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United States v. Thornton

Court of Appeals for the Seventh Circuit
539 F.3d 741 (2008)
ELI5:

Rule of Law:

A conviction for attempted bank robbery by intimidation under 18 U.S.C. § 2113(a) requires proof that the defendant engaged in actual intimidation; an attempt to intimidate is insufficient.


Facts:

  • Walter Thornton, who had a prior bank robbery conviction, and his coworker, Tremain Moore, discussed and planned to rob a bank.
  • Thornton had Moore draw sketches of a nearby Harris Bank and made maps of the area.
  • On September 26, 2005, Thornton asked Moore to be his getaway driver for a robbery of a Bank One.
  • Thornton disguised himself with a bald cap, makeup, a pillow to appear heavier, a hooded sweatshirt, and a bandana over his face.
  • Moore drove Thornton to the Bank One and waited in a nearby alley.
  • Thornton, carrying a duffel bag containing a TEC-9 machine gun, walked to the bank's exterior door and put his hand on the handle.
  • Before Thornton could enter, a bank customer, Jaime Contreras, drove up and confronted him.
  • Thornton panicked, never entered the bank or made a demand for money, and fled back to the getaway car.

Procedural Posture:

  • A grand jury charged Walter Thornton in a federal district court with attempted bank robbery under 18 U.S.C. § 2113(a) and possessing a firearm in furtherance of a crime of violence.
  • A jury found Thornton guilty on both counts.
  • Thornton filed motions for a judgment of acquittal and for a new trial.
  • The district court denied Thornton's motions and sentenced him to 132 months in prison.
  • Thornton (appellant) appealed his convictions to the U.S. Court of Appeals for the Seventh Circuit against the United States (appellee).

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Issue:

Does the first paragraph of the federal bank robbery statute, 18 U.S.C. § 2113(a), which criminalizes attempting to take money 'by force and violence, or by intimidation,' require the government to prove actual intimidation, or is an attempt to intimidate sufficient for a conviction?


Opinions:

Majority - Judge Tinder

Yes, the statute requires the government to prove actual intimidation. A plain reading of 18 U.S.C. § 2113(a)—'Whoever, by force and violence, or by intimidation, takes, or attempts to take'—demonstrates that the phrase 'by force and violence, or by intimidation' modifies both 'takes' and 'attempts to take.' The statute's 'attempt' language relates only to the act of taking, not to the method of intimidation. Therefore, actual intimidation must be proven for a conviction under this paragraph, regardless of whether the defendant successfully completed the taking. The court found the Fifth Circuit's textual analysis in United States v. Bellew persuasive and rejected the reasoning of other circuits that failed to analyze the statutory language. Furthermore, the evidence was insufficient to establish actual intimidation. Intimidation requires conduct that would cause a reasonable person to feel threatened. Thornton never entered the bank, made no demand for money, and had no contact with bank personnel. The fear experienced by a customer in the parking lot was based on his own assumptions, not on any words or threatening actions by Thornton that would constitute intimidation under the statute.



Analysis:

This decision solidifies a circuit split on the elements of attempted bank robbery under § 2113(a), siding with the Fifth Circuit's strict textualist approach. It makes prosecution for this specific offense more difficult in cases where a defendant is apprehended before directly confronting and threatening a victim. By requiring actual intimidation, the ruling limits the government's ability to use this charge as a predicate for a mandatory firearm enhancement under § 924(c) in failed robbery attempts. This forces prosecutors in the Seventh Circuit to use other charges, such as entering a bank with intent to commit a felony under the second paragraph of § 2113(a), which does not support the firearm enhancement.

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