[00:00:01] Speaker 04:
Case number 18-3010 at Allard, United States of America versus Steve Jamel Smith, also known as Jabria Love, balance.

[00:00:11] Speaker 03:
Ms.

[00:00:11] Speaker 03:
Rollins for the balance, Mr. Hansford for the equity.

[00:00:16] Speaker 02:
Ms.

[00:00:16] Speaker 02:
Rollins, good morning.

[00:00:19] Speaker 03:
May it please the court, I represent Mr. Smith and I'll be arguing on behalf of Mr. Smith and Mr. Lionel.

[00:00:26] Speaker 03:
The parties agree that intimidation is words or conduct that threaten not just force, but violent physical force, bodily harm, unless the person complies.

[00:00:38] Speaker 03:
Mr. Smith and Mr. Lionel asked the tellers to give them money in particular denominations, but their words and their conduct did not suggest violent physical force would follow.

[00:00:48] Speaker 01:
How did the tellers react to this?

[00:00:50] Speaker 01:
I know it's an objective test, but how did the tellers react to this?

[00:00:55] Speaker 03:
In both cases, the tellers froze and didn't provide any money.

[00:01:01] Speaker 01:
And explained that, right?

[00:01:03] Speaker 01:
That they were scared.

[00:01:04] Speaker 03:
They were afraid.

[00:01:05] Speaker 01:
What are we supposed to make of that?

[00:01:07] Speaker 01:
It's an objective test, but does that help us at all?

[00:01:11] Speaker 03:
It's an absolutely objective test.

[00:01:15] Speaker 03:
There was an objection to that testimony.

[00:01:18] Speaker 03:
The judge allowed it in.

[00:01:20] Speaker 03:
I think it actually has no relevance.

[00:01:23] Speaker 01:
I don't think... In understanding what a reasonable teller would do, it's not pertinent to see what actual tellers did.

[00:01:33] Speaker 01:
These are separate tellers, right?

[00:01:35] Speaker 01:
Separate instances.

[00:01:36] Speaker 03:
Yes.

[00:01:37] Speaker 03:
I don't think any juror would find it difficult to imagine how a teller might react to any particular circumstance.

[00:01:46] Speaker 01:
And we have eight circuits who've said a demand for money, a demand for money is intimidating.

[00:01:56] Speaker 01:
In a bank.

[00:01:57] Speaker 03:
I mean, that's the... Exactly.

[00:01:58] Speaker 01:
It's different than a demand for money from a homeless person.

[00:02:02] Speaker 01:
I think this is an example that you will give.

[00:02:03] Speaker 01:
This is very different, right?

[00:02:05] Speaker 01:
Somebody comes into the bank and says, give me your money.

[00:02:11] Speaker 01:
Put your hands up.

[00:02:13] Speaker 01:
Don't put them down.

[00:02:14] Speaker 01:
That's not intimidation.

[00:02:16] Speaker 03:
Well, I would like to challenge the idea that a demand note itself is inherently intimidating.

[00:02:24] Speaker 03:
And that is what those courts have said in cases that the government's invited.

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Eight of them.

[00:02:31] Speaker 03:
Yes.

[00:02:31] Speaker 03:
Demand notes are common in bank robberies, as the government points out.

[00:02:35] Speaker 03:
And several courts, eight courts, have said they're inherently intimidating.

[00:02:41] Speaker 03:
But a demand note might or might not cause

[00:02:45] Speaker 03:
a reasonable person to feel intimidated, depending on the circumstances, depending on what the note says.

[00:02:52] Speaker 03:
For example, a demand note that says, this is not a robbery, but can you give me money, might not cause a reasonable person to be intimidated.

[00:03:03] Speaker 01:
Those aren't these facts or anything close to these facts, are they?

[00:03:07] Speaker 03:
They're not, although the demand note in this case

[00:03:16] Speaker 03:
said, give me your money and particular denominations.

[00:03:20] Speaker 03:
The second demand note just had denominations.

[00:03:22] Speaker 03:
It didn't make a demand.

[00:03:25] Speaker 03:
They're all called demand notes, but it didn't actually make a demand.

[00:03:28] Speaker 01:
But in addition to handing the note of denominations, what did he say?

[00:03:32] Speaker 03:
He said, give me the money.

[00:03:33] Speaker 01:
And what else did he say?

[00:03:34] Speaker 03:
Well, he later said, don't put your hands down.

[00:03:38] Speaker 03:
Don't put your hands down.

[00:03:40] Speaker 03:
In one of the cases cited by the government, United States versus Gilmore, Mr. Gilmore was extremely busy.

[00:03:48] Speaker 03:
He was charged with eight bank robberies.

[00:03:51] Speaker 03:
In one of the robberies, he held up a note that was blank.

[00:03:58] Speaker 03:
It said nothing.

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And the court upheld that conviction

[00:04:03] Speaker 03:
simply because he held up a piece that was considered a demand note that he held up.

[00:04:08] Speaker 01:
That's not our case, right?

[00:04:09] Speaker 03:
Well, it's not our case, but surely it can't be the law.

[00:04:14] Speaker 03:
I'm arguing that these aid circuits are really wrong, that any demand note, we don't have to evaluate.

[00:04:18] Speaker 01:
That's not our case.

[00:04:18] Speaker 01:
We don't have to say that to rule for the government here.

[00:04:22] Speaker 01:
What we have is a note saying, give me the money.

[00:04:28] Speaker 01:
and the denominations afterwards, and the second robbery.

[00:04:31] Speaker 03:
Right.

[00:04:32] Speaker 03:
And then I think the notes have to be evaluated in light of the circumstances where the tone was conversational, there was no weapon displayed or hinted at, there were no threatening gestures.

[00:04:45] Speaker 04:
Can I just ask one thing?

[00:04:46] Speaker 04:
Because there's a lot of discussion here about whether the robbery itself was intimidating, but they weren't convicted of that.

[00:04:53] Speaker 04:
They were convicted of conspiring to rob by intimidation.

[00:04:58] Speaker 04:
Correct.

[00:04:59] Speaker 04:
Which seems to me the question is not whether they actually even succeeded in being intimidated, but whether we can tell by their course of action that they intended or they conspired to rob by intimidation.

[00:05:13] Speaker 04:
And that would mean we would look at what happened in the first bank.

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And then they went and had a meeting in a deli or a restaurant and changed their whole mode of operating.

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They had two people focused on one teller.

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added the thing about not lowering hands.

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I mean, you see a big difference in how the robbery was conducted between the two.

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So why isn't there sufficient evidence on this record to answer the question we have to answer, and that is whether there was sufficient evidence that they conspired, that they agreed.

[00:05:43] Speaker 04:
to rob by intimidation even if they didn't actually intimidate.

[00:05:48] Speaker 03:
It's because there must be an overt act and here the overt act was in going to the bank producing a note

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But there's a long list of overt acts.

[00:06:00] Speaker 04:
The overt act itself doesn't have to be intimidating.

[00:06:02] Speaker 04:
The overt act could have included going into the bank and walking up to the tellerist.

[00:06:08] Speaker 04:
That's starting to implement the conspiracy.

[00:06:10] Speaker 04:
But if they agreed, if they, and I'm not saying there's evidence like this, but in a hypothetical case, said, let's go in, let's scare the dickens out of them, let's get them to give all the money.

[00:06:21] Speaker 04:
And that was recorded.

[00:06:23] Speaker 04:
There was solid evidence of that agreement.

[00:06:25] Speaker 04:
And then they got in there.

[00:06:27] Speaker 04:
And they went up to a teller and said, I want 10s and 20s.

[00:06:32] Speaker 04:
And they started shaking in their boots and ran off.

[00:06:35] Speaker 04:
They could be guilty of conspiracy, even though, in fact, saying I'd like 10s and 20s wouldn't be enough.

[00:06:42] Speaker 03:
Here, there's absolutely no evidence of any text or conversations or agreement.

[00:06:48] Speaker 04:
No, but you see a change in behavior between the two banks.

[00:06:50] Speaker 04:
They clearly changed.

[00:06:51] Speaker 04:
They upped the intimidation game between the two.

[00:06:55] Speaker 04:
The first robbery, only one of them was talking to the teller.

[00:06:58] Speaker 04:
The other one was not around.

[00:06:59] Speaker 04:
The first robbery, there was no instruction about hands.

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The second robbery, they were, keep your hands up.

[00:07:06] Speaker 04:
Give me the 10s and 20s.

[00:07:09] Speaker 04:
And they were both, what one case has found relevant is when the second person is glaring at the teller.

[00:07:17] Speaker 04:
So it just seems to me that I'm not sure why we're talking

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all about whether they succeeded in being intimidated.

[00:07:24] Speaker 04:
Would the evidence show they succeeded in being intimidating as opposed to their actions show that there was an agreement to rob by intimidation and at least one overt act?

[00:07:35] Speaker 03:
Well, one reason we're talking about it is because the government never raised that below and has not raised that in this appeal.

[00:07:42] Speaker 03:
They have never argued that.

[00:07:44] Speaker 04:
So are we supposed to write an opinion that says there was sufficient evidence to find that they actually robbed by intimidation or that they conspired?

[00:07:50] Speaker 04:
to rob by intimidation.

[00:07:51] Speaker 04:
Which are we supposed to hold?

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They weren't convicted of.

[00:07:55] Speaker 03:
You win your argument.

[00:07:57] Speaker 03:
They weren't convicted.

[00:07:57] Speaker 03:
The parties agree that this really does come down to intimidation.

[00:08:02] Speaker 03:
What's the definition?

[00:08:03] Speaker 03:
And is it met under these facts?

[00:08:05] Speaker 04:
Well, the parties agreed was that their acts reflected what they planned to do.

[00:08:09] Speaker 04:
And those acts included

[00:08:11] Speaker 04:
a meeting where they talk, no one knows what they said, and they change the way they did the second bank robbery.

[00:08:17] Speaker 04:
That's as plain as day on the record on the facts in both your briefs.

[00:08:25] Speaker 03:
Other than that conversation in a restaurant where no one knows what's said, there's absolutely no evidence of their agreement other than what they actually did.

[00:08:36] Speaker 04:
Would you agree there's a change in the way the two robberies were conducted?

[00:08:41] Speaker 03:
You know, I'm not sure I would, because in the first robbery, Mr. Lionel said, he spoke, he said, give me the money, give me the money.

[00:08:53] Speaker 03:
And in the second robbery, Mr. Smith spoke, saying, don't put your hands down.

[00:08:59] Speaker 03:
I'm not sure there's a big difference between those two.

[00:09:02] Speaker 04:
No, but Mr. Lionel, and that one was glaring at the teller at the same time, whereas in the first robbery, Mr. Smith was over off doing something else.

[00:09:08] Speaker 04:
It was a solo.

[00:09:10] Speaker 04:
It was a solo effort.

[00:09:11] Speaker 03:
I don't think the testimony was glaring.

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The testimony was that he was looking around and staring.

[00:09:17] Speaker 04:
Staring at the teller.

[00:09:20] Speaker 03:
But I don't think that that's, I mean, in both cases, the two went in together.

[00:09:25] Speaker 03:
And it's just fascinating.

[00:09:29] Speaker 04:
Your whole argument has been about whether they actually succeeded in intimidating.

[00:09:32] Speaker 04:
And that's just not the issue.

[00:09:34] Speaker 04:
And I'm confused about,

[00:09:37] Speaker 04:
why that's what this argument is about because in fact you might well be right because they were acquitted, they were not convicted of the actual bank robbers, they were only convicted of the conspiracy.

[00:09:46] Speaker 03:
And the only evidence of the conspiracy is what they actually did.

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It would be different if they were text messages or recorded conversations or something saying, let's go rob some banks and first thing we'll do is we'll

[00:10:03] Speaker 03:
go get a gun and then they go to a gun store.

[00:10:06] Speaker 03:
But that's not what happened here.

[00:10:08] Speaker 03:
They just showed up in a bank.

[00:10:10] Speaker 04:
They changed who was talking to the teller.

[00:10:13] Speaker 04:
That didn't work the first time.

[00:10:15] Speaker 04:
That clearly didn't work.

[00:10:16] Speaker 04:
We didn't get any money.

[00:10:17] Speaker 04:
I'm going to go talk to the teller this time.

[00:10:19] Speaker 04:
And you stay right by me.

[00:10:20] Speaker 04:
Don't go off and wander it off like I did before.

[00:10:23] Speaker 04:
And that alarm went off, so we're going to order them not only to give us money, but not to put the hands down.

[00:10:29] Speaker 03:
Well, certainly they were not aware of any alarm, because it's a silent alarm.

[00:10:33] Speaker 04:
They seemed to be aware.

[00:10:35] Speaker 04:
I don't know why they would tell them to keep the hands up the second time.

[00:10:38] Speaker 04:
Oh, I'm sorry.

[00:10:39] Speaker 03:
I thought you meant in the first robbery, an alarm.

[00:10:43] Speaker 04:
Oh, no, but they seemed to have some sense of that, because by the second robbery, they wisened up and said, don't put your hands down where someone could activate an alarm.

[00:10:50] Speaker 04:
They were thinking that's how the alarm would get activated.

[00:10:54] Speaker 04:
I assume that's why.

[00:10:55] Speaker 04:
I don't know.

[00:10:56] Speaker 04:
I'm not a bank robber.

[00:10:57] Speaker 04:
Is there another reason you don't want people to put their hands down?

[00:10:59] Speaker 04:
Because they've got to get the money out.

[00:11:02] Speaker 03:
That, I think, actually goes back to Judge Griffith's point about whether we need teller testimony that they were afraid.

[00:11:12] Speaker 03:
The court can imagine how a bank is robbed.

[00:11:14] Speaker 03:
We've all watched TV.

[00:11:15] Speaker 03:
We've read these cases.

[00:11:18] Speaker 03:
We all know that banks do have alarms.

[00:11:20] Speaker 03:
They have silent alarms.

[00:11:22] Speaker 03:
And that really goes to why we don't, I know that's something the court isn't asking, but I just thought about it.

[00:11:31] Speaker 03:
We know how these things work.

[00:11:33] Speaker 03:
In this case, because there is no evidence of their conspiracy other than what they did, and what they did was

[00:11:44] Speaker 03:
I argue virtually identical, yes, switch roles, who's doing the talking, but virtually identical.

[00:11:52] Speaker 04:
Could a reasonable jury think that they upped their sort of forcefulness in the second robbery?

[00:12:03] Speaker 04:
By saying, don't put your hands down?

[00:12:07] Speaker 04:
on the teller rather than one, could a reasonable jury?

[00:12:11] Speaker 04:
It's not that they couldn't think other things, but could a reasonable jury infer that from the record?

[00:12:15] Speaker 03:
I think a reasonable jury might be able to infer that they, in saying that they are thinking of an alarm.

[00:12:24] Speaker 04:
Would it be thinking that they changed the way they did the robbery between the two?

[00:12:29] Speaker 04:
Would it be unreasonable for a jury on these facts to see that they tried a robbery, it failed,

[00:12:36] Speaker 04:
They met up and talked, and then did a second robbery that was conducted in different ways.

[00:12:44] Speaker 04:
On the hooks, presumably, they thought the second would go better than the first.

[00:12:47] Speaker 03:
Right.

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A jury couldn't infer that.

[00:12:49] Speaker 03:
It didn't.

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And it wasn't qualitatively different.

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I mean, it wasn't enough different to make a difference for them to actually get any money the second time around.

[00:13:00] Speaker 04:
It didn't succeed.

[00:13:01] Speaker 04:
They were not convicted of actual robbery.

[00:13:03] Speaker 04:
It's just the conspiracy.

[00:13:04] Speaker 03:
Well, they couldn't have been convicted of the Maryland robbery.

[00:13:09] Speaker 01:
Let me make sure I understand.

[00:13:11] Speaker 01:
Is your argument that there was no conspiracy to intimidate because there was no intimidation?

[00:13:19] Speaker 03:
Exactly.

[00:13:21] Speaker 03:
Because there's no evidence of conspiring to intimidate.

[00:13:28] Speaker 03:
Because all the evidence we have is what they actually did.

[00:13:31] Speaker 03:
And what they actually did was not intimidation.

[00:13:34] Speaker 03:
And there's no extra evidence that would say, but that was the plan.

[00:13:39] Speaker 03:
And they just simply failed in their plan.

[00:13:41] Speaker 03:
They failed to be sufficiently intimidating.

[00:13:45] Speaker 01:
So you're asking us to, the way you frame this case, you're asking us to decide whether these actions were intimidation, right?

[00:13:58] Speaker 02:
Yes.

[00:13:58] Speaker 02:
Okay, okay.

[00:14:00] Speaker 01:
That's helpful, thank you.

[00:14:01] Speaker 02:
Thank you.

[00:14:02] Speaker 02:
Mr. Hansford.

[00:14:08] Speaker 00:
Good morning and may it please the court, Eric Hansford for the United States.

[00:14:13] Speaker 00:
As other circuits have consistently recognized in the special context of a bank, merely presenting a demand note standing alone is sufficient to uphold the jury's finding of intimidation.

[00:14:25] Speaker 04:
Can you please answer?

[00:14:27] Speaker 04:
My concern here, are we supposed to decide, they were not convicted of robbery by intimidation, they were convicted of conspiring to rob by intimidation.

[00:14:36] Speaker 04:
That's right.

[00:14:36] Speaker 04:
Am I correct in thinking that one can be guilty of, there can be sufficient evidence of a conspiracy to rob by intimidation, even if they were complete nincompoops and failed to actually rob by intimidation?

[00:14:50] Speaker 00:
I guess two things on that.

[00:14:52] Speaker 00:
I think I agree with what Judge Griffith was saying that the conspiracy to rob by intimidation requires an agreement to rob by intimidation.

[00:15:03] Speaker 00:
So here, because they certainly can come apart.

[00:15:07] Speaker 00:
But here, because the only evidence that we have of the scope of the conspiracy is what they actually did during the course of the robbery.

[00:15:15] Speaker 04:
That's not true.

[00:15:15] Speaker 04:
You also have evidence that they met in between the two robberies.

[00:15:19] Speaker 04:
and changed how they conducted the robberies.

[00:15:22] Speaker 00:
That's true.

[00:15:23] Speaker 04:
I'm just baffled by how these arguments have come here.

[00:15:26] Speaker 04:
No one talks about there's sufficient evidence of conspiracy, which is the only thing they were convicted of.

[00:15:32] Speaker 00:
I think our argument is still ultimately that there is sufficient evidence of conspiracy.

[00:15:38] Speaker 00:
It's just that we don't have anything about the scope of their conspiracy outside of their actions.

[00:15:43] Speaker 04:
In other words, we don't know what they... But it includes the fact that they stopped and met in between the two robberies, and there is a change.

[00:15:48] Speaker 04:
One can argue how significant or not, but there was certainly a change in how the second robbery was conducted.

[00:15:54] Speaker 00:
I guess I just don't see how the change matters unless the change actions with themselves amount to intimidation because the agreement itself has to be for intimidation.

[00:16:07] Speaker 04:
So to ask, can you just answer my question directly because this will make things easier?

[00:16:10] Speaker 04:
Sure.

[00:16:10] Speaker 04:
Can you conspire to, and be guilty of that, even if when you got to the bank your acts were not intimidating?

[00:16:20] Speaker 00:
Yes, absolutely you can.

[00:16:22] Speaker 00:
But I also think that here it's important, I think part of your question was even if they didn't ultimately succeed in robbing by intimidation.

[00:16:33] Speaker 00:
So the question is not whether they ultimately get the money.

[00:16:37] Speaker 00:
The question is whether they go up to the teller and

[00:16:42] Speaker 00:
have conduct that would intimidate a reasonable person.

[00:16:44] Speaker 04:
But even if they didn't succeed in intimidating when they got to the bank, and for that reason didn't get any money, so they didn't rob either, they could still be guilty of the conspiracy if they planned.

[00:16:55] Speaker 04:
They just executed really badly.

[00:16:58] Speaker 00:
That is absolutely true, but I just don't think that- Isn't that what this case is about?

[00:17:03] Speaker 00:
I think that this case, I think that the court can certainly consider the conspiracy here.

[00:17:09] Speaker 00:
I just want to- Consider it.

[00:17:10] Speaker 04:
That's the only issue.

[00:17:12] Speaker 04:
Am I wrong?

[00:17:12] Speaker 04:
That's what they were convicted of.

[00:17:14] Speaker 00:
That is correct.

[00:17:15] Speaker 00:
That's what they were convicted of.

[00:17:16] Speaker 00:
That's the only issue we have.

[00:17:17] Speaker 00:
Right.

[00:17:17] Speaker 00:
It's just that the government doesn't have additional evidence.

[00:17:20] Speaker 00:
But I just want to push back on the notion that this was a failed robbery because they didn't get the money.

[00:17:25] Speaker 00:
What's required for a bank robbery is an attempt to take money and to do so by intimidation, where intimidation is words or conduct that would cause a reasonable person to... No, I'm just saying that, but you didn't get convictions on the robbery here, so that doesn't really help you.

[00:17:40] Speaker 00:
Well, I think it does, because the question is not whether they ultimately get the money.

[00:17:44] Speaker 00:
The question is whether their actions would intimidate a reasonable person, and they did

[00:17:51] Speaker 00:
In fact, they did intimidate the tellers here.

[00:17:54] Speaker 00:
The failure here was the fact that the tellers were scared by the actions.

[00:17:59] Speaker 00:
The first teller froze.

[00:18:01] Speaker 00:
The second teller didn't put her hands down because that's what she had been commanded to do.

[00:18:06] Speaker 00:
That ultimately coordinated.

[00:18:07] Speaker 04:
They hadn't been scared.

[00:18:10] Speaker 04:
Could you still have intimidation by the fact that there was a note in oral demands?

[00:18:15] Speaker 00:
Yes.

[00:18:16] Speaker 00:
And so I think what eight circuits have said, or at least what six circuits have said, is that mere demand notes enough, and two other circuits have public.

[00:18:25] Speaker 04:
Did they write those demand notes when they walked into the bank, or come in with them?

[00:18:28] Speaker 00:
I think based on the surveillance video, it appears they already had the demand notes when they came into the bank.

[00:18:34] Speaker 04:
Kind of part of a conspiracy agreement.

[00:18:35] Speaker 00:
That's correct.

[00:18:37] Speaker 00:
We do think that there are other elements that establish intimidation here beyond the mere demand notes.

[00:18:47] Speaker 00:
The defendants were seeking to control the tellers' actions.

[00:18:51] Speaker 00:
They were saying, don't put your hands down, give me the money, specifying the particular types of bills that the tellers should be handing over.

[00:18:59] Speaker 00:
In the first robbery, it was clear to everybody that

[00:19:02] Speaker 00:
Everybody knew that the defendants did not have any right to the money that they were demanding, because they just asked moments earlier about how to open an account there.

[00:19:11] Speaker 00:
And we also had that they were operating together.

[00:19:15] Speaker 00:
And so two people coming into a bank together and demanding money is a more intimidating situation than a single person coming in and demanding money.

[00:19:24] Speaker 04:
And your argument has been very sort of totality of the circumstances, like you just

[00:19:29] Speaker 04:
Explain.

[00:19:30] Speaker 04:
Are you asking for a bright line rule that notes by themselves automatically?

[00:19:35] Speaker 00:
I think that other circuits have drawn that bright line, and we think this court can.

[00:19:39] Speaker 04:
I haven't seen that many that actually do that.

[00:19:41] Speaker 00:
So I believe that in that footnote that we have, or that string site that we have of the eight circuits, I believe the first circuit in Henson, the third circuit in Andrews, the fourth circuit in Ketchum.

[00:19:53] Speaker 04:
Well, the first circuit listed a whole bunch of circumstances and said under those circumstances, the demand

[00:20:00] Speaker 04:
in the other circumstances.

[00:20:03] Speaker 04:
And then there were threats in the Second Circuit case, Lawrence.

[00:20:11] Speaker 04:
In the Fifth Circuit case, they said, I'm engaged in a bank robbery.

[00:20:15] Speaker 04:
They told them they were engaged in a bank robbery.

[00:20:18] Speaker 04:
And Gilmore, they also noted the bank teller's testimony about feeling scared.

[00:20:27] Speaker 04:
Let's see, the Seventh Circuit said this is a holdup, they told them.

[00:20:30] Speaker 04:
So it was more than just demanding money.

[00:20:31] Speaker 04:
And some of them emphasized that there's both verbal and written demand.

[00:20:35] Speaker 04:
So I didn't see actually a whole body of case law that said the note by itself is the end of the suit.

[00:20:42] Speaker 00:
So I agree there are additional facts in those cases, but what the circuits actually say when they're upholding the demand note or the finding of intimidation.

[00:20:51] Speaker 04:
Well, the First Circuit said under these circumstances referring to all the circumstances.

[00:20:57] Speaker 04:
And the problem is there was more to the notes than just a demand for money.

[00:21:01] Speaker 04:
If they say this is a robbery, this is a hold-up.

[00:21:06] Speaker 00:
I do believe the Sixth Circuit, the Seventh Circuit, the Ninth Circuit say a mere demand note is enough for intimidation.

[00:21:16] Speaker 00:
And I do think in those eight cases that we cite in the footnote, Penson in the First Circuit, Andrews in the Third Circuit, Ketchum in the Fourth Circuit, Gilmore in the Sixth Circuit,

[00:21:27] Speaker 00:
Clark in the Seventh Circuit and Nash in the Ninth Circuit all draw that bright line when they're articulating the law.

[00:21:33] Speaker 04:
A mere demand note just for money.

[00:21:35] Speaker 04:
It just says give me money in some way, shape, or form.

[00:21:38] Speaker 00:
Right.

[00:21:39] Speaker 00:
As long as it's a clear demand for money, yes.

[00:21:43] Speaker 00:
Just on the appellant's hypothetical where someone walks into a bank and says, this is not a robbery.

[00:21:49] Speaker 00:
Can I please have money?

[00:21:50] Speaker 00:
I'm not sure that actually does qualify as a demand.

[00:21:53] Speaker 04:
How about I go to my bank?

[00:21:55] Speaker 04:
I think the teller's going to recognize who I am.

[00:21:57] Speaker 04:
Turns out I'm wrong about that.

[00:21:59] Speaker 04:
And I've got laryngitis, so I write on a paper.

[00:22:03] Speaker 04:
Give me 10s and 20s.

[00:22:05] Speaker 00:
So I think that that would potentially qualify as a demand note, but I think you'd probably fail on the mens rea element.

[00:22:14] Speaker 04:
So it would fail for another reason, but... Is that intimidating because I said give me 10s and 20s?

[00:22:19] Speaker 00:
I think it would have to do with the circumstances.

[00:22:22] Speaker 04:
I think all the demand notes... Even if the teller wasn't intimidated, because the teller didn't in fact recognize me.

[00:22:27] Speaker 00:
Well, and so I think if there's evidence that the teller.

[00:22:31] Speaker 04:
You just told me the mere note is enough.

[00:22:33] Speaker 04:
I thought that's what you said.

[00:22:34] Speaker 00:
So we're not saying that every single time there's a note that that's going to be enough.

[00:22:38] Speaker 00:
We're saying that in the typical robbery case where all the evidence that you really have in the case is somebody walks in and passes the note.

[00:22:44] Speaker 04:
So you aren't looking for the bright line rule that a note is by itself going to be enough.

[00:22:48] Speaker 04:
You have to look at all the circumstances.

[00:22:50] Speaker 00:
You do have to look at all the circumstances.

[00:22:51] Speaker 04:
I think that's pretty powerful.

[00:22:53] Speaker 00:
The note's very powerful, and in the typical case where you don't have anything undermining the demand note, then that is going to be enough.

[00:23:02] Speaker 00:
That's what the other circuits have said.

[00:23:05] Speaker 01:
Are you saying that a note is evidence of intimidation plus what?

[00:23:16] Speaker 01:
What else needs to be there?

[00:23:18] Speaker 01:
You're now saying, as I understand it, a note by itself is not necessarily always intimidation.

[00:23:25] Speaker 01:
It's intimidation when filling the blank.

[00:23:27] Speaker 00:
It is intimidation when there are no other circumstances.

[00:23:30] Speaker 00:
So it's intimidation in these typical robbery cases.

[00:23:33] Speaker 00:
What happens is somebody walks in, hands over a note demanding money, goes up to the teller.

[00:23:38] Speaker 00:
And that's essentially all the real evidence that you have.

[00:23:41] Speaker 00:
That's going to be enough.

[00:23:42] Speaker 00:
That's what the other circuits have said.

[00:23:47] Speaker 00:
So there can always be additional circumstances that would undermine the demand and make it not intimidating.

[00:23:53] Speaker 00:
So if I walk up to a teller and I say, I'm doing this on a dare.

[00:23:57] Speaker 00:
Please don't take me seriously.

[00:23:59] Speaker 00:
Please don't actually give me money.

[00:24:00] Speaker 00:
Nobody's going to hear her.

[00:24:01] Speaker 04:
So it depends what the note says.

[00:24:02] Speaker 04:
So when the ones say this is a bank robbery or this is a holdup in the note and then give me the 10s and 20s, that's going to be a different case.

[00:24:09] Speaker 04:
If something just says, I'd like 10s and 20s,

[00:24:13] Speaker 04:
I don't know whether the person's got laryngitis.

[00:24:16] Speaker 00:
So I think what the other circuits, the line that the other circuits have drawn is a clear demand for money standing alone.

[00:24:24] Speaker 04:
Right, but to have a clear demand for money may require more than say, I want 10s and 20s.

[00:24:30] Speaker 00:
I think, I have not seen I want 10s and 20s and I think that's closer.

[00:24:34] Speaker 04:
Isn't that what they said in the second bank here?

[00:24:36] Speaker 00:
Here they said, in the first bank they said give me all your money, the second bank they said give me the money, give me the money and then the note had denominations.

[00:24:46] Speaker 00:
Okay.

[00:24:46] Speaker 00:
And so those in combination.

[00:24:48] Speaker 01:
Maybe I missed it.

[00:24:49] Speaker 01:
Could you go back to Judge Millett's hypothetical where she appears to the bank teller and she has laryngitis and writes down

[00:24:56] Speaker 01:
you know, give me 10s, 20s, 30s up to $500.

[00:25:00] Speaker 01:
Why is that not intimidation?

[00:25:05] Speaker 00:
I think if we have nothing else, then I think that probably would qualify as intimidation, though it's closer.

[00:25:11] Speaker 00:
I think it would fail on the mens rea element, so she would not be guilty.

[00:25:15] Speaker 00:
However, I think

[00:25:16] Speaker 04:
in her hypothetical.

[00:25:25] Speaker 00:
Well I think if there's evidence that you have an account there and that

[00:25:32] Speaker 00:
you have laryngitis, and that's why this is happening.

[00:25:35] Speaker 00:
The question is whether you would know.

[00:25:37] Speaker 04:
Well, that's my testimony.

[00:25:38] Speaker 04:
Maybe I'm lying.

[00:25:39] Speaker 00:
The question is whether you would know that it would be taken as intimidation.

[00:25:43] Speaker 00:
And so surely a jury could discredit your testimony.

[00:25:47] Speaker 00:
But if people agree that that is true, then I think that would probably have a hard time meeting the mens rea element.

[00:25:55] Speaker 00:
It's not on the intimidation element.

[00:25:57] Speaker 00:
However, if the teller

[00:25:58] Speaker 00:
If the teller does know you and understands that this is not an attempt to... But you said the teller's reaction is not dispositive.

[00:26:06] Speaker 04:
You wanted to rule that the note itself can be dispositive.

[00:26:09] Speaker 00:
It's correct that the teller's reaction is not dispositive, but the question is what an objective person in the teller's situation... So an objective person in the teller's situation who knows you... When I come in and say give me 10s and 20s because of my laryngitis, which the teller doesn't know about,

[00:26:25] Speaker 04:
So an objective person would feel intimidated by that, even though the actual teller who knows me and knows that I have an account in the bank isn't intimidated.

[00:26:34] Speaker 04:
Just because there's a note that says, give me 10s and 20s.

[00:26:37] Speaker 00:
I think, though, I haven't seen analysis of this that you would take into account things that the teller knows.

[00:26:42] Speaker 00:
In fact, in the Gilmore case... It's not a subjective test.

[00:26:45] Speaker 00:
No, but you could still take into account the objective circumstances that are known to the teller.

[00:26:52] Speaker 04:
So the fact that... What's an objective circumstance there that's known to the teller?

[00:26:56] Speaker 04:
There's nothing objective about whether...

[00:27:00] Speaker 04:
A person knows me or not.

[00:27:01] Speaker 00:
For example, in the Gilmore case, there's evidence the defendant keeps going back to the same robberies.

[00:27:07] Speaker 04:
So those are things on top of the demand note.

[00:27:09] Speaker 00:
But so there's evidence that the tellers are recognizing the defendant when he re-enters the bank.

[00:27:14] Speaker 00:
And so that's an objective circumstance.

[00:27:16] Speaker 00:
You're not saying that the question is the timidity or bravery of the teller.

[00:27:22] Speaker 00:
You're asking, how would an objective person in the teller's circumstance

[00:27:28] Speaker 00:
react, but I think that is going to take into account the totality of the circumstances in the case.

[00:27:37] Speaker 00:
If there are no further questions, we've asked the convictions before.

[00:27:47] Speaker 03:
We agree that the court needs to look at the surrounding circumstances, not simply the note.

[00:27:54] Speaker 03:
And I just wanted to point out that one of the circumstances here was that Mr. Smith and Mr. Lionel were separated from the tellers by plexiglass, and in the case of the D.C.

[00:28:04] Speaker 03:
bank, by three layers of plexiglass.

[00:28:07] Speaker 03:
They made no threatening gestures.

[00:28:09] Speaker 03:
They did not suggest in any way

[00:28:11] Speaker 03:
that harm would come to the tellers, and of course, no harm would come to them.

[00:28:15] Speaker 01:
What's the holding up your hands mean?

[00:28:20] Speaker 01:
Hold up your hands.

[00:28:21] Speaker 01:
Keep your hands up.

[00:28:22] Speaker 01:
Don't put your hands down.

[00:28:23] Speaker 03:
Don't put your hands down does not imply that, and if you do, you will come to physical harm, particularly in these circumstances where they're talking in a conversational tone, there's plexiglass between them, there's no intonation of a weapon.

[00:28:40] Speaker 03:
If there are no further questions, we will submit and request the court to vacate Mr. Smith and Mr. Ryan's convictions.

[00:28:48] Speaker 03:
Thank you.