NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 29, 2012
Decided March 28, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐1871
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 CR 52‐1
KENOSHA FULLILOVE,
Defendant‐Appellant. Virginia M. Kendall,
Judge.
O R D E R
Kenosha Fullilove was convicted by a jury of conspiring to commit bank robbery, see
18 U.S.C. § 371; bank robbery, see
id. § 2113(a); and using a firearm in furtherance of a crime
of violence, see id. § 924(c). On appeal she challenges only the sufficiency of the evidence to
support the firearm conviction. Because a rational jury could have found Fullilove guilty of
the offense beyond a reasonable doubt, we affirm the judgment.
I
Nickolas Lee was alone when he entered a Chicago branch of Chase Bank in
November 2006 and robbed two tellers at gunpoint of $109,000. He escaped undetected, but
his luck ran out when he returned to the same branch in May 2007 and robbed it again. Lee
was apprehended and implicated Caroline Rivera, then a current employee of the branch in
No. 11‐1871 Page 2
question, and Fullilove, a former employee, as collaborators in the November robbery. The
FBI interviewed Rivera and Fullilove, but initially only Lee and Rivera were indicted. Both
pleaded guilty to armed bank robbery,
18 U.S.C. § 2113(a), (d), and Lee also pleaded guilty
to brandishing a firearm during the offense,
id. § 924(c)(1)(A), (c)(4). As part of their plea
agreements, Rivera and Lee agreed to cooperate with the government’s investigation in
exchange for possible sentencing concessions. Fullilove was indicted a few months later.
At Fullilove’s trial, Lee and Rivera testified for the government. Lee explained that
he met Fullilove in the summer of 2006 and that, because she was short of money, she had
suggested that they rob the Chase branch where she used to work. Fullilove proposed that
they meet with her friend, Rivera, who still worked at the branch and could provide them
with the bank’s security procedures. Rivera confirmed at trial that Fullilove had arranged
the meeting. She added that Fullilove had introduced Lee as someone who “robs banks for a
living” and said that they planned to rob the location where she worked. Rivera agreed to
participate, and the trio decided that Lee would rob the branch the next morning and that
Rivera, who was scheduled to work, would play the role of “innocent victim” to facilitate
his entry into the bank’s vault. When asked by Fullilove at the meeting how to gain access
to the vault, Rivera responded that the vault could be opened only with both of two security
codes held by different employees. Rivera would have one of the codes, and she predicted
that Lee would not have difficulty demanding the second code from whomever was
working because Chase employees are trained to comply with any demands in the event of
a robbery. Even so, Rivera continued, based on the group’s “discussion about how [Lee] did
things for a living,” she believed that Lee would bring a gun to the robbery and “harm the
other [employee] if they didn’t want to participate.” In fact, she changed her mind about
participating in the robbery and took the day off out of fear that she or a coworker would be
harmed.
Lee testified that Fullilove had called him the morning of the robbery to make sure
that he was awake and to tell him she was on her way. When she picked him up, Lee
continued, he was carrying a .357 Magnum revolver in his waistband. Fullilove drove him
down the block to his car, and they decided to meet later in the day at her apartment to
divide the proceeds from the robbery. After Fullilove dropped him off, Lee drove directly to
the bank. When he did not see Rivera, he forced two other employees at gunpoint to use
their security codes to open the vault, where he helped himself to $40,000 to $45,000. Later,
he reconvened with Fullilove as planned and gave her $10,000.
Matthew Alcoke, an FBI agent who interviewed Fullilove after her arrest, also
testified at trial. According to him, Fullilove admitted during this interview that she had
planned the robbery with Lee and Rivera and had reviewed the bank’s security procedures
with Rivera. Agent Alcoke asked Fullilove if they had discussed whether Lee “should bring
No. 11‐1871 Page 3
something with him to the bank robbery in order to make Ms. Rivera’s innocent victim role
look good,” and Fullilove responded, “If you mean a pistol, then, no.” But later in the
interview, the agent elaborated, Fullilove had said that she was “80 percent sure” that a gun
was discussed. She also informed Agent Alcoke that Lee had told her on the morning of the
robbery that he was about to rob the bank. The agent asked Fullilove if Lee had been
carrying a gun that morning, and she responded, “I think so, yeah.”
The jury found Fullilove guilty of all three charges. Fullilove moved for a judgment
of acquittal under Federal Rule of Criminal Procedure 29(c) or, in the alternative, a new trial
under Rule 33, but the district court denied this motion. At sentencing the court concluded
that Fullilove’s total offense level of 24 and criminal history category of I yielded a
guidelines imprisonment range for the bank robbery of 51 to 63 months. But, it continued,
Fullilove also faced a mandatory consecutive term of at least 84 months for her violation of
§ 924(c). See
18 U.S.C. § 924(c)(1)(A)(ii). The court sentenced Fullilove to a total of 120
months’ imprisonment: concurrent sentences of 36 months each for the conspiracy and
robbery and a consecutive sentence of 84 months for the § 924(c) offense.
II
Fullilove argues on appeal that the evidence underlying her § 924(c) conviction is
insufficient, because it failed to establish either that Lee’s use of a gun was reasonably
foreseeable to her or that she aided and abetted his use of the gun. We view the evidence in
the light most favorable to the government and evaluate whether a rational jury could have
found Fullilove guilty of the offense beyond a reasonable doubt. See United States v.
Aldridge,
642 F.3d 537, 544 (7th Cir. 2011); United States v. Andrews,
442 F.3d 996, 1001 (7th
Cir. 2006).
Turning first to Fullilove’s liability as a coconspirator, we note that her firearm
conviction is sustainable under Pinkerton v. United States,
328 U.S. 640 (1946), if a gun was
used in furtherance of the conspiracy and its use was reasonably foreseeable to her. See
United States v. Pisman,
443 F.3d 912, 913 (7th Cir. 2006). With respect to the latter point, we
find ample evidence that Lee’s use of a gun during the bank robbery was reasonably
foreseeable. Although Fullilove initially was not forthcoming with Agent Alcoke, she
eventually admitted that she was 80 percent certain that a gun was discussed at the
planning meeting, and also said, “I think so, yeah” when asked if she saw Lee with a gun
when she drove him to his car on the morning of the robbery. Fullilove nonetheless
contends that she could not have foreseen the use of a firearm because Rivera had said that
bank employees are trained to comply with a robber’s demands and thus (Rivera thought)
they would willingly would enter their security code for Lee. Even so, Fullilove knew that
Lee would need a code from at least one other employee in order to open the vault, and
No. 11‐1871 Page 4
Rivera testified that she understood from the planning meeting that Lee would wield a gun
to ensure the second banker’s cooperation. Based on these facts, a rational jury easily could
have concluded that the use of a firearm during the robbery was foreseeable to Fullilove.
See United States v. Simmons,
581 F.3d 582, 587–88 (7th Cir. 2009); United States v. Roberson,
474 F.3d 432, 433 (7th Cir. 2007); United States v. McLee,
436 F.3d 751, 758 (7th Cir. 2006.)
Although Fullilove’s liability under Pinkerton is sufficient by itself to support the
guilty verdict, in the interest of completeness we also address her contention that the
evidence did not support a finding that she aided and abetted Lee’s use of the gun. To
convict under § 924(c) on a theory of aiding and abetting, the government must prove that
the defendant knowingly facilitated the principal’s use, carrying, or possession of a firearm
during and in relation to any crime of violence or drug trafficking crime. United States v.
Smith,
576 F.3d 681, 687 (7th Cir. 2009); Andrews,
442 F.3d at 1002. Fullilove contends that
her admission to Agent Alcoke that a gun was discussed at the planning meeting establishes
at most “possible knowledge” of the use of a gun. But Fullilove overlooks that, under their
plan, the robbery necessarily involved coercing at least one innocent employee to provide a
security code, and she ignores her admission that Lee was carrying a gun when she picked
him up the morning of the robbery. It was reasonable for the jury to infer that Fullilove
knew that Lee would bring the weapon to the crime. See Andrews,
442 F.3d at 1002; United
States v. Woods,
148 F.3d 843, 846–48 (7th Cir. 1998). And once knowledge of an offense is
established, “it does not take much to satisfy the facilitation element.” United States v.
Daniels,
370 F.3d 689, 691 (7th Cir. 2004) (internal quotation marks and citations omitted).
The jury was entitled to conclude that Fullilove facilitated the weapon’s use by dropping off
Lee, who was armed, at his car so that he could drive to the bank and commit the robbery.
See Andrews,
442 F.3d at 1002–03; Daniels,
370 F.3d at 691; United States v. Taylor,
226 F.3d
593, 597 (7th Cir. 2000); Woods,
148 F.3d at 848.
Accordingly, we AFFIRM the judgment of the district court.
