In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RALPH WESLEY RILEY,
also known as THOMAS DANCIK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 CR 40087—Joe Billy McDade, Judge.
____________
ARGUED MAY 30, 2007—DECIDED JULY 10, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.
RIPPLE, Circuit Judge. Ralph Wesley Riley, also known
as Thomas Dancik, pleaded guilty to two counts of bank
fraud and eleven counts of attempted bank fraud, in
violation of 18 U.S.C. § 1344, and to one count of theft of
mail, in violation of 18 U.S.C. § 1708; in his plea agree-
ment, however, he reserved the right to appeal the district
court’s ruling on his motion to suppress evidence. In this
court, Mr. Riley renews his arguments with respect to his
motion to suppress and also challenges aspects of his
2 No. 06-2557
sentence. For the reasons set forth in this opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A. Facts
On the morning of July 23, 2004, Detective Pablo Reyna
of the Moline, Illinois Police Department received a re-
port of suspicious activity at the I.H. Mississippi Valley
Credit Union involving two white males and two black
males, all wearing baggy shorts.1 Other officers responded
to the call at the credit union, so Detective Reyna pro-
ceeded to other area banks in search of the described
individuals.2
Approximately one hour after the call, Detective Reyna
drove through the parking lot at the Blackhawk State Bank.
After exiting the parking lot, Detective Reyna observed a
green Lincoln backed into a parking space in the lot of a
restaurant adjacent to the bank. The engine of the car
was running, and the driver was looking in the direction of
the door of the bank. It appeared to Detective Reyna that
the driver was waiting for someone at the bank.
Detective Reyna continued past the bank, and, in his
rearview mirror, observed a man in business dress, later
1
The report also provided additional details about the men
such as their height and weight.
2
Detective Reyna testified that, even if he had not received the
call, he would surveil banks as part of his activities while on
duty.
No. 06-2557 3
identified as Mr. Riley, exiting the bank. Mr. Riley was
carrying something in his hands that Detective Reyna
could not see clearly. Mr. Riley walked at a brisk pace
to the green Lincoln and entered the passenger side of the
car; the Lincoln then pulled away, and Detective Reyna
followed.
After about ten blocks, the Lincoln pulled into a gas
station. The car was at the station for less than a minute,
during which time the driver and the passenger switched
places. Detective Reyna continued to follow the Lincoln
after it left the gas station. Detective Reyna also called
Detective Jeff Heist to inform Detective Heist that he
was following a suspicious car; specifically, Detective
Reyna told Detective Heist that he believed that the
individuals in the car had been involved in a bank
robbery.3
Now in the left-turn lane, the Lincoln stopped for a
red light. Detective Reyna radioed that he was going to
attempt to stop the car because there was not a marked
police car in the area.
While the Lincoln still was stopped at the light, Detec-
tive Reyna pulled behind the car in his unmarked
vehicle and turned on his emergency lights. He approached
the driver’s side of the car. Detective Reyna then showed
his identification and asked to see the driver’s license,4
registration and proof of insurance; Detective Reyna noted
3
At no time had Detective Reyna received a report that the
Blackhawk State Bank, in fact, had been robbed.
4
The driver’s license that was produced had been issued to a
“Thomas Dancik,” an alias Mr. Riley had been using for a
number of years.
4 No. 06-2557
that the insurance was expired. After these documents
were produced, Mr. Riley inquired why he had been
stopped; Detective Reyna responded that he was investi-
gating a possible crime and asked Mr. Riley if he had
robbed the Blackhawk State Bank. Mr. Riley responded
that he had not. Mr. Riley further explained that he had
been to the bank on business, that he was interested in
buying a building in which he desired to open a restaurant,
but that the bank was too busy at the time so he had left
without transacting any business.
At that point, Detective Reyna asked for permission to
search the car. Mr. Riley politely refused. Detective Reyna
then told Mr. Riley that he had observed the driver carry-
ing something in his hand as he exited the bank; Mr. Riley
produced a pouch with three vitamin bottles in it. Detec-
tive Reyna responded that the pouch was not what he
had seen the driver carry out of the bank.
Detective Reyna then spoke to Detective Heist who had
arrived on the scene and, apparently, had spoken with the
passenger. The passenger had produced a driver’s license
that had been revoked. After consulting with Detective
Heist, Detective Reyna decided to place the driver under
arrest for operating a vehicle without insurance and to
place the passenger under arrest for operating a vehicle
without a license.
After arresting Mr. Riley and the car’s passenger, Detec-
tive Reyna searched the front compartment of the car.
Items uncovered during the search included eleven
personal checks made payable to individuals other than
Mr. Riley, his alias or his passenger, a black planner and
a notebook with the names and addresses of five local
banks written in it. At the time of the arrest, Mr. Riley
possessed $1,956.95 in cash.
No. 06-2557 5
Later inquiries at the Blackhawk State Bank revealed
that Mr. Riley had presented a $3,000 counterfeit check
for deposit into an account held by another individual.
The deposit slip had requested that $2,100 of that amount
be deposited into the account and that the purported
account holder receive $900 cash. Additionally, on the day
prior to the incident at the Blackhawk State Bank, Mr. Riley
had presented a $3,000 counterfeit check for deposit at the
Central Bank in Andover, Illinois; this check also was made
out to an account holder at the bank. In that instance as
well, Mr. Riley “deposited” $2,100 and received $900 in
cash.
B. District Court Proceedings
Mr. Riley was charged with two counts of bank fraud,
eleven counts of attempted bank fraud, all in violation of
18 U.S.C. § 1344, and one count of theft of mail, in viola-
tion of 18 U.S.C. § 1708.5
Shortly thereafter, Mr. Riley moved to quash his arrest
and to suppress the evidence found in the green Lincoln on
July 23, 2004. According to Mr. Riley, “[t]he arrest, search,
and seizure in this case were made without probable
cause, and were illegal and in violation of the Fourth
Amendment to the Constitution of the United States.” R.15
at 2.
The district court held a hearing on Mr. Riley’s motion at
5
Mr. Riley had stolen actual checks from a United States Postal
Service collection box. Mr. Riley used the stolen checks as
examples to create the thirteen counterfeit checks, which form
the basis of the bank fraud counts.
6 No. 06-2557
which Detective Reyna testified to the above events.6 After
hearing the testimony of Detective Reyna and argument of
counsel, the district court made the following determina-
tion:
The circumstances of this case present[ ] a close ques-
tion of [a] permissible Terry stop. As the Court under-
stands the evidence, an experienced police detective
with knowledge of fraud cases including bank fraud
is on alert because he has heard that earlier in the
morning there were complaints of suspicious persons
from banks. And as is his routine to check out banks
in the area, he passes by the Blackhawk bank and he
sees a vehicle parked, you might say, facing outward
with its motor running adjacent to the bank, which is
suggested that that person is waiting for someone,
in and of itself that certainly would not justify a
police stop.
At that point Detective Reyna did not take any
action except to watch, and he sees a man rapidly
leaving the bank in the direction of the car with the
running motor. And he sees this man get into the car.
That itself may not be enough for a stop. In fact, Detec-
tive Reyna did not stop the car at that point but his
suspicions were aroused and he continued to follow
6
Prior to offering testimony concerning the events of July 23,
2004, Detective Reyna testified to his experience on the police
force. At the time of the suppression hearing, Detective Reyna
had approximately thirty years on the job; during his tenure,
he was assigned primarily to working “paper crimes which
included credit cards, forgeries, checks,” etc. R.20 (Suppression
Hearing Tr.) at 3. He also had been involved in the investiga-
tion of several bank robberies over the years.
No. 06-2557 7
the car because his instincts suggested that something
was amiss, then he sees the car stop and there is an
exchange of drivers and the passenger.
Here, again, that by itself may not justify any stop,
any legal stop but it is one of a series of facts that
certainly would cause an experienced detective to
wonder what is going on and he sees an opportunity
when the car is stopped at a stoplight to go up to the
car while it is stopped, exhibit his identification as a
cop and ask for driver’s license, registration and
insurance card.
In light of everything that had transpired up to that
point, the Court finds that that was a permissible
temporary stop, or if you want to call it a seizure,
although there has been no evidence that the car tried
to drive away. But—and there is no evidence that
Detective Reyna used any type of coercive force. He
didn’t have his guns drawn. All he showed was his
detective shield to the occupants of the car. But even
if one would construe that to be a seizure, it was one
of which under the circumstances the Court feels
was reasonable to allow the officer to make further
inquiry as to that there was something to the suspi-
cions which he had developed from the circum-
stances that proceeded [sic] it.
R.20 at 33-35.
After the motion to suppress was denied, Mr. Riley
pleaded guilty to each count of the indictment, and the
case proceeded to sentencing. The Presentence Report
(“PSR”) calculated Mr. Riley’s base offense level at 7.
However, in accordance with United States Sentencing
Guideline § 2B1.1, the offense level was increased to re-
flect the intended loss. The PSR calculated the amount of
8 No. 06-2557
intended loss at $39,000 (thirteen counterfeit checks for
$3,000 each), which translated into an offense-level in-
crease of 6. Combined with Mr. Riley’s criminal history
category, this yielded a guideline range of 18 to 24 months.
The PSR also calculated a fine range of $3,000 to
$13,250,000 under the advisory Guidelines. However,
the PSR noted that Mr. Riley did not have the ability to
pay any fine in addition to the restitution of $1,800. Indeed,
the PSR suggested that Mr. Riley be ordered to pay the
restitution in monthly installments from his prison earn-
ings and his earnings while on supervised release.
In response to the PSR, Mr. Riley’s counsel argued that
the total loss should only be $1,800 because, at the time
Mr. Riley was apprehended, he had negotiated only two
of the thirteen checks. According to counsel, Mr. Riley
had no intention of negotiating the remaining eleven
checks. The remaining checks were simply “backups” in
the event that Mr. Riley “decided that’s probably not a
good bank to go into after he saw it.” R.38 (Sent. Tr.) at 17.7
The Government countered that the only reason that
all thirteen checks were not negotiated was that Mr. Riley
was caught. Counsel for the Government also argued that
Mr. Riley would not have gone to the effort of creating
checks based on 13 different legitimate account holders
if he had no intention of negotiating them. The Govern-
ment, therefore, urged that the court accept the intended
loss of $39,000 as set forth in the PSR.
The court adopted an intermediate position. It believed
that Mr. Riley intended to “deposit” all of the checks;
7
At the sentencing hearing, Mr. Riley did not offer any testi-
mony regarding his intentions.
No. 06-2557 9
however, it attributed a loss of $900 for each check, or
$11,700 for all 13 checks. The amount of loss determined
by the court yielded a final offense level of 11, which,
when combined with Mr. Riley’s criminal history cate-
gory, resulted in a guidelines range of 12 to 18 months.
Given Mr. Riley’s criminal history,8 his use of an alias
for over twenty years to avoid arrest and prosecution,
the questionable nature of Mr. Riley’s claim of a change
of heart and the seriousness of the offenses, the district
court sentenced Mr. Riley to 18 months’ imprisonment.
The court further ordered that the restitution be paid out
of the $1,956.65 taken from Mr. Riley at the time of his
arrest.9 Finally, the court imposed a fine of $1,500. The
court ordered that the fine be paid from the remainder of
the confiscated funds and, thereafter, through monthly
installments from Mr. Riley’s prison earnings or income
earned while on supervised release. Mr. Riley did not
object to the imposition of a fine.
II
ANALYSIS
A. Motion to Suppress
Mr. Riley first challenges the district court’s denial of his
motion to suppress. We review a district court’s legal
8
Mr. Riley’s criminal history included convictions for bank
robbery, robbery, home invasion and delivery of a controlled
substance.
9
Mr. Riley’s counsel, during the sentencing hearing, had
requested that these funds be used to satisfy any restitution
ordered.
10 No. 06-2557
conclusions on a motion to suppress, including the ques-
tion whether reasonable suspicion existed to justify a
stop, de novo. United States v. Lenoir, 318 F.3d 725, 728
(7th Cir. 2003). The district court’s underlying findings of
fact, however, are reviewed for clear error. Id.
“[A] brief investigatory stop that demands only a limited
intrusion into an individual’s privacy is permitted under
the Constitution when it is based upon ‘specific and
articulable facts which, taken together with rational
inferences from those facts reasonably warrant that intru-
sion.’ ” United States v. Baskin, 401 F.3d 788, 791 (7th Cir.
2005) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Officers,
therefore, “may conduct an investigatory stop of a person
when they have a reasonable, articulable suspicion that
criminal activity is afoot.” United States v. Lawshea, 461 F.3d
857, 859 (7th Cir. 2006). “Reasonable suspicion amounts to
something less than probable cause but more than a
hunch.” Baskin, 401 F.3d at 791 (citations omitted).
“When determining whether an officer had reasonable
suspicion, courts examine the totality of the circum-
stances known to the officer at the time of the stop, includ-
ing the experience of the officer and the behavior and
characteristics of the suspect.” Lawshea, 461 F.3d at 859.
“Ultimately, a court’s determination of reasonable suspi-
cion ‘must be based on common-sensical judgments and
inferences about human behavior.’ ” Baskin, 401 F.3d at 791
(quoting Illinois v. Wardlow, 528 U.S. 119, 125 (2000)).
Given these standards, we believe that Detective Reyna
had a reasonable, articulable suspicion to justify the stop of
No. 06-2557 11
Mr. Riley’s car.10 The information in Detective Reyna’s
possession, as assessed by an experienced officer, sup-
ported the reasonable suspicion that Mr. Riley had com-
mitted a crime at the Blackhawk State Bank and therefore
justified the stop of Mr. Riley’s vehicle. Detective Reyna
had observed a car in an adjacent parking lot, which was
backed into its space in the lot. There was a man sitting
in the driver’s seat of the car, the car engine was running
10
Before the district court, the Government argued that no
seizure had occurred because Mr. Riley’s movement was not
restricted in any way; it renews this argument on appeal.
According to the Government, when Detective Reyna ap-
proached the Lincoln, the car was stopped at a red light. The
Government explains that the car’s movement was restricted
only after the light turned green and that
it is reasonable to infer from this record that, by that time,
Detective Reyna had already learned that Riley had no
proof of insurance. As soon as he had identified himself,
Reyna asked for Riley’s driver’s license and proof of
insurance. Riley promptly handed over both and Reyna
immediately saw that the proof of insurance card had
expired.
Appellee’s Br. at 23.
We do not believe that this inference fairly can be drawn from
the record. There is no question that the Lincoln was stopped at
a red light when Detective Reyna first approached the car.
Furthermore, it is apparent that the entire encounter did not
last more than a few minutes. However, at the suppression
hearing, no evidence was offered with respect to when the light
changed or how long the encounter lasted after the light
changed. In the absence of such evidence, we cannot say
conclusively that Mr. Riley was not stopped or detained by
Detective Reyna.
12 No. 06-2557
and the driver was focused on the entrance of the bank.
Detective Reyna testified that, in his experience investigat-
ing bank robberies, it was common for perpetrators to park
in lots close to banks, but not in the bank parking lots.
Furthermore, the fact that the Lincoln was backed into the
parking space and that the driver was focused on the bank
indicated to him that the Lincoln was a “getaway” car. R.20
at 8. Case law from this court notes similar behavior
by individuals involved in criminal activity at banking
institutions. See, e.g., United States v. Jocic, 207 F.3d 889,
890 (7th Cir. 2000) (“Upon leaving the bank, Bradach
entered the passenger side of his black Jeep Cherokee,
which was being driven by Jocic. The jeep was backed into
a parking space facing an alley about 115 feet from the
doors of the bank . . . . Once Bradach got in, the jeep
immediately took off through the alley.”); United States v.
Arrington, 159 F.3d 1069, 1071 (7th Cir. 1998) (noting that,
with respect to two different robberies, a “black Blazer (or
Jimmy) [had been] backed into a parking space in the
parking lot near the bank”).
Additionally, Detective Reyna had observed Mr. Riley
leaving the bank quickly and holding something in his
hand. Mr. Riley then entered the car, and the car drove off.
Several blocks away, the driver and the passenger switched
positions, further raising Detective Reyna’s suspicion.
Although, as noted by the district court, all of these taken
separately might not justify a stop, we do not evaluate the
circumstances in isolation. See Lawshea, 461 F.3d at 859
(“[W]e recognize that certain behavior in isolation may
have an innocent explanation yet that same behavior may
give rise to reasonable suspicion when viewed in the
context of other factors at play.”). Furthermore, these
circumstances must be viewed through the lens of Detec-
No. 06-2557 13
tive Reyna, an experienced officer. The Supreme Court has
explained that, in determining whether particular cir-
cumstances rise to the level of a reasonable suspicion,
courts must take into “consideration . . . the modes or
patterns of operations of certain kinds of lawbreakers,”
which allow “trained officer[s] [to] draw[ ] inferences and
make[ ] deductions . . . that might well elude an untrained
person.” United States v. Cortez, 449 U.S. 411, 419 (1981).
Taken together, all of these circumstances, when observed
by an officer familiar with individuals involved in rob-
bery and fraud, would lead a reasonable officer to suspect
that the individuals traveling in the Lincoln had engaged
in criminal activity in the bank, and, therefore, a short
detention of the parties for further inquiry was justified.
B. Calculation of the Amount of Loss
Mr. Riley next challenges the district court’s calculation
of the amount of loss attributable to his fraud under
U.S.S.G. § 2B1.1. Mr. Riley claims that he should be sen-
tenced based on an $1,800 loss, the amount of funds he
received through the deposits made on July 22 and 23,
2004; he maintains that the district court’s finding of an
intended loss of $11,700 is not supported by the record. The
district court’s determination of the amount of intended
loss is a finding of fact which we review for clear error.
United States v. Al-Shahin, 474 F.3d 941, 950 (7th Cir. 2007).
“In appealing a district court’s loss calculation, the defen-
dant must show that the district court’s calculation was
not only inaccurate but outside the realm of permissible
computations.” Id. (internal quotation marks and citations
omitted). We do not believe that Mr. Riley has met this
burden.
14 No. 06-2557
As noted above, U.S.S.G. § 2B1.1 ties a defendant’s
offense level to the amount of loss suffered as a result of
his actions. Application Note 3 instructs that, for purposes
of calculating loss, the court should employ “the greater of
actual loss or intended loss.” U.S.S.G. § 2B1.1, application
note 3(A) (2004). Additionally, “[t]he court need only
make a reasonable estimate of loss.” Id., application
note 3(C).
Here, there was ample evidence to support the district
court’s determination of an intended loss of $11,700. As
noted above, when Mr. Riley was apprehended, there
were eleven counterfeit checks in the car. These checks
were in the same format as the checks that Mr. Riley had
deposited on July 22, 2004, at the Central Bank in Andover,
Illinois, and on July 23, 2004, at the Blackhawk State
Bank in Moline, Illinois. Additionally, the Lincoln con-
tained a notebook with the names and addresses of other
area banks. The existence of the other checks, together
with the addresses of other banks, supplied sufficient
evidence to conclude that Mr. Riley’s scheme was not
limited to the two deposits he actually made.
Mr. Riley, nevertheless, maintains that the district
court should have accepted his attorney’s characteriza-
tion of the other eleven checks as “backups” in the event
that something went amiss with his first two attempts.
The district court, however, was not under any obligation
to accept defense counsel’s view of the evidence. Further-
more, Mr. Riley did not present any additional evidence
to support this factual theory. There was no testimony
that Mr. Riley had approached other banks, but had
aborted plans to deposit checks there; nor was there
evidence that Mr. Riley had entered the scheme with the
purpose of obtaining a limited amount of funds, for
No. 06-2557 15
instance, for satisfying a specific debt. Given the evid-
ence before the district court, $11,700 was a reasonable
estimate of intended loss.
C. Imposition of a Fine
Mr. Riley next maintains that, under the circumstances
presented here, the district court erred in imposing a
fine. Because Mr. Riley did not object to the imposition of
the fine at sentencing, we review the court’s decision to
impose a fine only for plain error. United States v. Isienyi,
207 F.3d 390, 393 (7th Cir. 2000).
Mr. Riley submits that, because the PSR determined that
he did not have the present ability to pay a fine, the district
court’s imposition of a fine violated both U.S.S.G.
§ 5E1.2(a)11 and 18 U.S.C. § 3572.12 However, the PSR
failed to acknowledge the $1,956.65 that was taken from
Mr. Riley at the time of his arrest and that Mr. Riley’s
counsel had urged the court to use those funds to satisfy
the restitution owed. After the restitution was satisfied,
Mr. Riley still had approximately $150 that could be
applied towards a fine. The court realized that, at the time
of sentencing, these were the only funds available to Mr.
Riley. The court, therefore, imposed a below-guidelines
fine to be satisfied through the use of these residual funds
11
U.S.S.G. § 5E1.2(a) provides: “The court shall impose a fine in
all cases, except where the defendant establishes that he is
unable to pay and is not likely to become able to pay any fine.”
12
18 U.S.C. § 3572(a) states that, “[i]n determining whether to
impose a fine, and the amount, time for payment, and method
of payment of a fine, the court shall consider, in addition to the
factors set forth in section 3553(a)—. . . the defendant’s income,
earning capacity, and financial resources . . . .”
16 No. 06-2557
and through Mr. Riley’s future wages, earned either while
in prison or while on supervised release.
The district court’s approach finds support in our case
law. In United States v. Isienyi, 207 F.3d 390 (7th Cir. 2000),
the district court had adopted the PSR’s findings that the
defendant did not have any present ability to pay a fine,
but nevertheless had ordered the imposition of a below-
guidelines fine to be paid out of the defendant’s earn-
ings in prison. The defendant argued on appeal that “the
court’s adoption of the PSR finding that Isienyi is not
presently able to pay a lump sum fine and is not able to
pay ‘on an installment basis at this time’ is irreconcilable
with the sentencing court’s finding that a fine was appro-
priate.” Id. This court disagreed:
[T]he sentencing court’s adopting of the PSR finding
that Isienyi is unable to pay “on an installment basis
at this time” does not logically preclude a finding that,
although Isienyi might not be able to afford a fine
within the Guidelines range, he could afford a sub-
stantially lower fine, especially one based on future
earnings over the course of his prison term and, if
necessary, during his period of supervised release. We
have previously upheld the authority of sentencing
courts to order that imposed fines be satisfied by
withdrawing money from an inmate’s prison earnings.
Based on the PSR findings with regard to Isienyi’s
financial condition, the sentencing court departed
downward substantially from the Guidelines range,
ordered that Isienyi pay the fine imposed through
the [Inmate Financial Responsibility Program], and
waived interest on the fine and the costs of incarcera-
tion and supervision. We find no plain error in the
court’s decision.
Id. at 593-94.
No. 06-2557 17
Here the advisory guidelines fine range was $3,000 to
$13,250,000. Recognizing Mr. Riley’s limited means, the
district court imposed a fine below this range, as did the
district court in Isienyi. Also, like the district court in Isienyi,
the district court here waived any interest on the fine and
ordered that the fine be paid, in large part, out of prison
earnings. Consequently, the district court’s order acknowl-
edged Mr. Riley’s financial state and assessed a fine
commensurate with his ability to pay. The district court’s
imposition of a limited fine under these circumstances was
not plain error.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-07