U.S.A v. Loniello

• Decision Date: 29 June 2010
• Docket Number: No. 09-1494,09-1606.,09-1494
• Citation: 610 F.3d 488
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Mickey LONIELLO and Nathaniel Aguilar, Defendants-Appellees.United States of America, Plaintiff-Appellant,v.Walter Thornton, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

610 F.3d 488

UNITED STATES of America, Plaintiff-Appellant,

v.Mickey LONIELLO and Nathaniel Aguilar, Defendants-Appellees.

United States of America, Plaintiff-Appellant,

v.Walter Thornton, Defendant-Appellee.

Nos. 09-1494, 09-1606.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 2009.

Decided June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Stuart D. Fullerton (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Steven Shobat, Beau B. Brindley, Shapiro & Brindley, Sarah O'Rourke Schrup (argued), Northwestern University School of Law, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and BAUER and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge.

The federal bank-robbery statute, 18 U.S.C. § 2113, comprises several crimes, including attempted bank robbery, armed bank robbery, unarmed bank robbery, assault during a bank robbery, and receiving the proceeds of a bank robbery. This appeal presents the question whether this statute's first subsection creates one crime or two. This subsection provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny-

Shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 2113(a). The prosecutor contends that the first two paragraphs of § 2113(a) create distinct offenses. But the district court held that § 2113(a) creates only one offense. United States v. Loniello, 2009 U.S. Dist. LEXIS 6289 (N.D.Ill. Jan. 28, 2009); United States v. Thornton, 2009 WL 377979, 2009 U.S. Dist. LEXIS 11274 (N.D.Ill. Feb. 12, 2009).

The difference matters because all three defendants (Mickey Loniello and Nathaniel Aguilar in one prosecution, Walter Thornton in the other) have been acquitted of violating § 2113(a) ¶ 1, which forbids attempting to rob a bank by force or intimidation. Thornton was convicted of this charge after evidence at trial showed that, while armed and disguised, he walked to the door of a bank and began to open it, then fled when a passerby saw what was happening. We reversed his conviction after concluding that § 2113(a) ¶ 1 requires proof that the defendant actually used force or intimidation; the attempt aspect of ¶ 1 deals with an attempt to rob the bank, not an attempt to use force or intimidation. United States v. Thornton, 539 F.3d 741 (7th Cir.2008). Because the evidence did not show that Thornton used force or intimidation, we held that he was entitled to be acquitted of the charge under ¶ 1, though we added that his acts appeared to violate ¶ 2. Loniello and Aguilar, who were convicted on facts similar to Thornton's, had motions for acquittal pending when our opinion in Thornton was released. The district court granted those motions without opposition from the prosecutor -who then obtained new indictments charging Thornton, Loniello, and Aguilar with violating § 2113(a) ¶ 2. The district court dismissed these new charges, concluding that, because § 2113(a) creates a single offense, the fifth amendment's double jeopardy clause blocks another prosecution.

The prosecutor's argument on appeal under 18 U.S.C. § 3731 ¶ 1 starts with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which holds that the statutory elements define how many distinct crimes have been created. If each statute contains an element that the other does not, then the offenses are different. If one statute has an element missing from the second, but all of the second's elements are in the first, then the second is a lesser included offense of the first. And if the statutes' elements are identical, then they are one offense. See also, e.g. Schmuck v. United States, 489 U.S. 705, 715-21, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). If two statutes create one offense, or one statute creates a lesser included offense of another, then the double jeopardy clause limits to one the number of permissible prosecutions. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

When different indictments charge crimes with different elements, successive trials do not violate the double jeopardy clause. Arguments that all crimes arising from the same facts or same transaction must be charged and tried together have not prevailed. See, e.g. Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Dixon, 509 U.S. at 709 n. 14, 113 S.Ct. 2849. A partial version of the same-transaction approach has been adopted via the law of issue preclusion (collateral estoppel): if a jury at the first trial resolves in a defendant's favor facts that are essential to a second prosecution, then the double jeopardy clause blocks the second trial. See, e.g. Yeager v. United States, --- U.S. ----, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). But the triers of fact on the ¶ 1 charges (juries for Thornton and Aguilar, a judge in a bench trial for Loniello) resolved all factual disputes in the prosecution's favor, so the fact that the multiple indictments arise from the same transaction does not assist these defendants.

Paragraphs 1 and 2 of § 2113(a) create different offenses under the Blockburger standard. Paragraph 1 requires proof of force or intimidation, while ¶ 2 does not. Paragraph 2 requires proof of an actual or attempted entry of a bank, while ¶ 1 does not. It is possible to violate § 2113(a) ¶ 1 without coming anywhere near a bank-the robber could steal the bank's money from an armored car or obtain it by kidnapping a bank's employee and demanding that a ransom be left at a pick-up point far from the bank. See United States v. Hackett, 623 F.2d 343 (4th Cir.1980). By contrast, it is impossible to violate ¶ 2 without at least attempting to enter the bank. There are other differences too. This much is common ground among the parties and the district judge. But defendants contend that we should not use the Blockburger standard. They have two reasons. First, paragraphs 1 and 2 are part of a single subsection, and defendants maintain that this evinces a legislative determination that there is only one offense. Second, the Supreme Court has held that convictions under multiple subsections of § 2113 support only one sentence. See, e.g. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). Defendants insist that this must mean that all components of § 2113 are a single crime, no matter how much the elements of one subsection differ from those of another.

Defendants' first line of argument makes too much of the numbering system, often the work of the Office of the Law Revision Counsel (which converts the Statutes at Large into the United States Code, see 2 U.S.C. § 285b) rather than of Congress itself. There is no rule that one section or subdivision of a statute may contain just one crime, or that every separate number must create a different crime.

We cannot imagine any reason why the Constitution would be thought to allow successive prosecutions if § 2113(a) ¶ 1 were redesignated § 2113(a)(1), and ¶ 2 as § 2113(a)(2), or if they were renumbered as § 2113(a) and § 2113(b), with the letters designating other subsections incremented by one. Different offenses may end up as different paragraphs precisely because drafters do not want to renumber other subsections, whose designations have become familiar. Section 2113(e), for example, deals with murder during the course of a bank robbery. It has been codified at that address for a long time, and turning it into § 2113(f) in order to make § 2113(a) into two subsections would cause confusion when people try to collect or cite earlier decisions construing or applying the (original) § 2113(e). Worse, changing one subsection's designation in order to make room for another can wreak havoc with cross-references elsewhere in the United States Code. See United States v. Head, 552 F.3d 640 (7th Cir.2009). Prudent drafters prefer to avoid that risk, even if it means adding paragraphs or sub-parts to other subdivisions of a statute.

The current structure of § 2113 is the work of the Law Revision Counsel rather than the legislature-and its history does not suggest any plan to equate each section heading with one offense. What is now codified as § 2113 was enacted in 1934. The statute contained a single paragraph covering bank robbery, bank robbery accomplished by aggravated assault, and homicide during a bank robbery. ( Prince narrates this history; we omit citations to the Statutes at Large.) Such a concatenation of crimes does not convey the idea that one section = one offense. In 1937 Congress added to § 2113 prohibitions of larceny and burglary or entry with intent to commit a theft. All of these new crimes, and all of the original ones, were placed into a single lengthy paragraph.

Title 18 was codified in 1948 (with the drafting work done by the Law Revision Counsel), and the code was enacted into positive law. The Law Revision Counsel broke the long legislative paragraph into easier-to-digest parts. It was in 1948 that murder during a bank robbery was moved to subsection (e), robbery by assault or the use...