In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1314

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER R. BURNLEY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06-CR-141-S-1—John C. Shabaz, Judge.

____________

ARGUED NOVEMBER 14, 2007—DECIDED JULY 21, 2008

____________

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Walter Burnley was convicted

after a jury trial on four counts of bank robbery, 18

U.S.C. § 2113(a), and was sentenced to a total of 262

months’ imprisonment. On appeal, Burnley argues that

the Government failed to prove that either he or his

accomplice used force or intimidation to obtain the

stolen money, and thus that three of his convictions

should be overturned. We conclude that the jury was

entitled to find intimidation under the circumstances

of this case and affirm.
2 No. 07-1314

I

On April 25, 2006, Burnley entered a branch of Associated Bank in Beloit, Wisconsin, clad in a baseball cap

pulled low over his eyes, with safety goggles placed over

a pair of sunglasses. At the time, Burnley was 33 years

old, 5’8” tall, and approximately 220 pounds. After

waiting his turn in line, Burnley reached the lone teller

and pulled out a purse. According to the teller, Burnley

then leaned toward her and said, “Fill the bag and do

not give me the dye pack.” The frightened teller put $4,661

in the purse and, as Burnley had instructed, omitted the

dye pack. Burnley then fled.

Two weeks later, on May 9, Burnley (again using his

safety goggles) visited a different branch of Associated

Bank in Beloit. This time when he reached the teller, he

told her not to “do anything stupid” and warned that

he would kill her if she gave him a dye pack or bait bills.

He then pushed a black bag toward her, and she filled

the bag with $1,514 in unmarked bills.

That evening Burnley met Lisa Harding, a 20-yearold crack addict, through a mutual friend. Two days

later, on May 12, Burnley enlisted Harding to rob a

branch of AnchorBank in Janesville, Wisconsin. Harding,

who also was charged but wound up testifying for the

government, entered the bank at Burnley’s direction

and ordered a teller to “put all of your money in this bag

but no dye pack.” When the teller appeared confused,

Harding, a woman of slight build, repeated the demand

louder and “a little more forcefully.” This teller also

complied, giving her $2,069 without a dye pack. Harding

then departed.

Four days after that, on May 16, Burnley and Harding

arranged for another robbery, which was to be their
No. 07-1314 3

last. The target was a branch of the First National Bank

in Beloit. This time, both of them entered the bank.

Burnley, whose face was concealed by a painter’s mask,

stood back near the door while Harding approached the

teller’s window and said, “I need you to do me a favor,

I need you to put all the money in the bag.” After the

bag was full, Harding confirmed with the teller that

there was no dye pack in the bag and apologized for

making her “so nervous.” Burnley and Harding left the

bank with $2,472.

II

The statute under which Burnley was convicted defines

“bank robbery” as using “force and violence, or intimidation” to take bank funds from an employee. See 18

U.S.C. § 2113(a). Burnley does not dispute that he did all

of these things during the second robbery, but now he

argues that during the other three holdups he and Harding

did not use force or do or say anything that amounted

to “intimidation.” Instead, he points out that either he

or Harding simply demanded money, got it, and left.

Under no objective standard, he claims, could one say

that the government demonstrated that the tellers were

put in fear. Our consideration of this argument is

heavily influenced by the procedural posture in which it

reaches us. Burnley did not move for a judgment of

acquittal on this or any other basis. See FED. R. CRIM. P. 29.

Furthermore, he did not raise this argument in any

other way before the district court. Our review of the

jury’s verdict is thus only for plain error. We will

reverse only if the convictions “amounted to a manifest

miscarriage of justice,” United States v. Rock, 370 F.3d 712,

714 (7th Cir. 2004) (quotation marks and citation omitted).
4 No. 07-1314

These were not violent robberies, and so the government did not rely on the “force” or “violence” options

provided by § 2113(a). Instead, it recognized that it had

to prove that Burnley and Harding used “intimidation” to

take the banks’ money. We have defined intimidation

under § 2113(a) as “saying or doing something in such

a way as would place a reasonable person in fear.”

United States v. Clark, 227 F.3d 771, 775 (7th Cir. 2000)

(quotation marks, brackets, and citation omitted). Intimidation “exists in situations where the defendant’s ‘conduct and words were calculated to create the impression

that any resistence or defiance by the teller would be

met with force.’ ” Id. (quoting United States v. Jones, 932

F.2d 624, 625 (7th Cir. 1991)). The intimidation element

is satisfied if an ordinary person would reasonably feel

threatened under the circumstances. United States v. Hill,

187 F.3d 698, 702 (7th Cir. 1999). How the teller who

encountered the defendant felt at the time is “probative

of whether a reasonable person would have been afraid

under the same circumstances,” id., even though the

ultimate standard is an objective one. The defendant does

not have to make an explicit threat or even announce

that he is there to rob the bank. Credibly implying that

a refusal to comply with a demand for money will be

met with more forceful measures is enough. See, e.g.,

United States v. Kelley, 412 F.3d 1240, 1244-45 (11th Cir.

2005); United States v. Gilmore, 282 F.3d 398, 402-03 (6th Cir.

2002); Clark, 227 F.3d at 775; Hill, 187 F.3d at 701; United

States v. McCarthy, 36 F.3d 1349, 1357 (5th Cir. 1994); United

States v. Hummasti, 986 F.2d 337, 338 (9th Cir. 1993); United

States v. Smith, 973 F.2d 603, 604-05 (8th Cir. 1992); United

States v. Henson, 945 F.2d 430, 439-40 (1st Cir. 1991).

Our recent cases illustrate the point. In Clark the defendant entered the bank and slid a note to the teller instruct-
No. 07-1314 5

ing her to “remain calm and place all of your twenties,

fifties, and hundred dollar bills on the counter and act

normal for the next fifteen minutes.” When the confused

teller did not respond, the defendant clarified, “Yes,

Ma’am, this is a holdup.” 227 F.3d at 773. On appeal

we held that the defendant’s command that the teller

“give him money not belonging to him” could constitute intimidation. Id. at 775. Similarly, in Hill the defendant said to the teller, “Give me all your money,” adding

that he did not want any of her “funny money.” He then

barked, “Hurry up, hurry up, bitch.” 187 F.3d at 699-700.

That was enough to constitute intimidation even though

the defendant maintained that a reasonable person

should not have been frightened because he was of medium height and build, did not carry a weapon, and

spoke softly. Id. at 701-02.

This case is no different. Newly appointed appellate

counsel criticizes the government for failing to elicit more

evidence about how the tellers reacted to the demands

received from Burnley and Harding, but the record

is underdeveloped because her predecessor, during

opening and closing arguments, conceded that robberies

had been committed. Had these arguments been preserved, we would have a better record on which to decide where the objective line lies between intimidating

conduct that violates § 2113(a) and statements that fall

short of intimidation, because of their sheer implausibility or other reasons why the listener would not be frightened. But, assuming generously that counsel’s statements conceding the robberies did not amount to waiver

(which would preclude review altogether), see United

States v. Rusan, 460 F.3d 989, 993-94 (8th Cir. 2006); United

States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991), these
6 No. 07-1314

points have been forfeited. The record adequately

shows that in each of the three contested robberies,

Burnley or Harding conveyed to the teller a demand for

the bank’s money and made it clear that the teller was

not to put a dye pack or bait bills in with the currency.

The tellers understood from the words and context that

these were not polite requests that could be ignored, they

felt compelled to comply, and there was some evidence

that they experienced fear or nervousness. That is

enough, under the plain-error standard that applies in

this case, to uphold Burnley’s convictions.

AFFIRMED.

USCA-02-C-0072—7-21-08