United States of America v. Robert Jocko

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2021
Decided August 18, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1185
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT JOCKO,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:19-CR-00259(1)
Thomas M. Durkin,
Judge.
O R D E R
Robert Jocko pleaded guilty to robbing a bank. The government asserted he had
robbed another bank six days earlier and asked the district court to treat that robbery as
relevant conduct at sentencing. After holding an evidentiary hearing, the court found
that Jocko had committed the other robbery and relied on that finding in calculating the
applicable offense level under the Sentencing Guidelines. On appeal, Jocko argues the
court erroneously shifted the burden onto him to prove that he did not commit the
other robbery. We conclude that the district court appropriately responded to Jocko’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-1185 Page 2
arguments, and it made no improper statements about the evidence or the
government’s burden of proof. So we affirm.
A. Background
On March 18, 2019, Jocko entered First American Bank in Riverside, Illinois and
asked the teller for a cash withdrawal. Waving off the withdrawal slip the teller offered
him, Jocko placed a bag on the counter, and told the teller multiple times to “put the
money on the counter” and “hurry up.” The teller put about $1,500 on the counter,
which Jocko put in the bag before leaving the bank. Police officers apprehended Jocko
shortly after the robbery and recovered the cash. In a nearby garbage can, the officers
also found a black jacket matching the one Jocko wore during the robbery; in the pocket
was a gun-shaped lighter. Jocko had not displayed a gun or a lookalike during this
robbery.
Jocko pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). In the
plea agreement, the parties set forth their respective positions on sentencing. The
government asserted Jocko had robbed another bank on March 12, 2019, which should
be considered along with his offense of conviction to calculate his guidelines range at
sentencing. The government further asserted that, during the March 12 robbery, Jocko
used a dangerous weapon, see U.S.S.G. § 2B3.1(b)(2)(D), which resulted in a total offense
level of 26 for that robbery compared to 22 for the offense of conviction. Grouping the
March 12 robbery with the offense of conviction, see U.S.S.G. § 3D1.4, resulted in an
offense level of 28, which dropped to a total offense level of 25 after factoring in Jocko’s
acceptance of responsibility and timely guilty plea. With that total offense level and a
criminal history category of V, the guidelines range would be 100 to 125 months’
imprisonment. Jocko’s position was that he did not commit the March 12 robbery, so his
sentencing range should be 57 to 71 months’ imprisonment based on a total offense
level of 19 and a criminal history category of V. The parties agreed the court would
have the final word on sentencing and that Jocko could not withdraw the plea if the
anticipated calculations were rejected.
Because Jocko disputed that he had committed the March 12 robbery, the court
scheduled an evidentiary hearing. The court granted Jocko’s motion for the
appointment of an investigator pursuant to the Criminal Justice Act, 18 U.S.C.
§ 3006A(e). The parties then agreed to proceed by submitting evidence and stipulations
rather than calling witnesses. The government submitted 24 exhibits and 14
stipulations; Jocko did not submit an investigator’s report or any other evidence.

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Among the government’s exhibits was a surveillance video (and screenshots
from it) of First Midwest Bank in Lyons, Illinois on March 12, 2019, from approximately
2:15 p.m. to 2:17 p.m. It shows a person entering the bank wearing a mask, a bucket hat,
sunglasses, and orange shoes, and carrying a red or orange bag. The person approached
the counter and then quickly left the bank. The government also submitted a
surveillance video and screenshots from BMO Harris Bank in Berwyn, Illinois at
4:45 p.m. the same day. The person in this video is also wearing a mask, a bucket hat,
sunglasses, brightly-colored shoes, and carrying a red or orange bag. The person put
what appeared to be a gun on the counter, took over $4,000 from the teller, and then left
the bank.
The government argued the person in both videos from March 12 was Jocko—
casing First Midwest, then robbing BMO Harris. To support this assertion, the
government first highlighted the similarities between these incidents and the March 18
robbery of First American (to which Jocko had confessed), which was also captured on
video. The person(s) at all three banks wore a surgical-style mask and brightly-colored
shoes. At First Midwest and First American, they were orange athletic shoes with white
soles; the screenshots from BMO Harris are not as clear but appear to show a
brightly-colored shoe. A screenshot from First Midwest shows a tattoo on the person’s
left hand; a photograph of Jocko’s left hand taken after his arrest shows a similar tattoo.
Jocko stipulated that the videos and screenshots are authentic, but he disputed
that he is the person in either of the March 12 videos. He noted the masks in the three
videos are different, and the bucket hat in the March 12 videos is different from the
baseball hat that Jocko wore on March 18. Jocko further argued that orange athletic
shoes are “extremely popular,” so nothing could be inferred from that similarity. He
also contended it is unclear whether his hand tattoo matches the one visible in the video
and notes that no teller mentioned the robber having a hand tattoo. Finally, Jocko
pointed out that investigators did not recover his fingerprints or DNA from BMO
Harris, nor did they collect a voice exemplar from Jocko for the teller to identify.
The government also presented cell-phone location data from a phone number
registered to Jocko. On March 12, the cell phone was near First Midwest Bank in Lyons
between 2:05 p.m. and 2:19 p.m. and BMO Harris Bank in Berwyn between 4:40 p.m.
and 4:55 p.m. The cell phone was also near First American Bank in Riverside on March
18, when Jocko robbed it. (Lyons, Berwyn, and Riverside are neighboring towns in
Cook County, Illinois). Jocko responded the government had presented no evidence
that he had the cell phone with him on the days and times at issue and police officers

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never recovered the phone after his arrest. He also asserted that, because the
government presented location data from the cell phone for only the days of the
robberies, there is no way to know whether the cell phone was in the area on other days
or if Jocko (with his phone) frequently traveled through these areas to visit friends or
relatives or to commute to work.
Last, the government submitted photos of the black jacket with a gun-shaped
lighter in its pocket, found shortly after Jocko’s arrest for the March 18 robbery. Jocko
did not show a gun (or a lookalike) then, but the person who robbed BMO Harris
brandished an object that looked like a gun before demanding money. The government
argued Jocko had displayed the gun-shaped lighter while robbing BMO Harris. Jocko
responded that the lighter had not been tested for fingerprints, nor had it been
identified by the BMO Harris teller.
The court held oral argument (by videoconference) after reviewing the briefs and
evidence. The government contended it had demonstrated by a preponderance of the
evidence that Jocko committed the March 12 robbery of BMO Harris. Again, it cited the
cell-phone location data and the similarities between Jocko and the person in the
screenshots of the surveillance videos. Jocko’s counsel responded by again highlighting
the differences among the surveillance videos, arguing about the popularity of orange
shoes, and noting that no bank teller had identified a hand tattoo. Counsel also
contested the importance of the cell-phone location data:
The other thing that I think is important to look at is Mr. Jocko, he has
relatives in the area, he was in the area of -- he – he – lives in the area, he
has relatives in the area, he has friends in the area. He travels in that area
virtually every single day.
After asking each party some clarifying questions, the court stated it would review all
the evidence again before ruling.
A week later, the court orally ruled the government had proved by a
preponderance of the evidence that Jocko robbed the BMO Harris bank on March 12.
The court acknowledged the cell-phone location data could not pinpoint the exact
location of the phone, but it also mentioned Jocko had provided no evidence that he
often spent time in those areas, even though he had an investigator. The court discussed
Jocko’s counterarguments but concluded that the cell-phone location data; the
proximity of the banks to each other; the colorful shoes, hand tattoo, and similar masks;

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and the lack of an alibi or evidence disputing the government’s, all made it more likely
than not that Jocko committed the robbery.
Jocko’s counsel objected, arguing the court improperly relied on Jocko’s failure to
present contrary evidence and his lack of an alibi, which shifted the burden of proof
onto Jocko. The court responded “it is certainly the government’s burden, I feel they’ve
met it” and clarified that even without considering the failure to produce mitigating
evidence, the finding would remain the same.
At sentencing, the court determined Jocko had a guidelines range of 100 to 125
months’ imprisonment and then sentenced Jocko to 80 months in prison.
B. Analysis
On appeal, Jocko argues the district court erred by requiring him to show that he
did not commit the March 12 robbery, rather than requiring the government to prove its
allegation. First, we must clarify the issues this appeal presents. Jocko’s brief makes a
passing reference to the court clearly erring in the factual finding, saying there are
“compelling matters which cast serious doubt on [the court’s] finding.” Yet in the
balance of his argument section, Jocko makes only the legal argument about
burden-shifting without stating any reason why the court’s factual finding is clearly
erroneous based on the evidence. If Jocko intended to contest that finding, his argument
is too perfunctory and underdeveloped to review. See United States v. Gibson, 996 F.3d
451, 468 (7th Cir. 2021).
Because Jocko asserts a procedural error with respect to the allocation of the
burden of proof, our review is de novo. United States v. Brown, 973 F.3d 667, 708 (7th Cir.
2020). When the government asserts that conduct relevant to an offense should be
considered at sentencing, it has the burden to prove the conduct by a preponderance of
the evidence. United States v. King, 910 F.3d 320, 329 (7th Cir. 2018). By commenting on
Jocko’s lack of an alibi and his failure to present evidence in his defense, Jocko argues,
the court relieved the government of its burden and violated Jocko’s constitutional right
to due process. He highlights four statements:
(1) “[T]here’s no contrary evidence either. There’s no alibi evidence, no relatives
who testified or no information about relatives he may have visited, nothing
submitted about his place of employment that would make it more likely true
than not true that he was -- that the cell phone pings were for travel to and from

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No. 21-1185 Page 6
a job or to a relative’s house or to his own house. I appointed an investigator on
this case, and certainly if that information would have been gleaned by an
investigator, I would have heard it.”
(2) That the combination of evidence presented by the government and “the lack of
an alibi all makes it more likely true than not true that Defendant Jocko
committed the BMO Harris Bank robbery on March 12th.”
(3) “There’s no evidence presented -- and again, I appointed an investigator -- but
no evidence presented that there was some kind of bank robbery spree in this
period of time where not just these three banks were robbed, but a number of
other banks were robbed.”
(4) That “there would appear to be a wealth of contrary information that could have
been presented if it existed.”
Jocko’s argument, however, is based on a strained interpretation of these
remarks, removed from their context. As we review the record, we see that the district
court made these statements in response to arguments that Jocko himself raised. The
court did not impermissibly shift the burden of proof to Jocko; rather, the court
determined that the evidence presented by the government sufficiently supported a
finding that it was more likely than not that Jocko committed the March 12 robbery.
First, the court summarized all the evidence of Jocko’s participation, including the
cell-phone location data, the proximity of the banks, the similarities among the images
from the three surveillance videos, and the gun-shaped lighter in the jacket pocket. The
court then discussed the shortcomings of the government’s evidence, such as the lack of
testing for fingerprints or DNA. Next, the court explained that there was no contrary
evidence or testimony for it to consider. Weighing both sides, the court concluded that
Jocko had committed the other robbery.
By pointing out that Jocko had not presented any contrary evidence, the court
was not shifting the burden of proof (or production) but remarking that, because only
the government proffered evidence, all the court could do was assess whether that
evidence met the preponderance standard. The court was also making clear that Jocko
had a reasonable opportunity—with an investigator’s assistance—to dispute the
government’s evidence and had not done so. See, e.g., United States v. McGill, 32 F.3d
1138, 1145–46 (7th Cir. 1994) (remarking on defendant’s power of subpoena and ability
to call witnesses to undermine government’s evidence at sentencing hearing).

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Moreover, it is important to consider how the court’s statements respond to
Jocko’s arguments. In writing, Jocko had asserted that there is “no way of knowing”
from the cell-phone location data whether Jocko had friends or relatives in the vicinity
of the banks or drove through that area to get to work. At the hearing, Jocko’s counsel
asserted Jocko did have friends and relatives that lived near the banks and that he
traveled in that area “virtually every single day.” But these assertions were not backed
by affidavits, work schedules, or any other evidence. Therefore, the court’s comments
also served as an appropriate reminder that it could not credit unsubstantiated
statements by Jocko’s counsel. See, e.g., United States v. Sensmeier, 361 F.3d 982, 989
(7th Cir. 2004) (“[W]holly unsubstantiated statements are not enough to undermine, nor
even question, the court’s acceptance of the government’s proof.”) Nor could Jocko
claim he was unable to back up these statements; if he did not wish to testify, he still
had the power of subpoena and a court-appointed investigator. Jocko’s legal argument,
therefore, lacks merit.
Even if that legal argument succeeded, though, Jocko misapprehends what he
would gain from this appeal. Because he does not argue that, apart from the alleged
procedural error, there was insufficient evidence to sustain a finding that Jocko robbed
BMO Harris on March 12, there would be no need for another evidentiary hearing.
Jocko already had his chance to present evidence before the district court, and he has
not argued that, on its own, the government’s evidence does not support the
enhancement. Without cause to revisit its factual finding, the district court could simply
enter the same sentence. Indeed, the judge’s remark at the evidentiary hearing—that his
finding would be the same even without considering the lack of an alibi or absence of
contrary evidence— suggests this is precisely what would happen. But we need not
speculate, because there was no procedural error here.
AFFIRMED

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