United States of America v. Tremain R. Gordon

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3797
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TREMAIN R. GORDON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:08-cr-50039-3—Philip G. Reinhard, Judge.
ARGUED AUGUST 3, 2010—DECIDED JUNE 16, 2011
Before BAUER, MANION and SYKES, Circuit Judges.
PER CURIAM. A jury found Tremain R. Gordon guilty of
one count of bank robbery. See 18 U.S.C. § 2113(a). He
argues on appeal that his conviction should be over-
turned because the government failed to prove, as an
element of the offense, that the money was taken from
the bank by intimidation. We affirm.
The facts are drawn from testimony at Gordon’s trial.
His girlfriend, Emily Jones, worked as a teller at the

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2 No. 09-3797
Blackhawk Bank in Roscoe, Illinois, and by August 2008,
she had embezzled $17,500 from her teller drawer. To
conceal the embezzlement, the couple decided that
month to rob the bank—specifically, Jones’s drawer.
Bank employees knew Gordon, so, according to Jones,
he found other people to carry out the robbery. The
crime was to occur on August 14, a day on which Jones
knew the bank would receive a shipment of money
from the Federal Reserve. An acquaintance of Gordon’s,
Eric Carter, testified that Gordon asked him and Ramon
Mitchell on August 13 if they wanted to help rob a bank.
Carter and Mitchell agreed and, according to Carter,
met that evening with Gordon, who outlined the
plan: One of them would retrieve a backpack from a
dumpster in a nearby parking lot, enter the bank, and
present the backpack to Jones, who would fill it with
money and give it back.
On August 14, Gordon and Jones discussed the
plan during Jones’s lunch break. They agreed that they
should also try to get the Federal Reserve money,
which had already arrived and totaled almost $100,000.
Jones told Gordon that the robber’s demand note—the
note the robber would give to Jones, demanding money—
should mention the money from the Federal Reserve,
which was left out on a counter in the back of the bank,
in the area from which tellers served drive-through
customers.
Carter and Mitchell arrived at the bank later that after-
noon, and Mitchell went inside; Gordon waited sep-
arately in his car, in a nearby parking lot. Jones had

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No. 09-3797 3
never met Mitchell, but she testified that when he
entered the bank, she knew “by the way he was dressed
and with the backpack” why he was there. Mitchell
gave Jones a note that, according to Jones, said, “Give
me all your money and the money in the drive-
through, also.” Jones read the note and emptied all of the
money from her drawer into the backpack, except for
the “bait” bills used to track bank robbers. Jones went to
the drive-through area next and saw fellow teller Aubrie
Miller. She told Miller that she was being robbed, and
showed Miller the note. Miller urged Jones to “stay calm,”
and the two of them put all of the money from the
Federal Reserve into the backpack. Jones then returned
to her teller window and gave the backpack to Mitchell;
when he left the bank, Miller and Jones pulled their
alarms. The participants in the crime later split the pro-
ceeds, of which Gordon’s and Jones’s share was $20,000.
After police received a tip, however, the scheme
quickly unraveled. Gordon, Jones, Carter, and Mitchell
were indicted and charged with robbing Blackhawk
Bank of $122,992, in violation of 18 U.S.C. § 2113(a). Jones,
Carter, and Mitchell pleaded guilty, but Gordon opted
to go to trial. The jury found him guilty, and the district
court sentenced him to 127 months’ imprisonment and
ordered him to pay—jointly and severally with Jones,
Carter, and Mitchell—$65,317 in restitution to Black-
hawk Bank.
The only issue Gordon presents on appeal is whether
the government established the element of intimidation.
To obtain a conviction for bank robbery, the government

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4 No. 09-3797
had to prove that the money was taken “by force and
violence, or by intimidation,” see 18 U.S.C. § 2113(a);
United States v. Carter, 410 F.3d 942, 952 (7th Cir. 2005), and
the government concedes that there was no evidence
of actual force or violence in this case. Intimidation
exists when a bank robber’s words and actions would
cause an ordinary person to feel threatened, by giving
rise to a reasonable fear that resistance or defiance will
be met with force. See United States v. Thornton, 539
F.3d 741, 748 (7th Cir. 2008); United States v. Burnley, 533
F.3d 901, 903 (7th Cir. 2008); United States v. Clark, 227
F.3d 771, 775 (7th Cir. 2000). Gordon suggests that
intimidation requires direct contact between a bank
robber and a bank employee, and argues that Aubrie
Miller’s testimony—on which the government re-
lies—cannot establish intimidation because Miller
did not interact with, or even see, Mitchell. Miller saw
Mitchell’s note, but that by itself could not establish
intimidation in Gordon’s view, because without direct
contact, Miller had no reason to fear what Mitchell
might do if she ignored the note’s demands. Gordon
contends that Miller was a bystander who was not com-
pelled to get involved, but chose to do so.
But even if we accept Gordon’s argument that direct
contact between robber and teller is necessary, he over-
looks Miller’s contact with Jones, an accomplice and co-
defendant who was working in tandem with Mitchell,
along with Gordon and Carter. We may consider
whether the words and conduct of accomplices, working
together, give rise to intimidation, see United States v.
Jones, 932 F.2d 624, 625 (7th Cir. 1991), and several

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No. 09-3797 5
aspects of Miller’s testimony about her interaction with
Jones during the robbery convince us that there was
sufficient evidence of intimidation in this case. First,
Miller said that Jones seemed afraid—shaking, breathing
quickly—when she told Miller that she was being
robbed, and it would be reasonable for Miller to ex-
perience fear upon seeing her colleague’s apparent
distress. Miller testified that she did in fact feel fear
after Jones showed her the demand note—“I was afraid.
I felt, you know, it was definitely a high pressure
moment, and my concern was we needed to get [the
robber] out”—and her fear is probative evidence of in-
timidation. See Burnley, 533 F.3d at 903; United States
v. Hill, 187 F.3d 698, 702 (7th Cir. 1999). Moreover, a
demand note alone may contain an implicit threat that
rises to the level of intimidation, see Clark, 227 F.3d at 775;
United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008);
United States v. Gilmore, 282 F.3d 398, 402 (6th Cir.
2002); United States v. Hopkins, 703 F.2d 1102, 1103 (9th
Cir. 1983), and the threat in this case seemed altogether
real and substantial for Miller, who testified that she
thought the robber might be watching her in the drive-
through area because the note specifically requested the
money that was there. After seeing the note, Miller said,
she was worried about what would happen if she and
Jones did not follow its commands: “I told [Jones] to do
whatever he told her to do. We started, you know, putting
money in the bag so that we could get him out of the
building.” Similarly, Miller explained in her testimony
that she did not pull her alarm until Mitchell left
because she was concerned about what he might do if

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6 No. 09-3797
his demands were not met: “We want to make sure
that he’s out for the safety of everybody in the building
before we do that.” Even Jones’s use of the word “robbed”
to explain what was happening gave Miller reason to
be afraid, because the word itself connotes the threat of
force. See BLACK’S LAW DICTIONARY 1443 (9th ed. 2009)
(defining “robbery” as “[t]he illegal taking of property
from the person of another, or in the person’s presence,
by violence or intimidation”).
In short, Miller’s testimony establishes that she helped
Jones fill the backpack with money because she rea-
sonably feared that the robber would use force if they
did not satisfy his demands. A jury could rationally
conclude that the money was taken from the bank by
intimidation. See Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir.
2009). We therefore AFFIRM Gordon’s conviction.
6-16-11

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