Federal Bank Robbery Statute Interpreted

but, because the united states did not ask the supreme nos. 09-1494 & 09-1606 7 v. thornton, 539 f.3d 741 (7th cir. 2008). because the u.s. at 419. the court again prescribed merger of the sentences, so that the defendant was exposed to the 236 f.3d 857, 859­60 (7th cir. 2001). charges. what was happening. we reversed his conviction after of §2113 as part of one offense. its holding, rather, is this means, they contend, that the two paragraphs state if prince and its successors were displacing blockburger 709 n.14. a partial version of the same-transaction ap- yet to be tried on the charge that they committed the several crimes incidental to and related to thefts from banks". 352 u.s. at 323. that's hardly an apt phrase if, with some other approach. see dixon, 509 u.s. at 704­09. as of §2113(c). if, upon the trial of the case the that all of its five substantive subsections create one tion" is completely different from the context of "or" as a the double jeopardy clause limits to one the number of under ¶1, which requires proof of force or intimidation, risk, even if it means adding paragraphs or sub-parts tried together have not prevailed. see, e.g., garrett v. read prince. but what the court actually said is that the history does not suggest any plan to equate each section the current structure of §2113 is the work of the law obtain by extortion any property or money or any decisions requires merger of sentences, not of offenses. §2113(b), with the letters designating other subsections under §2113(a) ¶2, but that because he had been charged prince was the first in a series of decisions arising from argued september 14, 2009--decided june 29, 2010 conviction. that's a very different approach. see united for the seventh circuit bered paragraphs. subsection (b) ¶1 now covers larceny offense" as our thornton opinion understood it. we con- and holding that all subsections of §2113 are one crime variations on robbery and burglary (including attempts) first); it makes sense to conclude that the two para- instruct judges to treat a multi-count indictment under ferent crime. jones v. united states, 526 u.s. 227 (1999), on the ground plained why the choice between paragraphs and sub- went into subsection (a) and variations on larceny manding that a ransom be left at a pick-up point far thus we arrive at defendants' second line of argument: mum punishment of one year in prison. the two para- we conclude that neither the numbering scheme that "or" in §2113(a), as in §1644 and many other criminal established only one offense. instead it adopted this that possessing or receiving stolen property is the "same was enacted in 1934. the statute contained a single para- bank robbery and using a firearm in the course of that highest sentence on any one count. heflin does not hold all federal robbery and receipt-of-stolen-goods prosecu- 437 u.s. 1 (1978). and, if ¶1 and ¶2 are different ways ¶2. reversal because of an error in the jury instructions in our opinion in thornton. we concluded that the proof permissible prosecutions. united states v. dixon, 509 u.s. all factual disputes in the prosecution's favor, so the 10 years; §2113(b) ¶2 covers lower sums and sets a maxi- simpson v. united states, 435 u.s. 6 (1978)--unless separate crime defined in §2113(a) ¶2. only if the be multiplicitous. but what prince said is that all of the had a "one offense" view of §2113, then they should tween unnumbered paragraphs. but we've already ex- a statute says something like: "it is unlawful to conduct for double-jeopardy purposes. but the way the opinions appeal presents the question whether this statute's first are written is easy to understand if prince and later section or subdivision of a statute may contain just one other similar statutes). once again the court did not tion that all subsections of §2113 create just one crime. of violating §2113(a) ¶1, which forbids attempting to rob tions under §641 merge shows that prince and heflin members of the jury that they may not convict which deals with the theft of the federal government's or the use of a deadly weapon to subsection (d), and second's elements are in the first, then the second is a no. 09-1494 549 n.12, courts of appeals regularly reject the conten- protocol: code are arranged. (collecting decisions, though noting that some conflict §2113 as multiplicitous, as it would be if the statute justices could not have said more plainly that §2113 paragraphs 1 and 2 of §2113(a) create different offenses tions to the statutes at large.) such a concatenation the loot (§2113(c)); the district court imposed consecu- 352 u.s. 322 (1957). defendants insist that this must as defendants contend, the justices thought that all of does not affect the fact that each separate paragraph in two subsections would cause confusion when people try ever does x [comprising elements 1, 2, 3, and 4] or y 4 nos. 09-1494 & 09-1606 distinguish dennison and similar decisions, including armed and disguised, he walked to the door of a bank 75 years the justices have declined to replace blockburger milanovich changed the court's understanding in one respect: it holds that the jury rather than the judge should jeopardy clause. arguments that all crimes arising from mean that all components of §2113 are a single crime, shall be fined under this title or imprisoned not incremented by one. different offenses may end up as included offense of §2113(a) ¶1.) clude, however, that prince does not treat all subsections been committed by a single transaction to be tried at v. marzano, 537 f.2d 257, 272 (7th cir. 1976). none sur- u.s. dist. lexis 11274 (n.d. ill. feb. 12, 2009). to counteract this history, defendants stress the word case there can be no impropriety for a grand jury offense" as robbing a bank; the court's view instead ent elements, successive trials do not violate the double of §2113 creates but a single crime. if defendants are united states of america, are a single crime, then the right disposition should proof of force or intimidation, while ¶2 does not. para- mum punishment for a person convicted of multiple are other differences too. this much is common ground northern district of illinois, eastern division. turning it into §2113(f) in order to make §2113(a) into more than z years," where each set of 4 elements describes provides: sedes simpson); united states v. harris, 832 f.2d 88 (7th done here, were issued by this circuit. e.g., united states a sequence. take 15 u.s.c. §1644, which uses "or" several graphs create a single offense. and this view is implicit or similar decisions that every use of the word "or" in the difference matters because all three defendants §1644 creates a separate offense. defendants ask us to steal (§2113(a) ¶2) plus armed bank robbery (§2113(a) tions. the statute at issue in milanovich was 18 u.s.c. §641, appeals from the united states district court for the nos. 09-1494 & 09-1606 3 could not later be tried on a charge that he took bets on motions without opposition from the prosecutor--who file an information containing counts charging this opinion. united states code. see united states v. head, 552 f.3d time). see sanabria v. united states, 437 u.s. 54, 69­74 2 nos. 09-1494 & 09-1606 and began to open it, then fled when a passerby saw "or" in the phrase "by force and violence, or by intimida- figuring out how many distinct crimes §2113 creates. evidence to go to the jury upon both counts, he each statute contains an element that the other does that the subsections of §2113 do not allow cumulative and sentence should be imposed on the most serious robbery. see also united states v. gonzales, 520 u.s. 1, 10­11 a single offense. with murder during the course of a bank robbery. it had motions for acquittal pending when our opinion in done by the law revision counsel), and the code was at thornton's trial would have supported a conviction plished by aggravated assault, and homicide during a digest parts. it was in 1948 that murder during a bank that prince jettisoned blockburger for §2113 and establishes rather than of congress itself. there is no rule that one triers of fact on the ¶1 charges (juries for thornton lead to a separate sentence, should not be read together the prosecutor's argument on appeal under 18 u.s.c. how many statutes a person violates when preparing thing turn on how the subheadings of the united states u.s. 299 (1932), which holds that the statutory elements no longer authoritative. (some of these decisions, which law revision counsel (which converts the statutes at is acquitted of a charge that he took bets on baseball, he none of the decisions in the prince sequence mentions [comprising elements 3, 4, 5, and 6] shall be imprisoned not double jeopardy clause requires all crimes that may have 18 u.s.c. §2113(a). the prosecutor contends that the first when different indictments charge crimes with differ- alternative means to commit a single crime. yet drafters that the word "or" in §1644 occurs between numbered offenses are not "consecutively punishable in a typical after carter, we can be confident that the prince line of defendants' first line of argument makes too much of (4th cir. 1980). by contrast, it is impossible to violate ¶2 of $1,000 or more and sets a maximum punishment of test is designed for that purpose, and for more than counts charging related offenses should go to the jury, his acts appeared to violate ¶2. loniello and aguilar, interpretation depends on context, and the context of §3731 ¶1 starts with blockburger v. united states, 284 other thing of value belonging to, or in the care, situations will no doubt often exist where there that, because §2113(a) creates a single offense, the fifth creates multiple crimes. appellate decisions before 2000 loniello, and aguilar with violating §2113(a) ¶2. the graphs of subsection (a) likewise create distinct offenses. (1976), extended milanovich from §641 to §2113 (and merge under §2113 there must be only one crime; such conjunction between self-contained units. the function of (1978). so if the first indictment had charged thornton no. 09-1606 and receiving the proceeds of a bank robbery. this the defendant took bets on horse races or baseball court to review our decision, that acquittal must stand. then obtained new indictments charging thornton, contend that we should not use the blockburger standard. do not establish a special rule for §2113. instead they an attempt to use force or intimidation. united states the number of separate crimes. the blockburger elements is consummated". 352 u.s. at 328 (emphasis added). is evidence before a grand jury or prosecutor bank robbery. (prince narrates this history; we omit cita- nos. 09-1494 & 09-1606 15 the word "or" is best read, as in sanabria, to identify do not discuss the full prince sequence as we have an understanding would contradict carter, which was acquitted of the charge under ¶1, though we added that is not at all to say that x and y are one offense. a phrase statute of the united states, or any larceny-- may be followed by a new trial without offending the mickey loniello and nathaniel aguilar, (1989). if two statutes create one offense, or one statute held in carter v. united states, 530 u.s. 255 (2000), that plaintiff-appellant, we cannot imagine any reason why the constitution lesser included offense of the first. and if the statutes' of §2113(a) ¶1, he could not later be charged with at- horse races (not, at least, if the charge covers the same 8 nos. 09-1494 & 09-1606 in prince, and has not held since, that §2113 creates nos. 09-1494 & 09-1606 13 ation, with intent to commit in such bank, credit by intimidation" in §2113(a) ¶1 sets out two ways of com- "or" between the first two paragraphs of §2113(a). thornton's trial was not insufficient. the only problem walter thornton, was that they are different offenses but that only one broke the long legislative paragraph into easier-to- two paragraphs of §2113(a) create distinct offenses. but cir. 1987) (same). 16 nos. 09-1494 & 09-1606 part of a single subsection, and defendants maintain that have become familiar. section 2113(e), for example, deals (collateral estoppel): if a jury at the first trial resolves in then the maximum sentence for any single bank robbery custody, control, management, or possession of, to the jury and that only sentences merge, see 424 u.s. at united states of america, see bryan v. united states, 721 f.2d 572 (6th cir. 1983) of larceny and burglary or entry with intent to commit association; or word "or" between ¶1 and ¶2, implies that the two para- stood the prince sequence to require such an approach, see of crimes does not convey the idea that one section = one sentences, even though they establish distinct offenses. would have been given instructions appropriate under transaction does not assist these defendants. a bank, while ¶1 does not. it is possible to violate §2113(a) sentence has been authorized. see united states v. bacani, charges under §2113(a), (b), or (d), and should proper only if ¶1 and ¶2 establish separate crimes. if they evans, circuit judges. decided after rutledge. on a single offense; this is how defendants want us to united states, 358 u.s. 415 (1959). heflin was convicted nos. 09-1494 & 09-1606 5 commonly use "or" to distinguish different offenses in proach, there is no constitutional problem with these district court dismissed these new charges, concluding to collect or cite earlier decisions construing or applying its opinion by saying that §2113 "creates and defines nos. 05 cr 813 & 07 cr 336--james b. zagel, judge. the same facts or same transaction must be charged and differ from those of another. mitting the offense. but it does not follow from sanabria and loan association and in violation of any presence of another, or obtains or attempts to to subsection (c). subsection (f) was used for definitions. the purposes of punishment. the next case was heflin v. v. defendants-appellees. a defendant's favor facts that are essential to a second prince understood it, even though that was not the "same bery and also evidence that that person, though ment" for double-jeopardy purposes, even if it does not nos. 09-1494 & 09-1606 11 but after gaddis held that all charges may be submitted ¶1 and (d)). he was sentenced to 15 years on one count a business that takes bets on baseball games or horse thornton was released. the district court granted those congress specifies a different treatment, as it sometimes does, see 18 u.s.c. §924(c), which was amended after double jeopardy clause. only a reversal for insufficient could steal the bank's money from an armored car or races." then it would be sensible to say that the "or" has been codified at that address for a long time, and then we were wrong in thornton to think that thornton (mickey loniello and nathaniel aguilar in one prosecu- amendment's double jeopardy clause blocks another intimidation, we held that he was entitled to be evidence did not show that thornton used force or 14 nos. 09-1494 & 09-1606 takes, or attempts to take, from the person or concluding that §2113(a) ¶1 requires proof that the defen- ¶1 without coming anywhere near a bank--the robber dant actually used force or intimidation; the attempt section (c) was not designed to increase the punish- easterbrook, chief judge. the federal bank-robbery crimes under §2113. the supreme court did not hold 6-29-10 who were convicted on facts similar to thornton's, title 18 was codified in 1948 (with the drafting work bank, credit union, or as a savings and loan associ- ment for him who robs a bank but only to provide punish- from the bank. see united states v. hackett, 623 f.2d 343 designation in order to make room for another can one final decision is worth brief mention. the court 730 f.2d 1086 (7th cir. 1984), holds that this use of "or" of both bank robbery (§2113(a) ¶1, (d)) and possessing acquitted of the crime defined in §2113(a) ¶1. they have fenses--entering the bank with intent to steal, armed right, the prosecutor must elect one charge and all others building, or part thereof, so used, any felony define how many distinct crimes have been created. if §2113(a) and §2113(b) create distinct offenses--in particu- into subsection (b)--which like subsection (a) has unnum- not, then the offenses are different. if one statute has robbery, shooting a teller, carrying away the proceeds, milanovich v. united states, 365 u.s. 551 (1961), gen- 6 nos. 09-1494 & 09-1606 affecting such bank, credit union, or such savings plaintiff-appellant, without at least attempting to enter the bank. there this also implies that rutledge v. united states, 517 u.s. self was a participant in the robbery. 2360 (2009); ashe v. swenson, 397 u.s. 436 (1970). but the we take the court at its word and treat prince as a the law revision counsel used to codify §2113, nor the such as "by force and violence, or by intimidation", by cluding attempted bank robbery, armed bank robbery, proach has been adopted via the law of issue preclusion the fact that congress has not clearly specified how the aspect of ¶1 deals with an attempt to rob the bank, not robbery was moved to subsection (e), robbery by assault also, e.g., schmuck v. united states, 489 u.s. 705, 715­21 nos. 09-1494 & 09-1606 9 true enough, an "or" can be informative. suppose that and so on. it would have been possible to accomplish creates a lesser included offense of another, then the numbering system, often the work of the office of the with attempting to rob the bank by force, in violation more than twenty years, or both. if §2113 establishes many offenses, only the most serious revision counsel rather than the legislature--and its §2113 creates just one crime. convictions under multiple subsections of §2113 sup- to return an indictment or for a prosecutor to have been a remand for a new trial, at which the jury two crimes. thornton, loniello, and aguilar have been consider the charge under §2113(c) only if they ment for those who receive the loot from the robber." 358 an element missing from the second, but all of the any bank, credit union, or any savings and loan before easterbrook, chief judge, and bauer and obtain it by kidnapping a bank's employee and de- statute, 18 u.s.c. §2113, comprises several crimes, in- offense. in 1937 congress added to §2113 prohibitions want to renumber other subsections, whose designations a theft. all of these new crimes, and all of the original tempting to rob the same bank (at the same time) by handling the loot, only one sentence is appropriate, see to commit a robbery, actually committing it, and it would prevent a retrial for the same offense as heading with one offense. what is now codified as §2113 is the sentence for the most serious of the related of- one time would there be a double jeopardy problem in §2113(a)(2), or if they were renumbered as §2113(a) and 688 (1993); brown v. ohio, 432 u.s. 161 (1977). adopt a norm for the entire criminal code: no matter offense. united states v. loniello, 2009 u.s. dist. lexis 6289 of which should lead to punishment. it is not the right (n.d. ill. jan. 28, 2009); united states v. thornton, 2009 lar, that neither subsection of §2113(b) is a lesser prince was convicted of entering a bank with intent to of this charge after evidence at trial showed that, while receiving the proceeds of the robbery. he should the decisions of the district court are reversed, and the evidence forbids a second trial. see burks v. united states, ones, were placed into a single lengthy paragraph. entry "merges into the completed crime if the robbery (1997) (concluding that the amendment to §924(c) super- multiple subsections of §2113 relate to one another for cases are remanded for proceedings consistent with second paragraph being a lesser included offense of the rejected the same-transaction or same-evidence ap- (defendants do not contend that §2113(a) ¶2 is a lesser states, 470 u.s. 856, 860­61 n.8 (1985). this is appropriate subsections, while the word "or" in §2113(a) comes be- was entitled to an acquittal for insufficient evidence-- wright v. united states, 519 f.2d 13, 18­20 (7th cir. 1975), large into the united states code, see 2 u.s.c. §285b) states v. peel, 595 f.3d 763 (7th cir. 2010). the court began find insufficient proof that the defendant him- unarmed bank robbery, assault during a bank robbery, to obtain a conviction, the prosecutor must show that whoever enters or attempts to enter any bank, prosecution, then the double jeopardy clause blocks way to go about things if, as defendants contend, all united states court of appeals received the proceeds of the robbery. in such a we think blockburger much superior to making every- §2113(a) ¶1 were redesignated §2113(a)(1), and ¶2 as that a certain person participated in a bank rob- cases are about cumulative punishment rather than union, or in such savings and loan association, or different paragraphs precisely because drafters do not a bank by force or intimidation. thornton was convicted eralizes heflin by concluding that its approach applies to and 20 years on the other. the supreme court held, included offense of either subsection of §2113(a). the bank robbery situation." 352 u.s. at 324. if the justices enacted into positive law. the law revision counsel instruct them that they must first consider the graphs of subsection (b) state separate crimes (the would have been bad jury instructions. one offense. second, the supreme court has held that however, that a preparatory act such as an unlawful district judge is satisfied that there is sufficient these successive charges. and, as the justices have make the decision. united states v. gaddis, 424 u.s. 544 port only one sentence. see, e.g., prince v. united states, among the parties and the district judge. but defendants united states, 471 u.s. 773, 790 (1985); dixon, 509 u.s. at graph covering bank robbery, bank robbery accom- vived carter.) contrast, does not specify all elements of any offense, so or any building used in whole or in part as a remains). the (original) §2113(e). worse, changing one subsection's only one crime. blockburger tells us that §2113(a) creates v. the double jeopardy clause. that would be inexplicable under the blockburger standard. paragraph 1 requires the criminal code groups the text on both sides into violations of 18 u.s.c. §2113 (a), (b), or (d), as well elements are identical, then they are one offense. see to be treated alike for the purpose of punishment; this games, but need not show both--and, if the defendant credit union, or any savings and loan association, this evinces a legislative determination that there is only statutes, is to group multiple offenses to show that the they have two reasons. first, paragraphs 1 and 2 are have held the separate counts of prince's indictment to to commit a single offense, then the evidence at this result by holding that all subsections are variations 12 nos. 09-1494 & 09-1606 decision about how district judges determine the maxi- simpson to require consecutive sentences for armed he was entitled to be acquitted. that disposition was not himself the robber, at least knowingly offense. if defendants are right about the effect of prince, the defendant both for robbing a bank and for separates different ways of committing a single offense; in which the phrase is embedded. crime, or that every separate number must create a dif- sections is not a good reason to expand (or collapse) and aguilar, a judge in a bench trial for loniello) resolved times to separate its subsections. united states v. dennison, graph 2 requires proof of an actual or attempted entry of must, under heflin and milanovich, instruct the would be thought to allow successive prosecutions if receiving or possessing the proceeds of a bank robbery a complete offense. events grouped together in x and y are whoever, by force and violence, or by intimidation, with the prince line to suggest that because sentences 640 (7th cir. 2009). prudent drafters prefer to avoid that tion, walter thornton in the other) have been acquitted no matter how much the elements of one subsection 292 (1996), which held that a conviction is itself "punish- property. the conclusion that theft and receipt convic- same penalty applies. the form in §2113(a) is "who- suggesting that all of §2113 creates only one crime are 10 nos. 09-1494 & 09-1606 in the intimidation, for the phrase "by force and violence, or must be dismissed. before gaddis, this circuit had under- the district court held that §2113(a) creates only one fact that the multiple indictments arise from the same prosecution. tive sentences. the justices held, however, that "sub- wreak havoc with cross-references elsewhere in the subsection creates one crime or two. this subsection different ways of committing one element of the offense defendant-appellee. to other subdivisions of a statute. 424 u.s. at 550 (footnotes omitted). accord, ball v. united the second trial. see, e.g., yeager v. united states, 129 s. ct.