## Facts

- Walter R. Burnley was convicted by a jury of four bank robberies under 18 U.S.C. § 2113(a) and sentenced to 262 months’ imprisonment.
- April 25, 2006: Burnley entered an Associated Bank in Beloit wearing a cap pulled low and eye coverings; he leaned toward the teller and demanded, “Fill the bag and do not give me the dye pack.” The teller, described as frightened, complied.
- May 9, 2006: Burnley robbed another Associated Bank in Beloit, telling the teller not to “do anything stupid” and threatening to kill her if she included a dye pack or bait bills; the teller complied.
- May 12, 2006: Burnley recruited Lisa Harding to commit a robbery; Harding entered an AnchorBank in Janesville, demanded all money in a bag with “no dye pack,” and repeated the demand louder and more forcefully when the teller appeared confused; the teller complied.
- May 16, 2006: Burnley and Harding entered a First National Bank in Beloit; Burnley stood near the door with his face concealed by a painter’s mask while Harding asked the teller to put all the money in a bag, checked for a dye pack, and apologized for making the teller nervous; the teller complied.
- At trial, defense counsel conceded in opening and closing that robberies had been committed and did not argue that “intimidation” was lacking.
- Burnley did not move for a judgment of acquittal under Fed. R. Crim. P. 29 or otherwise preserve a sufficiency challenge.

## Issues

1. Whether the evidence was sufficient to prove “force and violence, or intimidation” under 18 U.S.C. § 2113(a) for the April 25, May 12, and May 16 robberies.
2. Whether, given the failure to preserve a sufficiency challenge, any error rose to plain error requiring reversal to prevent a manifest miscarriage of justice.

## Decision

- The Seventh Circuit affirmed all four convictions and the judgment.
- The court held that the jury could find intimidation beyond a reasonable doubt for each robbery, including those without an explicit verbal threat.
- Applying plain-error review due to the lack of a Rule 29 motion, the court found no manifest miscarriage of justice.

## Legal Principles

- Under 18 U.S.C. § 2113(a), bank robbery requires taking (or attempting to take) bank property “by force and violence, or by intimidation.”
- “Intimidation” is determined objectively: whether the defendant said or did something that would place a reasonable person in fear; actual fear testimony is not required.
- Explicit threats or physical force are not necessary; the surrounding circumstances may establish intimidation.
- When a defendant does not preserve a sufficiency claim by a Rule 29 motion, appellate review is for plain error, and reversal is warranted only to prevent a manifest miscarriage of justice.
- A defendant may be held responsible for intimidating conduct carried out by an accomplice during the robbery.

## Conclusion

The court upheld Burnley’s convictions because the robbers’ demands for money coupled with instructions about dye packs, identity concealment, positioning and tone, and teller reactions permitted a reasonable jury to find intimidation, and the unpreserved sufficiency challenge did not meet the plain-error standard.


United States v. Burnley, 533 F.3d 901 (7th Cir. 2008)