## Facts

- Two tellers worked at a Bank of America branch located inside a grocery store.
- Two men, later identified as Monterrio Kelley and Corey “Nick” Moss, paced in front of the bank area.
- When one teller briefly stepped away, Kelley and Moss jumped onto the teller counter, opened an unlocked cash drawer, and grabbed cash.
- The other teller remained at her station next to the drawer, within arm’s length of the robbers, heard a loud bang, and was too frightened to resist or activate the silent alarm.
- The robbers took $961 and fled in a vehicle driven by Jarvis Prothro.
- A dye pack exploded shortly after the getaway; the robbers switched to a second vehicle and left Prothro behind.
- Prothro crashed due to dye-pack smoke and was promptly apprehended.
- Kelley was tried and convicted by a jury of bank robbery under 18 U.S.C. § 2113(a); the district court denied his motion for judgment of acquittal, and he appealed on sufficiency grounds.

## Issues

1. Whether sufficient evidence showed the taking was accomplished “by intimidation” under 18 U.S.C. § 2113(a).
2. Whether sufficient evidence showed the money was taken “from the person or presence of another.”
3. Whether sufficient evidence identified Kelley as one of the robbers present at the bank.

## Decision

- The Eleventh Circuit affirmed the conviction.
- A reasonable jury could find intimidation where the robbers suddenly jumped and slammed onto the counter in close proximity to a teller, causing fear that prevented resistance.
- A reasonable jury could find the money was taken from the “presence” of a teller because the drawer was within the teller’s immediate reach and control, even if it was assigned to the teller who had stepped away.
- Viewing the evidence in the light most favorable to the government, a reasonable jury could find beyond a reasonable doubt that Kelley participated in the robbery.

## Legal Principles

- “Intimidation” under 18 U.S.C. § 2113(a) is judged by an objective standard: whether the defendant’s conduct would cause an ordinary person to fear bodily harm; an explicit threat or weapon is not required.
- Property is taken from the “person or presence” of another when it is within the victim’s reach, observation, or control such that the victim could maintain control but for the robber’s force, violence, or intimidation.
- On review of a denied motion for judgment of acquittal, the conviction stands if a reasonable trier of fact could find guilt beyond a reasonable doubt, drawing reasonable inferences in favor of the verdict.

## Conclusion

The court upheld Kelley’s § 2113(a) bank-robbery conviction because the robbers’ abrupt, forceful conduct near a teller supported an objective finding of intimidation, the cash was taken from a teller’s presence, and the trial evidence permitted a reasonable jury to identify Kelley as a participant.


United States v. Kelley, 412 F.3d 1240 (11th Cir. 2005)