In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2207

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

A LAN L. S IMMONS,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
             No. 07-CR-30—Lynn Adelman, Judge.



  A RGUED F EBRUARY 25, 2009—D ECIDED S EPTEMBER 11, 2009




 Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Alan Simmons was convicted
on three federal charges: conspiracy, armed bank robbery,
and use of a firearm during a crime of violence. He
appeals the conviction and his sentence, and argues that
improper conduct by government prosecutors should
have led the district court to grant a mistrial. We
disagree and affirm his conviction and sentence.
2                                              No. 08-2207

                     I. Background
  Alan Simmons was convicted of being the mastermind
behind a Cedarburg, Wisconsin bank robbery. His friend
Antonio Mann and cousin Mark Campbell actually
robbed the bank, but Simmons was in phone contact
with them throughout the heist. The scheme was hatched
by Mann, whose girlfriend Jackie Schmidt worked at the
bank. Schmidt had described the bank in detail, its
security precautions (or lack thereof) and related that
robbing the bank would be easy. Mann relayed the in-
formation to Simmons, who hooked him up with Camp-
bell, but only after “interviewing” two other potential ac-
complices, neither of whom panned out for this bank job.
  Simmons, Mann, and Campbell all took a first crack at
the bank on December 29, 2004, when it was closed (actu-
ally, this was more of a burglary than a robbery), using
a duplicate key that Mann had made from Schmidt’s
key ring. Mann and Campbell went to the bank while
Simmons, continuously monitoring Mann and Campbell
through cell phone calls, acted as a lookout from a
nearby ice cream stand (bringing along a girlfriend
who testified at trial to his presence at the stand during
the time of this attempt and who was apparently
unaware of what was taking place at the bank while
she bought her daughter ice cream and Simmons waited
in the car). But this plan was a disaster: first, Mann fell
through some ice into a creek when he tried to sneak up
to the bank, and then, the key didn’t work. So, the would-
be thieves retreated, Mann to get into some dry clothes
and the three of them to devise a new plan. For their
No. 08-2207                                             3

second effort they decided to take Schmidt from her
apartment in the early morning and take her to the
bank, with Simmons again serving as the lookout.
  By the way, the degree of Schmidt’s complicity, if any,
in the crime is at issue. The government says the
evidence showed she was abducted; Simmons argues
that she was an accomplice. In any event, Simmons did not
make it to the scene of this second attempt (he stayed
home to watch his kids), but did participate in a series
of phone calls with Mann over the course of the morning
of the robbery, during the time that Mann assumed
Simmons’s lookout duties. The new plan involved
having Schmidt open the door to the bank herself. At
this point, Simmons argues, the robbery developed
beyond the plan he had laid out and to which he had
agreed.
  What Mann and Campbell testified to at trial was that
Campbell went to Schmidt’s apartment at 3:30 a.m. wear-
ing a mask and carrying an unloaded gun. He was sup-
posed to take her to the bank to open the door at that
point, but Schmidt informed Campbell that they would
have to wait until later that morning so a co-worker
could give them an additional code that would open the
vault. Campbell waited in Schmidt’s apartment for
more than three hours, and then drove with Schmidt in
her car to the bank. Mann, who was unaware of the change
of plan, apparently circled the neighborhood for about
three hours before arriving at the bank and seeing Camp-
bell’s car there. Schmidt let Campbell into the bank where
they waited near the vault until Schmidt’s co-worker
Marlene Kasten arrived. Campbell threatened Kasten with
4                                               No. 08-2207

the unloaded gun and she gave him the vault code. Camp-
bell opened the vault, grabbed $177,000, and then left
Kasten and Schmidt at the bank with a warning not to
call the police for at least five minutes as he fled with
Mann. Mann and Campbell divided the money and gave
Simmons $30,000 as part of his take in the robbery.
  Eventually Mann and Campbell got caught and were
charged with bank robbery. Despite their promises in
recorded phone conversations from jail that they would
not snitch (Mann directly to Simmons and Campbell
through an intermediary), they flipped and testified
against Simmons at his trial.


                  II. Procedural History
  Simmons was charged with three counts: conspiracy,
18 U.S.C. § 371, armed bank robbery, 18 U.S.C. § 2113,
and use of a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A). As noted, Mann and Campbell testified at
his trial, providing the most damning evidence against
him. Their testimony was corroborated by an engineer
from Sprint who reported on the high volume of calls
between Simmons and Mann during the time of the
robbery, calls which allowed the engineer to provide a
pinpoint map of Mann’s travels over the course of the
morning of the robbery.
  At the end of the trial, the prosecutor displayed a chart,
summarizing the government’s case, to the jury with
photographs of all three robbers, including a picture of
Simmons with the top part of his bright orange jail shirt
visible. Defense counsel objected and asked for a
No. 08-2207                                              5

mistrial, but the district court instead implicitly
overruled the mistrial motion and ordered the prosecutor
to proceed after removing the chart from the jury’s view.
  Also relevant to the defendant’s appeal is the prosecu-
tor’s statement during closing argument, when she said,
“My only job here is not to defend Antonio Mann, but
to compel him to tell you what happened.” She also
conceded that Campbell’s credibility was compromised
but that he “pled guilty” and “came clean.” Defense
counsel did not object at trial to these statements.
  Simmons was convicted on all three counts and sen-
tenced to 60 months on the conspiracy count and
96 months on the armed robbery charge, to be served
concurrently, along with an additional 84 months on the
use of a firearm count to be served consecutively, so
that his total sentence of incarceration added up to 180
months.
  His appeal challenges the sufficiency of the evidence on
the robbery and firearm charges, the application of the
abduction guideline to his sentence, and the district
court’s decision not to grant a mistrial for either the use
of the photograph or the prosecutor’s allegedly
improper vouching during closing argument.


                      III. Analysis
 A. Sufficiency of the evidence that a teller’s life
    was put in jeopardy during the robbery
  Because Simmons was charged specifically under the “in-
jeopardy” prong of 18 U.S.C. § 2113(d), the prosecution
6                                               No. 08-2207

was required to prove beyond a doubt that there was
an actual risk created by the robber’s use of a dangerous
weapon. 18 U.S.C. § 2113(d) (punishing anyone who
“in committing . . . [a bank robbery], assaults any person,
or puts in jeopardy the life of any person by the use of
a dangerous weapon or device . . . .”); United States v.
Smith, 

, 605 (7th Cir. 1996). The “in-jeopardy”
prong is distinct from the “assault” provision of the
same subsection, which requires only that the teller had
a reasonable fear of imminent bodily injury. 

. In Smith we remarked that there may be
little practical difference in charging the defendant
under either the assault or in-jeopardy prongs of the
offense, but our holding in that case requires us to
consider the actions of a defendant charged with putting
in jeopardy from an objective standpoint rather than
from the perspective of the teller. 

think
the focus of the ‘put in jeopardy’ analysis should be on the
actual risk created by the robber’s use of a dangerous
weapon.”). Simmons’s conviction here depends on
whether a rational jury could have found, on this record,
that his co-conspirator, Campbell, created an objective
risk to the teller’s life when he threatened her with an
unloaded gun. See United States v. Moore, 

,
337 (7th Cir. 2009).
  Simmons argues that no one was actually in any objec-
tive danger from the robbery and any collateral danger
that may attach to threatening a victim with an unloaded
gun was absent here. Involvement of law enforcement
was highly unlikely, he argues, because of the early
morning hour of the robbery. Similarly, no customers
No. 08-2207                                              7

were in the bank because the robbery occurred before
the bank opened. Therefore, Simmons argues, there is
insufficient evidence upon which a rational jury could
convict him of placing a teller’s life in jeopardy.
  In Smith we noted that the defendant in that case “might
have had an argument had he used an unloaded gun,
which would have been physically incapable of inflicting
harm.” 

(emphasis in the original).
But, we also characterized that argument as “weak.” 

mentioned in Smith, when discussing how to
apply the in-jeopardy prong of the inquiry, that
other circuits have found that an unloaded handgun is
a dangerous weapon because “it creates an immediate
danger that a violent response will ensue.” 

v. United States, 

, 18 (1986)). “Any
use of a dangerous weapon that qualifies as an assault
(by creating reasonable fear in victims) would therefore
almost always put lives in jeopardy if only because of
the risk of a violent response.”Id.
  This case, of course, would be simpler if the defendant
were simply charged under the assault provision of
§ 2113(d), which carries the exact same penalty. But, even
so, we think the evidence was sufficient to convict
Simmons on the in-jeopardy provision. The First and
Ninth Circuits have found that the use of fake guns
placed lives in jeopardy because of the risk of a violent
response by law enforcement. See United States v. Benson,

, 3 (1st Cir. 1990) (finding defendant’s state-
ment that the bulge in his jacket was a gun put lives in
jeopardy); United States v. Martinez-Jimenez, 

,
8                                               No. 08-2207

666-67 (9th Cir. 1989) (finding that defendant’s use of a
toy gun put lives in jeopardy). We find their analyses
persuasive. The defendant points out that the robberies
considered by those courts occurred during daylight
hours and therefore the risk of law enforcement involve-
ment was greater. However, there certainly was a risk of
law enforcement involvement here; simply because the
police did not show up does not mean there was no risk
of them doing so. Adopting the view that the potential
violent reaction of the victim or law enforcement is
enough to meet the in-jeopardy requirement, we find
that such a potential existed in this case. Campbell held
Marlene Kasten at gunpoint in the bank a little before
7:00 a.m. There was a risk that this situation could
have provoked a desperate response from Kasten or
attracted the attention of the police. We therefore hold
that sufficient evidence existed for a jury to find that
Kasten’s life was in jeopardy when Campbell pointed the
gun at her, even though the gun was empty, and his
conviction on the armed bank robbery count is affirmed.


    B. Foreseeability of the use of a firearm in the robbery
  Of course, Simmons, the subject of our appeal, was not
at the scene of the completed robbery. Nonetheless he
can be liable as a conspirator. Such conspiracy liability is
dependent, though, on his actual knowledge of his co-
conspirator’s actions or whether those actions were
reasonably foreseeable. Pinkerton v. United States, 

, 647-48 (1946). Simmons argues that there was insuffi-
cient evidence for a rational jury to find that he could
No. 08-2207                                               9

have foreseen that the robbery would have involved the
use of a firearm. Simmons bases this argument on the
idea that Jackie Schmidt, Mann’s girlfriend, was a willing
participant in the bank heist. (This argument will
surface again, in the context of sentencing.) Simmons
argues that a gun would not be needed in the robbery
because, according to the plan, no one was supposed to
be in the bank and Schmidt was not being coerced.
  The government points out that the evidence showed
that the first failed attempt involved the use of a gun, and
that Simmons acted as a lookout during this event.
Simmons’s job was to alert Mann to anyone entering the
bank so Mann could “lay them down” and “tape them
up.” We agree with the government that the jury could
infer from that testimony that the use of a gun was a part
of the plot all along.
  Furthermore, Simmons was involved in the reformula-
tion of the plan, this time to grab Schmidt and take her to
the bank; his absence from his lookout post was due to
an unexpected wrinkle with his childcare arrangements
(at least unexpected to his co-conspirators). Evidence
that Simmons had actual knowledge of the gun used in
the second robbery included the fact that he was in re-
peated contact with Mann, who provided the gun,
throughout the robbery, including after the original plan
of grabbing Schmidt at 3:30 a.m. had changed to driving
her to the bank later in the morning. The same gun was
used in both the attempt and the successful robbery.
Mann informed Simmons over the phone at the exact
moment Campbell entered the bank.
10                                                No. 08-2207

  The jury also heard evidence at trial that Schmidt
was abducted from her house, and was not a willing
participant in the robbery. Kasten testified that Schmidt
appeared “shaken” and fumbled while entering in the
vault code. Campbell, Simmons’s co-conspirator, testified
that Schmidt was shaken, and that he and Mann had
originally planned to “steal” the key to the bank from
Schmidt’s key ring without her knowledge. And Mann
testified that the plan was for Campbell to “abduct” his
girlfriend.
   Other testimony, as Simmons points out, tends to show
something less than coercion, but there was ample evi-
dence on both sides of the issue. And Schmidt did not
testify. The jury was entitled to choose between two
credible versions of the facts and conclude that Schmidt
was not in on the plot. See United States v. Williams, 

, 1080 (7th Cir.) cert. denied 

(2009).
If so, it was rational for the jury to infer, given the use
of the gun in the original plan, that a gun would be used
to abduct her. Or even if the jury believed that Schmidt
was a willing co-participant, they were entitled to infer
that the plot involved the use of the gun inside the bank. It
was certainly handy in compelling Kasten’s compliance
with commands. The conviction on the firearm count,
therefore, must also stand.


  C. Prosecutor’s use of the mug shot
  Simmons argues that the district court abused its dis-
cretion in denying his request for a mistrial after the
government displayed a demonstrative chart during final
No. 08-2207                                                11

argument that pictured Simmons in jail clothes. At the
outset, we should note that we review the judge’s decision
for an abuse of discretion. See United States v. Cheska, 

, 953 (7th Cir. 2000).
  We have, in limited circumstances, approved the use of
mug shots at trial, but the use must be justified by
the government’s “demonstrable need to introduce the
photographs.” United States v. Castaldi, 

, 704
(7th Cir. 2008). The government concedes that it had no
demonstrable need for the use of Simmons’s mug shot
and it erred in showing it to the jury. The trial court agreed
after defendant’s objection and ordered the government
not to use the photograph; the government made no
further use or mention of it. But, the trial court did not
conclude that the prejudice engendered by the photo-
graph’s use required a mistrial. This decision was not
an abuse of discretion. It is not clear from the record
how long the offending photo was on display to the
jurors, but it does not appear to have been before them
for an extended period of time. It would have required
a real discerning juror to have been able to identify the
photo as a mug shot anyway. It was a “head and shoul-
ders” shot of Simmons, displaying only the neckline of
an orange shirt, but contained no date or other
markings identifying the clothing or the photo as coming
from the jail. Simmons posits that a photo of Campbell
in a similar shirt was also on the demonstrative chart
and that when he and Mann testified, they were both
wearing similar orange jail outfits. Of course, folks who
are regularly around the criminal justice process would
probably recognize the distinctive color of even a portion
12                                               No. 08-2207

of this jail garb, but it is doubtful that a member of the
general public would be so insightful. And it was no
secret that Simmons and his cohorts had been ar-
rested—he was on trial for bank robbery charges. But
even assuming that the jury understood this photo to
have been one of Simmons in jail attire, the court’s
decision to complete the final arguments was not error.
  A decision to declare a mistrial would have been ap-
propriate if the brief glimpse of the photograph deprived
the defendant of a fair trial. United States v. Danford,

, 686 (7th Cir. 2005). The trial court was in a
better position to judge the error’s effect than we are.

. Since the trial judge corrected
the error immediately, the harm was negligible. Further-
more, the government points out that Simmons’s counsel
alluded to his client’s past criminal history in order to
explain the purchases Simmons made after the robbery.
While the use of mug shots is disfavored and usually
impermissible, there is no rule requiring an automatic
mistrial based on their use. See 

.
The decision to proceed was appropriately made within
the trial judge’s discretion. We do, however, emphasize
that the use of the mug shot was improper and note that
an easy way to ensure that an issue like this does not
arise is for the parties to share their demonstrative
exhibits with each other before they are used. This will
allow all parties to avoid both potential prejudice and
needless litigation.
No. 08-2207                                             13

 D. Improper Vouching
  The standard of review on this claim is plain error,
because defense counsel did not object at trial to the
prosecutor’s closing statement. See Fed. R. Crim. P. 52(b).
To order a new trial, we must find that there was error
that is plain that affects substantial rights. Johnson v.
United States, 

, 467 (1997). Furthermore, the
error must have seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. 

statements the prosecutor made
were these: “My only job here is not to defend Antonio
Mann, but to compel him to tell you what happened”
and “[Campbell] lied to the police too when he was
arrested . . . . But once he pled guilty he came clean, he
told what happened.” The question is whether the pros-
ecutor acted as a sort of character witness for Mann and
Campbell either by stating that it was her personal
opinion that the two robbers were being truthful or by
implying that she had knowledge of reasons for their
truthfulness to which the jury was not privy.
  Simmons argues that the prosecutor invoked the power
of her office to bolster Mann’s credibility. Instead of
judging his demeanor and weighing the evidence
against corroborating details, the jury was encouraged to
trust Mann, the argument goes, because the govern-
ment lawyer believed he was telling the truth. Simmons’s
other argument is that the prosecutor, by invoking Camp-
bell’s plea deal, implied the government had compelled
Campbell to be honest. Reduced to the basic terms,
Simmons’s argument is that the prosecutor improperly
14                                              No. 08-2207

connected the jury’s trust of the two witnesses with
its trust of the United States.
  We have refused to find error where a prosecutor told
the jury that guilty people don’t plead guilty, United
States v. Robinson, 

, 416 (7th Cir. 1993), where a
prosecutor characterized defendant’s testimony as “the
most ridiculous thing I’ve ever heard,” United States v.
Della Rose, 

, 906 (7th Cir. 2005), or where a
prosecutor said “we found the gun.” United States v. Joy,

, 768-70 (7th Cir. 1999). Simmons claims
this case is more like United States v. DiLoreto, 

, 998-99 (3d Cir. 1989), where the Third Circuit
reversed for a new trial after the prosecutor said, “We
don’t take liars. We don’t put liars on the stand. We don’t
do that.” But, at the time of DiLoreto, prosecutorial error
of that nature was grounds per se for a mistrial. The Third
Circuit has since abandoned that approach. See United
States v. Zehrbach, 

, 1264 (3d Cir. 1995). The
Third Circuit now adopts a standard harmless error
analysis to improper prosecutorial statements that is
more akin to our approach, see United States v. Morris,

, 638 (7th Cir. 2007), but did not overrule
the underlying principle that the vouching in DiLoreto
was improper, 

.
  The question, then, is whether the prosecutor’s state-
ments lent the government’s weight to the witnesses’
testimony and if they did, whether that error was out-
weighed by the entire context of the record. See 

. Here, we can dispose of this issue looking
No. 08-2207                                                    15

only at the second part of the analysis.1 Even if the prosecu-
tor improperly bolstered Mann’s and Campbell’s testi-
mony, the record shows that there was substantial cor-
roborating evidence: phone records from the morning of
the robbery, cell phone records and corroborating testi-
mony from a witness about the botched first attempt,
Simmons’s post-robbery spending spree (with no legiti-
mate source of the large cash outlays), and recorded jail
cell phone conversations in which Mann and Campbell
vowed not to snitch. The prosecutor’s passing comments
in argument were small in comparison with the larger
mosaic of evidence arrayed against Simmons. The
district court, accordingly, did not abuse its discretion in
failing sua sponte to order a mistrial.


    E. Imposition of the Abduction Guideline
 Finally, Simmons argues that before choosing to apply
U.S. Sentencing Guideline § 2B3.1(b)(4)(A) (applying



1
   Our previous cases seem to indicate that we must always
determine whether the prosecutors’ statements were improper,
but we choose to heed the Supreme Court’s warning that
rigid two-step protocols can sometimes lead to “bad decision-
making.”See Pearson v. Callahan, 

, 820 (2009). When,
as in this case, the case can be easily disposed of in the second
prong of the analysis, we think that unnecessarily considering
the first prong can do more harm than good. 

limited precedential value, the awkward position of a party
seeking review, the tendency of the second step to color percep-
tions of the first, and the waste of judicial resources when a
court decides an issue unnecessary to the outcome of a case).
16                                                 No. 08-2207

abduction enhancement if “any person was abducted to
facilitate commission of the offense”) to his sentence, the
district court should have made a specific finding that
the abduction of Schmidt was foreseeable to Simmons.
Simmons, as noted, could only be sentenced for the
foreseeable conduct of his co-conspirators. U.S.S.G.
§ 1B1.3(a)(1)(B) (A defendant’s offense level, for sen-
tencing purposes, shall be determined on the basis of,
“in the case of a jointly undertaken criminal activity . . . all
reasonably foreseeable acts and omissions of others in
furtherance of the [joint undertaking].”). We review the
adequacy of a district court’s findings de novo. United
States v. Thompson, 

, 957 (7th Cir. 2002).
  At sentencing, Simmons challenged Jackie Schmidt’s
role in the robbery and argued that she was a conspirator.
If she was, he argued, there could be no application of
the abduction guideline. The district court found that
the abduction did take place. As the district court noted
at sentencing, “the strongest evidence that Schmidt
was not in on the plan at the time that she was abducted
is the timing.” In other words, had Schmidt been
involved, Campbell would not have had to sit and wait
at her apartment for three hours, while Mann drove the
streets of Cedarburg, to wait for Schmidt’s co-worker
to arrive at the bank. Simmons argues now that this
finding is not sufficient because the district court did
not specifically declare that Schmidt’s abduction was
“foreseeable” to Simmons.
  But, all the evidence at trial showed that Simmons was
involved in the second plan, the one in which the
No. 08-2207                                            17

robbers agreed to abduct Schmidt. Finding that an
actual abduction took place necessarily involved a
finding that such an abduction was foreseeable, and in
fact, planned by Simmons. The judge’s reliance on the
timing reinforces this point. The timing was a part of the
original plan to which Mann, Simmons, and Campbell
had agreed. Remember, Simmons was unexpectedly
unavailable at the agreed-upon time to rob the bank
because of baby-sitting duties. Therefore, in addition to
supporting the notion that the abduction took place, the
evidence of the botched timing also supports the notion
that the abduction was foreseeable to Simmons. The
application of this enhancement was, therefore, proper.


                    IV. Conclusion
  For the foregoing reasons, we A FFIRM the defendant’s
conviction on all three counts and his sentence.




                          9-11-09