U.S. v. Thornton

• Decision Date: 26 August 2008
• Docket Number: No. 07-2839.,07-2839.
• Citation: 539 F.3d 741
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter THORNTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

539 F.3d 741

UNITED STATES of America, Plaintiff-Appellee, v. Walter THORNTON, Defendant-Appellant.

No. 07-2839.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2008.

Decided August 26, 2008.

Felicia M. Alesia (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Sarah O'Rourke Schrup, Michael Paik, Simarjeet Singh, Law Students, Northwestern University School of Law, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Walter Thornton was convicted of attempted bank robbery, 18 U.S.C. § 2113(a), and of possessing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). He moved for a judgment of acquittal and a new trial; his motions were denied. The district court sentenced him to 132 months' imprisonment. Thornton now appeals, raising four issues, but we need to reach only two: his primary contention that the district court erred in failing to properly instruct the jury on the elements of attempted bank robbery and his assertion that the evidence was insufficient to support a conviction on that charge and the related firearm count.

I. Background

In September 2005, Walter Thornton and Tremain Moore worked together at a Shoe Warehouse in Berwyn, Illinois, where Thornton was the manager. They quickly became friends and, within a few days, Thornton — who had robbed a bank in Canada in 1994 — began talking to Moore about how to rob a bank. Moore testified that on one occasion after he had been to a nearby Harris Bank, Thornton asked him about the bank's layout, drew sketches of the bank as Moore described it, and made maps of the surrounding area. According to Moore, prior to the robbery attempt, two men, one carrying a duffel bag, came to the Shoe Warehouse and met with Thornton in the back of the store. After they had left Thornton called Moore to the back and showed him a gun — the same gun the police later found in the store after the attempted bank robbery.

On September 26, Thornton and Moore arrived at the Shoe Warehouse by 9:30 a.m. Moore testified that Thornton said he was going to rob a bank and asked Moore to be his getaway driver, in exchange for some of the money and days off work. Moore stated that Thornton took him into the bathroom where he showed him the items he planned on using to disguise his appearance, including a bald cap, makeup to darken his complexion, and a pillow to make him appear heavier. According to Moore, he waited for Thornton at the front of the store, and about fifteen minutes later Thornton appeared wearing black pants, white tennis shoes, a white dress shirt, and a gray ball cap. Thornton was wearing makeup, a full beard and a mustache, and his chest was larger and puffier, as if he had the pillow under his clothes. Moore told Thornton that anyone could tell that "something ain't right." So Thornton put on a black hooded sweatshirt, a "hoodie," thus adding to his disguise.

Moore testified that Thornton had him put an old license plate on Thornton's car which they would use as the getaway car. Moore pulled Thornton's car around to the back of the Shoe Warehouse and waited while Thornton returned to the store. After a few minutes, Thornton emerged from the store wearing the same disguise and carrying a duffel bag that appeared to have "stuff" in it. Moore drove Thornton's car through the alleys to Bank One, dropped off Thornton, and parked the car in a nearby alley to wait. Bank surveillance photos depict a passenger wearing dark colors, a hat, and a bandana over his face exiting the car and walking up to the bank's front exterior doors leading to the lobby.

Shortly before 10:00 a.m. Jaime Contreras was driving into Bank One's parking lot — he was going to the bank to conduct a personal banking transaction — when he observed an African-American male who appeared to be attempting to enter the bank. The man was wearing dark clothing and a hat, had a bandana over the lower portion of his face, and was carrying a dark-colored duffel bag. The man had his hand on the bank's exterior door handle. Contreras and the man made eye contact, and one second later, the man walked away from the door, never having opened it. Contreras pulled up next to the man and asked, "What the f____ are you doing?" At trial Contreras explained that he said this because of the unusual situation at the bank — the man was masked and wearing pretty big clothing. After Contreras confronted the individual, the man began to panic and curse at Contreras. Contreras could not recall the exact words, other than "f — ," because he was more worried about getting shot. Contreras responded, "Okay. You know, I didn't see nothing. I didn't do anything." Contreras testified that he was frightened because he saw the man reaching for something in his jacket pockets. He thought the man was reaching for a gun. Contreras said, "I'm sorry, I didn't see nothing," and tried to avoid any more contact with the masked man. Contreras drove away from the bank and then called 911. He explained that he drove away from the bank first because he did not want the man to shoot him if he saw him making the call.

Thornton ran from the bank and toward his car and Moore. Olga Salazar, who was driving to work at the nearby Harris Bank — ironically the one Thornton and Moore had planned to rob — saw him and thought she was witnessing a bank robbery. Salazar watched as he ran into the alley and jumped into the passenger side of the getaway car. She could see that the driver was an African-American male, wearing a blue and white collared shirt. Moore testified that Thornton said, "They saw me. They saw me." Thornton told Moore to drive and, as Moore drove, Thornton began taking off his clothing and disguise. Salazar followed, keeping the car in view. At one point, she saw the front license plate — it was silver and said "Pontiac." She also saw the passenger taking off his clothes in the car. Salazar observed the license plate and later informed police that the plate number was 447171. The driver parked the car near the Shoe Warehouse and Salazar watched as the two men ran into the store. She went to the Harris Bank and the police were called.

According to Moore, Thornton told him to remove the old license plate from his car. He did. Meanwhile Thornton was in the bathroom, changing his clothes again and cleaning the makeup from his face. Moore testified that Thornton went to the front of the store to make it seem as though it was "business as usual" and asked Moore to check the bathroom to make sure all the makeup and any other evidence of the crime was gone.

A while later, police officers from the Berwyn Police Department arrived. They questioned Thornton and Moore. Detective Thomas Tate searched Thornton's Pontiac. Near the car he found a fake mustache. Inside the car he found another fake mustache, sunglasses, a white pillow, sketches of a bank's layout — the Harris Bank — and two receipts for spirit gum and three bald caps. The police searched the Shoe Warehouse. In the back room Sergeant Thomas Bojovic found a damp white T-shirt. He saw a ladder leaning against the wall and several missing ceiling tiles, so he climbed the ladder and looked into the ceiling. There he discovered a dark blue duffel bag, which contained a men's black hoodie, a men's white button dress shirt, a pair of dark pants, a red bandana, black makeup and applicators, a gray ball cap, other disguise items, and an Intratec 9-millimeter (TEC-9) machine gun. Sgt. Bojovic also found a shopping bag containing an Illinois license plate, number 4421211, black costume makeup, sponges and other applicators, a container for false hair, and a bald cap.

Sgt. Bojovic interviewed Salazar at the Harris Bank. He then took her to the Shoe Warehouse where she identified Thornton's car as the one she had seen earlier but with a different license plate. Salazar immediately identified Moore as the driver and Thornton as the passenger of the car she had followed, indicating, though, that Thornton had changed clothes and had a lighter complexion. (At trial Salazar also identified Thornton as the passenger of the car.) The police asked Contreras if he could identify Thornton as the man he had seen at Bank One. Contreras thought Thornton could have been the same person, but he was not sure because his appearance had changed.

A grand jury charged that Thornton, by force and violence or intimidation, attempted to rob Bank One on September 26, 2005, in violation of the first paragraph of 18 U.S.C. § 2113(a). He also was charged with possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). The case was tried to a jury. On direct examination, Thornton admitted that he and Moore had discussed robbing a bank and he testified that he had robbed a bank in Canada. On cross-examination, the government brought out the details of the Canadian robbery, including that Thornton had a gun. The jury found Thornton guilty as charged. He moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a) and (c) and moved for a new trial under Rule 33. The district court denied his motions, entered judgment on the jury's verdicts, and sentenced Thornton to 132 months' imprisonment: 72 months on the attempted bank robbery and the mandatory minimum of 60 consecutive months on the firearm count. He appeals.

II. Analysis

Thornton raises several issues on appeal. He first argues that the district court erred in instructing the jury that they could find him guilty of attempted bank robbery as alleged in Count One of the indictment if they found that he "acted to attempt to take [Bank One's] money by force and violence or by intimidation." He next contends that his firearm conviction must be vacated because attempted bank robbery by attempted intimidation is not a crime of violence. He also challenges the sufficiency of...