United States v. Clark, Chauncy J. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3529
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHAUNCY J. CLARK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 36--Charles N. Clevert, Judge.
Argued June 13, 2000--Decided September 11, 2000
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
COFFEY, Circuit Judge. After a bench trial, the
district court found that Chauncy Clark obtained
funds from a Wisconsin bank through intimidation
and found him guilty of committing bank robbery
in violation of 18 U.S.C. sec. 2113(a). Clark
admits that he stole the money but contends that
because he carried no weapon, uttered no overt
threats and intended no harm, he is only guilty
of the lesser offense of bank larceny and not
bank robbery. Clark appeals, arguing that the
evidence was insufficient to establish
intimidation. We affirm.
I.
On January 22, 1999, shortly before 4:30 p.m.,
Clark walked into the Marshall & Ilsley Bank
("M&I") in Greenfield, Wisconsin and waited in
line for the next available teller. When teller
Jennifer Kottke ("Kottke") signaled that she was
available for the next customer, he approached
her teller window and slid a note across the
counter. The note read: "It is important that you
remain calm and place all of your twenties,
fifties and hundred dollar bills on the counter
and act normal for the next fifteen minutes."
Initially, Kottke testified, she "wasn’t quite
sure [the robbery] was happening." She simply
uttered, "Huh?" Clark replied, "Yes, Ma’am, this
is a holdup." The bank teller then placed
approximately $2500 on the counter and slid it
toward Clark. Clark asked if there were any large
bills, and Kottke responded that there weren’t
any in her drawer at the time. Clark returned the
$1 bills to Kottke, saying, "no singles." During
this communication with Kottke, Clark’s hands
were visible and flat on the counter. After Clark
took the money, he turned and walked out of the
bank to his car parked in a nearby restaurant’s
parking lot.
Immediately after Clark departed, Kottke alerted
a co-worker and informed her supervisor, Sandra
Winter, that she had been robbed. Winter dialed
911, and while Winter was on the phone with the
police, she, Kottke, and another M&I employee
observed Clark walk out of the bank to the
restaurant’s lot. Moments later, they noticed a
red vehicle exit the parking area. Shortly
thereafter, Winter described the car to police
and Clark was stopped and placed under arrest.
The police literally caught Clark redhanded.
Kottke had given Clark bills laced with a
concealed dye pack, which exploded and released
red dye and tear gas onto Clark and his clothing
after he left the bank. During the search of
Clark’s vehicle, the officer discovered clothing
stained with red dye, the note Clark used in the
holdup, and approximately $2500.
At the bench trial, the government called five
witnesses. Greenfield police officers David Lang
and Harlan Petersen testified about the stop and
search of Clark and his vehicle. Lang confirmed
that Clark was "compliant," "polite," and not
"combative." Officer Petersen testified that
Clark denied using a weapon or having an
accomplice and further stated that Clark was
"coherent" and did not appear to be under the
influence of either drugs or alcohol.
Another officer, Michael David Brunner,
testified that he was the first to reach the bank
after the robbery and that during his interview
with Kottke, she was "ready to cry" and "quite
shaken," and her voice was "trembling" and
"cracking." Furthermore, her hands were
"shaking," also confirming that she was
frightened. During the police interview, Kottke
told Brunner that Clark made no threats nor did
she observe any weapons during the robbery. In
addition, Brunner testified that Kottke stated
during the interview that Clark appeared "calm"
during the hold-up. M&I employee Winter echoed
Brunner’s testimony when referring to Kottke’s
psychological well being and also recounted that
Kottke described Clark as "calm" and never
mentioned that he had threatened her.
Kottke, a 21-year-old university student,
testified that at the time of the holdup she had
been employed by the bank for approximately nine
months. She recited what she had observed
concerning Clark’s appearance and outer clothing
as he approached her teller window as: a black
man wearing a dark hat, dark pants, and beige
trench coat that was "closed up." She stated that
Clark appeared to be an average customer and
further described the bank as being busy when
Clark entered, with every teller window occupied
and "five, six" people, including the defendant
Clark, waiting in line.
Kottke testified that she became "very" scared
after Clark handed her the note and that she did
not feel threatened before the incident; however,
she "panicked" when she realized what Clark’s
intentions were. She conceded she "could not
tell" whether Clark had a weapon, and also
confirmed that during their ten- or fifteen-
second encounter, Clark neither put his hands in
his pockets nor overtly threatened her with harm
if she did not give him the money. Nonetheless,
Kottke agreed that Clark’s "mere physical
presence" was intimidating and caused her to fear
for her safety. She clarified this statement,
stating that she was intimidated not only because
of what Clark did, but also his announcement that
"it was a holdup . . . [and] just being in the
situation in general." Kottke added that after
the robbery she was so upset that she was unable
to drive home and asked her parents to pick her
up at the bank. She noted that she was unable to
sleep at night and that it was difficult to
return to work immediately and in fact did not
return to work until three days later. In
addition, she testified that she gets "real
nervous" when dealing with any customers
resembling Clark.
At the close of the government’s case, Clark’s
counsel moved for dismissal, arguing that the
government failed to establish that Clark
committed a robbery by intimidation. After the
district court denied Clark’s motion, the
defendant, the only defense witness, testified
that he told Kottke that their interaction was a
"holdup" only because "[s]he didn’t respond to
the note." He further testified that he defined
"holdup" as meaning "to comply." He described his
demeanor and facial expressions during the holdup
as being "calm." He stated that he had "no
intentions" of harming Kottke and said that, had
she refused to give him the money or appeared
frightened, he would have left the bank. But he
conceded that he neither told Kottke that he was
unarmed nor told her that he wouldn’t harm her.
Contrary to Clark’s assertion, "robbery" is
defined as the "illegal taking of property from
the person of another, or in the person’s
presence, by violence or intimidation." Black’s
Law Dictionary 1329 (7th ed. 1999). The trial
judge agreed and concluded that Clark had
committed a bank "robbery" because he took funds
belonging to M&I from the teller as a result of
his intimidation and without the consent of the
bank. The judge stated that "there is no doubt in
my view that Clark in this case intended to
frighten Ms. Kottke, that he in fact frightened
Ms. Kottke, [and] that he[,] by the use of the
note as well as emphasizing that his presence in
the bank was for the purpose of committing
robbery[,] intimidated her." The court reasoned
that Clark’s statement in his note that "[i]t is
important that you remain calm" suggested to
Kottke that "something could happen if she failed
to act normally for an extended period of time."
In addition, the court rejected Clark’s
explanation that he thought saying "This is a
holdup" was another way of saying "please
comply."
The court sentenced Clark to 210 months of
confinement, three years of supervised release,
a $1000 fine, and a $100 special assessment.
II.
Clark argues that the government failed to
prove intimidation for purposes of 18 U.S.C. sec.
2113(a) because there was no evidence that he
ever threatened Kottke, either through his words,
conduct, demeanor, or appearance. Moreover, he
asserts, his actions, including his note
demanding "all of your twenties, fifties and
hundred dollar bills" and his statement that
"this is a holdup," did not amount to
intimidation because they fell short of the
behavior we have characterized in prior cases as
intimidation. See United States v. Hill, 187 F.3d
698, 700 (7th Cir 1999); United States v. Smith,
131 F.3d 685, 686 (7th Cir. 1997); United States
v. Jones, 932 F.2d 624, 625 (7th Cir. 1991).
When reviewing challenges to the sufficiency of
the evidence, we view the evidence in the light
most favorable to the government and will reverse
a conviction only if no rational trier of fact
could have found the essential elements of the
crime beyond a reasonable doubt. See United
States v. Jocic, 207 F.3d 889, 892 (7th Cir.
2000). A violation of 18 U.S.C. sec. 2113(a)
occurs when
[w]hoever, by force and violence, or by
intimidation, takes, or attempts to take, from
the person or presence of another, or obtains or
attempts to obtain by extortion 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 any
savings and loan association . . . .
Clark’s conviction for bank robbery required the
government to, among other things, establish
beyond a reasonable doubt that Clark took
something of value from Kottke "by force and
violence, or by intimidation." Hill, 187 F.3d at
700.
We have defined intimidation as "say[ing] or
do[ing] something in such a way as would place a
reasonable person in fear." Smith, 131 F.3d at
687. More specifically, "the intimidation element
has an objective test: would the defendant’s acts
cause an ordinary person to reasonably feel
threatened?" Hill, 187 F.3d at 702. Further, we
have explained that intimidation under section
2113(a) exists in situations where the
defendant’s "conduct and words were calculated to
create the impression that any resistance or
defiance by the teller would be met with force."
Jones, 932 F.2d at 625. See Hill, 187 F.3d at
701; Smith, 131 F.3d at 688.
Here, Clark either fails to understand or
intentionally attempts to misinterpret the clear
and unambiguous language in our prior decisions.
In Hill, as in our earlier decisions, we
acknowledged that the context of the crime
provides evidence of intimidation and ruled that
the defendant’s appearance and actions during the
course of the offense "figure into the
[intimidation] assessment." 187 F.3d at 701; see
Smith, 131 F.3d at 689; Jones, 932 F.2d at 625.
Thus, a teller’s feelings about the crime she
experienced are "probative of whether a
reasonable person would have been afraid under
the same circumstances." Hill, 187 F.3d at 702.
See Smith, 131 F.3d at 689. In addition, we
observed that a "defendant’s actions can rise to
the level of intimidation if he confronted a bank
employee during the commission of the crime, even
if the defendant was unarmed or did not
explicitly threaten a bank employee." Hill, 187
F.3d at 701.
As demonstrated in the cases we have cited with
approval in prior decisions, Clark’s mere demand
that Kottke give him money not belonging to him
is behavior that may rise "to the level of
intimidation." Hill, 187 F.3d at 701. See Jones,
932 F.2d at 625. In United States v. Hopkins, 703
F.2d 1102, 1103 (9th Cir. 1983), an unarmed
defendant had spoken calmly and made no threats,
but the court held that "threats implicit in . .
. written and verbal demands for money" were
sufficient evidence of intimidation. Similarly,
in United States v. Henson, 945 F.2d 430, 439
(1st Cir. 1991), the court held that the
defendant neither displayed a weapon nor
expressed a threat of bodily harm, but his
"emphatic" written demand that the teller "put
fifties and twenties into an envelope now!!" was
enough to intimidate an ordinary person. See also
United States v. Robinson, 527 F.2d 1170, 1171-72
(6th Cir. 1975) (finding that the defendant’s
instruction to the teller to "give me all your
money" and his coat which could have concealed a
weapon, was sufficient to constitute
intimidation).
No matter how one interprets Clark’s manners as
polite or non-violent, the combination of his
actions still amount to intimidation. Clark
handed the teller a note demanding that she
"place all of your twenties, fifties and hundred
dollar bills on the counter," and then told the
teller that "this is a hold-up." Indeed, Kottke
testified that she feared for her safety during
and after the encounter with Clark, and that as
a result of the hold-up, was unable to sleep at
night. Because it is reasonable for Kottke to
suspect and fear that Clark might use physical
force to compel satisfaction of his demand for
money, we are of the opinion that an ordinary
person would reasonably feel threatened by
Clark’s behavior.
III.
Clark’s demand note, his confirmation to Kottke
that he was committing a "holdup," his taking of
$2500 of the bank’s money without the bank’s
consent and the evidence of Kottke’s fright, when
considered in their totality, amount to
sufficient evidence that Clark used intimidation
when he robbed M&I. Based on the totality of the
evidence, a rational trier of fact could have
found that the evidence presented was sufficient
to establish each and every element of the crime,
including intimidation, beyond a reasonable
doubt. Accordingly, the judgment of the district
court is
AFFIRMED.