United States v. Emmett, Andrew ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3887
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW EMMETT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 137—Harry D. Leinenweber, Judge.
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ARGUED SEPTEMBER 23, 2002—DECIDED MARCH 3, 2003
____________
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.
EVANS, Circuit Judge. In January 2000, reluctant bank
robber Andrew Emmett walked into Advance Bank in
Chicago and handed the teller a note that read: “Give me
all your hundreds, and don’t hit any alarms or people
start getting hurt. You have 30 seconds.” When the teller,
Amanda Vega, asked the robber if he was serious, he
said he was and told her not to call anyone or push any
buttons or people would get hurt. The robber then reached
into his jacket, which Vega took as a sign that he had a
gun. Vega slowly walked away and gave the note to her
supervisor, Carlos Mucha. While Mucha was reading the
note, Emmett left the bank.
2 No. 01-3887
Undaunted, Emmett walked down the street and tried
again. At Manufacturers Bank, Emmett handed the
teller, Pamela Benkovich, an almost identical note (“Give
me all your hundreds or people get hurt. No alarms.
You have 30 seconds.”). Benkovich opened her drawer to
discover she didn’t have any hundreds. As she looked in
her drawer, the robber barked “give it to me now, lady,”
and put his hand in his pocket. Benkovich, believing
that Emmett had a gun, ducked behind the counter and
told the teller next to her “Pinocchio’s nose is growing,”
the bank’s code for a robbery. Frustrated by the delay,
Emmett again turned around and walked out of the bank.
About a month later, Vega, the teller at the first bank,
and Mucha, her supervisor, picked Emmett out of a
photo array. Armed with the identifications, and certainly
other information as well, FBI agents went to the Fam-
ily Guidance Clinic, a methadone treatment facility on
Chicago’s north side, where they knew Emmett had an
appointment. Emmett showed up, was arrested, and was
taken to a police station where he made a statement
admitting, essentially, that he tried to rob the banks. He
was then charged with two counts of bank robbery in
violation of 18 U.S.C. § 2113(a).
With a pretty strong case against him, Emmett’s best
hope for survival was to kill the government’s evidence,
and he sought to do so by filing a motion to suppress. In
the motion, he sought to suppress the identifications
made by Vega and Mucha and the fruits of those identi-
fications, namely his incriminating statements to the
FBI. Emmett supported this claim by saying the FBI
somehow improperly “used” his probation officer to take
Emmett’s photograph as part of its investigation into
the robberies. Pointing to a Ninth Circuit case, United
States v. Richardson, 849 F.2d 439 (9th Cir. 1988), Emmett
claimed his probation officer violated his Fourth Amend-
ment rights by acting as a “stalking horse” for the agents.
No. 01-3887 3
The district court was unimpressed and declined Emmett’s
request for an evidentiary hearing. With the evidence
intact, the government’s road to victory was secure, as
Emmett’s arguments at trial that the identifications
were unreliable and that the FBI agent who took the
statement was not worthy of belief—he took no signed
or videotaped statement and generally “played fast and
loose with what happened”—were not going to be the
kind of claims that impress a jury. Emmett was convicted
and sentenced to a term of 10 years.
On this appeal, Emmett argues error on the suppres-
sion decision, trial error growing out of “prejudicial” clos-
ing argument comments by the government prosecutor,
and a few sentencing issues. We start with the suppres-
sion issue.
In his suppression motion, Emmett claimed that FBI
agents met with his probation officer (he was on super-
vised release at the time) and discussed the robberies.
He said the agents asked the probation officer to take
Emmett’s picture and that the officer then ordered Emmett
to report to the probation office for that purpose. Once
there, Emmett says, his picture was taken and subse-
quently given to the FBI agents, who used it in a photo
array shown to the bank tellers. The results of this
were identifications of Emmett as the robber and his
incriminating statements after arrest to the agents.
The problem (the first—there are two) with all this is
that it didn’t happen that way. Emmett’s recitation of
this sequence of events was conjecture: he really didn’t
know how things happened. When the government
responded—with facts showing that the probation officer
took the photograph at a routine meeting before the
FBI ever suspected Emmett was involved in the bank
robberies, there was no way Emmett could show that
the probation officer was “collaborating with the FBI” to
4 No. 01-3887
deny Emmett his Fourth Amendment protection. So
there was no need for an evidentiary hearing.
But even if the FBI had used Emmett’s probation officer
exactly as Emmett claimed, there would be no Fourth
Amendment violation. Even the Ninth Circuit (which
provides the only arguably solid support for Emmett’s
claim) holds that someone on probation is not entitled to
the same protection as other citizens. See United States
v. Jarrad, 754 F.2d 1451 (9th Cir. 1985). A probation offi-
cer (or a parole officer, as the case may be) does not vio-
late his “client’s” rights merely by aiding police, which,
at worst, is all that happened here.
In addition, we think it clear that a person has no
expectation of privacy in a photograph of his face. See
United States v. Doe, 457 F.2d 895, 898 (2d Cir. 1972)
(“[T]here is no ‘reasonable expectation of privacy’ about
one’s face.”). The officers could have taken Emmett’s photo
themselves (either with his consent or through surveil-
lance), or gotten it from other sources, like driver’s li-
cense records. For these reasons, the district court did
not err in denying Emmett’s suppression motion without
a hearing.
Next, Emmett claims he was denied a fair trial by
comments made during closing arguments by the pros-
ecutor, who noted the defense’s failure to call witnesses
or ask questions to refute Vega’s testimony that the jack-
et Emmett was wearing at the time of his arrest was
“exactly like” the jacket worn by the robber. Emmett
suggests that discussing the omission with the jury vio-
lated his Fifth Amendment rights. To prevail, Emmett
must show both that the challenged comments were
improper and that they denied him a fair trial in light
of the entire record. United States v. Butler, 71 F.3d 243,
254 (7th Cir. 1995). Emmett can do neither. “[A] prosecu-
tor’s comment regarding the balance of evidence or
No. 01-3887 5
its unrefuted nature is not improper and does not tax
the self-incrimination privilege where there are other
witnesses who could provide the rebuttal evidence.”
Id. at 255. Several witnesses (Mucha and Benkovich, to
name two) could have testified as to Emmett’s outfit, so
his Fifth Amendment rights were not abridged. Moreover,
given the overwhelming evidence against Emmett, the
comments certainly did not make such an impact so as
to deprive him of a fair trial.
Emmett also makes two arguments that his sentence
should be reduced, for which he must show clear error.
First, he argues that the district court should not have
given him a 2-level increase for “a threat of death” under
§2B3.1(b)(2)(F). A threat of death may be “an oral or writ-
ten statement, act, gesture, or combination thereof. Ac-
cordingly, the defendant does not have to state expressly
his intent to kill the victim in order for the enhancement
to apply. . . . The court should consider that the intent
of this provision is to provide an increased offense level
for cases in which the offender(s) engaged in conduct
that would instill in a reasonable person, who is the vic-
tim of the offense, a fear of death.” U.S.S.G. §2B3.1,
cmt. n.6; see also United States v. Raszkiewicz, 169 F.3d
459, 468 (7th Cir. 1999) (threatening gesture alone can
be enough to put a victim in fear of death sufficient to
justify an increase); United States v. Carbaugh, 141 F.3d
791, 794-95 (7th Cir. 1998) (threatening language alone
can be sufficient); United States v. Hunn, 24 F.3d 994,
998-99 (7th Cir. 1994) (threatening language combined
with gesture can be sufficient).
Emmett claims he did not make a threat of death be-
cause the note he gave the tellers never suggested that
he had a weapon. But the question is not whether Emmett
told anyone he had a weapon, the question is whether
his note and actions would put reasonable bank tellers
in fear for their lives. Emmett handed both tellers notes
6 No. 01-3887
threatening that people would be harmed, which sug-
gested that he had a weapon and was willing to use it.
Emmett claims Vega’s response (asking him whether
he was serious) showed that she did not fear for her life,
but such a response does not mean that reasonable
tellers would not fear for their lives. See Carbaugh, 141
F.3d at 792 (2-level increase was appropriate where teller
asked robber “are you for real?”). Moreover, in both banks
Emmett put his hand into his jacket, which could lead
a reasonable teller to believe he had a gun (as both Vega
and Benkovich believed).
Finally, Emmett claims the district court should have
granted grant him a 3-level decrease because his with-
drawal from the banks made his efforts “attempts” under
§2X1.1(b)(1), which provides:
If an attempt, decrease by 3 levels, unless the defen-
dant completed all the acts the defendant believed
necessary for successful completion of the substantive
offense or the circumstances demonstrate that the
defendant was about to complete all such acts but
for apprehension or interruption by some similar
event beyond the defendant’s control.
Emmett claims he did not complete all of the acts neces-
sary to complete either robbery. Specifically, he contends
he could have told the tellers he had a gun or other weap-
on in an effort to make them comply with his demands.
But the mere fact that a defendant could have tried some-
thing else does not entitle him to a guideline decrease.
As the guidelines explicitly say, the 3-level decrease is
not appropriate if Emmett did everything he thought
was necessary to rob a bank. That’s exactly what hap-
pened. Emmett gave the threatening note to Vega, the
first teller, thinking that she would hand over the money
he demanded. Had Emmett thought he needed to do
more to complete the robbery, he would have taken addi-
No. 01-3887 7
tional steps when trying to rob the second bank. Instead,
Emmett tried the exact same thing. The fact that he
again failed does not mean that he did not think he
was doing everything he needed to do in order to succeed.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-3-03