The opinion of the court was delivered by: James B. Zagel, United States District Judge
MEMORANDUM OPINION AND ORDER
On November 18, 2008, Defendant Mickey Loniello filed a motion to dismiss the second superseding indictment in this case on the basis of double jeopardy. Defendant Nathanial Aguilar joined in Loniello's motion on November 21, 2008. The second superseding indictment charges Defendants with violations of 18 U.S.C. § 2113(a), ¶2 -- attempting to enter a bank with the intent to commit a bank robbery (Count I); and 18 U.S.C. § 371 -- conspiracy to commit bank robbery, in violation of 18 U.S.C. § 2113(a), ¶ 1 (Count II). Defendants seek dismissal of Count I pursuant to the double jeopardy clause in light of the fact that Defendants were previously acquitted of violating paragraph one of 18 U.S.C. § 2113(a). Defendants further move to dismiss Count II, arguing that the ultimate issue of intent has already been decided in their favor. The government opposes Defendants' motion on the basis that paragraphs one and two under 18 U.S.C. § 2113(a) constitute separate offenses and because the government contends Defendants cannot meet their burden of proving that the issue of intent was necessarily decided in their favor. For the foregoing reasons, Defendants' motion to dismiss is granted with respect to Count I and denied with respect to Count II.
On May 31, 2007, a federal grand jury returned an indictment charging Loniello and Aguilar with attempting to rob a Chase Bank in Oak Park, Illinois, in violation of the first paragraph of 18 U.S.C. § 2113(a).*fn1 Defendants pleaded not guilty to the charge. On October 18, 2007, a federal grand jury returned a superseding indictment charging Loniello and Aguilar with attempted bank robbery, in violation of 18 U.S.C. § 2113(a), ¶ 1 (Count I) and carrying and possessing a firearm in furtherance of and during and in relation to a crime of violation, in violation of 18 U.S.C. § 924(c) (Count II). I dismissed Count II of the superseding indictment on the basis that Defendants had been entrapped as a matter of law.
On July 14, 2008, Defendants simultaneously proceeded to trial. Loniello was tried before me in a bench trial, and Aguilar was tried before a jury. On July 22 and 23, 2008, respectively, the jury and I found Defendants guilty of attempting to rob the Chase Bank in Oak Park in violation of § 2113(a), ¶ 1.
On July 30, 2008, Loniello timely filed motions for judgment of acquittal and for a new trial and the government filed its opposition.
(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank, credit union, or savings and loan association in violation of subsection (b), knowing the same to be property which has been stolen shall be subject to the punishment provided in subsection (b) for the taker.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.
(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.
On August 26, 2008, the Seventh Circuit issued its opinion in United States v. Thornton, 539 F.3d 741 (7th Cir. 2008), an attempted bank robbery case in which the defendant appealed his conviction on the ground, inter alia, that the government failed to prove that he used actual force and violence, or intimidation, in carrying out the attempted bank robbery. The Court of Appeals reversed Thornton's conviction, holding that a guilty verdict under the first paragraph of 18 U.S.C. § 2113(a) requires a showing of "actual force and violence or intimidation," regardless of whether the defendant is charged with the substantive offense or mere attempt. Thornton, 539 F.3d at 748. As in this case, the defendant in Thornton never entered the bank he was charged with attempting to rob. Id. at 743-44.
On August 27, 2008, Loniello filed an amended post-trial motion seeking a judgment of acquittal in light of the Thornton decision. Loniello argued that a judgment of acquittal should be entered because, as in Thornton, the government in this case failed to offer evidence of force and violence or intimidation in connection with the attempted bank robbery of the Chase Bank. On August 28, 2008, Aguilar filed a post-trial motion for a judgment of acquittal and a new trial based on Thornton and a myriad of other reasons.*fn2
On August 28, 2008, a federal grand jury returned a second superseding indictment, charging Defendants with attempt to commit bank robbery in violation of 18 U.S.C. § 2113(a), ¶ 2 (Count I) and conspiracy to commit bank robbery as prohibited by 18 U.S.C. § 2113(a), ¶ 1, in violation of 18 U.S.C. § 71 (Count II).
On August 29, 2008, I granted Defendants' motions for acquittal based on Thornton, without objection from the government.
Defendants' motion seeks (1) dismissal of Count I on the basis that it violates the Fifth Amendment's double jeopardy clause, and (2) dismissal of Count II based on principles of issue ...