Summary
The Seventh Circuit held that 18 U.S.C. § 2113(b) requires only an intent to steal, not a specific intent to steal more than $1,000; the dollar amount is a separate element, not part of the mens rea. The court also found sufficient evidence of a tacit agreement to support a conspiracy conviction based on video footage showing cooperative efforts to break into an ATM. Finally, the district court did not commit plain error by considering the George Floyd protests as an aggravating factor at sentencing, as the record connected the offense to the widespread looting. Conviction and sentence affirmed.
Topics
Practice areas
Questions Presented
- Whether the government was required to prove that Foy intended to steal more than $1,000, or only that he intended to steal, to sustain a conviction for conspiracy to commit bank theft under 18 U.S.C. §§ 371 and 2113(b).
- Whether the evidence was sufficient to prove an agreement to commit bank theft beyond a reasonable doubt.
- Whether the district court procedurally erred by considering the civil unrest following George Floyd's death as an aggravating factor in sentencing.
Key quotations
“the government was only required to show that Foy and his co-conspirators intended to steal money, not that they specifically intended to steal more than $1,000.” (at 8)
“the footage does not present two equally plausible inferences. Viewing the footage in the light most favorable to the government, a rational trier of fact could have found that it more plausibly demonstrates that Foy entered into a tacit agreement with his co-conspirators to rob the ATM.” (at 12)
“the district court did not commit error, let alone a clear or obvious one, in finding that Foy's brazen act contributed to the widespread looting and property destruction taking place in Chicago at the time.” (at 18)
Factual background
On June 1, 2020, a group of individuals, including Foy, attempted to break into a Bank of America ATM in Chicago. The ATM's surveillance video showed the group using tools like a hammer and crowbar to try to open the ATM. They damaged the cover but failed to access the cash. The ATM contained over $190,000. Police arrived and arrested Foy and others. The FDIC insured Bank of America.
Procedural history
Foy was charged in a single-count indictment with conspiracy to commit bank theft. He waived jury trial and was tried by bench trial. The district court found him guilty and sentenced him to 37 months' imprisonment. Foy appealed.