U.S.A. v. Clark, 99-3529

• Decision Date: 11 September 2000
• Docket Number: No. 99-3529,99-3529
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHAUNCY J. CLARK, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 771

227 F.3d 771 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHAUNCY J. CLARK, Defendant-Appellant.

No. 99-3529

In the United States Court of Appeals For the Seventh Circuit

Argued June 13, 2000

Decided September 11, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 CR 36--Charles N. Clevert, Judge.

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...