United States of America v. Andrew J. Johnston

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2022 *
Decided November 10, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1558
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW J. JOHNSTON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:17-cr-00517
Rebecca R. Pallmeyer,
Chief Judge.
O R D E R
Andrew Johnston, a federal inmate convicted of attempted bank robbery,
appeals the denial of his motion for a new trial based on newly discovered evidence.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1558 Page 2
Because the district court correctly concluded that the evidence would not have led to
Johnston’s acquittal, we affirm.
In 2017 a man walked into a bank in Hardwood Heights, Illinois, and told a teller
to “put [her] hands up” because “this is a robbery.” The man donned distinctive
clothing—a black hoodie, gloves with tape wrapped around the fingertips, a ski mask,
and a black hat bearing the word “security.” The exchange was seen by the bank’s
supervisor and a customer at the drive-through window. When the customer mouthed
that he was going to call 911, the robber fled. Soon after, in a nearby parking lot, the
customer saw the same man enter a car and speed away. The customer then called 911
and described to an operator the clothes the man was wearing, as well as the color,
make, model, and license plate of the man’s car.
Two miles from the bank an officer pulled over Johnston, who was driving a car
that largely matched the customer’s description. The only difference in the description
was a single entry on the license plate number. Johnston’s plate number was
“Q937444,” and the police officers had understood the reported plate number to read
“2937444.” Upon peering into the car, the officers saw on the back seat all the clothes
worn by the robber—the black hoodie, gloves with tape, ski mask, and black “security”
cap.
The government charged Johnston with attempted bank robbery. See 18 U.S.C.
§ 2113(a). He was convicted of that crime after a jury trial.
Johnston appealed, in part on grounds that the district court should have
excluded the evidence on his car’s back seat because the police lacked probable cause to
stop and arrest him. We affirmed, explaining that the customer’s description of the
robber’s vehicle supplied probable cause for the stop and arrest, and, in any event, the
clothing on the back seat was in plain view. See United States v. Johnston, 814 F. App’x
142, 146 (7th Cir. 2020). Based on that same argument, Johnston also sought relief under
28 U.S.C. § 2255.
Johnston later moved under Rule 33 of the Federal Rules of Criminal Procedure
for a new trial based on newly discovered evidence. Through a Freedom of Information
Act request, he had obtained a letter from the Federal Deposit Insurance Corporation
stating that it did not cover the bank for robbery liability. In Johnston’s view, this
statement proved that Congress could not criminalize bank robbery, thereby stripping
the district court of federal jurisdiction to hear his bank-robbery case. Johnston had also

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No. 22-1558 Page 3
obtained a video captured by the dashboard camera of the car driven by the officer who
pulled him over. Johnston argued that the video proved that the police lacked probable
cause to stop him and then seize his clothing. According to Johnston, the video showed
that the officer had not been informed of the robber’s license-plate number when she
pulled him over, and that other officers did not see the “security” hat on his back seat.
The seized clothing, he asserted, should have been suppressed for lack of probable
cause.
The district court denied the motion. The court stated that Johnston’s recent
submissions did not cast doubt on probable cause for his arrest, let alone the validity of
his conviction or the court’s jurisdiction over this case. And, the court continued, his
motion was in essence a “disguised Section 2255 petition,” duplicative of one he had
already filed.
To prevail on a Rule 33 motion based on newly discovered evidence, Johnston
had to show, among other things, that the new evidence probably would have led to his
acquittal. See United States v. O'Malley, 833 F.3d 810, 813 (7th Cir. 2016). One way a
defendant can do so is by demonstrating that the newly discovered evidence would
have led to the suppression of other evidence that was necessary to his conviction.
See id. at 814 (citing United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999)).
On appeal Johnston again challenges the basis for federal jurisdiction,
maintaining that Congress lacks authority under the Commerce Clause to make bank
robbery a federal crime. We have repeatedly rejected this argument, see, e.g., United
States v. Watts, 256 F.3d 630, 633–44 (7th Cir. 2001), as we did in Johnston’s direct
appeal, see Johnston, 814 F. App’x at 145. Congress has the power to criminalize the
robbery of FDIC-insured banks, regardless of whether the FDIC insures those banks for
robbery, because the banks are “fundamental to the conduct of interstate commerce.”
Watts, 256 F.3d at 633; see also United States v. Hagler, 700 F.3d 1091, 1100 (7th Cir. 2012).
As for the merits of the court’s ruling, Johnston continues to argue that the
dashboard video shows that the officers lacked probable cause to stop him and seize the
“security” hat on his back seat. Had this evidence been suppressed, he insists, he would
have been acquitted.
The court acted well within its discretion to deny the motion. The video casts no
doubt on whether probable cause supported Johnston’s arrest. First, the video confirms
that the arresting officer knew that Johnston’s license-plate number matched the

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No. 22-1558 Page 4
description of the robber’s. In the video, before the officer pulls Johnston over, a police
dispatcher is overheard saying, “that officer is behind that vehicle with the license plate
you guys gave out from your bank.” Because the customer had described a car of the
same make, color, and model, and a nearly identical license-plate number, the officer
had probable cause to stop Johnston. See Maniscalco v. Simon, 712 F.3d 1139, 1141, 1144
(7th Cir. 2013) (officers had probable cause to arrest a suspect when the suspect’s license
plate matched the victim’s report).
Second, the video supports that officers saw the “security” hat in plain view on
the back seat. In the video, an officer, upon being told by another officer to look for “a
black security hat,” peers through Johnston’s back window and replies, “it’s right here.”
Because the hat was in plain view and its incriminating character was immediately
apparent (given that the robber wore such a hat), the officers could lawfully seize it.
See United States v. Cherry, 920 F.3d 1126, 1137–38 (7th Cir. 2019).
We have considered Johnston’s other arguments, and none has merit.
AFFIRMED

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