# 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 wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 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 robbe r say that his family had been kidnapped and that he had debts; the customer wave d 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 a ttempted 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, an d 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 describ ed 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 ba sed 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 assistan ce of standby counsel, Johnston filed several unsuccessful pretrial motions. He mo ved to dismiss the indictment because the court lacked jurisdiction (on the theory th at Byline Bank was not federally insured); because the indictment failed to allege “i ntimidation” adequately; and because the government was withholding material eviden ce that he had sought through discovery. The court denied the motions. It accepted th e 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 witne sses, 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 th at this evidence was admissible, JohnstonNo. 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 arre sted 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 Johns ton never followed through. Later, after closing arguments, he unsuccessfully moved for a judgment of acquittal. The court instructed the jury that the government ha d to prove beyond a reasonable doubt that, by using “intimidation,” Johnston attempted to take money from Byline Bank. The court defined intimidation as doing “somethi ng that would make a reasonable person

feel threatened under the circumstances.” Th e jury returned a guilty verdict, and the court denied Johnston’s later posttrial motions to alter the judgment.

Sentencing followed. Johnston was design ated a career offender based on his current conviction and two prior convicti ons for bank robbery. He unsuccessfully objected on the ground that he had not us ed 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 pretri al arguments that the district court should have dismissed his indictment. First, he arg ues 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 cr iminalize 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 la ws 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 sh ould have dismissed the indictment for failing to allege adequately that he attemp ted to rob a bank by intimidation. But the indictment tracked the language of the stat ute and provided the date, time, and address of the incident. It therefore adequately pu t 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 governme nt 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 Jo hnston renews from the trial. First, he

contests the admission of the evidence recove red from his car, maintaining that his stop, arrest, and car search were unconstitutional. Bu t the district court properly ruled that the customer’s contemporaneous descripti on 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 su spect 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 distri ct 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 iden tity 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 minute s 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 se parating 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 th e record does not bear out his assertion. During the trial, the court explained that Johnston was responsi ble 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 th e 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 th e law, and because Johnston was charged only with attempted robbery by intimidation, it ha d 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 “le sser included offense” of the second paragraph of § 2113(a), which criminaliz es entering a bank with the intent to commit a felony. But in Loniello we held only that the se cond 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 conv ict. 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 vi olence.” 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 gu idelines 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 conv ictions 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 argum ents that require little discussion. We mention one briefly—his motion to disqua lify the district judge based on adverse rulings. Adverse rulings by a judge neither co nstitute 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