USA. v. Hill

• Decision Date: 09 August 1999
• Docket Number: No. 98-4125,98-4125
• Citation: 187 F.3d 698
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY HILL, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 698

187 F.3d 698 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY HILL, Defendant-Appellant.

No. 98-4125

United States Court of Appeals, Seventh Circuit

Argued July 7, 1999

Decided August 9, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98-CR-39--Ruben Castillo, Judge.

Before ESCHBACH, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

In this direct appeal from his conviction for bank robbery in violation of 18 U.S.C. sec. 2113(a), Rodney Hill argues that the evidence was not sufficient to prove beyond a reasonable doubt that his actions during the robbery satisfied the intimidation element of the statute. He does not argue that the government failed to prove any other element of its case. Because there was sufficient evidence for a jury to find that the government proved the intimidation element of the offense, we affirm.

I FACTS

On December 29, 1997, Mr. Hill entered the St. Paul Federal Bank and approached bank teller Gabriela Orozco's window. As Mr. Hill reached Ms. Orozco's window, she asked, "Can I help you?" In reply, he mumbled something and threw a plastic grocery bag on the counter between them. Then, standing arm's length from Ms. Orozco, Mr. Hill said, "Give me all your money" or "Give me your money." Ms. Orozco responded, "How much?" Mr. Hill answered, "All of it." Ms. Orozco started placing money from her teller drawer into the plastic bag. As Ms. Orozco reached into the back of her drawer for the marked bills, Mr. Hill warned her, "And don't give me any of the funny money." Ms. Orozco followed Mr. Hill's directions and continued putting unmarked bills into the bag. Mr. Hill leaned forward and admonished Ms. Orozco, "Hurry up, hurry up, bitch." As Ms. Orozco finished loading the money into the plastic bag, Mr. Hill reached into his pocket and gestured as if he had a gun. A bank customer standing near Mr. Hill at the teller counter also observed him with his hand moving inside his jacket pocket. Once Ms. Orozco finished placing over $2,000 in the plastic bag, Mr. Hill grabbed it and quickly walked out of the bank.

With Mr. Hill gone, Ms. Orozco pressed the alarm, left her window, and informed a co-worker, "Oh, my God, I've just been robbed." During the robbery she had not hit the alarm, which was located between her window and the adjacent teller window, because she could not do so without being obvious. The bank had instructed her to reach for the alarm during a robbery only if she felt she could do so safely.

On January 15, 1998, Ms. Orozco picked Mr. Hill's picture from a photo array. An FBI agent arrested Mr. Hill on January 19, 1998, and determined that Mr. Hill was not armed during the robbery. Mr. Hill was later indicted on one count of bank robbery. A jury trial commenced on June 30, 1998. Mr. Hill moved for a judgment of acquittal at the close of the government's case, and renewed the motion prior to the jury deliberations. The district court denied both motions. The jury returned a guilty verdict. The district court sentenced Mr. Hill to 210 months of imprisonment and five years supervised release. Mr. Hill timely filed a notice of appeal.

II ANALYSIS

A. Standard of Review

We review 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,'" United States v. Brimley, 148 F.3d 819, 821 (7th Cir. 1998) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)), because Mr. Hill renewed his motion for judgment of acquittal at the close of all the evidence, United States v. Carlino, 143 F.3d 340, 343 (7th Cir. 1998). We overturn a guilty verdict only if there is no evidence from which a jury could convict. United States v. Robinson, 161 F.3d 463, 471 (7th Cir. 1998), cert. denied, 119 S. Ct. 1482 (1999). Thus, a sufficiency of the evidence challenge rarely succeeds. Id. at 470.

B. Evidence Sufficient to Prove Intimidation Element of Crime

Mr. Hill contends that the evidence presented at trial did not prove the intimidation element of the bank robbery charge. The offense of bank robbery requires the government to prove beyond a reasonable doubt that Mr. Hill took something of value belonging to St. Paul Federal Bank "by force and violence, or by intimidation." 18 U.S.C. sec. 2113(a).¹ We have defined intimidation as "say[ing] or do[ing] something in such a way as would place a reasonable person in fear." See United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997) (quoting Federal Crim. Jury Instructions of the 7th Cir., Vol. III, 77 (1986)); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991). In other words, the "defendant's conduct must constitute a threat." Smith, 131 F.3d at 688. A defendant's conduct will be considered a threat if it gives the impression that any resistance would be met by physical force. Id.

We have not addressed what specific acts would place a reasonable person in fear. However, we agree with other circuits that the defendant'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. Henson, 945 F.2d 430, 439 (1st Cir. 1991) (note demanding money sufficient to prove intimidation); United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) (verbal and written demands for money were sufficient evidence of intimidation even though defendant spoke calmly, made no threats and was clearly unarmed); United States v. Amos, 566 F.2d 899, 901 (4th Cir. 1977) (sufficient evidence of intimidation where robber, with hand in pocket, told bank manager not to sound alarm and directed tellers to hand over money); United States v. Johnston, 543 F.2d 55, 56-57, 59 (8th Cir. 1976) (demanding money with hand in pocket sufficient to prove intimidation); United States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976) (note and hand in pocket sufficient for intimidation); United States v. Robinson, 527 F.2d 1170 (6th Cir. 1975) (finding that, although defendant made no express threats and his hands were visible to the teller, evidence that defendant instructed teller to "give me all your money" and wore coat where weapon could have been concealed sufficient for intimidation). By contrast, in United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989), the court held the evidence of intimidation insufficient where the defendant had entered the bank, donned a ski mask, walked into the teller's area, and began taking money from an unattended cash drawer. However, he was never close to a teller and did not present a note, carry a weapon, make any threatening gestures or speak to any employee. The Fourth Circuit reasoned that the defendant's acts did not constitute intimidation because they would not have produced a reasonable fear of bodily harm. Id. at 629.

In this case, Mr. Hill confronted teller Ms. Orozco, threw a plastic bag on her counter window, and demanded that she give him all her money. In addition, Mr. Hill instructed Ms. Orozco not to give him any "funny money" and admonished her to hurry using a derogatory term. Thus, even though Mr. Hill did not expressly threaten Ms. Orozco or display a weapon, his actions can be characterized as intimidating.

Mr. Hill argues, however, that he was not intimidating because he is not an imposing figure and he appeared disheveled during the robbery. He asserts that an ordinary person would not have considered him threatening because he is of medium height and build, did not carry a weapon, spoke softly and had nasal discharge on his nose. His argument is meritless, however, because it is not just physical size and appearance that control whether he was intimidating; his actions during the course of the offense also figure into the assessment. In United States v. Baker, 17 F.3d 94, 96-97 (5th Cir. 1994), the Fifth Circuit held it was reasonable to believe that an 11 year-old boy, who stood four feet, eight inches tall, weighed approximately 75 pounds and was obviously unarmed, intimidated the tellers by handing them a note that demanded money and threatened them...