United States of America v. Jessie Lee Waldon

*The Honorable Kathleen O’Malley, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
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 S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J ESSIE LEE W ALDON ,
Defendant-Appellant.
;>

1
No. 98-5609
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.

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2 United States v. Waldon No. 98-5609
1The 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
Caudill, ASSISTANT UNITED STATES ATTORNEY,
Louisville, Kentucky, for Appellee. ON BRIEF: Frank P.
Campisano, JARRETT & CAMPISANO, Louisville,
Kentucky, for Appellant. John L. Caudill, Terry M. Cushing,
ASSISTANT UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellee. Jessie Lee Waldron, Beaver, West
Virginia, pro se.
_________________
OPINION
_________________
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 three criminal
history points pursuant to U.S.S.G. §4A1.1(f).1 Because we
No. 98-5609 United States v. Waldon 19
CONCLUSION
The district court properly denied Waldon’s motion to
suppress, his motion to instruct the jury on the lesser offense
of bank larceny, and his motion for mistrial. In addition,
when the district court sentenced Waldon, it properly added
two points for obstruction of justice and three points pursuant
to §4A1.1(f). Accordingly, Waldon’s conviction and sentence
are both AFFIRMED.
IT IS SO ORDERED.

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

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4 United States v. Waldon No. 98-5609
learned from the dispatch that the suspect had discarded his
nylon jacket, and that the red dye pack had exploded. As he
was driving, Officer Stewart noticed a man standing at a bus
stop, on the opposite side of the road, who generally matched
the description of the bank robber. The person at the bus stop
was an African-American male of medium build who, like the
bank robber, was wearing a blue baseball cap and blue jeans.
Officer Stewart also noticed that the man was unwilling to
make eye contact with him. Suspecting that the man might be
the bank robber, Officer Stewart drove to the next
intersection, turned around, and entered a church parking lot
behind the bus stop.
Officer Stewart then approached the man from behind,
greeted him, explained that he was investigating a bank
robbery, and asked if he could see identification. As the man
took his wallet from his pants pocket and removed his
driver’s license from the wallet, Officer Stewart noticed that
there were red dye stains on his fingertips, on his pants, and
around his pockets. The man tendered his wallet, but Officer
Stewart never took possession of the wallet or driver’s
license, even briefly; rather, Officer Stewart asked the man to
remove his identification from the wallet, and then viewed the
driver’s license as the man held it out.
Upon seeing the red dye stains on the man’s hands and
clothing, Officer Stewart called for backup. Shortly
thereafter, two other officers arrived at the scene. One of the
other officers, Robert Flynn, observed a bulge in the man’s
sock. Concerned that the bulge might be a weapon, Officer
Flynn lifted the man’s pant leg and discovered a roll of money
in the man’s sock, amounting to approximately $2,000.
Officer Stewart then arrested the man, defendant Jessie
Waldon.
Subsequently, Officer Flynn located a green Ford Mustang
across the street from the bus stop, in an apartment complex
parking lot. The license plates on the Mustang matched the
plates that had been recorded by a witness at the scene of the
crime. The Mustang was registered in the name of Louis
No. 98-5609 United States v. Waldon 17
to the time of the crime and arrest, as opposed to during the
criminal investigation afterwards. Waldon notes that he made
his telephone call to Simmons as soon as he was able, after he
was arrested, and before the police had pursued the bulk of
their criminal investigation.
The Sentencing Guidelines make clear that neither of
Waldon’s arguments is well-taken. The application notes to
§3C1.1 provide the following example of the type of conduct
that warrants an enhancement for obstruction of justice:
“directing or procuring another person to destroy or conceal
evidence that is material to an official investigation . . . or
attempting to do so.” U.S.S.G. §3C1.1, applic. note 4(d)
(emphasis added). That Waldon was unsuccessful in his
attempt to persuade Simmons to hinder the criminal
investigation does not relieve Waldon from the mandate of
§3C1.1. Further, note 4(d) states that, if the defendant’s
obstructive actions “occurred contemporaneously with arrest
(e.g., attempting to swallow or throw away a controlled
substance), it shall not, standing alone, be sufficient to
warrant an adjustment for obstruction unless it resulted in a
material hindrance to the official investigation or prosecution
of the instant offense or the sentencing of the offender.” Id.
(emphasis added). The district court found that Waldon made
the telephone call at issue in this case six hours after his
arrest. Based on this finding, the district court concluded that
Waldon’s actions were not an immediate attempt to jettison
or hide inculpatory evidence that occurred at or near the time
of his arrest. We agree.
In this case, Simmons testified that Waldon called him from
jail and asked him to report as stolen the Ford Mustang that
Waldon had used as the getaway vehicle. This telephone call
clearly qualifies as an attempt on the part of Waldon to direct
another person to conceal evidence material to the
investigation. Further, it is clear that Waldon made this
attempt to conceal material evidence long after he was
arrested, not at the time Officer Stewart arrested him at the
bus stop. Accordingly, we conclude that the district court

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16 United States v. Waldon No. 98-5609
both jurors regarding any potential prejudice to Waldon, and
the two jurors assured the district court that their view of
Waldon in handcuffs and shackles made no difference
whatsoever in their decision. Under these circumstances,
Waldon cannot carry his burden of showing actual prejudice.
The district court did not abuse its discretion when it denied
Waldon’s motion for mistrial.
D. Obstruction of Justice Under U.S.S.G. §3C1.1.
Waldon argues the district court erred when it enhanced his
sentence for obstruction of justice, based on his unsuccessful
attempt to persuade Simmons, the owner of the green
Mustang, to report the car as stolen. Sentencing Guideline
§3C1.1 provides that a defendant’s offense level should be
increased two levels “[i]f the defendant wilfully obstructed or
impeded . . . the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense.” A district court’s determination that a defendant has
obstructed justice is a mixed question of law and fact. This
Court reviews all determinations of fact for clear error, and it
reviews the application of the sentencing guidelines to those
facts de novo. United States v. McDonald, 165 F.3d 1032,
1034 (6th Cir. 1999).
In a Presentence Investigation Report to the district court,
the United States Probation Officer concluded that a sentence
enhancement for obstruction of justice was inappropriate.
The district court disagreed and imposed a two-level
enhancement for obstruction of justice. Waldon insists the
probation officer was correct and that the court erred when it
imposed the enhancement. Waldon advances two bases for
his position. First, Waldon asserts that a district court may
enhance a sentence for obstruction of justice only when
obstruction actually occurred. Waldon notes that there was no
actual obstruction of justice in this case, because his actions
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
No. 98-5609 United States v. Waldon 5
Simmons. Later that same day, Waldon made a telephone call
from jail to Simmons and asked Simmons to report that the
Mustang had been stolen. Simmons refused, and, instead,
informed the police he had received the telephone call from
Waldon.
A federal grand jury charged Waldon with bank robbery in
violation of 18 U.S.C. §2113(a). Prior to trial, Waldon
moved to suppress all evidence discovered after Officer
Stewart approached him at the bus stop. A Magistrate Judge
recommended that the motion be denied, and the district court
followed this recommendation. The case then went to trial
before a jury. During the trial, Waldon requested the district
court to instruct the jury that it could choose to convict him of
the lesser offense of bank larceny, a violation of 18 U.S.C.
§2113(b), instead of bank robbery. The district court denied
this motion, and the jury began its deliberations on the bank
robbery charge. After the first day of deliberations had ended,
two jurors were leaving the courthouse to return home when
they happened to observe Waldon, in handcuffs and shackles,
as he was being placed into a police vehicle. The next day,
Waldon moved for a mistrial. The district court denied this
motion, and the jury subsequently convicted Waldon of the
bank robbery charge.
The district court sentenced Waldon to serve seventy
months of incarceration followed by a three-year period of
supervised release, and to pay restitution of $1,390. In
computing Waldon’s sentence, the district court included a
two level enhancement for obstruction of justice, pursuant to
Sentencing Guideline §3C1.1, based on Waldon’s attempt to
persuade Simmons to report the green Mustang as stolen. The
district court also added an additional three criminal history
points to Waldon’s sentence, pursuant to Sentencing
Guideline §4A1.1(f), based on Waldon’s earlier conviction
for five counts of bank robbery in August of 1989.

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6 United States v. Waldon No. 98-5609
ANALYSIS
A. Motion to Suppress.
Waldon argues that the district court erred when it adopted
the Magistrate Judge’s recommendation and denied his
motion to suppress the evidence that Officer Stewart
discovered during his encounter with Waldon at the bus stop.
This Court reviews the district court’s factual findings in a
suppression hearing for clear error and reviews the district
court’s conclusions of law de novo. United States v. Leake,
95 F.3d 409, 416 (6th Cir. 1996). Furthermore, this Court
reviews de novo the district court’s determination as to
whether certain facts establish a seizure or detention in
violation of the Fourth Amendment. United States v.
Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). “[A]s a
general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”
Ornelas v. United States, 517 U.S. 690, 699 (1996).
This Court has explained that there are three types of
permissible encounters between the police and citizens: “(1)
the consensual encounter, which may be initiated without any
objective level of suspicion; (2) the investigative detention,
which, if non-consensual, must be supported by a reasonable,
articulable suspicion of criminal activity; and (3) the arrest,
valid only if supported by probable cause.” United States v.
Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted).
In this case, Waldon argues that his encounter with Officer
Stewart was an investigative detention from the moment that
Officer Stewart first approached him at the bus stop. Waldon
thus contends that, unless Officer Stewart can articulate a
reasonable suspicion of criminal activity, any evidence seized
during and after this encounter must be suppressed.
The primary basis for Waldon’s assertion that his
interaction with Officer Stewart was, from the start, an
investigative detention and not a consensual encounter is that
Officer Stewart suspected him of wrongdoing even before
their interaction began. Essentially, Waldon suggests that it
is the nature of the police officer’s suspicions, rather than the
No. 98-5609 United States v. Waldon 15
prejudice where “[t]he conditions under which
defendants were seen were routine security measures
rather than situations of unusual restraint such as
shackling of defendants during trial.” * * *
In the instant case, defendants were inadvertently
observed in shackles while being transported by the
marshals and the jury learned of defendants’ custodial
status through trial testimony. The record fails, however,
to support defendants’ claims of inherent prejudice
warranting mistrial. Their claims are further undermined
by the district court’s instruction to the jury that the
custodial status of the defendants was not indicative of
guilt or innocence and, therefore, should be disregarded.
There is the presumption that juries will follow such
curative instructions. * * * Because defendants failed to
show prejudice, we find defendants’ contention that the
district court abused its discretion in denying their
motions for mistrial meritless.
Moreno, 933 F.2d at 368 (some citations omitted).
Critically, in Moreno, we cited with approval United States
v. Pina, 844 F.2d 1 (1st Cir. 1988). In Pina, the First Circuit
Court of Appeals undertook the following analysis:
only three of the jurors saw the defendant in shackles and
the exposure was very brief. Each of the three jurors was
individually questioned by the judge and each insisted
that the encounter would have no effect on their capacity
to remain unbiased. They were also instructed not to
discuss the matter with anyone. Under these
circumstances, the exposure was not “so inherently
prejudicial” as to deny the defendant a fair trial.
Id. at 8.
In this case, only one juror actually saw Waldon in
shackles, and that juror mentioned it contemporaneously to
only one other juror; the two jurors spoke about it with no one
else. The event occurred outside of the courtroom as part of
a routine security measure, the district court properly queried

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14 United States v. Waldon No. 98-5609
The next day, the jury deliberated for another half hour and
announced it had a verdict. Just before the district court took
the verdict, Waldon revealed what had happened the night
before. The district court then called the foreman and the
other juror, separately, to sidebar – before the verdict was
disclosed – and asked for their versions of what happened.
Both stated that it was a brief event and they had not
mentioned it to any other jurors. When the district court
asked if, at the time they saw Waldon, they had already made
up their minds about the verdict (which the district court still
did not know), they each said yes; when the court asked if
their having seen Waldon in handcuffs had affected their
decision in any way, they each said no. The district court then
asked for and accepted the jury’s guilty verdict and denied
Waldon’s subsequent motion for mistrial. This Court will not
disturb a district court’s denial of a defendant’s motion for a
mistrial absent a showing of an abuse of discretion. United
States v. Moreno, 933 F.2d 362, 367 (6th Cir. 1991), cert.
denied sub nom Morris v. United States, 502 U.S. 895 (1991).
Generally, a criminal defendant “should not be compelled
to go to trial in prison or jail clothing because of the possible
impairment” of the presumption of innocence guaranteed as
part of a defendant’s due process right to a fair trial. Estelle
v. Williams, 425 U.S. 501, 504 (1976). This holding extends
to a defendant’s appearance in handcuffs and shackles. Based
on Estelle, this Court has set out a specific mode of analysis
for Waldon’s “prison garb” claim:
We will not disturb the district court’s denial of
defendants’ motion for mistrial absent a showing of
abuse of discretion. Exposure of the jury to a defendant
in shackles requires a mistrial only when the exposure is
so “inherently prejudicial” as to deny the defendant’s
constitutional right to a fair trial. United States v. Pina,
844 F.2d 1, 8 (1st Cir. 1988). We have distinguished the
inherent prejudice to a defendant who is shackled while
in the courtroom from a defendant who has been
observed in shackles for a brief period elsewhere in the
courthouse. Defendants are required to show actual
No. 98-5609 United States v. Waldon 7
nature of the interaction between the officer and the citizen,
that defines the character of the encounter. This is simply
wrong. We have held that law enforcement officers may
approach an individual and ask general questions without
having any reasonable suspicion of criminal activity, so long
as the officers refrain from the type of intimidating behavior
that would lead a reasonable person to believe that the person
was not free to leave. See United States v. Peters 194 F.3d
692, 698 (6th Cir. 1999) (“[a]bsent coercive or intimidating
behavior which negates the reasonable belief that compliance
is not compelled, the [officer’s] request for additional
identification and voluntarily given information from the
defendant does not constitute a seizure under the Fourth
Amendment”); see also Florida v. Bostick, 501 U.S. 429,
434-35 (1991) (explaining that “even when officers have no
basis for suspecting a particular individual, they may
generally ask questions of that individual, ask to examine the
individual’s identification, and request consent to search his
or her luggage – as long as the police do not convey a
message that compliance with their requests is required”)
(citations omitted). Whether an encounter between a police
officer and a citizen is consensual depends on the officer’s
objective behavior, not on any subjective suspicion of
criminal activity. We know of no legal precedent suggesting
a police officer can engage in a consensual encounter only
with citizens whom he does not suspect of wrongdoing. See
Whren v. United States, 517 U.S. 806, 813 (1996)
(“[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis”); United States
v. Rose, 889 F.2d 1490, 1493 (6th Cir. 1989) (“t]he subjective
intent of the officers is relevant to an assessment of the fourth
amendment implications of police conduct only to the extent
that that intent has been conveyed to the person confronted”)
(citing United States v. Mendenhall, 446 U.S. 544, 554 n.6
(1980).
The error of Waldon’s argument is amply demonstrated in
our case law. In Peters, for example, a law enforcement
officer dressed in civilian clothing approached an individual
at a train station, identified himself as a police officer, and

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8 United States v. Waldon No. 98-5609
asked to see the individual’s bus ticket, train ticket, or other
identification. Peters, 194 F.3d at 695, 698. The officer did
not “engage in any overbearing or coercive activity in making
these requests” and there was no evidence suggesting the
officer conveyed a message that compliance with his requests
was required. Id. at 698. Based on the officer’s conduct, this
Court concluded that the conversation at the train station was
a consensual encounter. We did not in any way examine the
officer’s suspicions before the encounter, or suggest any such
suspicions might be relevant.
Similarly, in this case, Officer Stewart simply approached
Waldon at the bus stop, mentioned that he was investigating
a bank robbery, and asked Waldon what he was doing in the
area. Nothing in the record indicates that Officer Stewart
conducted himself in an intimidating or coercive manner.
Moreover, Officer Stewart gave Waldon no indication he was
not free to leave and to refuse to respond to questioning. For
example, when Officer Stewart asked Waldon for his
identification, Waldon voluntarily took out his wallet and
attempted to hand it over. Officer Stewart, however, refused
to take the wallet directly from Waldon; instead, he asked
Waldon to take the identification out of his wallet on his own,
thereby avoiding any limit on Waldon’s freedom to leave. It
was at this point that Officer Stewart noticed the red dye
stains on Waldon’s fingertips. Because law enforcement
officers may approach individuals and ask them questions
without having any reasonable suspicion of criminal activity,
and because Officer Stewart did not act in any way that
suggested Waldon was not free to leave, we must conclude
that the conversation between Officer Stewart and Waldon
was a consensual encounter – at least until the point when
Officer Stewart noticed the red dye stains on Waldon’s
fingertips, pants, and around his pockets, which heightened
the officer’s level of inquiry.
Once Officer Stewart noticed these red dye stains, he
certainly had reasonable suspicion to believe that Waldon had
been involved in the robbery. A law enforcement officer has
reasonable suspicion to conduct an investigative stop if he is
No. 98-5609 United States v. Waldon 13
down on the floor, and demanded money from the tellers.
This is exactly the type of behavior that is reasonably
calculated to put other persons in fear and create the
impression that resistance would be forcefully overcome. It
is immaterial that Waldon did not brandish a weapon. In
Perry, the defendant demanded money from a teller and
opened his coat, implying he had a weapon in his pocket, but
never actually brandished a weapon. The Perry court
concluded:
We need not reach the issue of whether bank larceny is
a lesser included offense of bank robbery, since there is
no evidence in the record to support a finding that the
lesser included offense of bank larceny, which lacks the
element of force and violence or intimidation, was
committed while the greater offense of bank robbery was
not. In short, no rational jury could have found that the
teller in this case handed over the money to the defendant
out of any other motivation than fear, and the district
court did not err in refusing to give the requested
instruction.
Id. at 310-311 (footnote and citation omitted).
The analysis in Perry applies equally to the circumstances
in this case. Waldon cannot show that a rational jury could
convict him of bank larceny but acquit him of bank robbery.
Thus, the district court did not err when it refused to give to
the jury an instruction on bank larceny, regardless of whether
bank larceny is properly characterized as a lesser included
offense of bank robbery.
C. Motion for a Mistrial.
At the end of the first day of deliberations, the jury foreman
and another juror exited the courthouse together and walked
to their cars. In the process, the foreman saw Waldon,
wearing shackles and handcuffs, being placed into a police
car. The foreman mentioned this to the other juror, who did
not see it herself. Other than the foreman’s announcement of
his observation, the two jurors did not discuss the issue.

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

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10 United States v. Waldon No. 98-5609
2This split may soon be resolved. See Carter v. United States, 120
S. Ct. 613 (1999) (granting a petition for a writ of certiorari to the United
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
robbery, 18 U.S.C. 2113(a)).
Waldon is correct that, if a defendant asks for a lesser
included offense instruction, it is generally reversible error
not to give it. See Keeble v. United States, 412 U.S. 205, 208
(1973) (“it is now beyond dispute that the defendant is
entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of
the lesser offense and acquit him of the greater”). The reason
for this is to “ensure[] that the jury will accord the defendant
the full benefit of the reasonable-doubt standard.” Beck v.
Alabama, 447 U.S. 625, 634 (1980). A defendant is not
entitled to a lesser offense instruction, however, unless he can
meet both prongs of a two-part test: (1) the elements of the
lesser offense are a subset of the elements of the charged
offense; and (2) the evidence would allow a rational jury to
find the defendant guilty of the lesser offense but not guilty of
the charged offense. Schmuck v. United States, 489 U.S. 705,
716 (1989); Keeble, 412 U.S. at 208; see Fed. R. Crim. P.
31(c) (permitting a jury to convict a defendant of a lesser
offense as long as it is “necessarily included in the offense
charged”). “Where the lesser offense requires an element not
required for the greater offense, no instruction is to be given
under Rule 31(c).” Schmuck, 489 U.S. at 716.
Regarding the first prong – whether the elements of bank
larceny are a subset of the elements of bank robbery – the
federal Circuit Courts of Appeals are split.2 The offense with
which Waldon was charged, 18 U.S.C. §2113(a), provides in
relevant part:
Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence of
another any property or money or any other thing of
value belonging to, or in the care, custody, control,
management, or possession of , any bank, credit union, or
No. 98-5609 United States v. Waldon 11
any savings and loan association . . . . [s]hall be fined not
more than $5,000 or imprisoned not more than twenty
years, or both.
(Emphasis added). In contrast, 18 U.S.C. §2113(b), provides
in relevant part:
Whoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of
value exceeding $100 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
ten years, or both.
(Emphasis added). Those Circuits that hold bank larceny is
not a lesser included offense base their rulings on the fact that
the element of specific intent is explicitly contained in
§2113(b), but not §2113(a). Those Circuits reaching the
opposite conclusion, on the other hand, generally premise
their conclusion on the belief that specific intent to steal is an
implied element of bank robbery. As the Tenth Circuit Court
of Appeals explained in United States v. Brittain, 41 F.3d
1409 (10th Cir. 1994):
in circuits in which specific intent is not an element of
section 2113(a), section 2113(b) is not technically a
lesser included offense of section 2113(a). This is
because each offense would have an element that the
other lacked: section 2113(a) would require a finding that
the defendant accomplished the taking either by using
force or violence or by acting in an intimidating manner,
while section 2113(b) would require a finding that the
defendant acted with an intent to steal while section
2113(a) would not.
Id. at 1415 n.7 (quoting Modern Fed. Jury Instrs. ¶53.01 at
53-22 (Matthew Bender 1994)). See also United States v.
Mosley, 126 F.3d 200 (3rd Cir. 1997), cert. granted in part,
118 S. Ct. 1298 (1998), order granting cert. vacated, 525

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