Whether the district court erred in instructing the jury on the elements of attempted bank robbery under 18 U.S.C. § 2113(a) when the evidence did not support a finding of force, violence, or intimidation

No question identified. : TRULINCS 22712424 JOHNSTON, ANDREW J Unit: TCP-D-B , ~< HS Felker v. Turpin, 518 U.S. 651, 660-661 (1996) : Kolender v. Lawson, 461 U.S, 352, 357 (1983) ; United States v. Davis, 139 S. Ct. 2319 (2019) . "United States v. Jones, 713 F.3d 336, 339-340 (CA7 2013) ; . United States v. Loniello, 610 F.3d 488, 492 (CA7 2010) , , United States v. Thornton, 539 F.3d 741, 747, 749 (CA7 2008) ; STATUTES 18 U.S.C. Section 2113(a)P1 , 18 U.S.C. Section 2113(a)P2 , : : OTHER ; Sta're Dec|'sis : ; : / . STATEMENT OF FACTS On July 25, 2017, petitioner was arrested. On August 23, 2017 petitioner filed a false arrest suit, Case No. 1:17-cv-6183, and -on August/24, 2017 a grand jury returned an indictment against ANDREW JOHNSTON charging a single count of attempted ~ © bank robbery in violation of 18 U.S.C. Section 2113(a)P1. After extensive unsuccessful pretrial motion and extraordinary writ ~° practice, irjcluding a motion to dismiss for failure to state a charge, R. #216, petitioner was forced to stand trial "or plead guilty" _ on January 8, 2019. : Special Nate: an appeal is currently pending in the court of appeals, No. 21-1746, that seeks the production of the January 8, 2019 for the first time; and a petition for writ of prohibition about the same pending as well, No. 21-2073. On January 9, 2019, the jury instructions that were in place were adopted by the district court on August 2, 2018 as no subsequent jury instructions conferences were held following August 2, 2018. Specifically, as a result of the August 2, 2018 conference, the district court stated: "Defendant Johnston has been charged with violating the first paragraph of 18 U.S.C. Section 2113(a), which prohibits the act of taking or attempting to take property or money from a bank ‘by force and violence, or by intimidation” : [] and went on to cite "United States v. Loniello, 610 F.3d 488, 491 (7th Cir. 2010)." Case No. 1:17-cr-517, Dkt. No. 201, Page 1, Filed August 7, 2018. ; On January 9, 2019, petitioner, representing himself, cross-examined bank teller supervisor, Sharon Byrne, about her : interaction with the suspect on July 25, 2017 as follows: ; "Mr. Johnston: What did he say initially? : Ms. Byrne} My wife and kids have been kidnapped. They are going to rape and kill them. My brother-in-law has a gambling problem. | need money. And he gave an estimated amount of like -| want to say it was like $28 3500." oO R. #330, poe 34,Id.atQ-16 | "Mr. Johnston: And did you hear that individual instruct her to come closer? Ms. Byrne} No, | did not. ' ; Mr. Johnston: Did you hear the individual say anything about a robbery? Did you hear the word ‘robbery’? : ~-TRULINCS: 22712424 JOHNSTON, ANDREW J Unit: TCP-D-B ; SASS Ms. Byrne No." R. #330, Page 34 Id. at 23 Page 36, Id. at 1-4. : : , "Mr. Johnston: You stated that you were about three to four feet away from the suspect when he approached the counter? Is that true? / . . Ms. Byrne; Yes. , , Mr. Johnston: Did you hear the suspect make any threat to you or to Ms. Nevarez? Ms. Byrne; No. . : Mr. Johnston: Did he say he was going to harm you.or Ms. Nevarez in anyway if he did not get what he was asking for? Ms. Byrne} No. . Mr. Johnston: Did he mention a weapon? Did he mention any form of violence towards your or Ms. Nevarez.as you stood on the : other side pf the countertop that day? Ms. Byrne} No." R. #330, Page 47, Id. at 6 23. , , ” Later tha evening after the jury had been sent home, the trial court held a surprise jury instruction conference after hearing the above stated testimony: ** "The Court: All right. Government Instruction No. 16 is the pattern 4.01, attempted bank robbery. The elements_are the attempt, deposits insured, use of intimidation. ms : . ~ Mr. Johnston: We resolved to include ‘the defendant acted to take such money by force and violence or by intimidation.’ The | pattern instruction includes all three elements. The actual intimidation has to be proven beyond a reasonable doubt, even ~