In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2207

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALAN L. SIMMONS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 07-CR-30—Lynn Adelman, Judge.

ARGUED FEBRUARY 25, 2009—DECIDED SEPTEMBER 11, 2009

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Alan Simmons was convicted

on three federal charges: conspiracy, armed bank robbery,

and use of a firearm during a crime of violence. He

appeals the conviction and his sentence, and argues that

improper conduct by government prosecutors should

have led the district court to grant a mistrial. We

disagree and affirm his conviction and sentence.
2 No. 08-2207

I. Background

Alan Simmons was convicted of being the mastermind

behind a Cedarburg, Wisconsin bank robbery. His friend

Antonio Mann and cousin Mark Campbell actually

robbed the bank, but Simmons was in phone contact

with them throughout the heist. The scheme was hatched

by Mann, whose girlfriend Jackie Schmidt worked at the

bank. Schmidt had described the bank in detail, its

security precautions (or lack thereof) and related that

robbing the bank would be easy. Mann relayed the information to Simmons, who hooked him up with Campbell, but only after “interviewing” two other potential accomplices, neither of whom panned out for this bank job.

Simmons, Mann, and Campbell all took a first crack at

the bank on December 29, 2004, when it was closed (actually, this was more of a burglary than a robbery), using

a duplicate key that Mann had made from Schmidt’s

key ring. Mann and Campbell went to the bank while

Simmons, continuously monitoring Mann and Campbell

through cell phone calls, acted as a lookout from a

nearby ice cream stand (bringing along a girlfriend

who testified at trial to his presence at the stand during

the time of this attempt and who was apparently

unaware of what was taking place at the bank while

she bought her daughter ice cream and Simmons waited

in the car). But this plan was a disaster: first, Mann fell

through some ice into a creek when he tried to sneak up

to the bank, and then, the key didn’t work. So, the wouldbe thieves retreated, Mann to get into some dry clothes

and the three of them to devise a new plan. For their
No. 08-2207 3

second effort they decided to take Schmidt from her

apartment in the early morning and take her to the

bank, with Simmons again serving as the lookout.

By the way, the degree of Schmidt’s complicity, if any,

in the crime is at issue. The government says the

evidence showed she was abducted; Simmons argues

that she was an accomplice. In any event, Simmons did not

make it to the scene of this second attempt (he stayed

home to watch his kids), but did participate in a series

of phone calls with Mann over the course of the morning

of the robbery, during the time that Mann assumed

Simmons’s lookout duties. The new plan involved

having Schmidt open the door to the bank herself. At

this point, Simmons argues, the robbery developed

beyond the plan he had laid out and to which he had

agreed.

What Mann and Campbell testified to at trial was that

Campbell went to Schmidt’s apartment at 3:30 a.m. wearing a mask and carrying an unloaded gun. He was supposed to take her to the bank to open the door at that

point, but Schmidt informed Campbell that they would

have to wait until later that morning so a co-worker

could give them an additional code that would open the

vault. Campbell waited in Schmidt’s apartment for

more than three hours, and then drove with Schmidt in

her car to the bank. Mann, who was unaware of the change

of plan, apparently circled the neighborhood for about

three hours before arriving at the bank and seeing Campbell’s car there. Schmidt let Campbell into the bank where

they waited near the vault until Schmidt’s co-worker

Marlene Kasten arrived. Campbell threatened Kasten with
4 No. 08-2207

the unloaded gun and she gave him the vault code. Campbell opened the vault, grabbed $177,000, and then left

Kasten and Schmidt at the bank with a warning not to

call the police for at least five minutes as he fled with

Mann. Mann and Campbell divided the money and gave

Simmons $30,000 as part of his take in the robbery.

Eventually Mann and Campbell got caught and were

charged with bank robbery. Despite their promises in

recorded phone conversations from jail that they would

not snitch (Mann directly to Simmons and Campbell

through an intermediary), they flipped and testified

against Simmons at his trial.

II. Procedural History

Simmons was charged with three counts: conspiracy,

18 U.S.C. § 371, armed bank robbery, 18 U.S.C. § 2113,

and use of a firearm during a crime of violence, 18 U.S.C.

§ 924(c)(1)(A). As noted, Mann and Campbell testified at

his trial, providing the most damning evidence against

him. Their testimony was corroborated by an engineer

from Sprint who reported on the high volume of calls

between Simmons and Mann during the time of the

robbery, calls which allowed the engineer to provide a

pinpoint map of Mann’s travels over the course of the

morning of the robbery.

At the end of the trial, the prosecutor displayed a chart,

summarizing the government’s case, to the jury with

photographs of all three robbers, including a picture of

Simmons with the top part of his bright orange jail shirt

visible. Defense counsel objected and asked for a
No. 08-2207 5

mistrial, but the district court instead implicitly

overruled the mistrial motion and ordered the prosecutor

to proceed after removing the chart from the jury’s view.

Also relevant to the defendant’s appeal is the prosecutor’s statement during closing argument, when she said,

“My only job here is not to defend Antonio Mann, but

to compel him to tell you what happened.” She also

conceded that Campbell’s credibility was compromised

but that he “pled guilty” and “came clean.” Defense

counsel did not object at trial to these statements.

Simmons was convicted on all three counts and sentenced to 60 months on the conspiracy count and

96 months on the armed robbery charge, to be served

concurrently, along with an additional 84 months on the

use of a firearm count to be served consecutively, so

that his total sentence of incarceration added up to 180

months.

His appeal challenges the sufficiency of the evidence on

the robbery and firearm charges, the application of the

abduction guideline to his sentence, and the district

court’s decision not to grant a mistrial for either the use

of the photograph or the prosecutor’s allegedly

improper vouching during closing argument.

III. Analysis

A. Sufficiency of the evidence that a teller’s life

was put in jeopardy during the robbery

Because Simmons was charged specifically under the “injeopardy” prong of 18 U.S.C. § 2113(d), the prosecution
6 No. 08-2207

was required to prove beyond a doubt that there was

an actual risk created by the robber’s use of a dangerous

weapon. 18 U.S.C. § 2113(d) (punishing anyone who

“in committing . . . [a bank robbery], assaults any person,

or puts in jeopardy the life of any person by the use of

a dangerous weapon or device . . . .”); United States v.

Smith, 103 F.3d 600, 605 (7th Cir. 1996). The “in-jeopardy”

prong is distinct from the “assault” provision of the

same subsection, which requires only that the teller had

a reasonable fear of imminent bodily injury. Smith, 103

F.3d at 605. In Smith we remarked that there may be

little practical difference in charging the defendant

under either the assault or in-jeopardy prongs of the

offense, but our holding in that case requires us to

consider the actions of a defendant charged with putting

in jeopardy from an objective standpoint rather than

from the perspective of the teller. Id. (“[W]e now think

the focus of the ‘put in jeopardy’ analysis should be on the

actual risk created by the robber’s use of a dangerous

weapon.”). Simmons’s conviction here depends on

whether a rational jury could have found, on this record,

that his co-conspirator, Campbell, created an objective

risk to the teller’s life when he threatened her with an

unloaded gun. See United States v. Moore, 572 F.3d 334,

337 (7th Cir. 2009).

Simmons argues that no one was actually in any objective danger from the robbery and any collateral danger

that may attach to threatening a victim with an unloaded

gun was absent here. Involvement of law enforcement

was highly unlikely, he argues, because of the early

morning hour of the robbery. Similarly, no customers
No. 08-2207 7

were in the bank because the robbery occurred before

the bank opened. Therefore, Simmons argues, there is

insufficient evidence upon which a rational jury could

convict him of placing a teller’s life in jeopardy.

In Smith we noted that the defendant in that case “might

have had an argument had he used an unloaded gun,

which would have been physically incapable of inflicting

harm.” Smith, 103 F.3d at 605 (emphasis in the original).

But, we also characterized that argument as “weak.” Id.

We also mentioned in Smith, when discussing how to

apply the in-jeopardy prong of the inquiry, that

other circuits have found that an unloaded handgun is

a dangerous weapon because “it creates an immediate

danger that a violent response will ensue.” Id. (citing

McLaughlin v. United States, 476 U.S. 16, 18 (1986)). “Any

use of a dangerous weapon that qualifies as an assault

(by creating reasonable fear in victims) would therefore

almost always put lives in jeopardy if only because of

the risk of a violent response.”Id.

This case, of course, would be simpler if the defendant

were simply charged under the assault provision of

§ 2113(d), which carries the exact same penalty. But, even

so, we think the evidence was sufficient to convict

Simmons on the in-jeopardy provision. The First and

Ninth Circuits have found that the use of fake guns

placed lives in jeopardy because of the risk of a violent

response by law enforcement. See United States v. Benson,

918 F.2d 1, 3 (1st Cir. 1990) (finding defendant’s statement that the bulge in his jacket was a gun put lives in

jeopardy); United States v. Martinez-Jimenez, 864 F.2d 664,
8 No. 08-2207

666-67 (9th Cir. 1989) (finding that defendant’s use of a

toy gun put lives in jeopardy). We find their analyses

persuasive. The defendant points out that the robberies

considered by those courts occurred during daylight

hours and therefore the risk of law enforcement involvement was greater. However, there certainly was a risk of

law enforcement involvement here; simply because the

police did not show up does not mean there was no risk

of them doing so. Adopting the view that the potential

violent reaction of the victim or law enforcement is

enough to meet the in-jeopardy requirement, we find

that such a potential existed in this case. Campbell held

Marlene Kasten at gunpoint in the bank a little before

7:00 a.m. There was a risk that this situation could

have provoked a desperate response from Kasten or

attracted the attention of the police. We therefore hold

that sufficient evidence existed for a jury to find that

Kasten’s life was in jeopardy when Campbell pointed the

gun at her, even though the gun was empty, and his

conviction on the armed bank robbery count is affirmed.

B. Foreseeability of the use of a firearm in the robbery

Of course, Simmons, the subject of our appeal, was not

at the scene of the completed robbery. Nonetheless he

can be liable as a conspirator. Such conspiracy liability is

dependent, though, on his actual knowledge of his coconspirator’s actions or whether those actions were

reasonably foreseeable. Pinkerton v. United States, 328 U.S.

640, 647-48 (1946). Simmons argues that there was insufficient evidence for a rational jury to find that he could
No. 08-2207 9

have foreseen that the robbery would have involved the

use of a firearm. Simmons bases this argument on the

idea that Jackie Schmidt, Mann’s girlfriend, was a willing

participant in the bank heist. (This argument will

surface again, in the context of sentencing.) Simmons

argues that a gun would not be needed in the robbery

because, according to the plan, no one was supposed to

be in the bank and Schmidt was not being coerced.

The government points out that the evidence showed

that the first failed attempt involved the use of a gun, and

that Simmons acted as a lookout during this event.

Simmons’s job was to alert Mann to anyone entering the

bank so Mann could “lay them down” and “tape them

up.” We agree with the government that the jury could

infer from that testimony that the use of a gun was a part

of the plot all along.

Furthermore, Simmons was involved in the reformulation of the plan, this time to grab Schmidt and take her to

the bank; his absence from his lookout post was due to

an unexpected wrinkle with his childcare arrangements

(at least unexpected to his co-conspirators). Evidence

that Simmons had actual knowledge of the gun used in

the second robbery included the fact that he was in repeated contact with Mann, who provided the gun,

throughout the robbery, including after the original plan

of grabbing Schmidt at 3:30 a.m. had changed to driving

her to the bank later in the morning. The same gun was

used in both the attempt and the successful robbery.

Mann informed Simmons over the phone at the exact

moment Campbell entered the bank.
10 No. 08-2207

The jury also heard evidence at trial that Schmidt

was abducted from her house, and was not a willing

participant in the robbery. Kasten testified that Schmidt

appeared “shaken” and fumbled while entering in the

vault code. Campbell, Simmons’s co-conspirator, testified

that Schmidt was shaken, and that he and Mann had

originally planned to “steal” the key to the bank from

Schmidt’s key ring without her knowledge. And Mann

testified that the plan was for Campbell to “abduct” his

girlfriend.

Other testimony, as Simmons points out, tends to show

something less than coercion, but there was ample evidence on both sides of the issue. And Schmidt did not

testify. The jury was entitled to choose between two

credible versions of the facts and conclude that Schmidt

was not in on the plot. See United States v. Williams, 553

F.3d 1073, 1080 (7th Cir.) cert. denied 129 S. Ct. 2452 (2009).

If so, it was rational for the jury to infer, given the use

of the gun in the original plan, that a gun would be used

to abduct her. Or even if the jury believed that Schmidt

was a willing co-participant, they were entitled to infer

that the plot involved the use of the gun inside the bank. It

was certainly handy in compelling Kasten’s compliance

with commands. The conviction on the firearm count,

therefore, must also stand.

C. Prosecutor’s use of the mug shot

Simmons argues that the district court abused its discretion in denying his request for a mistrial after the

government displayed a demonstrative chart during final
No. 08-2207 11

argument that pictured Simmons in jail clothes. At the

outset, we should note that we review the judge’s decision

for an abuse of discretion. See United States v. Cheska, 202

F.3d 947, 953 (7th Cir. 2000).

We have, in limited circumstances, approved the use of

mug shots at trial, but the use must be justified by

the government’s “demonstrable need to introduce the

photographs.” United States v. Castaldi, 547 F.3d 699, 704

(7th Cir. 2008). The government concedes that it had no

demonstrable need for the use of Simmons’s mug shot

and it erred in showing it to the jury. The trial court agreed

after defendant’s objection and ordered the government

not to use the photograph; the government made no

further use or mention of it. But, the trial court did not

conclude that the prejudice engendered by the photograph’s use required a mistrial. This decision was not

an abuse of discretion. It is not clear from the record

how long the offending photo was on display to the

jurors, but it does not appear to have been before them

for an extended period of time. It would have required

a real discerning juror to have been able to identify the

photo as a mug shot anyway. It was a “head and shoulders” shot of Simmons, displaying only the neckline of

an orange shirt, but contained no date or other

markings identifying the clothing or the photo as coming

from the jail. Simmons posits that a photo of Campbell

in a similar shirt was also on the demonstrative chart

and that when he and Mann testified, they were both

wearing similar orange jail outfits. Of course, folks who

are regularly around the criminal justice process would

probably recognize the distinctive color of even a portion
12 No. 08-2207

of this jail garb, but it is doubtful that a member of the

general public would be so insightful. And it was no

secret that Simmons and his cohorts had been arrested—he was on trial for bank robbery charges. But

even assuming that the jury understood this photo to

have been one of Simmons in jail attire, the court’s

decision to complete the final arguments was not error.

A decision to declare a mistrial would have been appropriate if the brief glimpse of the photograph deprived

the defendant of a fair trial. United States v. Danford,

435 F.3d 686, 686 (7th Cir. 2005). The trial court was in a

better position to judge the error’s effect than we are.

Cheska, 202 F.3d at 953. Since the trial judge corrected

the error immediately, the harm was negligible. Furthermore, the government points out that Simmons’s counsel

alluded to his client’s past criminal history in order to

explain the purchases Simmons made after the robbery.

While the use of mug shots is disfavored and usually

impermissible, there is no rule requiring an automatic

mistrial based on their use. See Castaldi, 547 F.3d at 704-05.

The decision to proceed was appropriately made within

the trial judge’s discretion. We do, however, emphasize

that the use of the mug shot was improper and note that

an easy way to ensure that an issue like this does not

arise is for the parties to share their demonstrative

exhibits with each other before they are used. This will

allow all parties to avoid both potential prejudice and

needless litigation.
No. 08-2207 13

D. Improper Vouching

The standard of review on this claim is plain error,

because defense counsel did not object at trial to the

prosecutor’s closing statement. See Fed. R. Crim. P. 52(b).

To order a new trial, we must find that there was error

that is plain that affects substantial rights. Johnson v.

United States, 520 U.S. 461, 467 (1997). Furthermore, the

error must have seriously affected the fairness, integrity,

or public reputation of the judicial proceedings. Id.

The questionable statements the prosecutor made

were these: “My only job here is not to defend Antonio

Mann, but to compel him to tell you what happened”

and “[Campbell] lied to the police too when he was

arrested . . . . But once he pled guilty he came clean, he

told what happened.” The question is whether the prosecutor acted as a sort of character witness for Mann and

Campbell either by stating that it was her personal

opinion that the two robbers were being truthful or by

implying that she had knowledge of reasons for their

truthfulness to which the jury was not privy. 

Simmons argues that the prosecutor invoked the power

of her office to bolster Mann’s credibility. Instead of

judging his demeanor and weighing the evidence

against corroborating details, the jury was encouraged to

trust Mann, the argument goes, because the government lawyer believed he was telling the truth. Simmons’s

other argument is that the prosecutor, by invoking Campbell’s plea deal, implied the government had compelled

Campbell to be honest. Reduced to the basic terms,

Simmons’s argument is that the prosecutor improperly
14 No. 08-2207

connected the jury’s trust of the two witnesses with

its trust of the United States.

We have refused to find error where a prosecutor told

the jury that guilty people don’t plead guilty, United

States v. Robinson, 8 F.3d 398, 416 (7th Cir. 1993), where a

prosecutor characterized defendant’s testimony as “the

most ridiculous thing I’ve ever heard,” United States v.

Della Rose, 403 F.3d 891, 906 (7th Cir. 2005), or where a

prosecutor said “we found the gun.” United States v. Joy,

192 F.3d 761, 768-70 (7th Cir. 1999). Simmons claims

this case is more like United States v. DiLoreto, 888 F.2d

996, 998-99 (3d Cir. 1989), where the Third Circuit

reversed for a new trial after the prosecutor said, “We

don’t take liars. We don’t put liars on the stand. We don’t

do that.” But, at the time of DiLoreto, prosecutorial error

of that nature was grounds per se for a mistrial. The Third

Circuit has since abandoned that approach. See United

States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995). The

Third Circuit now adopts a standard harmless error

analysis to improper prosecutorial statements that is

more akin to our approach, see United States v. Morris,

498 F.3d 634, 638 (7th Cir. 2007), but did not overrule

the underlying principle that the vouching in DiLoreto

was improper, Zehrbach, 47 F.3d at 1264.

The question, then, is whether the prosecutor’s statements lent the government’s weight to the witnesses’

testimony and if they did, whether that error was outweighed by the entire context of the record. See Morris,

498 F.3d at 638. Here, we can dispose of this issue looking
No. 08-2207 15

Our previous cases seem to indicate that we must always 1

determine whether the prosecutors’ statements were improper,

but we choose to heed the Supreme Court’s warning that

rigid two-step protocols can sometimes lead to “bad decisionmaking.”See Pearson v. Callahan, 129 S. Ct. 808, 820 (2009). When,

as in this case, the case can be easily disposed of in the second

prong of the analysis, we think that unnecessarily considering

the first prong can do more harm than good. Id. (noting the

limited precedential value, the awkward position of a party

seeking review, the tendency of the second step to color perceptions of the first, and the waste of judicial resources when a

court decides an issue unnecessary to the outcome of a case).

only at the second part of the analysis. Even if the prosecu- 1

tor improperly bolstered Mann’s and Campbell’s testimony, the record shows that there was substantial corroborating evidence: phone records from the morning of

the robbery, cell phone records and corroborating testimony from a witness about the botched first attempt,

Simmons’s post-robbery spending spree (with no legitimate source of the large cash outlays), and recorded jail

cell phone conversations in which Mann and Campbell

vowed not to snitch. The prosecutor’s passing comments

in argument were small in comparison with the larger

mosaic of evidence arrayed against Simmons. The

district court, accordingly, did not abuse its discretion in

failing sua sponte to order a mistrial.

E. Imposition of the Abduction Guideline

Finally, Simmons argues that before choosing to apply

U.S. Sentencing Guideline § 2B3.1(b)(4)(A) (applying
16 No. 08-2207

abduction enhancement if “any person was abducted to

facilitate commission of the offense”) to his sentence, the

district court should have made a specific finding that

the abduction of Schmidt was foreseeable to Simmons.

Simmons, as noted, could only be sentenced for the

foreseeable conduct of his co-conspirators. U.S.S.G.

§ 1B1.3(a)(1)(B) (A defendant’s offense level, for sentencing purposes, shall be determined on the basis of,

“in the case of a jointly undertaken criminal activity . . . all

reasonably foreseeable acts and omissions of others in

furtherance of the [joint undertaking].”). We review the

adequacy of a district court’s findings de novo. United

States v. Thompson, 286 F.3d 950, 957 (7th Cir. 2002).

At sentencing, Simmons challenged Jackie Schmidt’s

role in the robbery and argued that she was a conspirator.

If she was, he argued, there could be no application of

the abduction guideline. The district court found that

the abduction did take place. As the district court noted

at sentencing, “the strongest evidence that Schmidt

was not in on the plan at the time that she was abducted

is the timing.” In other words, had Schmidt been

involved, Campbell would not have had to sit and wait

at her apartment for three hours, while Mann drove the

streets of Cedarburg, to wait for Schmidt’s co-worker

to arrive at the bank. Simmons argues now that this

finding is not sufficient because the district court did

not specifically declare that Schmidt’s abduction was

“foreseeable” to Simmons.

But, all the evidence at trial showed that Simmons was

involved in the second plan, the one in which the
No. 08-2207 17

robbers agreed to abduct Schmidt. Finding that an

actual abduction took place necessarily involved a

finding that such an abduction was foreseeable, and in

fact, planned by Simmons. The judge’s reliance on the

timing reinforces this point. The timing was a part of the

original plan to which Mann, Simmons, and Campbell

had agreed. Remember, Simmons was unexpectedly

unavailable at the agreed-upon time to rob the bank

because of baby-sitting duties. Therefore, in addition to

supporting the notion that the abduction took place, the

evidence of the botched timing also supports the notion

that the abduction was foreseeable to Simmons. The

application of this enhancement was, therefore, proper.

IV. Conclusion

For the foregoing reasons, we AFFIRM the defendant’s

conviction on all three counts and his sentence.

9-11-09