began with an exchange of terse, cryptic messages between

members of the group. With regard to the Hechinger’s robbery, for

example, Elliot testified that it was set in motion when Jones called

him and asked whether Elliot was "trying to do something," which

Elliot understood to be an invitation to "rob something." J.A. 320.

Similarly, with respect to the Central Fidelity robbery, it began when

Luttrell and Jones pulled up to Elliot’s house and told Elliot and

Lewis "we got something." J.A. 227. 

In short, the fact that Elliot, Lewis, and Jones were all involved in

both the Central Fidelity robbery and the Hechinger’s robbery, and

the fact that the modus operandi of both robberies was nearly identical, lead us to conclude that the Hechinger’s robbery evidence was

relevant to the charged conspiracy. See United States v. Van Metre,

150 F.3d 339, 349 (4th Cir. 1998) ("Evidence is relevant if it has any

tendency to make the existence of any determinative fact more probable than it would be absent the evidence."). More specifically, it was

relevant to whether Jones had entered into an express or implied

agreement with at least Elliot and Lewis to rob businesses when the

opportunity presented itself, as it did on March 6, 1997, when the

three joined Howard Luttrell in robbing Central Fidelity. 

Jones argues, however, that the evidence of the Hechinger’s robbery was neither necessary nor reliable, and that, at any rate, it was

unduly prejudicial. His necessity argument is simply that the government did not need the evidence of the Hechinger’s robbery in order

to prove any of the charged offenses. This argument misunderstands

the nature of the necessity inquiry. Evidence is necessary for Rule

404(b) purposes when "it is probative of . . . an element of the

offense." Queen, 132 F.3d 997. As we have already concluded, evidence of the Hechinger’s robbery was probative of whether Jones had

entered into an implied or express agreement to commit the Central

Fidelity robbery. 

Jones contends that the evidence was not reliable because it was

supplied by the testimony of "three convicted felons who ha[d]

reached plea agreements with the government . . . and who had been

granted use immunity." Brief of Appellant at 15. Again, we disagree.

Evidence is reliable for Rule 404(b) purposes unless it is "so preposUNITED STATES v. JONES 5
terous that it could not be believed by a rational and properly

instructed juror." United States v. Aramony, 88 F.3d 1369, 1378 (4th

Cir. 1996) (internal quotation marks omitted). Otherwise, where the

evidence is "sufficient to allow the jury to reasonably conclude that

the [prior] acts occurred and that the defendant was the actor," it

passes the reliability prong of a 404(b) analysis. Van Metre, 150 F.3d

at 350 (internal quotation marks and alteration omitted). Jones was

certainly free to argue to the jury that the testimony of his alleged coconspirators lacked credibility and should not be believed, but that

evidence passes the reliability test of Rule 404(b). A rational and

properly instructed jury could easily conclude that the Hechinger’s

robbery took place and that Jones participated. 

Nor is Jones’s challenge to the prejudicial effect of the Hechinger’s

robbery evidence well taken. Evidence is unduly prejudicial if there

is "a genuine risk that the emotions of a jury will be excited to irrational behavior, and this risk is disproportionate to the probative value

of the offered evidence." United States v. Wells, 163 F.3d 889, 896

(4th Cir. 1998) (internal quotation marks omitted). This is not such

a case. The prosecution introduced evidence of a single prior robbery

that had been committed within the same general time frame as the

Central Fidelity robbery and was similar to that robbery in many

respects. To the extent that the evidence was prejudicial to Jones, its

prejudice was directly proportional to its probative force. We do not

think that the evidence of the Hechinger’s robbery would lead the jury

to subordinate reason to passion. 

B.

Jones also contends that it was improper under Rule 404(b) to

admit evidence that he played a part in disposing of the .380 handgun

approximately one month after the robbery. Sometime after the Central Fidelity robbery, Luttrell, Elliot, and Lewis robbed a local pawnshop, taking, among other things, several firearms. The stolen

firearms were stashed in a bag along with the .380 that was used in

the pawnshop robbery, and the bag was kept at Lisa Homer’s apartment. Homer, who had been a friend of Jones for several years, testified that after Luttrell was arrested for the pawnshop robbery, she

called Jones to come to her apartment and take the firearms. Jones

arrived at the apartment and Homer got into his car, bringing with her

6 UNITED STATES v. JONES
the bag containing the firearms. Jones pulled the .380 from the collection of firearms and handed it back to Homer. There was evidence

that Jones expressly told Homer to get rid of the gun, and although

Jones attempts to make much of some minor ambiguities and inconsistencies in Homer’s testimony on that point, one thing is certain —

Homer did just that. She and a friend took a ride during which the

.380 was tossed into the Potomac River. 

The .380 that Jones singled out for different treatment was the only

.380 in the bag, and both Luttrell and Elliot testified that it was the

same .380 that was used in both the pawnshop robbery and the Central Fidelity robbery. The prosecution was certainly entitled to argue

that, having participated in the Central Fidelity robbery, Jones knew

that the .380 had been used in that robbery. In so many words, the

prosecution’s closing argument suggested to the jury that in singling

out the .380 and returning it to Homer for disposal, Jones was

attempting to eliminate evidence that would tie him to the robbery of

Central Fidelity, thus effectively taking an affirmative step in furtherance of the conspiracy to rob that bank. Cf. Ellis, 121 F.3d at 922

(listing among the "overt acts performed in furtherance of the conspiracy [to commit bank robbery]" the fact that the defendant "ordered

others to burn the clothing they had worn during the robbery"). The

gun disposal evidence thus was intrinsic evidence of the charged conspiracy and therefore was admissible. See United States v. Chin, 83

F.3d 83, 87-88 (4th Cir. 1996). Moreover, Jones’s claim that the .380

that was thrown in the river was not in fact the same gun that was

used in the bank robbery was an issue that could have been explored

on cross-examination, but it does not affect the admissibility of the

evidence. Accordingly, we affirm the district court’s admission of that

evidence, as it was both relevant to the conspiracy charge and not

unduly prejudicial. 

III.

Jones also challenges the admission of Agent Timko’s testimony

regarding co-conspirator Lewis’s prior consistent statements. Rule

801(d)(1)(B) of the Federal Rules of Evidence provides that "a statement is not hearsay," and is admissible as substantive evidence, "if

the declarant testifies at the trial . . . and is subject to crossexamination concerning the statement, and the statement is consistent

UNITED STATES v. JONES 7
with the declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper

influence or motive." Fed. R. Evid. 801(d)(1)(B); see also Tome v.

United States, 513 U.S. 150, 156-57 (1995). It is the fourth requirement, i.e., that there have been "an express or implied charge against

[Lewis] of recent fabrication or improper influence or motive," that

Jones contends was not satisfied in this case.

On cross-examination, defense counsel asked Lewis several questions suggesting that there was some link between the content of

Lewis’s testimony and an alleged desire on Lewis’s part to curry

favor with the government in any eventual criminal proceedings

related to the Central Fidelity robbery. For example, counsel suggested that Lewis had heard that there were some impending arrests

at the time he confessed, the implication being that Lewis did so to

put himself in a favorable bargaining position. Counsel also brought

up the plea agreement that Lewis executed, suggesting that Lewis

expected to receive a "time cut" for helping to prosecute Jones. J.A.

387. As the district court found, counsel’s questions concerning

Lewis’s testimony suggested that Lewis was "making it up" in order

to obtain favorable treatment for himself. J.A. 438. Thus, the question

is whether Lewis confessed before the alleged motive to fabricate

arose. See Tome, 513 U.S. at 157-58 ("[T]he question is whether [the

declarant’s] out-of-court statements rebutted the alleged link between

[her motive to fabricate] and her testimony. . . . A consistent statement that predates the motive is a square rebuttal of the charge that

the testimony was contrived as a consequence of that motive."). 

Agent Timko testified that at the time Lewis confessed, the Central

Fidelity case had been closed for just over a year and that the FBI did

not have any suspects. According to Agent Timko, the case had been

closed as "an unsolved bank robbery matter," meaning that the FBI

"didn’t identify who the robbers were." J.A. 434. When Lewis confessed, the FBI still did not know the identity of any of the Central

Fidelity bank robbers. Agent Timko’s testimony was corroborated by

Lewis’s own testimony that he had not heard that any arrests were

imminent and otherwise knew nothing about the status of the investigation. In addition, Lewis’s statements to Timko were made well

before he entered into the plea agreement. Having heard all the evidence, the court concluded that Lewis’s statements to Timko were

8 UNITED STATES v. JONES
made "at a time when the case was closed, at a time when the Government had no investigation ongoing and didn’t know who did it." J.A.

443-44. The court concluded that Agent Timko’s testimony regarding

the confession was therefore admissible to refute the implication that

Lewis knew the status of the investigation and made a confession

implicating Jones before being approached by law enforcement in an

attempt to get one step ahead in the plea bargaining process. In light

of its factual conclusions, which are not clearly erroneous, the district

court’s decision to admit Agent Timko’s testimony under Rule

801(d)(1)(B) was not an abuse of discretion. See United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) ("We review the admission

of evidence by the district court for abuse of discretion."), cert.

denied, ___ S. Ct. ___, 2002 WL 422876 (April 15, 2002). 

IV.

Jones next contends that, by virtue of its jury instructions, the district court constructively amended the indictment. Jones’s theory is

that, since Count III in the indictment specifically stated that the firearm used or carried for purposes of the § 924(c) charge was a .380

semi-automatic pistol, the court was required to instruct the jury that

it must find beyond a reasonable doubt that such a firearm was in fact

used or carried. Again, we disagree. 

A constructive amendment to an indictment — unconstitutional

under the Fifth Amendment’s guarantee of indictment by grand jury

— occurs where "the government, through its presentation of evidence and/or its argument, or the district court, through its instructions to the jury, broadens the bases for conviction beyond those

charged in the indictment." United States v. Randall, 171 F.3d 195,

203 (4th Cir. 1999). In United States v. Redd, 161 F.3d 793 (4th Cir.

1998), we faced a similar challenge to the one now raised by Jones.

In that case, the defendant (Redd) was indicted under § 924(c) and the

indictment specifically alleged that Redd had used or carried a black

revolver. The jury convicted, and Redd argued on appeal that the

prosecution had constructively amended the indictment by offering

proof that he had used a silver colored handgun. This court rejected

that argument because "[w]hether the gun was black or silver is irrelevant to the question of whether one was used during the robbery." Id.

at 796. 

UNITED STATES v. JONES 9
We see no meaningful basis upon which to distinguish Redd from

the case at hand. The district court’s instructions adequately informed

the jury of the elements of the offense and did not broaden the bases

upon which the jury could find Jones guilty. Whether the gun was a

.380 semi-automatic pistol is simply irrelevant to the question of

whether Jones was guilty of violating § 924(c). See also United States

v. Robison, 904 F.2d 365, 368-69 (6th Cir. 1990) (upholding the trial

court’s instruction that "it is not necessary that the government prove

that the defendant carried the exact firearm alleged in the indictment;

rather it is sufficient that the government prove that the defendant carried any firearm" because "the specific type of firearm used or possessed . . . is not an essential element of the crime"). Like the Sixth

Circuit in Robison, we conclude that Jones was not prejudiced by any

variance between the indictment and the court’s instructions. 

V.

Jones next argues that his conviction must be set aside because it

is based on perjured testimony. In a nutshell, Jones identifies some

inconsistencies between statements that a few witnesses made before

trial and the testimony those witnesses gave at trial. From these inconsistencies (about which Jones contends the prosecution must have

been aware), Jones infers that the prosecution must have knowingly

presented false or perjured testimony. Again, we cannot agree. Mere

inconsistency does not establish falsehood, see United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) (stating that "[m]ere inconsistencies in testimony by government witnesses do not establish the

government’s knowing use of false testimony"), and Jones has otherwise failed to establish that the testimony given at trial about which

he complains, which was largely corroborated in all material respects,

was false, much less perjured. Nor has Jones shown that the prosecution was willfully attempting to deceive the court or the jury. In short,

Jones has not come close to making the kind of showing necessary

to support the grave claim of prosecutorial misconduct he asserts. See

id. at 970-71 (setting out the requirements for proving a due process

violation based on the government’s use of false testimony). 

VI.

Jones’s remaining claims can be resolved more summarily. First,

Jones claims that the district court erred in rejecting his request for

10 UNITED STATES v. JONES
a downward departure based on post-offense efforts at rehabilitation.

The district court expressly recognized its authority to depart on those

grounds, however, and its refusal to do so is therefore not reviewable

on appeal. See United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997)

(noting that this court has no authority to review a district court’s

decision not to depart unless that decision "is grounded upon a belief

that the [district] court lacks the legal authority to depart"). 

Jones also contends that improper statements made by the government during closing argument require reversal of his conviction. We

have reviewed the record, however, and find no improper statements.

The prosecution merely suggested appropriate considerations for the

jury to take into account in assessing witness credibility and did not

vouch for or bolster the testimony of its witnesses. See United States

v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997) (stating that "vouching

occurs when a prosecutor indicates a personal belief in the credibility

or honesty of a witness; bolstering is an implication by the government that the testimony of a witness is corroborated by evidence

known to the government but not known to the jury"). 

Jones next contends that he is entitled to a new trial based on ineffective assistance of trial counsel. We have reviewed the record and

find that ineffective assistance does not conclusively appear on the

face of the current record. Accordingly, Jones’s claim of ineffective

assistance is not cognizable on direct appeal, but rather, must be

raised in a collateral proceeding. See, e.g., United States v. King, 119

F.3d 290, 295 (4th Cir. 1997). 

With regard to Jones’s contention that the district court erred in

denying his pro se motion for a new trial, we find no such error in the

district court’s ruling. See, e.g., United States v. Singh, 54 F.3d 1182,

1190 (4th Cir. 1995) (noting that this court reviews the denial of a

motion for a new trial based on newly discovered evidence for an

abuse of discretion). 

And finally, citing numerous legal sources that impose affirmative

evidentiary disclosure requirements on the prosecution, Jones argues

that the federal prosecutors in this case breached those obligations by

failing to turn over a state police report. We decline to address this

argument. The state police report Jones contends the prosecution

UNITED STATES v. JONES 11
should have disclosed was not a part of the record before the district

court, and we previously denied Jones’s motion to add it to the record

on appeal. 

VII.

Having found Jones’s assignments of error meritless, we affirm his

convictions and sentences.*

AFFIRMED

*On March 13, 2002, while this appeal was pending, Jones filed

another motion for a new trial. The district court held that the pending

appeal deprived it of jurisdiction to entertain the motion and transferred

it to this court. By separate order, we vacate the district court’s order

transferring Jones’s recently filed motion to this court and remand for

further proceedings. The district court had jurisdiction to rule on that

motion notwithstanding the pending appeal and should do so in the first

instance. See United States v. Russell, 971 F.2d 1098, 1112 n.28 (4th Cir.

1992). 

12 UNITED STATES v. JONES