Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 43-Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
Remberto Juarez offered to buy ten kilograms of cocaine from David Elias, who introduced Daniel Pacheco-Gonzales to Juarez as his supplier. But when Pacheco-Gonzales could not come up with the cocaine, he and Elias decided to rob Juarez instead. They told Juarez that the cocaine was in hand; a meeting was arranged; Elias and Pacheco-Gonzales hired some aides (including Laura Salgado, who was to drive the getaway car). Elias, Pacheco-Gonzales, and Salgado, plus some henchmen, arrived at the site of the transaction and tried to rob Juarez's lieutenant of the purchase money. They learned, to their horror, that both sides of this transaction were faking. Juarez was working for the Drug Enforcement Agency; his lieutenant was an informant; the site of the transaction was teeming with concealed agents. Soon Elias, Pacheco-Gonzales, and Salgado were in custody.
Elias pleaded guilty; Pacheco-Gonzales and Salgado were convicted after separate jury trials. Pacheco-Gonzales has been convicted of conspiracy to steal money from the United States, 18 U.S.C. §371, attempting to rob a person having custody of money belonging to the United States, 18 U.S.C. §2114(a), and possessing firearms in furtherance of an attempted robbery, 18 U.S.C. §924(c)(1)(A). His total sentence comes to 93 months. Salgado has been convicted of the conspiracy charge alone; her sentence is 60 months.
The informant (anonymous to protect his safety) was supposed to be carrying $170,000 to pay for the cocaine. Had that much, or indeed any, cash been in his control, there would be no problem with the conviction under §2114(a), which makes it a crime to assail "any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States". But the informant was empty handed-whether to protect the money from the informant, or the informant from Pacheco-Gonzales, the record does not disclose.
The prosecutor insists that lucre is beside the point. The argument runs: first, an informant is covered by §2114 because he is on the government's side and needs assurance of safety, and after all he might have been carrying money to buy cocaine; second, robbers need not know their victim's connection to the federal government, see United States v. Feola, 420 U.S. 671 (1975); third, in a prosecution for attempt, impossibility is no defense, see United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000), so the fact that there was no money to steal is irrelevant. The district court's instructions to the jury reflected this understanding. If the first step is right, everything else follows. But is the first step right?
The scope of §2114(a) depends not on who "needs protection" or anything similar, but on what is in the victim's pocket. Any person who has lawful custody of any mail matter or "any money or other property of the United States" is covered; status as a federal employee is unnecessary. Garcia v. United States, 469 U.S. 70 (1984). But this informant did not carry any mail matter, or any money or property of the United States. So the attempt to rob the informant did not violate §2114(a). It's really that simple. (This may account for our inability to find any opinion of either a district or appellate court addressing the prosecution's theory; apparently it has never been used before.)
If the prosecution were right, then any robbery or attempt to rob anyone, anyplace, anytime, would violate §2114(a), for the person might have been carrying "mail matter"-everyone does, from time to time. It would be implausible to treat §2114(a) as federalizing the law of robbery. If the DEA wants to make sure that the robbery or attempted robbery of an informant can be prosecuted in federal court, it should issue a shiny dollar coin to everyone involved in a drug transaction.
Most of the prosecutor's presentation is devoted to a parade of horribles rather than an analysis of the statutory text. Suppose, the brief asks, a gang of robbers descends on a post office only to find that the day's receipts had just been shipped out. How absurd to say that such an attempted robbery could be prosecuted only in state court! Doubtless there is a substantial federal interest in prosecuting attempted robberies of post offices, but it isn't necessary to stretch §2114(a) to that end. Another statute, 18 U.S.C. §2115, covers post offices whether or not they have cash on hand. Likewise the robbery or attempted robbery of any federal employee acting in the course of his duties is within the scope of 18 U.S.C. §111, whether or not the employee is carrying cash or any other federal asset.
Section 111, the law at issue in Feola, is worth a look, because it tells us something about how §2114(a) works. Section 111(a) provides for punishment of "Whoever-
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties". Section 1114 in turn identifies "any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance". So Pacheco-Gonzales might have been prosecuted under §111 for intimidating the informant-though we could not find any case discussing whether §1114 makes such a prosecution possible-but the maximum penalty would have been one year in prison. (Section 111(b) raises the maximum to 20 years if the assailant uses a deadly weapon or causes bodily injury, but no one fired a gun and the informant was uninjured.)
Feola holds that knowledge of the victim's status is not an element of the offense; it is enough if the victim actually is a federal employee on official duty or a "person assisting such an officer or employee in the performance of such duties". We asked at oral argument if it would be possible to prosecute under §111 for attempt when the victim was not a federal employee on duty (or assisting one), on the theory that impossibility is no defense. The prosecutor allowed that the victim must be an on-duty federal employee (or assisting one); otherwise §111 turns into an all-purpose assault statute covering everyone in the United States. Yet §111 has the same structure as §2114(a): the statute identifies a covered person by that person's relation to the national government, then makes it a crime to take certain acts concerning that protected person. Just as federal employment or assistance is essential to coverage under §111, so possession of mail or federal property is essential under §2114(a).
Because the prosecutor concedes that the informant was not carrying any money or other property belonging to the United States, Pacheco-Gonzales is entitled to be acquitted of the charge under §2114(a). He does not contest his firearms conviction under §924(c)(1)(A). That leaves the conspiracy count, on which both Salgado and Pacheco-Gonzales were convicted. It charges that Elias, Pacheco-Gonzales, and Salgado conspired "to rob a person having lawful charge of money of the United States, by means of force and violence and by intimidation, in violation of Title 18, United States Code, Section 2114(a)." Lest this seem to fall with the §2114 conviction, the prosecutor observes that the conspiracy is the agreement itself and precedes any overt act, so that it does not matter whether the conspirators succeed in fulfilling their objective. Just as it does not matter that a bank that ...