50 F.4th 616
7th Cir.2022Background
- On June 1, 2020, Foy and others attempted in broad daylight to break open a Bank of America ATM in a Chicago grocery‑store parking lot; security video (no audio) shows them sharing tools and jointly attacking the machine.
- Police arrested Foy and co‑defendants; the ATM held over $190,000 (stipulated at trial) and was FDIC‑insured.
- A grand jury indicted Foy for conspiracy to commit bank theft under 18 U.S.C. §§ 371 and 2113(b), alleging an intent to steal money exceeding $1,000.
- Foy waived a jury, was tried by bench trial on videoconference, convicted, and objected post‑trial to sufficiency of evidence and to the district court’s interpretation of § 2113(b).
- At sentencing the government abandoned a dangerous‑weapon enhancement; parties agreed on loss equal to ATM replacement cost, producing a Guidelines range of 30–37 months; the court sentenced Foy to 37 months and restitution.
- Foy appealed raising three issues: (1) whether § 2113(b) requires intent to steal more than $1,000 (not just intent to steal), (2) sufficiency of the evidence of a conspiracy, and (3) whether the district court improperly considered George Floyd‑era civil unrest as an aggravating factor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mens rea under § 2113(b): must gov’t prove intent to steal >$1,000? | Foy: the conspiracy must target a felony (>$1,000); absent intent to steal >$1,000, only a misdemeanor could be the object. | Government: § 2113(b) requires only intent to steal; the $1,000 threshold is a separate element. | Court: Affirmed gov’t view — intent to steal suffices; $1,000 is a separate element (no need to prove a defendant specifically intended that amount). |
| Sufficiency of conspiracy evidence | Foy: surveillance video is silent and ambiguous; may show independent actors, not an agreement. | Government: video shows cooperative conduct (sharing tools, directing each other) supporting a tacit agreement. | Court: Evidence (video) viewed favorably to gov’t permits rational finding of a tacit agreement; conviction affirmed. |
| Sentencing—use of George Floyd unrest as aggravating factor | Foy: court tied his offense to widespread looting without record evidence of a meaningful connection; procedural error. | Government: Foy forfeited/waived or the record (PSR, officer testimony, news articles, Foy’s own filings) supports the linkage. | Court: Found no waiver, reviewed for plain error, and held the court’s consideration was supported by the record and not clearly erroneous; sentence affirmed. |
Key Cases Cited
- Carter v. United States, 530 U.S. 255 (U.S. 2000) (treats the $1,000 valuation as a separate element of § 2113(b))
- Molzof v. United States, 502 U.S. 301 (U.S. 1992) (rejects interpretations that are difficult or impractical to apply)
- Feola v. United States, 420 U.S. 671 (U.S. 1975) (conspiracy mens rea ties to the substantive offense mens rea)
- United States v. Miller, 883 F.3d 998 (7th Cir. 2018) (statutory‑interpretation standard described)
- United States v. Sanders, 909 F.3d 895 (7th Cir. 2018) (textual analysis of statute language)
- United States v. Avila, 557 F.3d 809 (7th Cir. 2009) (tacit agreement and circumstantial evidence can sustain conspiracy)