United States v. Foy
| Docket Number | 21-2753 |
| Decision Date | 03 October 2022 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rickie FOY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ramon Villalpando, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
John S. Skilton, Autumn N. Nero, Olivia Radics, Attorneys, Perkins Coie LLP, Madison, WI, Jonathan Irvin Tietz, Attorney, Perkins Coie LLP, Washington, DC, for Defendant-Appellant.
Before Flaum, Brennan, and Scudder, Circuit Judges.
Rickie Foy was among a group of individuals whose attempt to forcibly break into a Chicago ATM during summer daylight hours was recorded by the machine's security camera. After Foy's arrest, federal charges were brought against him, and he was found guilty of conspiracy to commit bank theft in violation of 18 U.S.C. §§ 371 and 2113(b). On appeal, Foy raises three issues: first, that the government was required to show evidence of intent to steal more than $1,000, rather than just intent to steal; second, that the government fell short of establishing a conspiracy at trial; and third, that the district court impermissibly considered the civil unrest in the wake of George Floyd's death as an aggravating factor in sentencing Foy. For the following reasons, we affirm Foy's conviction and sentence.
On June 1, 2020, a group of individuals attempted to steal money from a Bank of America ATM located in an ALDI grocery store parking lot in Chicago, Illinois. The ATM was equipped with a surveillance video camera which captured video, but not audio, from the scene. The footage shows a group of people—including Foy (clad in a neon construction vest) and his co-defendants Pierre Harvey and Chyenne Simpson—surrounding the ATM at approximately 7:10 PM .1 For roughly the next eight minutes, the group used an assortment of tools, including a hammer, crowbar, and rod, to attempt to break open the ATM and access its contents. The individuals passed these tools among the assembled group, appearing to direct one another on how to utilize them. The group damaged the outside cover of the ATM but ultimately failed to gain access to the cash inside.
At approximately 7:18 PM , Chicago Police Department ("CPD") officers arrived on the scene and arrested Foy, Harvey, and Simpson. According to Bank of America records, the vandalized ATM held over $190,000 in cash. The FDIC insured Bank of America at the time of the incident.
In June 2020, a criminal complaint charged Foy with violating 18 U.S.C. § 371 by conspiring to commit an offense against the United States, specifically bank theft in violation of 18 U.S.C. § 2113(b). Section 371 —the conspiracy count—provides that:
Section 2113(b) —the federal bank robbery statute—states that:
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than one year, or both.
A grand jury returned a single-count indictment on June 17, 2020, charging Foy with conspiring "to commit an offense against the United States, namely, to take and carry away with the intent to steal money exceeding $1,000 in value belonging to ... Bank of America" in violation of §§ 371 and 2113(b). Foy pleaded not guilty at his arraignment on June 23, 2020, and he remained in federal custody through his trial.
In December 2020, Foy waived his right to a jury trial and opted to resolve his case by bench trial. Both parties consented to conducting the trial remotely via videoconference, which was held on February 10, 2021. At the trial, which lasted less than three hours, the government played the ATM's surveillance video. Foy moved for judgment of acquittal at the close of the government's case, arguing that, even taking the evidence in the light most favorable to the government, speculation and guessing were required to determine what was taking place in the silent video footage.
The district court found Foy guilty on February 16, 2021, denying his motion for acquittal. Foy moved for a new trial on March 8, 2021. His arguments included that the government failed to prove beyond a reasonable doubt that he intended to steal more than $1,000 because "perhaps the defendants, whether acting alone or together would have been satisfied with, and therefore intended to steal[,] less than $1,000," and that the government failed to prove beyond a reasonable doubt that the defendants conspired with each other because they were conceivably "independent actors seeking to achieve the same goal at the same time." The district court rejected Foy's intent argument, reasoning that the intent to steal money or property, as that language appears in § 2113(b), "is not a specific intent to steal property or money exceeding $1,000" and "[t]hus the statute does not require the government to prove beyond a reasonable doubt that Mr. Foy had the specific intent to steal an amount exceeding $1,000, or that he knew how much money was in the ATM." The district court also rejected Foy's association argument, reaffirming that the surveillance footage and still images from the ATM show the defendants working together to tear apart the machine, in part "by sharing crowbars and rods."
Prior to the sentencing hearing, Foy objected to the government's proposed dangerous weapon enhancement and intended loss calculation included in the Presentence Investigation Report ("PSR"). Ultimately, the government did not pursue the dangerous weapon enhancement and the parties agreed to an actual loss calculation equivalent to the cost to replace the ATM, which led to a revised range of thirty to thirty-seven months' imprisonment under the Sentencing Guidelines. On September 10, 2021, the district court sentenced Foy to thirty-seven months' imprisonment, and three years' supervised release, in addition to restitution. Foy now appeals.
Addressing Foy's issues on appeal: first, that the government was required to show evidence of intent to steal more than $1,000, rather than just intent to steal generally; second, that the government's video evidence fell short of establishing a conspiracy to commit bank theft; and third, that the district court impermissibly invoked the ongoing civil unrest in June 2020 as an aggravating factor in his sentencing.
As relevant to the first two issues, Foy moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, and later for a new trial under Federal Rule of Criminal Procedure 33. Under Rule 29, after the close of the government's case, the court must, on a defendant's motion, "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Under Rule 33, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). We review the district court's denial of a motion for acquittal under Rule 29 de novo, and the denial of a motion for a new trial under Rule 33 for abuse of discretion. United States v. Wilbourn , 799 F.3d 900, 910 (7th Cir. 2015). As relevant to the final issue, any sentencing challenges that are forfeited, rather than waived, are reviewed for plain error. United States v. Hyatt , 28 F.4th 776, 782 (7th Cir. 2022). We address each issue in turn.
The first issue presents the question of what intent is required to satisfy the mens rea element of felony bank theft conspiracy: intent to steal or intent to steal more than $1,000. Foy argues that the district court erred in denying his Rule 33 motion for a new trial in part because it held that the government need only show intent to steal. We review this question of statutory interpretation de novo. United States v. Miller , 883 F.3d 998, 1003 (7th Cir. 2018).
Beginning with the substantive offense underlying Foy's conspiracy conviction, the federal bank robbery statute distinguishes between property or monetary values above and below $1,000:
18 U.S.C. § 2113(b) (emphasis added). Under the $1,000 value threshold, the violation is...
To continue reading
Request your trial