United States v. Jocic, Timothy S. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2713
United States of America,
Plaintiff-Appellee,
v.
Timothy S. Jocic,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 98-139-CR--S. Hugh Dillin, Judge.
Argued February 29, 2000--Decided March 22, 2000
Before Bauer, Cudahy, and Eschbach, Circuit Judges.
Bauer, Circuit Judge. Timothy Jocic is appealing
his conviction for armed bank robbery in
violation of 18 U.S.C. sec. 2113(a), for which he
was sentenced to 66 months’ imprisonment and five
years’ supervised release. Jocic argues only that
he was coerced into driving the getaway car for
the robbery and that the government failed to
bear its burden of showing that he was acting
voluntarily.
Around 1:30 p.m. on September 15, 1998, Michael
Bradach entered an NBD Bank in Bloomington,
Indiana, and, armed with a nine millimeter
handgun, robbed two tellers of approximately
$23,000. The teller supervisor who testified at
the trial estimated that Bradach was in the bank
for two to three minutes. Upon leaving the bank,
Bradach entered the passenger side of his black
Jeep Cherokee, which was being driven by Jocic.
The jeep was backed into a parking space facing
an alley about 115 feet from the doors of the
bank and 55 feet from the doors of A.G. Edwards,
an investment company located across the alley
from the bank. Once Bradach got in, the jeep
immediately took off through the alley.
As the holdup began, a customer waiting in the
drive-through banking line observed the people
inside the bank put their hands in the air. The
customer said it took him fifteen to thirty
seconds to react, but then he drove next door to
A.G. Edwards, parked his car, entered the
offices, and directed the people there to call
the police. After an employee called the police,
the drive-through customer walked outside and saw
the robber leave the bank. The customer observed
that the driver of the jeep was wearing a hat or
hood and dark glasses.
A number of A.G. Edwards employees also watched
the robber leave the bank. One was talking to the
911 operator on her cell phone as she observed
the robber cross the parking lot. Another watched
the robber cross the parking lot and enter the
front passenger door of the jeep, whose engine he
heard running prior to the robber’s arrival. This
witness also heard the driver of the jeep,
wearing a hooded sweatshirt pulled down around
his face, tell the robber to "hurry up." Another
bank customer waiting in her car nearby heard the
jeep’s driver tell the robber to "get in."
Phil Bryan, a Bloomington Police officer
responding to the 911 calls, observed two males
in a black jeep driving by the NBD Bank. Bryan
drove his marked police car up behind the jeep
and turned on his lights and sirens. The jeep did
not stop, but instead raced off, reaching speeds
of 50 miles per hour in a 30 mile per hour zone
and ignoring stop signs and traffic lights. After
other marked police cars joined in the pursuit,
the jeep was forced to make a sharp turn at a T-
intersection. The jeep failed to negotiate the
turn and slid into the curb.
Both front doors opened and the driver and
passenger fled the jeep simultaneously, running
in opposite directions. The passenger, Bradach,
carrying a handgun, ran north for a distance of
about 50 feet. Bryan stopped his car and pursued
him on foot. Confronted by police and ordered to
drop the firearm, Bradach put the weapon in his
mouth and fatally shot himself. Meanwhile the
driver, Jocic, ran west on a sidewalk bordered by
a chain link fence on one side and the street on
the other. A second Bloomington police officer,
Sgt. Mark Crouch, had been following Bryan in
another marked police car. Crouch turned on his
lights and sirens and drove two wheels of the car
up onto the sidewalk alongside where Jocic was
running. Jocic looked back at Crouch, but
continued to run. Crouch then pinned Jocic
against the fence with the left front fender of
his patrol car, knocking Jocic up over the hood
and onto the ground. There were approximately 65
yards between the abandoned jeep and the point
where Crouch stopped Jocic. As Crouch then took
Jocic into custody, he observed that Jocic was
wearing a hooded sweatshirt tied fairly tight
around his face and a pair of sunglasses. The
police recovered $23,000 in cash from the jeep,
including the "bait" money from the NBD Bank, and
a clip of nine millimeter ammunition from a
pocket in the front passenger side door.
Within fifteen minutes after his arrest, Jocic
gave a taped statement to the Bloomington police
and the FBI at the Bloomington Police Department.
Both the videotape and transcript of his
statement were admitted at trial. After being
given his Miranda rights and waiving them, Jocic
stated that he was from Crown Point, Indiana, and
was a junior at Indiana University. Then, before
the interview proceeded beyond personal
information, Jocic asked if Bradach was dead and
the officers responded that he was. Jocic then
stated that he and Bradach had graduated from
separate high schools in the same year and did
not become acquainted until a mutual friend
introduced them about two months prior to the
bank robbery. During that time Jocic and Bradach
socialized on occasion.
According to Jocic, on the morning of the
robbery, Bradach called him between 10 and 11 in
the morning and asked to come over to Jocic’s
home. Jocic agreed, but told Bradach he had to go
to class at 11:15. When Bradach arrived at 11:25,
he was dressed all in black and was carrying a
backpack from which he pulled a nine millimeter
handgun. Bradach had reserved a flight for 5:40
that evening to visit a girlfriend in South
Carolina, but he did not have the money to pay
for the trip. He told Jocic he needed his help to
get the money to go to South Carolina, then
pointed the gun at him and said "You’re my
driver" and "I just need ten minutes of your
time." Bradach repeated that he needed some
money, and talked of robbing a bank, a
convenience store, or a gas station. Jocic was
shocked by Bradach’s behavior and did not know
whether Bradach was joking or not.
Prior to leaving Jocic’s house, Bradach
permitted Jocic to call and cancel a counseling
appointment, and, since Jocic had just woken up,
Bradach allowed him to get dressed. Jocic then
left his house with Bradach because he was afraid
"he was gonna shoot me if I said no." When they
got to Bradach’s jeep, Bradach drove and Jocic
rode in the passenger seat. Bradach eventually
asked Jocic if he knew where there was a "good
bank," and Jocic replied that the NBD Bank where
he had an account was nearby. They arrived at the
bank and Bradach circled around it once, then
pulled the jeep into a parking space facing the
alley. Bradach placed the gun in his lap pointed
at Jocic as he put on a pair of plastic gloves.
He had two clips for the gun, one of which he
handed to Jocic and told him to place it in his
side of the passenger door. Jocic did as he was
instructed. Finally, Bradach put on a black hat
and told Jocic "I’m goin’" and "You better be in
the driver’s seat when I get back." Bradach added
"I don’t care," "I’ll kill anyone" and "If anyone
steps up, they’re goin’ down." Then Bradach
exited the jeep, carrying his backpack and the
gun. It seemed to Jocic that the time Bradach was
gone was "quick."
When Bradach returned, he jumped in the
passenger side of the jeep, and said "I got a bag
of money" and "Go, go, go, go." Bradach was still
carrying the gun. As soon as Jocic drove the jeep
out of the parking lot, he saw a police car head
toward them, then execute a U-turn and begin to
chase them. Bradach kept saying "Go, go, go, go"
and Jocic did not know what to do. During the car
chase, Bradach told Jocic "I’m not going to jail"
and "I’ll kill myself before I end up goin’ to
jail." When the jeep hit the curb and stopped,
Jocic jumped out because he "didn’t want to get
shot." When asked if he was afraid that the
police might shoot him, Jocic responded that he
was not. Jocic ran because he was afraid Bradach
would shoot him in the back.
During further questioning in his interview,
Jocic stated that he owned a police scanner and
had loaned it to Bradach on occasion. About
thirty minutes following the end of the taped
interview, FBI agent Gary Dunn spoke again with
Jocic, inquiring why he did not leave the parking
lot while Bradach robbed the bank. Jocic now
claimed that Bradach had taken the keys to the
jeep into the bank with him. In a final
conversation at the Police Department, Jocic told
Dunn that Bradach had instructed him on what to
wear the day of the robbery. On cross-examination
at the trial, Jocic testified that he’d had
several phone conversations with Bradach on
September 14, 1998, the day before the robbery.
When government counsel asked Jocic why he just
didn’t drive the jeep out of the parking lot
while Bradach was in the bank and call the
police, Jocic answered "There is a lot of things
I wish I could have done, should have done. Could
have, would have, but at this time I was
completely paralyzed with fear."
Jocic was indicted for both bank robbery and
carrying a firearm during the commission of a
felony, although the government moved to dismiss
the firearm count prior to trial. Following a
two-day trial, a jury found Jocic guilty of bank
robbery. The court granted Jocic’s motion for a
new trial, and conducted a two-day bench trial.
Ultimately the court, like the jury before it,
rejected Jocic’s defense of coercion and found
him guilty of bank robbery. The district court
sentenced Jocic to 66 months’ imprisonment, five
years’ supervised release, and payment of a
$2,000 fine. Jocic appeals, arguing only that
there was insufficient evidence to prove beyond
a reasonable doubt that he was not coerced into
robbing the bank.
This court’s review of the sufficiency of
evidence is extremely limited. "We review
challenges to the sufficiency of the evidence by
viewing the evidence in the light most favorable
to the prosecution and asking whether any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt." United States v. Balint, Nos.
98-3130, 98-3143, 2000 WL 15013 at *5 (7th Cir.
Jan. 11, 2000). Thus, if any rational trier of
fact could have found that the government proved
Jocic had not met one or more elements of the
coercion defense, the judgment should be
affirmed.
A defendant presenting the defense of coercion
is required to show that he reasonably feared
immediate death or serious bodily harm unless he
committed the criminal act with which he was
charged, and that there was no reasonable
opportunity to refuse to commit the offense and
to avoid the threatened injury. United States v.
Crowder, 36 F.3d 691, 696 (7th Cir 1994); United
States v. Toney, 27 F.3d 1245, 1248, 1252 (7th
Cir. 1994); see also United States v. Bailey, 444
U.S. 394, 410 (1980) ("Under any definition of
these defenses [duress and necessity] one
principle remains constant: if there was a
reasonable, legal alternative to violating the
law, ’a chance both to refuse to do the criminal
act and also to avoid the threatened harm,’ the
defenses will fail."). Jocic testified on his own
behalf at trial in support of his claim that his
participation in the robbery was the result of
Bradach’s coercion. The government thus was
required to disprove coercion beyond a reasonable
doubt. Crowder, 36 F.3d at 696; Toney, 27 F.3d at
1248, 1252. It could do so by either "proving
that the defendant’s fear or perception of
serious bodily harm was unreasonable" or "by
proving that the defendant had a reasonable
opportunity to avoid the offense." Toney, 27 F.3d
at 1252. In Jocic’s case, the district court
found that the government had done both.
In examining the truth of Jocic’s claim of
coercion, the district court questioned why he
did not escape when he had the chance. Despite
Jocic’s assertion that Bradach had taken the car
keys into the bank with him, the court found that
Bradach had left Jocic in the car with the engine
running while Bradach robbed the bank. Although
estimates of the length of time Bradach was in
the bank vary, even the "quick" duration Jocic
described was sufficient time for him to drive
off. Jocic’s claim that he was "paralyzed" with
fear does not fully excuse his failure to escape.
The witness parked in the bank’s drive-through
lane also reported an initial state of shock when
he realized there was a robbery in progress, yet
he managed to recover, drive to A.G. Edwards,
enter the office, instruct an employee to call
911, and go back outside to the parking lot in
time to watch Bradach leaving the bank. Clearly,
Jocic also had time to do the same. Moreover, as
the government points out on appeal, even if the
car were not running, Jocic only had to sprint 55
feet to the door of A.G. Edwards where several
people were standing around, one of them using a
cell phone. Jocic easily sprinted approximately
65 yards in attempting to elude the police later
that day. Accordingly, the court rationally
concluded that Jocic did have a reasonable
opportunity to escape and failed to use it.
Additionally, the court noted the various
inconsistencies in Jocic’s account of his
relationship with Bradach. Although Jocic based
his defense in part on the claim that he did not
know Bradach very well, the court highlighted the
fact that he and Bradach called each other seven
times the day before the robbery. The court also
focused on the fact that Jocic originally stated
that he had loaned his police scanner to Bradach
"a couple of times" and that Bradach only kept it
"for a day or two." But once the police informed
Jocic that they suspected Bradach in other
robberies, Jocic altered his statement to the
effect that Bradach had only returned the scanner
a couple of days earlier after borrowing it for
a week and a half. Consequently, the court did
not credit Jocic’s testimony regarding his
relationship to Bradach and the interaction
between them on the day of the robbery. When a
defendant decides to testify and deny the charges
against him and the finder of fact thinks he is
lying, his untruthful testimony becomes evidence
of guilt to add to the other evidence. United
States v. Zafiro, 945 F.2d 881, 888 (7th Cir.
1991). Thus, Jocic’s own statements contradict
his assertion that he was forced to assist in the
robbery for fear of his life. Because there is
sufficient evidence to support the district
court’s finding that Jocic was not coerced into
aiding Bradach in the bank robbery, the judgment
is
AFFIRMED.