What Constitutes Brandishing a Weapon in West Virginia? – United States v. McNeal

revolver-1312574-1280x960When dealing with violent federal crimes, many defendants may find that not only can they be charged with the primary crime they are accused of committing, such as a robbery or theft, but also they may be charged with additional offenses related to the manner in which the crime was committed, particularly if the crime was believed to be violent or overly offensive in nature. One example of such additional offenses is the crime of brandishing a firearm under 18 U.S.C. 924(c)(1)(A)(ii). A recent Fourth Circuit case considers what the government is required to prove in order to establish that a defendant has “brandished” a firearm, and when and how brandishing may occur.

In United States v. McNeal, defendants James McNeal and Alphonso Stoddard were involved in a series of armed bank robberies that occurred in the metro DC area. Over the course of several weeks, the two robbed multiple different banks at gunpoint, collecting thousands of dollars in the process. After a tip-off from an anonymous informant, the defendants were eventually arrested by the FBI and charged with armed bank robbery, conspiracy to commit armed bank robbery, and brandishing firearms during crimes of violence. The jury ultimately found them guilty on all charges.

At trial, the government established that the defendants had engaged in several armed robberies. At their first robbery of a Wells Fargo bank, the defendants displayed handguns to intimidate bank staff and customers and fired a handgun into the ceiling before leaving. At the second bank robbery, the defendants again used handguns, silver revolvers, to threaten bank staff. At the third bank robbery, they displayed a black handgun and forced everyone to the floor.  At no point during the trial did the defendants suggest that the handguns had been fake.

Based on this evidence, McNeal appealed his conviction for brandishing a firearm, arguing that the government failed to prove that the handguns used in the robberies had actually been functional. He argued that the government was required to prove that the weapons brandished during the robberies were actually handguns in order to meet the requirements for a criminal conviction.

Under the statute, an individual who, in the course of committing a crime of violence, “uses or carries” a firearm may be subject to additional jail time if the firearm is “brandished” during the crime. A firearm is considered to be any weapon “which will or is designed to  . . . expel a projectile by the action of an explosive.”  Under this definition, the defendant argued that the government should have had to present expert testimony that the firearms referenced at trial were capable of expelling a projectile.

The Fourth Circuit disagreed, holding that expert testimony was not necessary absent a clear indication that the firearm was fake. Numerous witnesses had testified at trial that they saw the defendants brandish firearms and threaten to use them during the robbery, and this evidence was sufficient for the jury to find that a firearm had been brandished during the offense. Accordingly, it denied this basis for appeal.

Criminal defendants are often subjected to additional claims or counts against them when dealing with federal criminal charges. In order to protect your rights, it is important that you understand what the government is required to prove in order to sustain a conviction on each and every count alleged.  The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years and are available to assist you. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

What Constitutes Armed and Dangerous in West Virginia? United States v. Robinson

Constructive Amendments to Grand Jury Criminal Indictments – United States v. Moore

Dog Sniff For Drugs In Cars Doesn’t Require Probable Cause West Virginia Supreme Court Says – State v. Brock