United States v. Steve Smith ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2019 Decided February 25, 2020
No. 18-3010
UNITED STATES OF AMERICA,
APPELLEE
v.
STEVE JAMAL SMITH, ALSO KNOWN AS JABRAIL LOVE,
APPELLANT
Consolidated with 18-3016
Appeals from the United States District Court
for the District of Columbia
(No. 1:17-cr-00116-01)
(No. 1:17-cr-00116-02)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellants. With her on the joint brief were
A. J. Kramer, Federal Public Defender, and Mary E. Davis.
Thomas Abbenante, appointed by the court, entered an
appearance.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman and Suzanne G. Curt,
Assistant U.S. Attorneys.
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Before: HENDERSON, GRIFFITH, and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: A jury convicted Steve Jamal
Smith and John King Lionell of conspiracy to commit bank
robbery by intimidation. Because the evidence amply supports
their convictions, we affirm.
I
A
A grand jury indicted Smith and Lionell for bank robbery
and conspiracy to commit bank robbery under 18 U.S.C.
§§ 371 and 2113(a). Following a two-day trial, a petit jury
convicted them of conspiracy. As to the substantive robbery
charge, the jury acquitted Smith and deadlocked over Lionell,
whom the government elected not to retry.
The evidence at trial established that around 1:50 p.m. on
January 27, 2016, Smith and Lionell entered a Washington,
D.C. branch of BB&T Bank. They feigned interest in opening
an account and spoke with the bank manager in the lobby about
how to do so. While the defendants ostensibly mulled over their
options, the bank manager returned to his office. Once the
manager was out of sight, Smith and Lionell approached the
tellers. Smith began chatting with the first teller, while Lionell
showed the second teller a note that read: “Give me all your
money. 100s, 50s and 20s only.” Trial Tr. 37:23-24 (Nov. 7,
2017). Startled, the teller immediately activated the bank’s
silent alarm but then “froze,” even though she had been trained
to obey a robber’s demands. Id. at 40:20-23. Lionell hounded
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her, “What are you doing? What are you doing? What are you
doing?” Id. at 39:5-6. But the teller said nothing. At trial, she
testified that she was so “scared” she “couldn’t even move,” let
alone speak. Id. at 40:23-24. When the bank manager came to
see whether the defendants needed more help, Lionell told
Smith it was “time to go.” Id. at 39:14. They left the bank
without any cash, jumped the turnstile at the nearby Columbia
Heights Metro station, and took the train to Silver Spring,
Maryland.
They stopped and chatted briefly in a diner next to a branch
of Capital One Bank. Around 2:30 p.m., the defendants decided
to try their luck at Capital One. This time, Smith took the lead
while Lionell stood nearby, keeping watch and staring at the
teller. Smith showed the teller a note with bill denominations
and repeatedly demanded, “Give me the money.” Trial Tr. 12:1
(Nov. 8, 2017). At first, the teller “thought it was a change
order that he needed,” but once she “realized it was a robbery,”
she was “scared.” Id. at 8:24, 18:18-20. The teller tried to hand
over the cash as instructed by bank protocol, but Smith ordered
her to keep her arms raised, preventing her from reaching the
money or the alarm. After a brief stand-off, the defendants
again fled the bank empty-handed.
B
The jury found Smith and Lionell guilty of conspiracy to
commit bank robbery by intimidation. They timely appealed on
the ground that the government’s evidence was insufficient to
support their convictions. The district court had jurisdiction
under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291. “[W]e review the evidence of record de novo,
considering that evidence in the light most favorable to the
government, and affirm a guilty verdict where ‘any rational
trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.’” United States v. Wahl, 290
F.3d 370, 375 (D.C. Cir. 2002) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
II
A defendant is guilty of conspiracy when (1) he “enter[s]
into an agreement with at least one other person to commit a
specific offense”; (2) he “knowingly participate[s] in the
conspiracy with the intent to commit the offense”; and (3) a
member of the conspiracy commits “at least one overt act . . .
in furtherance of the conspiracy.” United States v. Gatling, 96
F.3d 1511, 1518 (D.C. Cir. 1996). The government need not
prove the agreement by direct evidence, as it may be “inferred
from the facts and circumstances of the case.” Iannelli v.
United States, 420 U.S. 770, 777 n.10 (1975).
A defendant is guilty of bank robbery when he, “by force
and violence, or by intimidation, takes, or attempts to take,
from the person or presence of another, . . . any property or
money . . . belonging to, or in the care, custody, management,
or possession of, any bank.” 18 U.S.C. § 2113(a). Here, the
government did not assert that Smith and Lionell conspired to
rob “by force and violence,” but rather “by intimidation.”
Intimidation means “conduct reasonably calculated to put
another in fear, or conduct and words calculated to create the
impression that any resistance or defiance by the individual
would be met by force.” United States v. Carr, 946 F.3d 598,
602 (D.C. Cir. 2020) (internal quotation marks and citation
omitted).
Because the jury convicted Smith and Lionell of
conspiracy, the government need not prove that the defendants
actually engaged in intimidation, only that they agreed to do
so. As both sides acknowledge, the best evidence in this case
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of whether Smith and Lionell entered into an unlawful
agreement is their joint conduct during the robberies. See Smith
Br. 13 (“[T]he government failed to present any evidence that
appellants had agreed to do anything other than what they
actually did.”); Gov’t Br. 8 (“[W]e agree that the issue
ultimately turns on whether appellants’ actions in the two
banks rose to intimidation . . . .”).
Their conduct amply supports the jury’s finding that Smith
and Lionell agreed to rob by intimidation. In the first bank,
Smith distracted one teller while Lionell handed another a note
commanding, “Give me all your money.” In the second bank,
Lionell kept watch while Smith ordered the teller not only to
“[g]ive [them] the money,” but also to keep her hands in the
air. As other circuits have recognized, demands for cash can,
under certain circumstances, “carry with them an implicit
threat: if the money is not produced, harm to the teller or other
bank employee may result.” United States v. Gilmore, 282 F.3d
398, 402 (6th Cir. 2002); see also United States v. Clark, 227
F.3d 771, 773, 775 (7th Cir. 2000) (holding that, when the
robber announced “this is a hold up,” the teller could
“reasonabl[y] . . . suspect and fear that [the robber] might use
physical force to compel satisfaction of his demand for
money”).
Importantly, both tellers testified that they were, in fact,
intimidated. See, e.g., Trial Tr. 38:20 (Nov. 7, 2017) (“I was
scared. I mean, I freaked out . . . .”); id. at 39:6-7 (“I couldn’t
even say nothing . . . .”); id. at 40:23-24 (“I was scared, I
couldn’t even move.”); id. at 57:9-10 (“I felt scared, how
anybody would be in that situation.”); Trial Tr. 8:24 (Nov. 8,
2017) (“[I felt] scared.”). Although the test for intimidation is
objective, a “teller’s feelings about the crime she experienced
are ‘probative of whether a reasonable person would have been
afraid under the same circumstances.’” Clark, 227 F.3d at 775
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(quoting United States v. Hill, 187 F.3d 698, 702 (7th Cir.
1999)); see also United States v. Hendricks, 921 F.3d 320, 329
(2d Cir. 2019); Gilmore, 282 F.3d at 403; cf. United States v.
Davis, 635 F.3d 1222, 1226 (D.C. Cir. 2011) (explaining that a
“victim’s perception . . . may be relevant” to whether the
defendant “objective[ly]” created the impression of possessing
a dangerous weapon (emphasis and internal quotation marks
omitted)). Indeed, Smith and Lionell arguably thwarted their
own robberies by being too intimidating. The first teller was so
scared that she froze. And the second teller was sufficiently
frightened that she obeyed Smith’s demand to keep her hands
in the air, even though it prevented her from following bank
protocol and giving him the money he demanded.
Every circuit that has been presented with a similar
combination of facts—that is, written and oral demands for
money combined with efforts to control the teller’s physical
movements and evidence that the teller was afraid—has
affirmed the bank robbery conviction. See, e.g., Gilmore, 282
F.3d at 402 (affirming convictions where the defendant
presented demand notes and issued commands like “Hurry
up”); Clark, 227 F.3d at 775 (affirming a conviction where the
defendant gave the teller a demand note and stated “Yes,
Ma’am, this is a holdup.”); United States v. McCarty, 36 F.3d
1349, 1357-58 (5th Cir. 1994) (affirming a conviction where
the defendant did not speak to the teller but handed her a note
reading, “Be calm. This is a robbery.”); United States v. Lucas,
963 F.2d 243, 244 (9th Cir. 1992) (affirming a conviction
where the defendant displayed a note reading, “Give me all
your money, put all your money in the bag.”); United States v.
Henson, 945 F.2d 430, 439 (1st Cir. 1991) (affirming a
conviction where the defendant did not speak to the teller but
handed her “a note directing her to ‘put fifties and twenties into
an envelope now!!’”); United States v. Graham, 931 F.2d 1442,
1442-43 (11th Cir. 1991) (affirming a conviction where the
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defendant did not speak to the teller but gave her a note reading,
“This is a robbery. Please give me small, unmarked bills, touch
off no alarms, and alert no one for at least ten minutes. Thank
you.”); United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir.
1983) (affirming a conviction where the defendant “spoke
calmly, made no threats, . . . was clearly unarmed,” and gave
the teller a note reading, “Give me all your hundreds, fifties and
twenties. This is a robbery.”). Following the reasoning of our
sister circuits, we find the facts here equally sufficient to prove
conspiracy to rob by intimidation.
Smith and Lionell object that their behavior did not
establish an agreement to rob by intimidation because they
“spoke in a conversational tone” and did not “raise their voices,
display a weapon, make any threats, or make any threatening
gestures.” Smith Br. 11. But none of those facts would prevent
a jury from finding an agreement to intimidate. See, e.g., Clark,
227 F.3d at 775 (“No matter how one interprets [the
defendant’s] manners as polite or non-violent, the combination
of his actions still amount[s] to intimidation.”); Henson, 945
F.2d at 439 (affirming a robbery conviction “[a]lthough no
weapon was displayed and no threat of bodily harm was
expressed”); Graham, 931 F.2d at 1443 (affirming a conviction
despite the robber’s impeccable manners and use of “please”
and “thank you”); Hopkins, 703 F.2d at 1103 (affirming a
conviction though the robber “spoke calmly” and “was clearly
unarmed”).
III
Considering the record as a whole—including the
defendants’ demands and the tellers’ fear—we conclude that
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the jury was presented with sufficient evidence to convict
Smith and Lionell. Accordingly, we affirm.
So ordered.