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Evans v. United States

United States District Court, N.D. Illinois, Eastern Division

May 19, 2014

KIM EVANS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court is pro se Petitioner Kim Evans' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Evans' Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).[1]

PROCEDURAL BACKGROUND

On July 21, 2009, a grand jury returned a Superseding Indictment charging Evans and his co-defendants with a February 20, 2009 bank robbery of Fifth Third Bank in Evanston, Illinois in violation of 18 U.S.C. § 2113(a) (Count One) and with knowingly possessing a firearm in furtherance of and using, carrying, and brandishing a firearm in relation to a crime of violence, namely, the February 20, 2009 bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two). Also, the Superseding Indictment charged Evans with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three).

After a three-day trial, a jury convicted Evans of all three counts of the Superseding Indictment on June 17, 2010. On June 9, 2011, the Court sentenced Evans to 444 months imprisonment - 240 months on Count One, 84 months on Count Two, and 120 months on Count Three.

Evans and his co-defendant Corley Smith appealed their convictions. Evans, however, did not appeal his sentence. On October 26, 2012, the United States Court of Appeals for the Seventh Circuit affirmed Evans' conviction. Evans filed the present pro se Section 2255 motion on January 14, 2014. Evans' Section 2255 motion is timely under 28 U.S.C. § 2255(f)(1).

FACTUAL BACKGROUND

Evans and Smith pleaded not guilty, but their co-defendant Dezmond Swanson pleaded guilty, and agreed to cooperate with the government. As part of his agreement, Swanson testified at the trial. The government also introduced video and still images of the bank robbery, as well as the testimony of two bank tellers, who were present during the violent robbery. In addition, several expert witnesses and Federal Bureau of Investigation ("FBI") agents testified at trial.

Specifically, Swanson testified that on the afternoon of February 20, 2009, Evans approached him near 73rd and May Streets in Chicago and asked him if he wanted to make some money. After Swanson agreed, Evans and Swanson got into a green Cadillac that Evans was driving. At that time, Smith was already in the front passenger seat. Evans told Swanson that they were going to rob a bank and that Swanson would stand guard.

At about 4:00 p.m. on that same day, Swanson, Evans, and Smith arrived at the Fifth Third Bank at 2550 Main Street in Evanston, after which they put on gloves and masks and entered the bank. Evans entered first with a gun drawn and vaulted over the counter. Smith also vaulted over the counter, leaving a shoe print on a piece of paper that the government later introduced into evidence. Swanson stood guard near the door. During the robbery, Evans and Smith yelled at the bank employees saying "someone's gonna die today." Although no one was killed, Evans struck a teller in the head with the butt of the gun. Further, Evans and Smith stuffed the money into a briefcase that Evans was carrying. After Evans, Smith, and Swanson left the bank, a dye pack hidden inside some of the money exploded and the briefcase started to smoke. Evans threw the briefcase with the money on the ground in an alley. Evanston Police Department's Evidence Technician Tim Messing later recovered the briefcase and also testified at trial. Meanwhile, Evans, Smith, and Swanson then fled in the green Cadillac returning to 73rd and May Streets. At some point, Evans stopped the car and put the gun into the trunk.

The government also called FBI special agents as trial witnesses. The agents' testimony established that prior to the bank robbery, they were conducting surveillance in the area of 73rd and May and had been following the green Cadillac. The FBI agents had been watching the Cadillac because on February 16, 2009, two Chicago suburban banks had been robbed and in the early morning of February 20, 2009, an informant had told the FBI that the perpetrators of the February 16, 2009 robberies intended to rob a bank later that day. The FBI agent who received this information had worked with the informant in the past and testified that the informant was reliable.

Based on the informant's statements, the FBI had held a briefing at 10:00 a.m. on February 20, 2009. FBI Agents Timothy Bacha, Craig Heidenreich, and James Stover, along with other FBI agents and task force officers, attended. At the briefing, an agent identified a black male named "Kim" as the leader of a group involved in the February 16, 2009 suburban bank robberies. The agent also explained that some of the other suspects resided in the area of 73rd and May Streets in Chicago. After this initial briefing, the officers learned that Evans, who was on home confinement, had recently cut off his electronic monitoring bracelet. Also, the agents learned that the two other males involved with Evans in the earlier bank robberies were standing on the street near 73rd and May and that Evans would be arriving there in a green Cadillac to pick them up.

Trial testimony further established that by 11:30 a.m., FBI Agents Bacha and Stover, as well as several other agents, were in vehicles surveilling the 7300 block of May in Chicago. Around noon, Agents Bacha and Stover observed a two-door green Cadillac in that area. Over the next two hours, Agents Bacha and Stover observed the Cadillac traveling to various locations in the area of 73rd and May with several individuals getting in and out of the Cadillac.

Around 2:15 p.m., FBI agents were unable to locate the Cadillac in the vicinity of 73rd and May. Between 4:15 and 4:30 p.m., FBI Agents Bacha and Stover, who had remained in the area of 73rd and May looking for the Cadillac, received information that three men had robbed the Evanston Fifth Third bank at about 4:00 p.m. Based on their familiarity with the Chicago area, the agents knew that it was possible to travel from the area where they had last seen the green Cadillac at 2:15 p.m. to Evanston within an hour and a half.

Just before 5:00 p.m., an FBI agent emailed Agents Stover and Heidenreich regarding the Fifth Third Bank robbery. The email included an update explaining that "per bank staff identification" there were at least three black male suspects, all five feet, nine inches tall, and thin. The update also provided a description of the clothing worn by the suspects, including that one suspect was wearing black jeans, black shoes, a green sleeveless ...


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