The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
The facts in this case have been well-recited elsewhere, and I need not repeat the exercise here. See United States v. Thornton, 539 F.3d 741, 742-45 (7th Cir. 2008).
A jury found Walter Thornton guilty of attempted robbery in violation of 18 U.S.C. § 2113(a)*fn1 and possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Thornton moved for a judgment of acquittal under Federal Rule of Civil Procedure 29(a) and (c) and moved for a new trial pursuant to Rule 33. I denied his motions, entered judgment on the verdict, and sentenced Thornton to a total of 132 months' imprisonment on both counts. Thornton appealed, and on August 26, 2008, after determining that the jury instructions "did not require the jury to find actual intimidation, thus omitting an essential element necessary for a conviction[,]" the Court of Appeals reversed the conviction on both counts and instructed that a judgment of acquittal be entered.
On August 28, 2008, the government filed a superseding indictment charging Thornton with: (1) conspiracy under 18 U.S.C. § 371 to commit a § 2113(a) ¶ 1 bank robbery; (2) attempted bank robbery under paragraph two of § 2113(a); (3) possession of a firearm in furtherance of a conspiracy to commit bank robbery, in violation of § 924(c); and (4) forfeiture. Thornton now moves to dismiss the superseding indictment.
Thornton asserts the following: (1) Count II fails on double jeopardy grounds because the § 2113(a) paragraph two charge is a lesser-included offense of the paragraph one charge on which Thornton was acquitted; (2) Count I fails based on the factual insufficiency of the indictment and fundamental fairness; and (3) Count III fails because it is predicated on Count I, a conspiracy charge, which is not a "violent crime" for the purposes of a § 924(c) weapons enhancement. I will address each of these claims in turn.
A. Count II - Attempted Robbery Under § 2113(a) Paragraph Two
Thornton maintains that the first and second paragraphs of § 2113(a) constitute a single offense, and that because Thornton was acquitted on the § 2113(a) paragraph one charge, the government's attempt to re-prosecute him under paragraph two violates the double jeopardy clause of the Fifth Amendment. In its response, the government argues that the two paragraphs constitute separate offenses, and therefore Count II of the superseding indictment does not violate the double jeopardy clause. This precise issue was before me in United States v. Loniello, No. 07 CR 336, 2009 WL 212124, at *2-6 (N.D. Ill. Jan. 28, 2009). Based on the reasoning applied in that case, I reach the same conclusion that the two paragraphs of § 2113(a) constitute a single offense. Because Thornton has already been acquitted on the § 2113(a) paragraph one charge, the government's indictment under § 2113(a) paragraph two is barred by double jeopardy. Therefore, Count II of the superseding indictment is dismissed.
B. Count I - Conspiracy Under 18 U.S.C. § 371 To Commit A § 2113(a) ¶ 1 Robbery
In order to sustain a conspiracy charge under § 371, the government must allege facts sufficient to show (1) an agreement between two or more persons to commit an unlawful act, (2) that the defendant was a party to the agreement, and (3) an overt act by one of the co-conspirators in furtherance of the conspiracy. United States v. Jones, 950 F.2d 1309, 1313 (7th Cir. 1991). In this case, the unlawful act alleged by the government is a bank robbery by force and violence or intimidation, in violation of § 2113(a) paragraph one. Thornton argues that Count I should be dismissed because although the grand jury transcripts reveal conversations about bank robbery in general, there is no evidence of agreement and certainly not of any agreement to commit the robbery by force and violence or intimidation.*fn2 However, "the government need not establish that there existed a formal agreement to conspire; circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship between the parties, their overt acts, and the totality of their conduct may serve as proof." Id. The government presented to the grand jury testimony regarding Thornton's express agreement with Moore to rob the bank, the detailed plans of how they would accomplish the robbery, and Moore's knowledge that Thornton had purchased a gun. The government need not show a formal agreement with regard to the gun itself. The circumstantial evidence is sufficient to warrant the inference that Moore knew Thornton planned to use the gun and that Thornton had it with him on the day of the attempted robbery.
Thornton further argues that Count I should be dismissed because the re-prosecution violates principles of due process and sound public policy. He argues that a re-prosecution for conspiracy runs afoul of the "community's sense of fair play" inherent within the Double Jeopardy Clause, and that due process mandates that a defendant should not be subjected to "repeated risks of conviction for the same conduct." United States v. Bailin, 977 F.2d 270, 277 (7th Cir. 1992) (discussing the policy reasons underlying the double jeopardy clause). However, the law is well-settled that re-prosecution for conspiracy violates neither the double jeopardy clause, nor the principles underlying it. "[A] conspiracy to commit a crime is a separate offense from the crime itself." U.S. v. Felix, 503 U.S. 378, 391 (1992). Double jeopardy does not bar re-prosecution for conspiracy based on the same underlying incident as a previous prosecution for the substantive crime. Id. at 389-90. Nor does a subsequent prosecution for conspiracy pose a "repeated risk of conviction for the same conduct." Bailin, 977 F.2d at 277. "[T]he same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself." Felix, 503 U.S. at 390 (defendant's prosecution for conspiracy in connection with his operation of a drug manufacturing facility was not barred by double jeopardy where he was previously tried for attempt to manufacture illegal drugs); see also United States v. James, 109 F.3d 597, 600-01 (9th Cir. 1997) (upholding defendant's indictment for conspiracy to commit bank robbery after he was previously acquitted on three bank robbery charges); United States v. Felix, 503 U.S. 378, (1992).
Although double jeopardy does not bar the conspiracy indictment in this case, collateral estoppel does apply. See Bailin, 977 F.2d at 276 (noting that where double jeopardy does not apply to bar successive prosecution for a related but different offense, collateral estoppel may apply where the second prosecution requires the relitigation of facts already determined by the first prosecution); Ashe v. Swenson, 397 U.S. 436, 443 (1970) ("when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."). Thornton was acquitted of the previous robbery charge against him because the government failed to prove that Thornton used actual force and violence or intimidation. Thornton, 539 F.3d at 751. I agree with Thornton that the government is barred from relitigating facts used at trial to establish force and violence or intimidation. See United States v. James, 109 F.3d 597, 601 (defendant's "acquittals in three prior bank robbery counts preclude their subsequent use as overt acts of a related conspiracy charge[,]" where "acquittals involve ultimate issues that have already been conclusively determined adversely to the Government."). However, at this time, I leave undecided what facts are barred.
Finally, Thornton argues the re-prosecution should be barred on policy grounds. He accuses the government of gamesmanship and overreaching, alleging that it should have initially charged Thornton with a violation of paragraph two, rather than charging him under paragraph one in an attempt to garner a conviction to which a firearm count, and enhanced sentence, could be added. While it is true that the Seventh Circuit has determined that a proper reading of the first paragraph of § 2113(a) requires actual force and violence or intimidation even where attempt is charged, the Circuit Courts are split on the issue. Thornton, 539 F.3d at 747. As noted in the appellate opinion, the Second, Fourth, Sixth, and Ninth Circuits "have concluded that an attempt to use force and violence or intimidate is sufficient" under § 2113(a) ¶ 1. Id. The government's reading of the statute, and the subsequent jury instructions, do not appear to be a blatant effort at gaming the system, but rather support what four other circuits maintain to be a plausible application of the statute. The ...