United States of America, Plaintiff-appellee, v. Cass W. Yelardy, A/k/a J.r., Junior Brown, Defendant-appellant, 856 F.2d 187 (4th Cir. 1988)

The district court sentenced Cass W. Yelardy to 20 years imprisonment for armed bank robbery in violation of 18 U.S.C. § 2113(d) and to a consecutive term of 5 years for carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (1). Both charges arose out of a single bank robbery. Yelardy contends on appeal that his conviction on both these counts for a single act violates the double jeopardy clause of the fifth amendment.

This court has recently rejected the position that Yelardy now asserts in United States v. Shavers, 820 F.2d 1375 (4th Cir. 1987). Consequently, the district court's ruling permitting trial and sentencing on both charges is correct.

Yelardy also contends that certain lay opinion testimony admitted to establish that he was the robber pictured in photographs taken by the bank security camera did not satisfy the standards for admissibility of Federal Rule of Evidence 701.

Whether the opinion of a witness who is not an expert is rationally based on the perceptions of the witness and whether it will be helpful to the jury are necessarily questions of degree entrusted to the discretion of the district court. That court's decision to admit the testimony was not erroneous and is affirmed. See United States v. Robinson, 804 F.2d 280, 281-82 (4th Cir. 1986); United States v. Allen, 787 F.2d 933, 935-37 (4th Cir. 1986).

Finally, Michael Robert's testimony about statements made by Yelardy's brother were properly admitted as statements of a coconspirator. See Bourjaily v. United States, 107 S. Ct. 2775 (1987).

The judgment of the district court is affirmed.