In January 2000, reluctant bank robber Andrew Emmett walked into Advance Bank in Chicago and handed the teller a note that read: “Give me all your hundreds, and don’t hit any alarms or people start getting hurt. You have 30 sеconds.” When the teller, Amanda Vega, asked the robber if he was serious, he said he was and told her not to call anyone or push any buttons or people would get hurt. The robber then reached into his jacket, which Vega took as a sign that he had a gun. Vega slowly walked away and gave the note to her supervisor, Carlos Mucha. While Mucha was reading the note, Emmett left the bank.
Undaunted, Emmett walked down the street and tried again. At Manufacturers Bank, Emmett handed the teller, Pamela Benkovich, an almost identical note (“Give me all your hundreds or people get hurt. No alarms. You havе 30 seconds.”). Ben-kovich opened her drawer to discover she didn’t have any hundreds. As she looked in her drawer, the robber barked “give it to me now, lady,” and put his hand in his pocket. Benkovich, believing that Emmett had a gun, ducked behind the counter and told the teller next to her “Pinocehio’s nose is growing,” the bank’s code for a robbery. Frustrated by the delay, Emmett again turned around and walked out of the bank.
About а month later, Vega, the teller at the first bank, and Mucha, her supervisor, picked Emmett out of a photo array. Armed with the identifications, and certainly other information as well, FBI agents went to the Family Guidance Clinic, a methadone treatment facility on Chicago’s north side, where they knew Emmett had an appointment. Emmett showed up, was arrested, and was taken to a police station whеre he made a statement admitting, essentially, that he tried to rob the banks. He was then charged with two counts of bank robbery in violation of 18 U.S.C. § 2113(a).
With a pretty strong case against him, Emmett’s best hope for survivаl was to kill the government’s evidence, and he sought to do so by filing a motion to suppress. In the motion, he sought to suppress the identifications made by Vega and Mucha and the fruits of those identifications, namely his incriminating statements to the FBI. Emmett supported this claim by saying the FBI somehow improperly “used” his probation officer to take Emmett’s photograph as part of its investigation into the robbеries. Pointing to a Ninth Circuit case,
United States v. Richardson,
On this appeal, Emmett argues error on the suppression decision, trial error growing out of “prejudicial” closing argument commеnts by the government prosecutor, and a few sentencing issues. We start with the suppression issue.
In his suppression motion, Emmett claimed that FBI agents met with his probation officer (he was on supervised relеase at the time) and discussed the robberies. He said the agents asked the probation officer to take Emmett’s picture and that the officer then ordered Emmett to report to the probation office for that purpose. Once there, Emmett says, his picture was taken and subsequently given to the FBI agents, who used it in a photo array shown to the bank tellers. The results of this were identificаtions of Emmett as the robber and his incriminating statements after arrest to the agents.
The problem (the first — there are two) with all this is that it didn’t happen that way. Emmett’s recitation of this sequence of events wаs conjecture: he really didn’t know how things happened. When the government responded — with facts showing that the probation officer took the photograph at a routine meeting beforе the FBI ever suspected Emmett was involved in the bank robberies, there was no way Emmett could show that the probation officer was “collaborating with the FBI” to deny Emmett his Fourth Amendment protection. So there was no need for an evidentiary hearing.
But even if the FBI had used Emmett’s probation officer exactly as Emmett claimed, there would be no Fourth Amendment violation. Even the Ninth Circuit (which provides thе only arguably solid support for Emmett’s claim) holds that someone on probation is not entitled to the same protection as other citizens.
See United States v. Jarrad,
In addition, we think it clear that a person has no expectation of privacy in a photograph of his face.
See United States v. Doe,
Next, Emmett claims he was denied a fair trial by comments made during closing arguments by the prosecutor, who noted the defense’s failure to call witnesses or ask questions to refute Vegа’s testimony that the jacket Emmett was wearing at the time of his arrest was “exactly like” the jacket worn by the robber. Emmett suggests that discussing the omission with the jury violated his Fifth Amendment rights. To prevail, Emmett must show both that the challenged comments were improper and that they denied him a fair trial in light of the entire record.
United States v. Butler,
Emmett also makes two arguments that his sentence should be reduced, for which he must show clear error. First, he argues that the district court should not have given him a 2-level increase for “a threat of death” under § 2B3.1(b)(2)(F). A threat of death may be “an oral or written statement, act, gesture, or combination thereof. Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.... The court should consider that the intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is the victim of the offense, a fear of death.” U.S.S.G. § 2B3.1, cmt. n. 6;
see also United States v. Raszkiewicz,
Emmett claims hе did not make a threat of death because the note he gave the tellers never suggested that he had a weapon. But the question is not whether Emmett told anyone he had a weapon, the question is whether his note and actions would put reasonable bank tellers in fear1 for their lives. Emmett handed both tellers notes threatening that people would be harmed, which suggested that he had a weapon and was willing to use it. Emmett claims Vega’s response (asking him whether he was serious) showed that she did not fear for her life, but such a response does not mean that reasonable tellers would not fear for their lives.
See Carbaugh,
Finally, Emmett claims the district court should have granted grant him a 3-level decrease because his withdrawal from the banks made his efforts “attempts” under § 2X1.1(b)(1), which provides:
If an attempt, decrease by 3 levels, unless the defendant completed all the acts the defendant believed necessary fоr successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control.
Emmett claims he did not complete all of the acts necessary to complete either robbery. Specifically, he cоntends he could have told the tellers he had a gun or other weapon in an effort to make them comply with his demands. But the mere fact that a defendant could have tried something else does not entitle him to a guideline decrease. As the guidelines explicitly say, the 3-level decrease is not appropriate if Emmett did everything he thought was necessary to rob a bank. That’s exaсtly what happened. Emmett gave the threatening note to Vega, the first teller, thinking that she would hand over the money he demanded. Had Emmett thought he needed to do more to complete the robbery, he would have taken additional steps when trying to rob the second bank. Instead, Emmett tried the exact same thing. The fact that he again failed does not mean that he did not think
AFFIRMED.