In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-2163 & 07-2393

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAURA SALGADO and DANIEL PACHECO-GONZALES,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 43—Samuel Der-Yeghiayan, Judge.

____________

ARGUED FEBRUARY 27, 2008—DECIDED MARCH 17, 2008

____________

Before EASTERBROOK, Chief Judge, and POSNER and WOOD,

Circuit Judges.

EASTERBROOK, Chief Judge. 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,
2 Nos. 07-2163 & 07-2393

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.
Nos. 07-2163 & 07-2393 3

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 prose-
4 Nos. 07-2163 & 07-2393

cuted 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
Nos. 07-2163 & 07-2393 5

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
6 Nos. 07-2163 & 07-2393

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 conspirators planned to rob turned out to lack deposit insurance, see United States v. Shively, 715 F.2d 260, 266–67

(7th Cir. 1983), so it is irrelevant that the informant turned

out to be empty handed, the argument concludes.

By emphasizing that the crime of conspiracy is the

agreement rather than the completed offense, see United

States v. Shabani, 513 U.S. 10 (1994); United States v. Lechuga,

994 F.2d 346 (7th Cir. 1993) (en banc), the prosecutor

avoids one problem (that the informant’s pockets were

empty) at the cost of another. For there is no evidence

that the conspirators agreed “to rob a person having

lawful charge of money of the United States”. That’s the

last thing they wanted to do. Had they known that Juarez

was leading them into a trap, they would not have planned

a robbery. What Elias, Pacheco-Gonzales, and Salgado

agreed to do was to rob someone who they believed to

be a private actor.

At this point the prosecution again invokes Feola and

argues that plotters need not foresee the federal link to the

person they set out to rob. That takes Feola too far. The

Supreme Court stressed in Feola that the elements of the

§111 offense do not include the assailant’s knowledge of

the victim’s employment status. But the elements of a

conspiracy offense do include knowing what makes

the planned activity criminal. If three people agree to rob

a building thinking it to be a drug store, the fact that the
Nos. 07-2163 & 07-2393 7

store turns out to contain a postal counter does not make

them guilty of conspiring to rob a post office. If the conspirators appear and rob the postal substation, they have

committed the substantive offense under §2115 but not

(retroactively) a conspiracy to rob the postal station. The

crime of conspiracy is committed, or not, before the

substantive crime begins.

So too if three people plan to steal the money to be used

in a drug deal: if the buyer turns out to have money of

the United States, the robbers violate §2114(a) but not

§371, the conspiracy statute, for they did not agree ex ante

to commit a crime against the United States, though in

the event they managed to commit one. Pacheco-Gonzales

and Salgado neither agreed to steal money from the

United States (for they did not know that the person

posing as the buyer was an informant) nor succeeded in

doing so (for the informant was not carrying any of the

DEA’s cash). Both the conspiracy and the attempted

robbery could have been prosecuted under state law; the

attempted robbery also might have been prosecuted

under §111. The only federal crime Pacheco-Gonzales

succeeded in committing involved improper possession

of firearms.

The difficulty that the prosecutor has encountered in this

case and a handful of others, such as United States v.

Radomski, 473 F.3d 728 (7th Cir. 2007), comes from the

fact that there is no federal statute directly addressing

theft of money in the course of a drug transaction. One

statute, 18 U.S.C. §2118, deals with the theft of drugs, but

only when the victim had lawful possession of them.

Sometimes piggyback jurisdiction will supply a means

to prosecute in federal court; repeated thefts of drugs or

drug money, in violation of state law, could establish a
8 Nos. 07-2163 & 07-2393

pattern of racketeering that supports a federal conviction

under RICO. See, e.g., United States v. Moore, 363 F.3d

631 (7th Cir. 2004). An unfulfilled promise to deliver

drugs, if made by phone, might support a charge of

wire fraud (we need not decide whether it would). But

Elias and Pacheco-Gonzales were not professional thieves;

they just thought they saw an opportunity for one big

score, and the indictment does not allege that they used

phones or mails to deceive Juarez. Congress may, or may

not, think that there ought to be a federal law covering

what Elias and Pacheco-Gonzales set out to do. Existing

federal criminal laws don’t cover the subject, and it is an

important norm of the criminal process that federal courts

do not bend the statutes on the books to criminalize acts

just because of a belief that they ought to be forbidden.

Salgado’s conviction is reversed. Pacheco-Gonzales’s

convictions under §371 and §2114 are reversed; his sentence under §924 is vacated, and the case is remanded

for imposition of a sentence appropriate now that the

§924 offense is the sole conviction.

USCA-02-C-0072—3-17-08