United States of America v. Zachary Michael Anderson Wailes

United States Court of Appeals
For the Eighth Circuit
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No. 21-3336
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Zachary Michael Anderson Wailes
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 11, 2022
Filed: August 12, 2022
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Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Zachary Wailes pleaded guilty to bank robbery. 18 U.S.C. § 2113(a). The
presentence investigation report (PSR) recommended applying a five-level sentencing
enhancement for possessing or brandishing a firearm during the robbery. USSG

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§ 2B3.1(b)(2)(C). Overruling Wailes’s objection, the district court1 found the
Government proved there was a firearm involved by a preponderance of the evidence.
The five-level firearm enhancement resulted in an advisory guidelines sentencing
range of 100 to 125 months’ imprisonment. The court after considering the 18 U.S.C.
§ 3553(a) sentencing factors imposed a 100-month sentence. Wailes appeals, arguing
the district court committed clear error when it imposed the five-level firearm
enhancement. We affirm.
I. Background
On the morning of February 25, 2021, Wailes entered the Peoples Bank in
Scranton, Iowa wearing a dark hooded sweatshirt, dark sunglasses, and a mask. He
approached the three bank tellers -- C.W., P.H., and J.E. -- and ordered each to put the
money from her teller drawer into his bag. Wailes left the bank with $19,157. He
was arrested two days later and ultimately pleaded guilty to bank robbery.
Six weeks after the robbery, the three tellers were interviewed by local law
enforcement. C.W. told police she observed the handle of a small, black handgun in
Wailes’s right pocket and that he briefly grabbed the gun when commanding her to
put the money in the bag. Neither of the other two tellers saw a gun, but P.H. stated
that Wailes kept his hand in his right pocket, and J.E. said there was something
weighing down Wailes’s right pocket. Paragraphs 8 and 9 of the PSR recounted these
facts. Wailes objected to C.W.’s assertion in Paragraph 8, noting “[t]he surveillance
video of the incident does not appear to support this assertion” and C.W.’s interview
“occurred a significant time after the robbery.” Wailes objected to J.E.’s assertion in
Paragraph 9 “that Mr. Wailes’ pocket appeared weighted down.”
1The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
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At sentencing, the tellers did not testify. The government introduced audio
recordings of their law enforcement interviews, as well as a video of the robbery
taken by the bank’s security cameras, still frames from that video, and testimony by
FBI Special Agent Dave Warren, who investigated the robbery. Wailes introduced
Suspect Identification Profile forms completed by the tellers on the day of the robbery
in which they did not report the presence of a weapon. Wailes also elicited testimony
that C.W., the only teller who reported seeing Wailes with a gun, resigned from the
bank the day before the sentencing hearing after admitting she took $2,800 from the
bank between August and September 2021 that she later repaid. Special Agent
Warren testified that the purpose of the Profile forms was to get a physical description
of the suspect “out as quickly as possible to law enforcement officers in the area.”
The Guidelines provide that the base offense level for Robbery is increased by
five levels “if a firearm was brandished or possessed.” USSG § 2B3.1(b)(2)(C). A
firearm is “brandished” if “all or part of the weapon was displayed, or the presence
of the weapon was otherwise made known to another person, in order to intimidate
that person, regardless of whether [it] was directly visible.” USSG § 1B1.1 comment.
n.1(C). Wailes argued to the district court that the government failed to prove this
special offense characteristic applies because the government relied on hearsay
statements made by C.W. to a law enforcement officer almost six weeks after the
robbery occurred; C.W.’s earlier inconsistent Suspect Identification Profile form and
recent resignation are “credibility issues;” the security video does not support C.W.’s
statements; the other tellers did not see Wailes carrying a gun; and tellers are trained
to “assume that someone who is robbing a bank has a firearm.”
After hearing argument by the government that the evidence was sufficient to
support the five-level enhancement, the district court found that:
the Government has proven that there was a firearm involved. It’s not
beyond a reasonable doubt, but this is preponderance of the evidence.
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The Court has relied on . . . the statements of P.H., [J.E.], and
C.W. . . . [C.W.] made these statements before any allegation that she
was dishonest. . . . Let’s assume for a moment that C.W. is incorrect. I
still have the other two, and I’m going on their statements . . . .
Additionally, . . . [C.W.’s] written statement [] said that her husband’s
family is familiar with firearms; . . . she was . . . closer to [Wailes] than
the others.
II. Analysis
On appeal, Wailes argues the district court erred in imposing the five-level
enhancement because the government, by relying on “uncorroborated, unreliable
hearsay statements,” failed to prove that Wailes possessed a firearm during the bank
robbery. “We review the factual bases of a district court’s sentencing enhancements
for clear error, and give due deference to the district court’s application of the
Guidelines to the facts.” United States v. Hoelzer, 183 F.3d 880, 882 (8th Cir. 1999).
A district court may rely on hearsay evidence in resolving sentencing issues so
long as the evidence has “sufficient indicia of reliability to support its probable
accuracy.” Id., quoting USSG § 6A1.3(a). When the government urges a sentence
enhancement, and its evidence in support includes a crime victim’s hearsay
statements to law enforcement investigators, the district court may consider that
evidence “if sufficiently reliable reasons demonstrate the testimony is probably
accurate,” a determination “committed to the sound discretion of the district court.”
United States v. Woods, 596 F.3d 445, 448 (8th Cir. 2010) (quotation omitted). Of
course, the ultimate finding that the government proved the enhancement by a
preponderance of the evidence is reviewed for clear error. “A factual finding is
clearly erroneous when we are left with the definite and firm conviction that a mistake
has been committed.” United States v. Dock, 967 F.3d 903, 905 (8th Cir. 2020)
(quotation omitted).
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The determination of whether hearsay testimony is probably accurate and
therefore sufficiently reliable turns on “factors such as the consistency of the hearsay
testimony, the timing and nature of the declarant’s statements, and the witness’s
impressions of the declarant’s demeanor, as well as other corroborating evidence.”
United States v. Sheridan, 859 F.3d 579, 583-84 (8th Cir. 2017), and cases cited.
Here, the district court expressly relied on the recorded interviews of all three bank
tellers. Wailes focuses his argument on appeal almost entirely on C.W.’s statements
that she saw the handle of a gun in Wailes’s pocket and he briefly grabbed the gun
handle when demanding she hand over the money in her drawer.
Wailes argues that C.W.’s hearsay was insufficiently reliable because she
completed an inconsistent Suspect Identification Profile form after the robbery; C.W.
was the only teller who said she saw a gun; the security camera video did not show
a gun and showed that C.W.’s observations of Wailes were limited; C.W.’s credibility
was weak because she resigned from the bank after embezzling; and the government
did not sufficiently corroborate her statements.
We agree with the district court that C.W.’s statements were not wholly
uncorroborated. The bank security camera footage is consistent with C.W.’s
description of the robbery. Wailes’s right side was largely obscured in the video, but
it shows that C.W., the teller at the station closest to the door, had the best view of
Wailes, was the first teller he approached, and had a direct line of sight to his waist
while she loaded his bag with cash. Nor did C.W.’s statements lack indicia of
reliability. She provided details about the firearm, describing it as a black handgun
with a “smaller grip and handle” and “a little bit of texture.” The reliability of this
description was bolstered by C.W.’s personal experience with guns, including a
permit to carry and knowledge through her husband’s family. Cf. United States v.
Gleason, 25 F.3d 605, 609 (8th Cir.), cert. denied, 513 U.S. 911 (1994).
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Wailes’s argument also gives insufficient attention to the hearsay statements
of the other two tellers, simply dismissing J.E.’s statement because it “does not
corroborate C.W.” The district court expressly relied on the statements of all three
tellers. The above-quoted Guidelines definition of “brandished” -- which USSG
§ 2B3.1(b)(3)(C) presents as an alternative way to come within its purview --
perfectly describes the way Wailes intimidated these tellers into believing he had a
gun that was not directly visible so they would empty the cash in their drawers into
his bag. Although, as the Guidelines definition makes clear, “the weapon must be
present,” the statements of P.H. and J.E. were more than merely insufficient
corroboration of C.W. And their statements aligned with C.W.’s account of the
robbery, including Wailes’s appearance.
Wailes’s evidence failed to undermine C.W.’s interview statements. First,
Wailes asserts that a local police report (not in the record) inconsistently stated that
a bank teller said “she observed a firearm in Wailes’s bag.” But Agent Warren
testified that the report said “bank staff” reported seeing a gun in Wailes’s bag, not
a teller, so the report was not inconsistent with the bank teller interviews. Agent
Warren’s testimony also explained that C.W.’s Suspect Identification Profile form
was not intended to provide a comprehensive description of the robbery, so the
omission of a reference to seeing a gun handle did not necessarily contradict her
subsequent interview statements. Finally, as the district court observed, C.W.’s
interview statements were made months before she improperly took money from the
bank and resigned.
After careful review of the record, we conclude the district court did not abuse
its discretion in considering the tellers’ interview testimony after concluding that the
“statements, though hearsay, were made under circumstances indicating sufficient
reliability.” United States v. Clark, 932 F.3d 1064, 1067 (8th Cir. 2019). Nor did the
court clearly err in finding by a preponderance of the evidence that Wailes brandished
or possessed a firearm during the robbery. The tellers’ testimony was strong but not
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necessarily conclusive evidence on this issue, and the security video did not eliminate
uncertainty as to the presence of a firearm. “But our job is not to act as a factfinder,”
and therefore “emanations of uncertainty [are] not enough to reverse the [district
court’s] finding under our standard of review.” Dock, 967 F.3d at 904-05.
The judgment of the district court is affirmed.
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