United States of America, Plaintiff-appellee, v. Robert Antione Weathers, A/k/a Web, A/k/a Shorty Web,defendant-appellant.united States of America, Plaintiff-appellee, v. Edward Williams, A/k/a June, Defendant-appellant, 854 F.2d 1318 (4th Cir. 1989)

Edward "June" Williams and Robert "Web" Weathers appeal their convictions of bank robbery claiming error in the admission of the testimony of a bank customer, who identified Williams, in not allowing the defense to impeach a government witness with a prior robbery conviction, in permitting the testimony of Roy Hamilton over the appellant's objection as to his competency, and in sentencing the appellants under 18 U.S.C. § 2113(a), (b), and (d). The government concedes error as to the sentences. We find no other error, so we affirm the convictions and correct the sentences.

There was ample evidence to convince a jury that appellants robbed a Cantonsville, Maryland branch of the Maryland National Bank on March 19, 1987. At trial appellant Williams was identified by one William Dempsey, who had been a customer in the bank at the time of the robbery. Williams contends that a photographic array shown to Dempsey several days after the robbery was impermissibly suggestive and that a later line-up was also impermissibly suggestive. We have examined the record and do not find these procedures to have been impermissibly suggestive. The in-court identification by Dempsey was reliable. The witness had ample time and opportunity to observe Williams during the robbery, and this testimony was reliable under Manson v. Braithwaite, 432 U.S. 98 (1977).

Appellants claim that they were denied the opportunity to fully cross-examine Tyrone Simmons about his prior armed robbery conviction in 1970. He had been released on parole in 1975, but was reincarcerated because of a parole violation and was finally released in 1979. Appellants contend that under Federal Rule of Evidence 609, they should have been allowed to impeach Simmons with his 1970 conviction because he was not released until 1979. The appellants are correct in this contention, but we find the error to be harmless beyond a reasonable doubt. There was sufficient other evidence of Simmons' criminal activities, and these were used by the appellants in their efforts to impeach his testimony. He admitted that he had been convicted of another felony within the past ten years, that he had heroin on his person at the time he was arrested as a suspect in this case, and that he was addicted to heroin.

Appellants contend that the testimony of the witness Roy Hamilton should have been excluded because he was unable to remember certain dates and names, and he took the Fifth Amendment as to one question. Under Federal Rule of Evidence 601 every witness is presumed competent to testify, unless it can be shown that he does not have personal knowledge of the matters about which he will testify, or that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. U.S. v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982). It is within the discretion of the trial judge to determine whether the evidence should be received, and we find no reason to disturb the trial judge's admission of the Hamilton testimony.

We have held that the various subsections under 18 U.S.C. § 2113 create lesser included offenses of one crime. A defendant may be convicted on multiple sections of this statute, but he may only receive a penalty under one subsection. U.S. v. Whitley, 759 F.2d 326 (4th Cir. en banc 1985), cert. denied, 474 U.S. 873 (1985). Both Weathers and Williams were sentenced under Sec. 2113(a), (b) and (d). The sentences on (a) and (b) run concurrently with the sentence imposed under (d). However, the convictions merge into the Sec. 2113(d) count and the appellants should only be sentenced under it. We therefore vacate the sentences imposed on each of the appellants under Secs. 2113(a) and (b), and we affirm the twenty-year sentence given to each defendant under Sec. 2113(d).

AFFIRMED.