610 F.3d 488 (7th Cir. 2010), 09-1494, United States v. Loniello

Docket Nº:09-1494, 09-1606.
Citation:610 F.3d 488
Opinion Judge:EASTERBROOK, Chief Judge.
Party Name: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.
Attorney: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.
Judge Panel:Before EASTERBROOK, Chief Judge, and BAUER and EVANS, Circuit Judges.
Case Date:June 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 488

610 F.3d 488 (7th Cir. 2010)

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.

June 29, 2010

Argued Sept. 14, 2009.

Page 489

[Copyrighted Material Omitted]

Page 490

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

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-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...

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