United States v. Burnley, Walter R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1314
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALTER R. BURNLEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-CR-141-S-1—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 14, 2007—DECIDED JULY 21, 2008
____________
Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Walter Burnley was convicted
after a jury trial on four counts of bank robbery, 18
U.S.C. § 2113(a), and was sentenced to a total of 262
months’ imprisonment. On appeal, Burnley argues that
the Government failed to prove that either he or his
accomplice used force or intimidation to obtain the
stolen money, and thus that three of his convictions
should be overturned. We conclude that the jury was
entitled to find intimidation under the circumstances
of this case and affirm.
2 No. 07-1314
I
On April 25, 2006, Burnley entered a branch of Associ-
ated Bank in Beloit, Wisconsin, clad in a baseball cap
pulled low over his eyes, with safety goggles placed over
a pair of sunglasses. At the time, Burnley was 33 years
old, 5’8” tall, and approximately 220 pounds. After
waiting his turn in line, Burnley reached the lone teller
and pulled out a purse. According to the teller, Burnley
then leaned toward her and said, “Fill the bag and do
not give me the dye pack.” The frightened teller put $4,661
in the purse and, as Burnley had instructed, omitted the
dye pack. Burnley then fled.
Two weeks later, on May 9, Burnley (again using his
safety goggles) visited a different branch of Associated
Bank in Beloit. This time when he reached the teller, he
told her not to “do anything stupid” and warned that
he would kill her if she gave him a dye pack or bait bills.
He then pushed a black bag toward her, and she filled
the bag with $1,514 in unmarked bills.
That evening Burnley met Lisa Harding, a 20-year-
old crack addict, through a mutual friend. Two days
later, on May 12, Burnley enlisted Harding to rob a
branch of AnchorBank in Janesville, Wisconsin. Harding,
who also was charged but wound up testifying for the
government, entered the bank at Burnley’s direction
and ordered a teller to “put all of your money in this bag
but no dye pack.” When the teller appeared confused,
Harding, a woman of slight build, repeated the demand
louder and “a little more forcefully.” This teller also
complied, giving her $2,069 without a dye pack. Harding
then departed.
Four days after that, on May 16, Burnley and Harding
arranged for another robbery, which was to be their
No. 07-1314 3
last. The target was a branch of the First National Bank
in Beloit. This time, both of them entered the bank.
Burnley, whose face was concealed by a painter’s mask,
stood back near the door while Harding approached the
teller’s window and said, “I need you to do me a favor,
I need you to put all the money in the bag.” After the
bag was full, Harding confirmed with the teller that
there was no dye pack in the bag and apologized for
making her “so nervous.” Burnley and Harding left the
bank with $2,472.
II
The statute under which Burnley was convicted defines
“bank robbery” as using “force and violence, or intim-
idation” to take bank funds from an employee. See 18
U.S.C. § 2113(a). Burnley does not dispute that he did all
of these things during the second robbery, but now he
argues that during the other three holdups he and Harding
did not use force or do or say anything that amounted
to “intimidation.” Instead, he points out that either he
or Harding simply demanded money, got it, and left.
Under no objective standard, he claims, could one say
that the government demonstrated that the tellers were
put in fear. Our consideration of this argument is
heavily influenced by the procedural posture in which it
reaches us. Burnley did not move for a judgment of
acquittal on this or any other basis. See FED. R. CRIM. P. 29.
Furthermore, he did not raise this argument in any
other way before the district court. Our review of the
jury’s verdict is thus only for plain error. We will
reverse only if the convictions “amounted to a manifest
miscarriage of justice,” United States v. Rock, 370 F.3d 712,
714 (7th Cir. 2004) (quotation marks and citation omitted).
4 No. 07-1314
These were not violent robberies, and so the govern-
ment did not rely on the “force” or “violence” options
provided by § 2113(a). Instead, it recognized that it had
to prove that Burnley and Harding used “intimidation” to
take the banks’ money. We have defined intimidation
under § 2113(a) as “saying or doing something in such
a way as would place a reasonable person in fear.”
United States v. Clark, 227 F.3d 771, 775 (7th Cir. 2000)
(quotation marks, brackets, and citation omitted). Intim-
idation “exists in situations where the defendant’s ‘con-
duct and words were calculated to create the impression
that any resistence or defiance by the teller would be
met with force.’ ” Id. (quoting United States v. Jones, 932
F.2d 624, 625 (7th Cir. 1991)). The intimidation element
is satisfied if an ordinary person would reasonably feel
threatened under the circumstances. United States v. Hill,
187 F.3d 698, 702 (7th Cir. 1999). How the teller who
encountered the defendant felt at the time is “probative
of whether a reasonable person would have been afraid
under the same circumstances,” id., even though the
ultimate standard is an objective one. The defendant does
not have to make an explicit threat or even announce
that he is there to rob the bank. Credibly implying that
a refusal to comply with a demand for money will be
met with more forceful measures is enough. See, e.g.,
United States v. Kelley, 412 F.3d 1240, 1244-45 (11th Cir.
2005); United States v. Gilmore, 282 F.3d 398, 402-03 (6th Cir.
2002); Clark, 227 F.3d at 775; Hill, 187 F.3d at 701; United
States v. McCarthy, 36 F.3d 1349, 1357 (5th Cir. 1994); United
States v. Hummasti, 986 F.2d 337, 338 (9th Cir. 1993); United
States v. Smith, 973 F.2d 603, 604-05 (8th Cir. 1992); United
States v. Henson, 945 F.2d 430, 439-40 (1st Cir. 1991).
Our recent cases illustrate the point. In Clark the defen-
dant entered the bank and slid a note to the teller instruct-
No. 07-1314 5
ing her to “remain calm and place all of your twenties,
fifties, and hundred dollar bills on the counter and act
normal for the next fifteen minutes.” When the confused
teller did not respond, the defendant clarified, “Yes,
Ma’am, this is a holdup.” 227 F.3d at 773. On appeal
we held that the defendant’s command that the teller
“give him money not belonging to him” could con-
stitute intimidation. Id. at 775. Similarly, in Hill the defen-
dant said to the teller, “Give me all your money,” adding
that he did not want any of her “funny money.” He then
barked, “Hurry up, hurry up, bitch.” 187 F.3d at 699-700.
That was enough to constitute intimidation even though
the defendant maintained that a reasonable person
should not have been frightened because he was of me-
dium height and build, did not carry a weapon, and
spoke softly. Id. at 701-02.
This case is no different. Newly appointed appellate
counsel criticizes the government for failing to elicit more
evidence about how the tellers reacted to the demands
received from Burnley and Harding, but the record
is underdeveloped because her predecessor, during
opening and closing arguments, conceded that robberies
had been committed. Had these arguments been pre-
served, we would have a better record on which to de-
cide where the objective line lies between intimidating
conduct that violates § 2113(a) and statements that fall
short of intimidation, because of their sheer implausibil-
ity or other reasons why the listener would not be fright-
ened. But, assuming generously that counsel’s state-
ments conceding the robberies did not amount to waiver
(which would preclude review altogether), see United
States v. Rusan, 460 F.3d 989, 993-94 (8th Cir. 2006); United
States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991), these
6 No. 07-1314
points have been forfeited. The record adequately
shows that in each of the three contested robberies,
Burnley or Harding conveyed to the teller a demand for
the bank’s money and made it clear that the teller was
not to put a dye pack or bait bills in with the currency.
The tellers understood from the words and context that
these were not polite requests that could be ignored, they
felt compelled to comply, and there was some evidence
that they experienced fear or nervousness. That is
enough, under the plain-error standard that applies in
this case, to uphold Burnley’s convictions.
AFFIRMED.
USCA-02-C-0072—7-21-08