United States of America v. Sabina Andrews

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1756
UNITED STATES OF AMERICA
v.
SABINA ANDREWS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00298-001)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
July 7, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: July 22, 2009)
OPINION
AMBRO, Circuit Judge
Sabina Andrews was convicted in the Eastern District of Pennsylvania of

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
conspiracy to commit bank robbery (in violation of 18 U.S.C. § 371) and aiding and
abetting a bank robbery (in violation of 18 U.S.C. §§ 2113(a) and (2)). The District Court
sentenced her to 48 months’ imprisonment. She now challenges her conviction and
sentence. We affirm both.1
I.
Because we write solely for the parties, we will recite only those facts necessary to
our disposition. At approximately 10:00 a.m. on June 9, 2006, Samuel Cruz entered a
Wachovia Bank in Philadelphia through the back entrance. He took his place in line for
the next available bank teller, but declined all openings until one particular teller, Aesha
Sims, was free. Cruz then handed Sims a demand note and she turned over $28,200 to
him, after which Cruz left the bank. The bank’s security guard, Guillermo Torres,
followed Cruz out. Torres spotted a nearby police car and informed the officer that the
bank had just been robbed, pointing Cruz out to him. The officer then stopped Cruz as he
was attempting to enter a waiting taxicab, and arrested him without incident. Tony
Thompson was in the rear seat of the cab at the time. Cruz, who ultimately cooperated
with authorities, would later contend that Thompson had recruited him roughly a week
earlier to participate in what was described to him as an “inside job.” Cruz would also
assert that, while he had never met Sims before that morning, he knew that she was the

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In October 2006, the FBI obtained a warrant to search the data contained in2
Thompson’s cell phone.
3
teller to whom he was supposed to hand the note because, just prior to entering the bank,
Thompson had described her appearance and clothing to him.
Authorities were led to Andrews through Thompson’s cell phone, which had been
left behind in the taxicab and was eventually turned over to the FBI. A search of the
phone’s address book revealed that it included numbers for both Sims and Andrews. A2
subsequent search of Sims’s phone showed multiple calls between Andrews’s phone and
Sims’s phone on the morning of the crime. In October 2006, an FBI agent interviewed
Andrews, who said that she was good friends with Sims and that she had spoken to Sims
once on the day of the incident, when Sims called to tell her that her bank had been
robbed but that she was alright. She denied knowing Thompson. When the FBI agent
confronted Andrews with the fact that Thompson was listed as a passenger in her car in
an accident report from 2004, she admitted knowing Thompson, claiming that she had
been romantically involved with him at one point. Andrews also said that she had spoken
with Thompson while he was on his way to the bank that day, and that he had claimed to
be going to the bank with “Sammy” so that Sammy could withdraw money he owed to
Thompson. A later analysis of the call records of the phones linked, respectively, to
Andrews, Sims and Thompson showed that, on the morning of the crime, there were
twelve calls between Andrews and Sims from 7:37 a.m. to 9:04 a.m. and four calls

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Not all of these calls were cell phone to cell phone calls. Some were to Andrews’s3
home phone or to Sims’s direct line at the bank.
4
between Andrews and Thompson from 9:05 a.m. to 9:58 a.m.3
In May 2007, Andrews was indicted, along with Thompson and Sims, and charged
with conspiracy to commit bank robbery and aiding and abetting a bank robbery. She was
tried in November 2007. The theory the Government presented to the jury, at least with
regard to Andrews, was that she had acted as the “hub” of the conspiracy, coordinating
events between Thompson and Sims in the hours (indeed minutes) leading up to the
crime. The Government focused in particular on two pieces of evidence: (1) records
indicating that the only phone conversation Thompson had on his way to the bank was
with Andrews; and (2) Cruz’s testimony that, just prior to reaching the bank, Thompson
ended a phone conversation and then provided Cruz with the information he needed to
identify which teller was Sims. In addition, the Government noted that, when Andrews
first spoke to the FBI, she had (falsely) denied knowing Thompson, and presented
evidence suggesting that Andrews had falsified her timesheets at work in order to make it
look like she had stayed on the job until 9:00 a.m. on the morning of the crime. The jury
found Andrews guilty of both charges.
Andrews’s sentencing hearing was held in March 2008. The presentence
investigation report assigned her an offense level of 23, which, when combined with her
criminal history category of I, resulted in a Sentencing Guidelines range of between 46

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“We apply a particularly deferential standard of review when deciding whether a jury4
verdict rests on legally sufficient evidence.” United States v. Soto, 539 F.3d 191, 193–94
(3d Cir. 2008) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). We will
sustain the verdict if, viewing the evidence in the light most favorable to the Government,
“any rational trier of fact could have found the essential elements of the crime beyond a
5
and 57 months. Andrews requested a four-level departure from the Guidelines on the
ground that she was “a minimal participant” in the underlying criminal scheme. See
U.S.S.G. § 3B1.2(a). The District Court rejected that request and, as noted above,
sentenced her to 48 months’ imprisonment, the same sentence it imposed on Sims.
Andrews timely appealed.
II.
Andrews makes four arguments on appeal: (1) the evidence presented at trial was
insufficient to show that she was a participant in the crime committed by Thompson, Sims
and Cruz, or, alternately, the jury’s finding to that effect was against the weight of the
evidence; (2) the evidence presented was insufficient to establish that the underlying
crime was bank robbery (as opposed to bank larceny); (3) the District Court erred in not
granting a four-point Sentencing Guidelines reduction for her minimal participation; and
(4) the sentence imposed was substantively unreasonable.
A.
Andrews argues that the trial evidence was insufficient to show that she
participated—either as a co-conspirator or an aider and abetter—in the crime committed
at the bank. In support of this contention, she notes that: (1) Cruz testified that he had no4

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reasonable doubt.” Id. at 194.
As noted above, in addition to arguing that she is entitled to an acquittal because the5
evidence was insufficient to support her conviction, Andrews also contends that she is
entitled to a new trial because the jury’s verdict was against the weight of the evidence.
We reject this argument on the same ground as the previous one—the evidence presented
at trial supported the verdict.
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knowledge of Andrews’s participation and was not aware of any arrangement to share the
proceeds of the crime with a fourth person; and (2) the Government presented no
evidence relating to the substance of any of the phone conversations between Andrews
and her co-defendants.
We are unpersuaded. Andrews is correct that the evidence does not rule out the
possibility that, during those phone conversations, Andrews was talking to Thompson and
Sims about topics other than the plot to take money from the bank, or even that she was
attempting to talk them out of going through with their scheme. That is not our standard,
however. Viewing the evidence in the light most favorable to the Government (as we
must), it was not irrational for the jury to infer that those conversations—and, in
particular, the conversation Andrews had with Thompson just prior to Cruz’s entering the
bank—were in furtherance of the criminal scheme. The evidence was thus sufficient to
support the finding that Andrews was a participant in the underlying crime.5
B.
Second, Andrews argues that, even if the evidence were sufficient to show that she
was a participant in the underlying crime, it was not sufficient to prove that the

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The Government argues that, because Andrews failed to present this particular theory6
to the District Court in her motion for a judgment of acquittal, we review for “plain
error.” See Gov’t’s Br. 26 (citing United States v. Goode, 483 F.3d 676, 681 (10th Cir.
2007)). We need not decide whether to apply the plain error standard or the usual
standard for sufficiency of the evidence challenges because Andrews’s challenge fails
under either one.
The Government concedes that Cruz did not use “force and violence” to take the7
money from the bank.
7
underlying crime was bank robbery as opposed to bank larceny. A bank robbery6
conviction requires proof that “force and violence, or . . . intimidation,” was used to take,
or attempt to take, property. 18 U.S.C. § 2113(a). Andrews asserts that, because (on the
Government’s own theory) the money was handed over to Cruz by someone who was in
on the crime, the Government cannot show that it was taken through intimidation.7
We disagree. Courts have consistently held that merely presenting a bank teller
with a demand note is sufficient to satisfy the “intimidation” element of § 2113, even in
the absence of any accompanying explicit threat of violence. See United States v.
Gilmore, 282 F.3d 398, 402 (6th Cir. 2002) (“Demands for money amount to intimidation
because they carry with them an implicit threat; if the money is not produced, harm to the
teller or other bank employee may result.”); see also United States v. Ketchum, 550 F.3d
363, 367 (4th Cir. 2008) (same); United States v. Burnley, 533 F.3d 901, 903–04 (7th Cir.
2008) (same); United States v. Lucas, 963 F.2d 243, 248 (9th Cir. 1992) (same); United
States v. Henson, 945 F.2d 430, 439–40 (1st Cir. 1991) (same). What occurred here was
no different, except the intimidation was used collectively by Cruz and Sims on Sims’s

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8
co-workers. The evidence presented at trial was that Sims’s co-workers believed she was
being robbed and behaved accordingly (by, for instance, not intervening so as to avoid
provoking a violent confrontation). Thus, a rational jury could find that, by staging the
crime in such a way as to create the impression that Sims was being robbed by Cruz, Sims
and Cruz (and, by extension, Thompson and Andrews) used intimidation to prevent bank
employees from thwarting their efforts to take money from the bank. That is sufficient to
support a conviction under § 2113.
C.
Third, Andrews argues that the District Court erred in denying her motion for a
four-level reduction to her offense level under the Sentencing Guidelines based on her
status as a “minimal participant.” See U.S.S.G. § 3B1.2(a). In particular, Andrews
contends that, even accepting as true the Government’s contention that her role was to
relay messages back and forth between Thompson and Sims on the morning of the
robbery, her part was nonetheless minimal, as she neither contributed physically to the
crime nor passed on any information that Thompson and Sims could not have obtained
simply by speaking to each other.
The District Court did not err in denying Andrews’s departure motion. The theory
on which the Government obtained a conviction of Andrews was that she had acted as the
“hub” of the underlying scheme. That is inconsistent with any characterization of her role
in the enterprise as “minimal.” See U.S.S.G. § 3B1.2(a) n.4 (explaining that “the minimal

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Andrews’s argument attacks the “reasonableness” of her sentence generally without8
indicating whether she means that it was substantively unreasonable, procedurally
unreasonable, or both. Nonetheless, it seems that her argument is best characterized as
one focusing specifically on whether her sentence was substantively reasonable. See
Andrews’s Br. 39 (“The concept of ‘reasonableness’ is amorphous; however,
reasonableness, or a lack of same, usually jumps out at one when it is encountered; the
sentence imposed upon this defendant jumps out as being unreasonable under all
circumstances.”).
We apply the “abuse-of-discretion standard” to a sentence challenged on substantive9
reasonableness grounds. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc). That means that (assuming no procedural error was committed) we will affirm
the sentence imposed by the District Court “unless no reasonable sentencing court would
have imposed the same sentence on that particular defendant for the reasons the [D]istrict
[C]ourt provided.” Id. at 568.
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participant” reduction “is intended to cover defendants who are plainly among the least
culpable of those involved in the conduct of a group”). This challenge therefore fails.
D.
Finally, Andrews argues that her sentence of 48 months’ imprisonment was
substantively unreasonable, especially as compared to Sims, who received the same8
sentence for conduct that (according to Andrews) was much more blameworthy because it
involved an abuse of a position of trust. Again, we disagree. While the District Court9
did note that Sims (unlike Andrews) breached a trust by conspiring against the financial
institution that employed her, it also noted that Andrews (unlike Sims) had obstructed the
investigation of the crime by initially misrepresenting her relationship to Thompson and
also by falsifying her timesheets. We thus do not believe that the District Court strayed
outside the bounds of reasonableness in concluding that, all things considered, Andrews

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and Sims acted in an equally blameworthy fashion and sentencing Andrews accordingly.
* * * * *
For these reasons, we affirm both Andrews’s conviction and sentence.
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