PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5837

WYNN ROBERT WALKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

Frank W. Bullock, Jr., Chief District Judge.

(CR-94-126-6)

Argued: November 3, 1995

Decided: February 14, 1996

Before RUSSELL and HALL, Circuit Judges,

and MICHAEL, Senior United States District Judge

for the Western District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge Russell wrote the opinion, in

which Judge Hall and Senior Judge Michael joined.

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COUNSEL

ARGUED: Fred R. Harwell, Jr., DAVIS & HARWELL, P.A.,

Winston-Salem, North Carolina, for Appellant. Scott Patrick Mebane,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney,

Greensboro, North Carolina, for Appellee.

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OPINION

RUSSELL, Circuit Judge:

Wynn Robert Walker appeals the district court's judgment of conviction entered upon the jury's verdict finding Walker guilty of bank

robbery in violation of 18 U.S.C. § 2113(a). Walker assigns error to

the district court's refusal to instruct the jury on the lesser-included

offense of bank larceny, 18 U.S.C. § 2113(b). Because the trial evidence did not support such an instruction, we affirm Walker's conviction.

I.

In March 1994, Walker entered a Wachovia bank in North Carolina

and stole money from a teller station. The bank teller testified that

Walker approached her and said, "this is a bank robbery, . . . I have

a gun. Don't pull no bait, push no alarms." Although the teller never

saw Walker with a gun, she testified she was very scared and believed

he had a gun because he told her so and because his hand was in his

jacket pocket during the incident.

Walker did not testify at trial. The Government, however, introduced a statement he gave after he was arrested. The statement read:

I, Wynn Walker, walked into a bank and asked the lady

teller to give me all one hundred, fifty, and twenty dollar

and walk[ed] out. I didn't have a gun or a note when I was

in the bank of Wachovia. This happened two days ago.

At the close of evidence, Walker requested a jury instruction on the

lesser-included offense of bank larceny. His request was denied, and

the jury subsequently returned a verdict of guilty of bank robbery.

Walker received a 105-month sentence of incarceration.

II.

Walker contends the district court committed reversible error in

failing to instruct the jury on the lesser-included offense of bank lar-

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ceny. It is well-settled that a defendant in a criminal trial may be

found guilty of a lesser offense necessarily included in the offense

charged. A defendant, however, is not entitled to such an instruction

as a matter of course. Rather, a lesser-included offense instruction is

warranted only where the evidence supports a conviction for the

lesser-included offense. Keeble v. United States , 412 U.S. 205, 208

(1993). More specifically, to receive a lesser-included offense instruction, the proof of the element that differentiates the two offenses must

be sufficiently in dispute that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense.

United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). To be

sufficiently in dispute, we have held that the testimony on the distinguishing element must be sharply conflicting, or that the conclusion

as to the lesser offense must be fairly inferable from the evidence

presented. See id. at 1259 (quoting United States v. Medina, 755 F.2d

1269, 1273 (7th Cir. 1985) (citation omitted)).

The relevant elements of bank robbery are as follows:

[w]hoever, by force and violence, or by intimidation, takes

. . . from the person or presence of another . . . any property

or money . . . belonging to, or in the care, custody, control,

management, or possession of, any bank, credit union, or

any savings and loan association . . . shall be fined not more

than $5,000 or imprisoned not more than twenty years or

both.

18 U.S.C. § 2113(a). In contrast, the relevant elements of bank larceny are as follows:

[w]hoever takes and carries away, with intent to steal or purloin, any property or money . . . belonging to, or in the care,

custody, control, management, or possession of any bank,

credit union, or any savings and loan association, shall be

fined under this title or imprisoned not more than ten years,

or both.

18 U.S.C. § 2113(b). It is undisputed that bank larceny is a lesserincluded offense of bank robbery. See United States v. Amos, 566

F.2d 899, 901 (4th Cir. 1977) (defendant cannot be sentenced for both

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bank robbery and bank larceny arising from single offense because

the bank larceny conviction merges into the bank robbery conviction).

The element distinguishing the two crimes is the use of force and violence, or intimidation to complete the crime (hereinafter "intimidation

element").

Our prior precedents illustrate the type of evidence necessary to

sustain the Government's burden of proof on the intimidation element

for a bank robbery conviction. Thus, for instance, we upheld a bank

robbery conviction where the evidence demonstrated that a defendant

entered a bank, kept his hand in his pocket, and told the teller to hand

over the money and not to sound the alarm. See Amos, 566 F.2d at

901. Similarly, we upheld a conviction where the defendant handed

the teller a note stating "this is a holdup" and placed his hand in his

pocket in such a way that the teller assumed he had a gun. See United

States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976). As these cases

demonstrate, the evidence is sufficient to sustain a conviction on the

intimidation element if the defendant's conduct was reasonably calculated to produce fear. See United States v. Wagstaff, 865 F.2d 626,

627 (4th Cir. 1989). We think it clear, and Walker does not contend

otherwise, that the bank teller's testimony in the instant case was sufficient to sustain a conviction for bank robbery. She testified that

Walker approached with his hand in his pocket and told her that this

was a robbery, that he had a gun and she should not give him any bait

money or pull an alarm.

Accordingly, Walker would have been entitled to a jury instruction

on the lesser-included offense of bank larceny only if some other evidence of record placed the intimidation element sufficiently in dispute

such that the evidence was sharply conflicting or that the conclusion

as to the lesser offense fairly could be inferred. We have found none.

Walker's argument that the evidence was sharply conflicting is based

solely on his statement, introduced by the Government at trial, that he

was not carrying a gun during the commission of the crime. However,

closer examination of that statement fails to reveal the necessary evidentiary dispute because Walker only denied "possessing" a gun. He

did not deny either that he told the teller he possessed a gun or that

he feigned hiding a gun by placing his hand in his pocket.

Our holding in United States v. Carter, 540 F.2d 753 (4th Cir.

1976), in which we reversed and remanded a defendant's bank rob-

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bery conviction based on the district court's failure to instruct the jury

on the lesser-included offense of bank larceny, provides no support

for Walker. In Carter, the bank teller testified that Carter walked into

the bank, demanded money, stated he had a gun, and kept his hand

in his pocket. Id. at 753. We found error in the district court's refusal

to give a bank larceny instruction because Carter testified that when

he entered the bank he had an amiable conversation with the teller at

the end of which he requested the money. Carter maintained that he

neither had a gun nor told the teller he had a gun. Carter insisted "that

the jury should have been left free to view his demeanor, language

and conduct as insufficient to intimidate the bank teller." Id. at 755.

We found Carter's testimony to be sufficient to create the necessary

evidentiary dispute on the intimidation element because it rebutted all

of the Government's evidence on that element.

In the instant case, the evidence of record does not demonstrate the

type of dispute apparent in Carter. Although the jury might have

believed Walker's statement that he never had a gun, evidence that

Walker told the teller he possessed a gun and acted as though he possessed a gun went undisputed. Hence, the evidence clearly was not

sharply conflicting. Walker contends, however, that the conclusion as

to the lesser offense fairly could be inferred from his statement introduced by the Government at trial. By telling the police he did not

have a gun, Walker contends the jury could infer that he never told

the teller he had one or acted like he had one. We do not believe this

inference flows from Walker's statement. In fact, we can envision

many a bank robber who, unable to procure a weapon, would nonetheless pretend they possessed one to further their efforts to liberate

the bank of its deposits. We certainly cannot say that Walker's statement denying possession of a gun, without more, placed the evidence

on the intimidation element of robbery sufficiently in dispute.*

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*In reaching this holding, we do not intend to take issue with our prior

favorable citation to D.C. Circuit precedent holding that any evidence,

however weak, bearing upon the lesser included offense will suffice to

create an entitlement to a lesser included offense instruction. United

States v. Baker, 985 F.2d at 1248 (quoting United States v. Gibbs, 904

F.2d 52, 58 (D.C. Cir. 1990)). We view this as a separate inquiry from

the question whether the evidence is sufficiently in dispute. For instance,

a defendant may present evidence that is weak in the sense that it is

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For this reason, we find no error in the district court's decision to

deny Walker's request for a jury instruction on the lesser-included

offense of bank larceny. Walker's conviction is, accordingly,

AFFIRMED.

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implausible or uncorroborated, but yet he still may be entitled to a lesser

included jury instruction because the evidence either sharply conflicts

with the Government's evidence on an element of the offense, or because

the lesser included offense is fairly inferable if the defendant's "weak"

evidence is believed. Walker's evidence to create a sufficient dispute on

the intimidation element of bank robbery was not merely weak, it was

nonexistent.

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