United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted May 11, 2020*

Decided May 11, 2020 

Before 

DIANE P. WOOD, Chief Judge 

MICHAEL B. BRENNAN, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1624 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

ANDREW JOHNSTON, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 1:17-cr-00517-1 

Rebecca R. Pallmeyer, 

Chief Judge. 

O R D E R 

 Andrew Johnston has been convicted of and sentenced for attempted bank 

robbery. See 18 U.S.C. § 2113(a). He now argues that, before trial, the district court 

should have dismissed his indictment, during trial it should have excluded evidence 

and instructed the jury differently, and after trial it should have entered a judgment of 

acquittal or sentenced him differently. His arguments are without merit, so we affirm. 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-1624 Page 2 

 In July 2017, a white male wearing gloves, a mask, and a black hat with the word 

“Security” on it approached a teller at a Byline Bank branch in Harwood Heights, 

Illinois, and ordered: “Put your hands up. This is a robbery.” The teller was shocked 

and feared for her life. A branch supervisor and a customer at the drive-by window saw 

the exchange. The supervisor heard the robber say that his family had been kidnapped 

and that he had debts; the customer waved his phone and mouthed that he was going 

to call 911. The robber saw the teller nod to the customer and fled. 

 Based on help from the customer, who called 911 and pursued the robber, the 

police soon caught him. The customer saw him drive off in a green car and described 

the car’s make, model, and license plate, as well as the robber’s clothes, to emergency 

dispatch. A police officer heard about the attempted robbery from dispatch, including 

the descriptions of the suspect and his car. Approximately two miles from the bank, the 

officer saw a green car matching dispatch’s description, pulled it over, and ordered the 

driver out. Andrew Johnston stepped out, and other officers soon arrived on the scene. 

When they peeked through the car’s windows, they saw a black “Security” cap in plain 

view, as well as the gloves and mask described by dispatch. About 20 minutes after the 

attempted robbery, they brought Johnston to the bank for a show-up. The teller and her 

supervisor each viewed Johnston (without any mask or hat) separately through a 

window and identified him as the robber based on his eyes and voice. A grand jury 

later indicted him for attempted robbery under 18 U.S.C. § 2113(a), which punishes 

anyone who “by force and violence, or by intimidation ... attempts to” rob a bank. 

Representing himself with the assistance of standby counsel, Johnston filed 

several unsuccessful pretrial motions. He moved to dismiss the indictment because the 

court lacked jurisdiction (on the theory that Byline Bank was not federally insured); 

because the indictment failed to allege “intimidation” adequately; and because the 

government was withholding material evidence that he had sought through discovery. 

The court denied the motions. It accepted the government’s answer that it had no items 

responsive to Johnston’s discovery requests, ruled that the indictment adequately put 

Johnston on notice of the crime, and reserved the jurisdictional issue for trial. (Later at 

trial, the government presented witness testimony and insurance documents showing 

that Byline Bank was federally insured by the Federal Deposit Insurance Corporation.) 

After several continuances to allow him to complete his factual investigation and 

to serve subpoenas for documents and witnesses, Johnston went to trial. He moved to 

suppress evidence recovered from his car and the bank tellers’ identification of him at 

the show-up. When the district court ruled that this evidence was admissible, Johnston 
No. 19-1624 Page 3 

asked the district court to recuse itself as biased. The court refused, explaining that 

adverse rulings were not grounds for recusal. Johnston then tried to mount an alibi 

defense and argue that the government arrested the wrong person for the attempted 

robbery. For this defense, he wanted to call witnesses. The court explained that 

Johnston had to bring his witnesses to court. It advised him to use standby counsel to 

help coordinate the witnesses, and it promised to compel their attendance if he brought 

motions to enforce his subpoenas. But Johnston never followed through. Later, after 

closing arguments, he unsuccessfully moved for a judgment of acquittal. The court 

instructed the jury that the government had to prove beyond a reasonable doubt that, 

by using “intimidation,” Johnston attempted to take money from Byline Bank. The 

court defined intimidation as doing “something that would make a reasonable person 

feel threatened under the circumstances.” The jury returned a guilty verdict, and the 

court denied Johnston’s later posttrial motions to alter the judgment. 

 Sentencing followed. Johnston was designated a career offender based on his 

current conviction and two prior convictions for bank robbery. He unsuccessfully 

objected on the ground that he had not used violent force in the attempted robbery. 

Applying the designation, the court sentenced him to 168 months in prison. 

 On appeal Johnston renews his pretrial arguments, contentions from trial, and 

post-trial challenges. We begin with his pretrial arguments that the district court should 

have dismissed his indictment. First, he argues that the FDIC does not insure against 

bank robbery and is not involved in robbery prosecutions, so it does not supply a basis 

for jurisdiction. But FDIC-insured banks are instrumentalities of interstate commerce, 

the robbery of which Congress may criminalize under the Commerce Clause. 

See United States v. Watts, 256 F.3d 630, 633–34 (7th Cir. 2001). And district courts have 

jurisdiction over “all offenses against the laws of the United States.” 18 U.S.C. § 3231. To 

the extent that Johnston faults the court for allowing the case to proceed to trial without 

advance proof of Byline Bank’s FDIC-insured status, the district court correctly ruled 

that the government could provide evidence of the bank’s insured status at trial, which 

it did. See, e.g., United States v. Hagler, 700 F.3d 1091, 1100 (7th Cir. 2012). 

 Second, Johnston argues that the court should have dismissed the indictment for 

failing to allege adequately that he attempted to rob a bank by intimidation. But the 

indictment tracked the language of the statute and provided the date, time, and address 

of the incident. It therefore adequately put him on notice of the charged offense. 

See United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008). 
No. 19-1624 Page 4 

 Third, Johnston appears to argue that the district court should have dismissed 

the case because the government withheld material evidence. Prosecutors must disclose 

to a defendant favorable, material evidence that they possess. See, e.g., Kyles v. Whitley, 

514 U.S. 419, 432 (1995). But the government told the court that it had no material 

evidence responsive to his requests, and Johnston provides us with no compelling 

reason to question that assertion. 

 We now turn to the challenges that Johnston renews from the trial. First, he 

contests the admission of the evidence recovered from his car, maintaining that his stop, 

arrest, and car search were unconstitutional. But the district court properly ruled that 

the customer’s contemporaneous description of the robber’s vehicle to 911, which 

matched the make, color, and license plate of Johnston’s car, supplied probable cause 

for an arrest for attempted robbery. See Maniscalco v. Simon, 712 F.3d 1139, 1144 (7th Cir. 

2013) (finding probable cause to arrest a suspect for an offense that “just” occurred 

where the suspect’s license plate matched the victim’s report). And even if the 

customer’s tip was sufficient to justify only an investigatory stop, officers saw in plain 

view, and therefore could lawfully seize, the gloves, mask, and “Security” cap matching 

the dispatcher’s report. See United States v. Cherry, 920 F.3d 1126, 1137–38 (7th Cir. 2019). 

 Johnston also argues that the district court should have suppressed the 

eyewitness identifications because the show-up procedure, which involved a heavy 

police presence, was unduly suggestive. But show-up identifications are not necessarily 

invalid if police use them to confirm the identity of suspects apprehended close in time 

and place to the crime. See United States v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007). 

Johnston’s show-up occurred just twenty minutes after the robbery, so the memories of 

the two eyewitnesses, who had just observed the crime, were fresh and enabled them to 

identify him on the basis of his voice and his eyes. Further, law enforcement minimized 

the suggestiveness of the procedure by separating the witnesses and presenting 

Johnston without his mask and hat. See id. at 708. Thus, suppression was not required. 

 Next, Johnston complains that the court interfered with his right to compulsory 

process, thwarting his alibi defense. But the record does not bear out his assertion. 

During the trial, the court explained that Johnston was responsible for bringing his 

witnesses to court, it advised him how to do so, and it promised to compel their 

appearance if he brought a motion to enforce his trial subpoenas, which he did not do. 

The court thus did not prevent him from presenting a complete defense. 

See United States v. Parker, 716 F.3d 999, 1010–11 (7th Cir. 2014). 
No. 19-1624 Page 5 

 Finally, Johnston raises challenges to the jury instructions. He argues that the 

district court failed to instruct the jury that to convict it had to find that he used “force 

and violence.” But the statute of his offense criminalizes the taking of bank property 

“by force and violence, or by intimidation.” 18 U.S.C. § 2113(a) (emphasis added). The 

district court therefore correctly stated the law, and because Johnston was charged only 

with attempted robbery by intimidation, it had no obligation to instruct the jury on the 

“force and violence” clause. See United States v. Matthews, 505 F.3d 698, 704 (7th Cir. 

2007). Relying on United States v. Loniello, 610 F.3d 488 (7th Cir. 2010), Johnston also 

insists that he was entitled to an instruction for the “lesser included offense” of the 

second paragraph of § 2113(a), which criminalizes entering a bank with the intent to 

commit a felony. But in Loniello we held only that the second paragraph of § 2113(a) 

described an offense distinct from the one in the first paragraph, not a lesser included 

offense. Id. at 492, 496. And both paragraphs carry the same penalty of up to 20 years’ 

imprisonment, so we see no error. See Prince v. United States, 352 U.S. 322, 329 (1957). 

 We turn next to Johnston’s post-trial challenges. First, he argues that the 

evidence against him was insufficient to convict. But the jury received evidence that 

Byline Bank was federally insured, and that a masked Johnston entered and told the 

teller, “Hands up. This is a robbery.” Even though Johnston was unarmed, these words 

and actions would be sufficient to intimidate a reasonable person to turn over the 

bank’s money. See United States v. Burnley, 533 F.3d 901, 903–04 (7th Cir. 2008). Viewing 

this evidence in the light most favorable to the government, we conclude that a rational 

jury could use it to find Johnston guilty of attempted bank robbery by intimidation 

beyond a reasonable doubt. See United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009). 

 Johnston also challenges his status as a career offender, arguing that his 

conviction is not a “crime of violence.” He appears to rely on Stokeling v. United States, 

139 S. Ct. 544, 553 (2019), to argue that attempted bank robbery by intimidation cannot 

be a categorical crime of violence because he was convicted without proof that he used, 

or threatened to use, force capable of causing physical injury. But Stokeling merely reiterated that “physical force” under the guidelines means “force capable of causing 

physical pain or injury.” See id. And we have previously held that federal bank robbery 

by “intimidation” is a categorical crime of violence because a threat of such force is 

implied in the intimidation element. See United States v. Williams, 864 F.3d 826, 830 

(7th Cir. 2017). Stokeling thus does not disturb our precedent that federal bank robbery 

by intimidation is a “crime of violence” under the guidelines. And because Johnston 

does not dispute that he has two prior convictions for bank robbery, the district court 

did not err in designating him a career offender. See U.S.S.G. § 4B1.1(a). 
No. 19-1624 Page 6 

 Johnston presents several additional arguments that require little discussion. We 

mention one briefly—his motion to disqualify the district judge based on adverse 

rulings. Adverse rulings by a judge neither constitute bias nor demonstrate a need for 

recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994). We have considered 

Johnston’s remaining arguments, and none has merit. 

AFFIRMED