United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted November 9, 2022*

Decided November 10, 2022 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge 

THOMAS L. KIRSCH II, Circuit Judge

No. 22-1558 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

ANDREW J. JOHNSTON, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Northern District of 

Illinois, Eastern Division. 

No. 1:17-cr-00517 

Rebecca R. Pallmeyer, 

Chief Judge. 

O R D E R 

Andrew Johnston, a federal inmate convicted of attempted bank robbery, 

appeals the denial of his motion for a new trial based on newly discovered evidence. 

*

 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NONPRECEDENTIAL DISPOSITION 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. 22-1558 Page 2 

Because the district court correctly concluded that the evidence would not have led to 

Johnston’s acquittal, we affirm. 

In 2017 a man walked into a bank in Hardwood Heights, Illinois, and told a teller 

to “put [her] hands up” because “this is a robbery.” The man donned distinctive 

clothing—a black hoodie, gloves with tape wrapped around the fingertips, a ski mask, 

and a black hat bearing the word “security.” The exchange was seen by the bank’s 

supervisor and a customer at the drive-through window. When the customer mouthed 

that he was going to call 911, the robber fled. Soon after, in a nearby parking lot, the 

customer saw the same man enter a car and speed away. The customer then called 911 

and described to an operator the clothes the man was wearing, as well as the color, 

make, model, and license plate of the man’s car. 

Two miles from the bank an officer pulled over Johnston, who was driving a car 

that largely matched the customer’s description. The only difference in the description 

was a single entry on the license plate number. Johnston’s plate number was 

“Q937444,” and the police officers had understood the reported plate number to read 

“2937444.” Upon peering into the car, the officers saw on the back seat all the clothes 

worn by the robber—the black hoodie, gloves with tape, ski mask, and black “security” 

cap. 

The government charged Johnston with attempted bank robbery. See 18 U.S.C. 

§ 2113(a). He was convicted of that crime after a jury trial. 

Johnston appealed, in part on grounds that the district court should have 

excluded the evidence on his car’s back seat because the police lacked probable cause to 

stop and arrest him. We affirmed, explaining that the customer’s description of the 

robber’s vehicle supplied probable cause for the stop and arrest, and, in any event, the 

clothing on the back seat was in plain view. See United States v. Johnston, 814 F. App’x 

142, 146 (7th Cir. 2020). Based on that same argument, Johnston also sought relief under 

28 U.S.C. § 2255. 

Johnston later moved under Rule 33 of the Federal Rules of Criminal Procedure 

for a new trial based on newly discovered evidence. Through a Freedom of Information 

Act request, he had obtained a letter from the Federal Deposit Insurance Corporation 

stating that it did not cover the bank for robbery liability. In Johnston’s view, this 

statement proved that Congress could not criminalize bank robbery, thereby stripping 

the district court of federal jurisdiction to hear his bank-robbery case. Johnston had also 
No. 22-1558 Page 3 

obtained a video captured by the dashboard camera of the car driven by the officer who 

pulled him over. Johnston argued that the video proved that the police lacked probable 

cause to stop him and then seize his clothing. According to Johnston, the video showed 

that the officer had not been informed of the robber’s license-plate number when she 

pulled him over, and that other officers did not see the “security” hat on his back seat. 

The seized clothing, he asserted, should have been suppressed for lack of probable 

cause. 

The district court denied the motion. The court stated that Johnston’s recent 

submissions did not cast doubt on probable cause for his arrest, let alone the validity of 

his conviction or the court’s jurisdiction over this case. And, the court continued, his 

motion was in essence a “disguised Section 2255 petition,” duplicative of one he had 

already filed. 

To prevail on a Rule 33 motion based on newly discovered evidence, Johnston 

had to show, among other things, that the new evidence probably would have led to his 

acquittal. See United States v. O'Malley, 833 F.3d 810, 813 (7th Cir. 2016). One way a 

defendant can do so is by demonstrating that the newly discovered evidence would 

have led to the suppression of other evidence that was necessary to his conviction. 

See id. at 814 (citing United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999)). 

On appeal Johnston again challenges the basis for federal jurisdiction, 

maintaining that Congress lacks authority under the Commerce Clause to make bank 

robbery a federal crime. We have repeatedly rejected this argument, see, e.g., United 

States v. Watts, 256 F.3d 630, 633–44 (7th Cir. 2001), as we did in Johnston’s direct 

appeal, see Johnston, 814 F. App’x at 145. Congress has the power to criminalize the 

robbery of FDIC-insured banks, regardless of whether the FDIC insures those banks for 

robbery, because the banks are “fundamental to the conduct of interstate commerce.” 

Watts, 256 F.3d at 633; see also United States v. Hagler, 700 F.3d 1091, 1100 (7th Cir. 2012). 

As for the merits of the court’s ruling, Johnston continues to argue that the 

dashboard video shows that the officers lacked probable cause to stop him and seize the 

“security” hat on his back seat. Had this evidence been suppressed, he insists, he would 

have been acquitted. 

The court acted well within its discretion to deny the motion. The video casts no 

doubt on whether probable cause supported Johnston’s arrest. First, the video confirms 

that the arresting officer knew that Johnston’s license-plate number matched the 
No. 22-1558 Page 4 

description of the robber’s. In the video, before the officer pulls Johnston over, a police 

dispatcher is overheard saying, “that officer is behind that vehicle with the license plate 

you guys gave out from your bank.” Because the customer had described a car of the 

same make, color, and model, and a nearly identical license-plate number, the officer 

had probable cause to stop Johnston. See Maniscalco v. Simon, 712 F.3d 1139, 1141, 1144 

(7th Cir. 2013) (officers had probable cause to arrest a suspect when the suspect’s license 

plate matched the victim’s report). 

Second, the video supports that officers saw the “security” hat in plain view on 

the back seat. In the video, an officer, upon being told by another officer to look for “a 

black security hat,” peers through Johnston’s back window and replies, “it’s right here.” 

Because the hat was in plain view and its incriminating character was immediately 

apparent (given that the robber wore such a hat), the officers could lawfully seize it. 

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

We have considered Johnston’s other arguments, and none has merit. 

AFFIRMED