U.S. v. Gilmore

• Decision Date: 26 February 2002
• Docket Number: No. 00-4014.,00-4014.
• Citation: 282 F.3d 398
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin GILMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

282 F.3d 398

UNITED STATES of America, Plaintiff-Appellee, v. Kevin GILMORE, Defendant-Appellant.

No. 00-4014.

United States Court of Appeals, Sixth Circuit.

Argued: November 28, 2001.

Decided and Filed: February 26, 2002.

Steven L. Jackson (argued and briefed), Assistant United States Attorney, Cleveland, OH, for Appellee.

Henry F. DeBaggis (argued and briefed), Cleveland, OH, for Appellant.

Before CLAY and GILMAN, Circuit Judges; EDGAR, Chief District Judge.^*

OPINION

EDGAR, Chief District Judge.

Kevin P. Gilmore ("Gilmore") was convicted by a jury of committing a series of eight bank robberies in and around Cleveland, Ohio. Providing new meaning to the term "repeat offender," Gilmore was found to have robbed one bank four times, another bank three times, and a final bank once. He appeals his conviction on eight counts of unarmed bank robbery, 18 U.S.C. § 2113(a), contending that there was insufficient evidence of "intimidation."¹ Gilmore also asserts that the district court erred in denying his request under 18 U.S.C. § 3006A for funds to hire an investigator. We AFFIRM.

I.

The series of robberies began on July 21, 1999, and ended on February 4, 2000. Gilmore used a similar modus operandi on each occasion.

July 21, 1999: Charter One Bank, 17411 Lorain Avenue (Count One). Gilmore, wearing a black baseball hat turned backwards, dark glasses and a fake beard, went quickly to a teller's window and handed teller Rebecca Olson a neatly handwritten demand note that read: "Give me your money, be quiet." Olson felt scared, froze for a moment, and then handed over her large bills. Gilmore ran out of the bank with $1,640.

August 2, 1999: Charter One Bank, 11623 Clifton Boulevard (Count Two). Gilmore again wore his black baseball hat on backwards, dark sunglasses, and this time a fake goatee, that, according to senior teller Edward Kasunic, "didn't look right." He produced a note which said: "Give me the money," and "Give the note back." When Kasunic began to take money out of his drawer, Gilmore said, "No bait." In the reflection from Gilmore's sunglasses, Kasunic saw fear in himself, and handed over money. Gilmore left the bank with $1,597.

August 9, 1999: Charter One Bank, 17411 Lorain Avenue (Count Three). Back at the site of the first heist, Gilmore entered the bank without his cap, but wearing sunglasses and an obviously fake dark beard and mustache. Teller Tonya Harte immediately surmised from Gilmore's actions and appearance that a robbery was in progress. When Gilmore approached her teller window, he handed her a demand note. Harte was scared, and did not want to look at the robber. Instead, feeling sick, she handed over some money and a dye pack without reading the note. Gilmore left the bank. The amount taken was $3,050. A witness outside the bank observed Gilmore running from the bank with red smoke coming out of his shirt.

October 27, 1999: Charter One Bank, 11623 Clifton Boulevard (Count Four). On this occasion Gilmore wore a beret or "golf hat" and an obviously fake goatee, which looked to teller Sharon Hall like the one he had worn while at this same bank in August. Though Gilmore was wearing neither his baseball cap nor sunglasses, Hall recognized him from his previous visit. Again Gilmore produced a demand note which Hall did not read. She started to hand over the money, but when she did not do so quickly enough to suit Gilmore, he became irritated and said "Let's go" or words to that effect. He left the bank with $1,600.

November 12, 1999: Parkview Federal Savings Bank, 11010 Clifton Boulevard, Lakewood, Ohio (Count Five). Deciding to try a different bank, Gilmore walked in, again wearing his baseball cap on backwards and dark sunglasses. This time he had no facial hair, fake or legitimate. He stepped up to teller Leisa Hawrylko's window and handed over a note which read, "Hand over money." After a "few seconds in shock," Gilmore demanded, "Now!" Hawrylko testified, "I didn't know if my life was in danger or if he had a weapon or if he was going to hit me." Hawrylko stated, "I was just scared for myself and just wanted it to be over." She quickly handed over $948, and Gilmore left the bank.

December 3, 1999: Charter One Bank, 11623 Clifton Boulevard (Count Six). Back at this bank branch for the third time, Gilmore again wore his fake goatee, but no cap. He was recognized by several tellers, including Edward Kasunic, as the person who had previously robbed the bank. Gilmore handed teller Michelle Colon a note that said, "Hand over your money." Colon did so, and Gilmore left with $519.

January 6, 2000: Charter One Bank, 17411 Lorain Avenue (Count Seven). For the third time Gilmore entered this branch. He wore sunglasses, a fake mustache, and a knit cap. He held up a note with two hands to teller Peter Polomsky. However, to Polomsky the note looked blank.² When Polomsky saw this, he asked, "What?" Gilmore responded, "You know, let's go," whereupon Polomsky knew that he was being robbed and handed over money, including a dye pack and bait money. Gilmore left, purposely dropping the dye pack on the way out the door, with $2,260.

February 4, 2000: Charter One Bank, 11623 Clifton Boulevard (Count Eight). In his final foray, Gilmore returned to this bank for a fourth time, wearing a black hat. Michelle Colon, who had been the teller Gilmore approached in the robbery on December 3, 1999, was handed a note. The record does not reveal the contents of this note. However, Colon, having recognized Gilmore from the previous robberies, knew what the note meant, and provided $450, whereupon Gilmore exited the bank a bit unhappy with his small take.

II.

In this appeal there is no question of Gilmore's identity as the perpetrator. The issue here is whether there was sufficient evidence for the jury to conclude that Gilmore engaged in "intimidation" which is, in the absence of the use of "force and violence," a necessary element for conviction under 18 U.S.C. § 2113(a). In evaluating the sufficiency of the evidence, this Court must consider the evidence in the light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Mack, 258 F.3d 548, 552 (6th Cir.2001).

"Intimidation" has been defined as "conduct and words ... calculated to create the impression that any resistance or defiance by the [teller] would be met by force." United States v. Waldon, 206 F.3d 597, 604 (6th Cir.2000) (citation and internal quotation marks omitted); United States v. Perry, 991 F.2d 304, 310 (6th Cir.1993) (citing United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991)). Whether intimidation under 18 U.S.C. § 2113(a) exists in a particular case is determined by an objective test: whether an ordinary person in the teller's position could reasonably infer a threat of bodily harm from the defendant's acts. See United States v. Hill, 187 F.3d 698, 702 (7th Cir.1999); United States v. Burns, 160 F.3d 82, 85 (1st Cir.1998); United States v. Woodrup, 86 F.3d 359, 363 (4th Cir.1996); United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir.1994); see also United States v. Robinson, 527 F.2d 1170, 1171 (6th Cir.1975) (approving district court's jury instruction that "intimidation must be established by proof of one or more acts or statements of the accused which were done or made in such a manner and under such circumstances as would produce, in the ordinary person, fear of bodily harm").

There is no evidence that Gilmore ever carried a firearm or other weapon on any of his bank visits. However, the display of a weapon, a threat to use a weapon, or even a verbal or nonverbal hint of a weapon is not a necessary ingredient of intimidation under § 2113(a). Robinson, 527 F.2d at 1172; see also Waldon, 206 F.3d at 606 ("It is immaterial that Waldon did not brandish a weapon."); Hill, 187 F.3d at 701 ("[D]efendant'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."); United States v. Lucas, 963 F.2d 243, 248 (9th Cir.1992) ("`[E]xpress threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon[s]' are not required for a conviction for bank robbery by intimidation.") (quoting United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir.1983)); United States v. Henson, 945 F.2d 430, 440 (1st Cir.1991) ("Neither the actual or threatened display of a weapon, nor an explicit threat of force, is essential to establish intimidation under the statute."); United States v. Higdon, 832 F.2d 312, 315 (5th Cir.1987) ("We conclude that neither the plain meaning of the term `intimidation' nor its derivation from a predecessor statute supports Higdon's argument that a taking `by intimidation' requires an express verbal threat or a threatening display of a weapon.").

A common thread in all of Gilmore's actions is the use of a demand note. The various notes contained imperatives such as: "Hand over money"; "Hand over your money"; "Give me your money"; "Give the note back"; and "Be quiet." When the notes did not produce the desired results, Gilmore followed up with commands such as "No bait"; "That's enough"; "Let's go"; "Give me that"; "Hurry up"; "Now!"; and "Come on, you know."

A review of the case law reveals that making a written or verbal demand for money to a teller is a common means of successfully robbing banks. Demands for money amount to intimidation because they carry with them an implicit threat: if the money is not produced, harm to the teller or other bank employee may result. Bank tellers who receive demand notes are not in a position to evaluate fully the actual risk they face. As the Robinson court stated: "An `ordinary person' in the...