United States v. Thornton, Walter ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2839
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ALTER T HORNTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 813—James B. Zagel, Judge.
____________
A RGUED M AY 13, 2008—D ECIDED A UGUST 26, 2008
____________
Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Walter Thornton was convicted
of attempted bank robbery, 18 U.S.C. § 2113(a), and of
possessing a firearm in furtherance of a crime of violence,
18 U.S.C. § 924(c). He moved for a judgment of acquittal
and a new trial; his motions were denied. The district
court sentenced him to 132 months’ imprisonment. Thorn-
ton now appeals, raising four issues, but we need to
reach only two: his primary contention that the district
2 No. 07-2839
court erred in failing to properly instruct the jury on the
elements of attempted bank robbery and his assertion
that the evidence was insufficient to support a convic-
tion on that charge and the related firearm count.
I. Background
In September 2005, Walter Thornton and Tremain Moore
worked together at a Shoe Warehouse in Berwyn, Illinois,
where Thornton was the manager. They quickly became
friends and, within a few days, Thornton—who had
robbed a bank in Canada in 1994—began talking to Moore
about how to rob a bank. Moore testified that on one
occasion after he had been to a nearby Harris Bank,
Thornton asked him about the bank’s layout, drew
sketches of the bank as Moore described it, and made maps
of the surrounding area. According to Moore, prior to the
robbery attempt, two men, one carrying a duffel bag, came
to the Shoe Warehouse and met with Thornton in the back
of the store. After they had left Thornton called Moore to
the back and showed him a gun—the same gun the police
later found in the store after the attempted bank robbery.
On September 26, Thornton and Moore arrived at the
Shoe Warehouse by 9:30 a.m. Moore testified that Thornton
said he was going to rob a bank and asked Moore to be
his getaway driver, in exchange for some of the money
and days off work. Moore stated that Thornton took him
into the bathroom where he showed him the items he
planned on using to disguise his appearance, including a
bald cap, makeup to darken his complexion, and a pillow
to make him appear heavier. According to Moore, he
No. 07-2839 3
waited for Thornton at the front of the store, and about
fifteen minutes later Thornton appeared wearing black
pants, white tennis shoes, a white dress shirt, and a gray
ball cap. Thornton was wearing makeup, a full beard and
a mustache, and his chest was larger and puffier, as if he
had the pillow under his clothes. Moore told Thornton
that anyone could tell that “something ain’t right.” So
Thornton put on a black hooded sweatshirt, a “hoodie,”
thus adding to his disguise.
Moore testified that Thornton had him put an old license
plate on Thornton’s car which they would use as the
getaway car. Moore pulled Thornton’s car around to the
back of the Shoe Warehouse and waited while Thornton
returned to the store. After a few minutes, Thornton
emerged from the store wearing the same disguise and
carrying a duffel bag that appeared to have “stuff” in it.
Moore drove Thornton’s car through the alleys to Bank
One, dropped off Thornton, and parked the car in a
nearby alley to wait. Bank surveillance photos depict a
passenger wearing dark colors, a hat, and a bandana
over his face exiting the car and walking up to the bank’s
front exterior doors leading to the lobby.
Shortly before 10:00 a.m. Jaime Contreras was driving
into Bank One’s parking lot—he was going to the bank to
conduct a personal banking transaction—when he ob-
served an African-American male who appeared to be
attempting to enter the bank. The man was wearing dark
clothing and a hat, had a bandana over the lower portion
of his face, and was carrying a dark-colored duffel bag. The
man had his hand on the bank’s exterior door handle.
4 No. 07-2839
Contreras and the man made eye contact, and one second
later, the man walked away from the door, never having
opened it. Contreras pulled up next to the man and asked,
“What the f—— are you doing?” At trial Contreras ex-
plained that he said this because of the unusual situation
at the bank—the man was masked and wearing pretty big
clothing. After Contreras confronted the individual, the
man began to panic and curse at Contreras. Contreras
could not recall the exact words, other than “f—,” because
he was more worried about getting shot. Contreras re-
sponded, “Okay. You know, I didn’t see nothing. I didn’t
do anything.” Contreras testified that he was frightened
because he saw the man reaching for something in his
jacket pockets. He thought the man was reaching for a gun.
Contreras said, “I’m sorry, I didn’t see nothing,” and tried
to avoid any more contact with the masked man. Contreras
drove away from the bank and then called 911. He ex-
plained that he drove away from the bank first because
he did not want the man to shoot him if he saw him
making the call.
Thornton ran from the bank and toward his car and
Moore. Olga Salazar, who was driving to work at the
nearby Harris Bank—ironically the one Thornton and
Moore had planned to rob—saw him and thought she was
witnessing a bank robbery. Salazar watched as he ran into
the alley and jumped into the passenger side of the get-
away car. She could see that the driver was an African-
American male, wearing a blue and white collared shirt.
Moore testified that Thornton said, “They saw me. They
saw me.” Thornton told Moore to drive and, as Moore
drove, Thornton began taking off his clothing and disguise.
No. 07-2839 5
Salazar followed, keeping the car in view. At one point, she
saw the front license plate—it was silver and said “Pon-
tiac.” She also saw the passenger taking off his clothes in
the car. Salazar observed the license plate and later in-
formed police that the plate number was 447171. The
driver parked the car near the Shoe Warehouse and
Salazar watched as the two men ran into the store. She
went to the Harris Bank and the police were called.
According to Moore, Thornton told him to remove the
old license plate from his car. He did. Meanwhile Thornton
was in the bathroom, changing his clothes again and
cleaning the makeup from his face. Moore testified that
Thornton went to the front of the store to make it seem as
though it was “business as usual” and asked Moore to
check the bathroom to make sure all the makeup and any
other evidence of the crime was gone.
A while later, police officers from the Berwyn Police
Department arrived. They questioned Thornton and
Moore. Detective Thomas Tate searched Thornton’s
Pontiac. Near the car he found a fake mustache. Inside the
car he found another fake mustache, sunglasses, a white
pillow, sketches of a bank’s layout—the Harris Bank—and
two receipts for spirit gum and three bald caps. The police
searched the Shoe Warehouse. In the back room Sergeant
Thomas Bojovic found a damp white T-shirt. He saw a
ladder leaning against the wall and several missing ceiling
tiles, so he climbed the ladder and looked into the ceiling.
There he discovered a dark blue duffel bag, which con-
tained a men’s black hoodie, a men’s white button dress
shirt, a pair of dark pants, a red bandana, black makeup
6 No. 07-2839
and applicators, a gray ball cap, other disguise items, and
an Intratec 9-millimeter (TEC-9) machine gun. Sgt. Bojovic
also found a shopping bag containing an Illinois license
plate, number 4421211, black costume makeup, sponges
and other applicators, a container for false hair, and a
bald cap.
Sgt. Bojovic interviewed Salazar at the Harris Bank. He
then took her to the Shoe Warehouse where she identified
Thornton’s car as the one she had seen earlier but with a
different license plate. Salazar immediately identified
Moore as the driver and Thornton as the passenger of the
car she had followed, indicating, though, that Thornton
had changed clothes and had a lighter complexion. (At trial
Salazar also identified Thornton as the passenger of the
car.) The police asked Contreras if he could identify
Thornton as the man he had seen at Bank One. Contreras
thought Thornton could have been the same person, but
he was not sure because his appearance had changed.
A grand jury charged that Thornton, by force and
violence or intimidation, attempted to rob Bank One on
September 26, 2005, in violation of the first paragraph of
18 U.S.C. § 2113(a). He also was charged with possessing
a firearm in furtherance of a crime of violence in viola-
tion of 18 U.S.C. § 924(c). The case was tried to a jury.
On direct examination, Thornton admitted that he and
Moore had discussed robbing a bank and he testified that
he had robbed a bank in Canada. On cross-examination,
the government brought out the details of the Canadian
robbery, including that Thornton had a gun. The jury
found Thornton guilty as charged. He moved for a judg-
No. 07-2839 7
ment of acquittal under Federal Rule of Criminal Proce-
dure 29(a) and (c) and moved for a new trial under Rule 33.
The district court denied his motions, entered judgment on
the jury’s verdicts, and sentenced Thornton to 132 months’
imprisonment: 72 months on the attempted bank robbery
and the mandatory minimum of 60 consecutive months
on the firearm count. He appeals.
II. Analysis
Thornton raises several issues on appeal. He first
argues that the district court erred in instructing the jury
that they could find him guilty of attempted bank robbery
as alleged in Count One of the indictment if they found
that he “acted to attempt to take [Bank One’s] money by
force and violence or by intimidation.” He next contends
that his firearm conviction must be vacated because
attempted bank robbery by attempted intimidation is not
a crime of violence. He also challenges the sufficiency of
the evidence to convict him of both the attempted bank
robbery and the firearm charges. Lastly, he argues that
the court abused its discretion in admitting evidence of
his prior bank robbery conviction under Rule 404(b) of
the Federal Rules of Evidence, but given our resolution
of the other issues, we do not reach this argument. We
begin with the challenge to the jury instruction.
A. Attempted Bank Robbery: Jury Instruction
Thornton contends that the district court erred in in-
structing the jury on the elements of attempted bank
8 No. 07-2839
robbery under § 2113(a) because the instruction did not
require actual force and violence or intimidation. We
review questions of statutory interpretation de novo,
United States v. Genendo Pharm., N.V., 485 F.3d 958, 962 (7th
Cir.), cert. denied, 128 S. Ct. 670 (2007), and we review jury
instructions for correct statements of the law de novo
as well, United States v. Cote, 504 F.3d 682, 687 (7th Cir.
2007), cert. denied, 128 S. Ct. 2519 (2008). We will “reverse
only if the instructions, viewed as a whole, misguide the
jury to the litigant’s prejudice.” Id. (quotation omitted);
United States v. Palivos, 486 F.3d 250, 257 (7th Cir. 2007)
(indicating that when the jury instructions contain an
error of law, we reverse if the instructions “viewed as a
whole, misguide the jury to the litigant’s prejudice”
(citation omitted)).
The district court instructed the jury:
To sustain the charge of attempted bank robbery, as
alleged in Count 1 of the indictment, the government
must prove the following propositions:
First, that the defendant attempted to take from the
person or presence of another money belonging to and
in the care, custody, control, management, or posses-
sion of Bank One, 6532 West Cermak Road, Berwyn,
Illinois;
Second, that at the time charged in the indictment,
Bank One, 6532 West Cermak Road, Berwyn, Illinois,
had its deposits insured by the Federal Deposit Insur-
ance Corporation; and
Third, the defendant acted to attempt to take such
money by force and violence or by intimidation.
No. 07-2839 9
In considering whether this instruction correctly states the
law, we look to the statute itself, which states:
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, manage-
ment, 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). Thornton was charged under the first
paragraph of § 2113(a). He contends that the statute’s plain
language requires a finding of actual force and violence
or intimidation. He also asserts that the structure of
§ 2113(a) as a whole, legislative history, case law, and
policy considerations all support the conclusion that
actual force and violence or intimidation are required. We
need go no further than the statutory language itself.
10 No. 07-2839
In analyzing the first paragraph of § 2113(a), we “begin
by examining the text.” Carter v. United States, 530 U.S. 255,
271 (2000). The relevant language for our purposes is:
“Whoever, by force and violence, or by intimidation, takes,
or attempts to take. . . .” 18 U.S.C. § 2113(a). Among the
circuits that have directly addressed the issue, there is a
split as to whether the statute requires proof of actual force
and violence or intimidation. In United States v. Bellew, 369
F.3d 450, 453-56 (5th Cir. 2004), the Fifth Circuit held
that the most natural reading of the text of the statute
requires that a defendant actually commit an act of intimi-
dation; attempted intimidation is insufficient under the
first paragraph of § 2113(a). See also United States v. Brown,
412 F.2d 381, 384 n.4 (8th Cir. 1969) (approving of jury
instruction on intimidation that required proof of one
or more acts or statements done or made so as to produce
in an ordinary person fear of bodily harm); United States v.
Baker, 129 F. Supp. 684, 686 (S.D. Cal. 1955) (“It is apparent
that in [the first paragraph of § 2113(a)] the ‘attempt’
relates to the taking and not to the intimidation”). In Bellew,
the Fifth Circuit further considered § 2113(a)’s legislative
history as interpreted by the Supreme Court in Prince v.
United States, 352 U.S. 322 (1957), as support for its con-
clusion. Bellew, 369 F.3d at 455 (“It is a fair inference
from the wording in the Act, uncontradicted by anything
in the meager legislative history, that the unlawful entry
provision was inserted [as the second paragraph of
Section 2113(a)] to cover the situation where a person
enters a bank for the purpose of committing a crime, but
is frustrated for some reason before completing the crime.”
(alteration in original) (quoting Prince, 352 U.S. at 328)).
No. 07-2839 11
The Second, Fourth, Sixth, and Ninth Circuits, however,
have concluded that an attempt to use force and violence
or intimidate is sufficient under the statute, United States
v. Jackson, 560 F.2d 112, 116-17 (2d Cir. 1977) (applying
the logic of United States v. Stallworth, 543 F.2d 1038, 1040
(2d Cir. 1976), which addressed the “substantial step”
element of attempt crime, to the first paragraph of
§ 2113(a)); United States v. McFadden, 739 F.2d 149, 152 (4th
Cir. 1984) (following Jackson); United States v. Wesley, 417
F.3d 612, 618 (6th Cir. 2005); United States v. Moore, 921
F.2d 207, 209 (9th Cir. 1990), but they did so without
analyzing the statutory text. These courts relied on the
elements of an attempt crime—the specific intent to
commit a crime and a substantial step towards the com-
mission of that crime—instead. We do not find these cases
persuasive because they omit an appropriate statutory
analysis.
The Fifth Circuit’s approach to interpreting § 2113(a)
comports with the approach we have taken in analyzing 18
U.S.C. § 2114(a)—we examine the statutory text. In United
States v. Salgado, 519 F.3d 411 (7th Cir. 2008), we considered
the meaning of 18 U.S.C. § 2114(a), adhering to the plain
language because it was clear and unambiguous.1 Salgado
points us in the right direction to answer the question
before us: simply read the text. Under a straightforward
reading of § 2113(a), the “attempt” language relates only
1
At oral argument we requested supplemental briefing on
the effect of Salgado which was decided after the briefing in this
case.
12 No. 07-2839
to the taking and not to the intimidation. The government
argues that all that is necessary is that a defendant attempt
to intimidate while attempting to rob a bank. If that were
so, attempt would relate to the “by force and violence or
intimidation” language and the statute would have
begun with, “Whoever attempts by force and violence or
intimidation to take . . . .” The “by force and violence, or by
intimidation” language relates to both “takes” and the
phrase “attempts to take.” Accordingly, actual force and
violence or intimidation is required for a conviction
under the first paragraph of § 2113(a), whether the defen-
dant succeeds (takes) or fails (attempts to take) in his
robbery attempt.
As the government did in Salgado, it again attempts to
stretch federal law to cover an act that is not criminalized
by the statute at issue. In both cases in its effort to do so,
the government relied on the elements of an attempt crime
and “a parade of horribles.” Salgado, 519 F.3d at 413.
Thornton could have been prosecuted under the second
paragraph of § 2113(a) 2 so the government is not without
a law under which to seek conviction of defendants under
similar factual circumstances. The government notes that
the second paragraph of § 2113(a) cannot serve as a
predicate crime of violence to support a § 924(c)(3) charge.
That is correct. But we cannot bend the statute simply
2
In fact, he was initially charged with a violation of the second
paragraph of § 2113(a) in the complaint when he was arrested.
It appears that this suitable charge was abandoned in favor of
the first paragraph count in the indictment so that the firearm
count (with a mandatory consecutive penalty) could be added.
No. 07-2839 13
to accommodate the government’s zeal to obtain stiffer
penalties.
We begin and end with the statutory text, see Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992): the
first paragraph of § 2113(a) requires actual intimidation
for a conviction. The district court’s instruction did not
require the jury to find actual intimidation, thus omitting
an essential element necessary for a conviction. This
legal error prejudiced Thornton because it allowed the
jury to convict him without finding actual intimidation
beyond a reasonable doubt, and so we will reverse the
conviction under § 2113(a). See, e.g., United States v. Perez,
43 F.3d 1131, 1139-40 (7th Cir. 1994) (noting that the
failure to correctly instruct on the elements of the offense
usually results in reversal). The next section determines
whether the reversal should be accompanied by a new
trial or a judgment of acquittal.
B. Attempted Bank Robbery:
Sufficiency of the Evidence
Thornton challenges the sufficiency of the evidence to
convict him under § 2113(a), arguing that the govern-
ment failed to prove actual intimidation. The govern-
ment did not argue that Thornton used “force and vio-
lence,” but instead rested its case on intimidation. When
presented with a challenge to the sufficiency of the evi-
dence, we will uphold the jury’s determination if “any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United
14 No. 07-2839
States v. Seymour, 519 F.3d 700, 714 (7th Cir. 2008) (internal
quotation marks and citation omitted). Under this stan-
dard, we will not reverse “unless the record is devoid of
evidence from which a reasonable jury could find guilt
beyond a reasonable doubt.” Id. And if the evidence is
insufficient to support a guilty verdict, “we must reverse
with instructions that the district court grant a judgment
of acquittal.” United States v. Gee, 226 F.3d 885, 892 (7th
Cir. 2000).
“We have defined intimidation under § 2113(a) as ‘saying
or doing something in such a way as would place a rea-
sonable person in fear.’ ” United States v. Burnley, No. 07-
1314, --- F.3d ----, 2008 WL 2791670, at *2 (7th Cir. July 21,
2008) (quoting United States v. Clark, 227 F.3d 771, 775 (7th
Cir. 2000)). Intimidation is the threat of force, United States
v. Hill, 187 F.3d 698, 701 (7th Cir. 1999); United States v.
Smith, 131 F.3d 685, 688 (7th Cir. 1997); United States v.
Jones, 932 F.2d 624, 625 (7th Cir. 1991), which “ ‘exists in
situations where the defendant’s conduct and words
were calculated to create the impression that any
resistance or defiance . . . would be met with force.’ ”
Burnley, 2008 WL 2791670, at *2 (quoting Clark, 227 F.3d
at 775) (internal quotation marks and citation omitted);
Smith, 131 F.3d at 688. We apply an objective test: would
the defendant’s words or acts cause an ordinary person
to reasonably feel threatened under the circumstances?
Clark, 227 F.3d at 775; Hill, 187 F.3d at 702. We have said
that “the context of the crime provides evidence of intimi-
dation and . . . the defendant’s appearance and actions
during the course of the offense ‘figure into the [intimida-
tion] assessment.’ ” Clark, 227 F.3d at 775 (quoting Hill, 187
F.3d at 701).
No. 07-2839 15
Our cases illustrate what conduct amounts to intimida-
tion. Most recently in Burnley we emphasized that
“[c]redibly implying that a refusal to comply with a
demand for money will be met with more forceful mea-
sures is enough” to prove intimidation. Burnley, 2008
WL 2791670, at *2. The Burnley defendants entered the
banks, conveyed to the tellers their demands for the
banks’ money, and made it clear that they wanted no dye
packs or bait bills. The tellers understood that the
demands were not mere requests which could be ignored,
but rather, felt compelled to comply. Id. at *1. We held that
this evidence was sufficient to support the finding of
intimidation. Id. at *2. Similarly, in Clark the defendant
entered the bank, approached the teller and slid a note
across the counter which instructed: “[R]emain calm and
place all of your twenties, fifties, and hundred dollar
bills on the counter and act normal for the next fifteen
minutes.” The teller was unsure what was happening and
asked the defendant, “Huh?” to which he responded, “Yes,
Ma’am, this is a holdup.” 227 F.3d at 772-73. We held that
the combination of the defendant’s actions amounted to
intimidation, indicating that it was reasonable for the teller
to fear that the defendant “might use physical force to
compel satisfaction of his demand for money.” Id. at 775.
Likewise, in Hill the defendant entered the bank, ap-
proached a teller and, while at arm’s length from her,
demanded, “Give me all your money” and added, “[D]on’t
give me any of the funny money.” The teller complied, but
not fast enough to suit the defendant, so he warned,
“Hurry up, hurry up, bitch.” 187 F.3d at 699-700. We held
that the defendant’s actions could be considered intimida-
16 No. 07-2839
tion even though he did not expressly threaten the bank
teller, he did not carry a weapon, he spoke softly, and he
was not an imposing figure. Id. at 701. And, similarly in
Jones, the defendant walked up to the teller, announced,
“This is a hold up,” demanded money from the teller, and
when the teller hesitated, he leapt onto the counter, opened
the drawer, grabbed the money, and ran out of the bank.
The defendant had a bag as did his accomplice, which
the teller thought contained a weapon. The accomplice
repeatedly warned the teller, “Don’t touch nothing.” 932
F.2d at 625. We found this ample evidence to support an
inference that the defendant and his accomplice’s behavior
constituted the threat of force. Id. Each of these cases
share two critical facts: the defendant entered the bank
and made a demand for money. In contrast, Thornton
never even made it into the bank or made a demand
for money.
This case compares to those in which other circuits have
held that the evidence was insufficient as a matter of law
to support a jury finding of intimidation under § 2113(a).
In United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989), for
example, the evidence was that the defendant entered
the bank, approached the tellers’ counter, and put on a
ski mask and sunglasses as he walked through an open
gate into the teller area. He began taking money from
an open cash drawer, getting $45 before a customer
attacked him and he fled. Wagstaff never was within eight
feet of the nearest teller, he was neither wearing nor
carrying a weapon, and he never produced a note, said
anything, or made any overtly threatening gestures. The
nearest teller testified that she was afraid and that she
No. 07-2839 17
had been taught to assume that any person taking money
from the bank was armed. Id. at 627. The Fourth Circuit
acknowledged that being present during and witnessing a
bank robbery “may well be a fear-inducing experience,” id.
at 629, but held as a matter of law that the evidence was
insufficient to prove a taking by intimidation under
§ 2113(a), id. The court said that “the presumption that
every robbery involves a weapon would seem to make
the ‘intimidation’ requirement redundant.” Id. It rea-
soned that to submit the question of intimidation to the
jury in the absence of either an explicit threat of harm or
an implicit threat of a weapon would:
substitute[ ] a set of assumptions about the actions of
a person taking money from a bank for the individual-
ized analysis of that person’s actual behavior called
for by the § 2113(a) “intimidation” requirement. This
in effect eliminates the statutory command that the
government prove intimidation as a separate element
of the crime of bank robbery.
Id.
Similarly, in Bellew the defendant entered the lobby of
the bank, wearing what was described by a bank em-
ployee as an “obvious wig” and carrying a briefcase, which
was later found to contain a firearm, instructions on
how to rob the bank, and a demand note. Bellew asked to
speak with the manager, was told the manager was busy
and was asked to wait. Bellew initially waited a few
minutes, but then left the bank, returning later to learn
that the manager was still unavailable. 369 F.3d at 451. A
bank employee reported Bellew’s suspicious activity, and
18 No. 07-2839
the manager called the police, who confronted Bellew
outside the bank. Bellew eventually admitted his intent
to rob the bank. Id. at 452. Bellew made no explicit or
implicit threats. And although he carried a gun in his
briefcase, no one had seen it. The Fifth Circuit con-
cluded that Bellew never used force and violence or
intimidation as required under § 2113(a), thus reversing
the conviction and remanding for a judgment of acquittal
of the attempted robbery count. Id. at 454, 456.
Burnley, Clark, Hill, and Jones represent the more
typical attempted bank robbery charged under the first
paragraph of § 2113(a) in which the would-be bank robber
enters the bank, interacts with bank personnel, and threat-
ens a teller or other bank employee—or at the very least
makes a demand for money, which may be viewed as an
implicit threat of force. But here Thornton never even
made it into the bank. He had no contact with any bank
personnel and no one inside the bank even knew that a
masked and disguised man was right outside the bank
door. There was no evidence of either an explicit or
implicit threat. Thornton made no demand for money.
There was no evidence from which anyone at the
bank—whether bank personnel, a bank customer like
Contreras, or even a simple passerby—could reasonably
infer that Thornton had a weapon or would use force.
Thornton’s mere presence at the bank’s exterior door in
an apparent disguise, carrying a duffle bag, and with his
hand on the door does not even approach conduct sug-
gestive of a demand for money or an implication that
force would follow noncompliance with the as-yet unmade
demand.
No. 07-2839 19
Contreras did testify that he inferred the masked man
was up to no good and said that he was afraid because
he thought the man had a gun and might shoot him. But
even though Contreras’s fear may be “probative of whether
a reasonable person would have been afraid under the
same circumstances,” Hill, 187 F.3d at 702, it is not con-
clusive. We do not doubt that Contreras was afraid. Yet his
fear that the man at the bank had a gun and might shoot
him was not reasonably based on any words or actions
of Thornton. Contreras’s fear was based not only on
what he observed and heard, but also, as in Wagstaff, on
assumptions about what a would-be bank robber might
do. Contreras had every right to infer that something was
not right about the situation, but Thornton’s words and
actions did not give rise to a reasonable fear of the threat
of force. The evidence allowed the jury to find that Thorn-
ton had a gun in his duffle bag, but Contreras never
saw the gun and he had no reason to believe that Thornton
had a gun. Thornton’s action in reaching for something
in his jacket pockets does not constitute a threatening
gesture in itself and does not reasonably suggest that he
carried a weapon. Under the circumstances presented, no
reasonable person in Contreras’s shoes would have felt
threatened by acts or words of intimidation; the only
words and actions that even begin to approach intimidat-
ing conduct occurred after Thornton already had aban-
doned his attempt to enter (and rob) the bank.
And if there could be any doubt as to whether the
evidence measures up to intimidation, tellingly, the
government has not contended—in its brief or at oral
argument—that it proved actual intimidation. In response
20 No. 07-2839
to Thornton’s challenge to the sufficiency of the evid-
ence of actual intimidation, it argued only that it had
proven a substantial step toward the commission of the
crime and culpable intent.3 The government also asserts
that the evidence showed Thornton’s “intent to use intimi-
dation” and “intent to intimidate.” But as we have decided,
this does not suffice under a correct reading of the first
paragraph of § 2113(a). And if that were not enough, the
government clearly concedes in its brief that Thornton
“never engaged in actual intimidation.” (Appellee Br. 39.)
The evidence at trial fits the second paragraph of § 2113(a)
rather than the first; but Thornton was not charged
under the second paragraph.
No reasonable jury could find beyond a reasonable doubt
that Thornton said or did something that amounts to
intimidation under § 2113(a). Thus, the government
failed to prove an essential element of the crime of at-
tempted bank robbery as charged in Count One. We
accordingly reverse the conviction on Count One with
instructions that the district court grant a judgment of
acquittal.
C. Firearm Charge
Thornton also contends that his conviction under the
firearm charge in Count Two, 18 U.S.C. § 924(c)(1)(A),
3
We do not quarrel with the government’s view of the evidence
as sufficient to prove substantial step and culpable intent, but
that is not enough to support Thornton’s conviction.
No. 07-2839 21
must be vacated. A conviction under § 924(c) must be
predicated upon a crime of violence. 18 U.S.C.
§ 924(c)(1)(A)(I) (“[A]ny person who, during and in
relation to any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such crime, pos-
sesses a firearm, shall . . . [be sentenced to an additional
term of imprisonment].”); see also United States v. Jones, 993
F.2d 58, 61-62 (5th Cir. 1993) (“Section 924(c)(1) requires
the commission of a crime of violence in addition to the
use of a firearm during the commission of that crime.”).
Because the firearm conviction turns on the attempted
bank robbery charge, we must reverse the conviction on
Count Two as well and remand for entry of a judgment
of acquittal.
III. Conclusion
For the foregoing reasons, we R EVERSE Thornton’s
convictions and V ACATE his sentence with instructions
to the district court to grant Thornton’s motion for a
judgment of acquittal as to both counts of the indictment.
8-26-08