In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2839

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER THORNTON,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 05 CR 813—James B. Zagel, Judge.

____________

ARGUED MAY 13, 2008—DECIDED AUGUST 26, 2008

____________

Before EASTERBROOK, Chief Judge, and KANNE and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Walter Thornton was convicted

of attempted bank robbery, 18 U.S.C. § 2113(a), and of

possessing a firearm in furtherance of a crime of violence,

18 U.S.C. § 924(c). He moved for a judgment of acquittal

and a new trial; his motions were denied. The district

court sentenced him to 132 months’ imprisonment. Thornton now appeals, raising four issues, but we need to

reach only two: his primary contention that the district
2 No. 07-2839

court erred in failing to properly instruct the jury on the

elements of attempted bank robbery and his assertion

that the evidence was insufficient to support a conviction on that charge and the related firearm count.

I. Background

In September 2005, Walter Thornton and Tremain Moore

worked together at a Shoe Warehouse in Berwyn, Illinois,

where Thornton was the manager. They quickly became

friends and, within a few days, Thornton—who had

robbed a bank in Canada in 1994—began talking to Moore

about how to rob a bank. Moore testified that on one

occasion after he had been to a nearby Harris Bank,

Thornton asked him about the bank’s layout, drew

sketches of the bank as Moore described it, and made maps

of the surrounding area. According to Moore, prior to the

robbery attempt, two men, one carrying a duffel bag, came

to the Shoe Warehouse and met with Thornton in the back

of the store. After they had left Thornton called Moore to

the back and showed him a gun—the same gun the police

later found in the store after the attempted bank robbery.

On September 26, Thornton and Moore arrived at the

Shoe Warehouse by 9:30 a.m. Moore testified that Thornton

said he was going to rob a bank and asked Moore to be

his getaway driver, in exchange for some of the money

and days off work. Moore stated that Thornton took him

into the bathroom where he showed him the items he

planned on using to disguise his appearance, including a

bald cap, makeup to darken his complexion, and a pillow

to make him appear heavier. According to Moore, he
No. 07-2839 3

waited for Thornton at the front of the store, and about

fifteen minutes later Thornton appeared wearing black

pants, white tennis shoes, a white dress shirt, and a gray

ball cap. Thornton was wearing makeup, a full beard and

a mustache, and his chest was larger and puffier, as if he

had the pillow under his clothes. Moore told Thornton

that anyone could tell that “something ain’t right.” So

Thornton put on a black hooded sweatshirt, a “hoodie,”

thus adding to his disguise.

Moore testified that Thornton had him put an old license

plate on Thornton’s car which they would use as the

getaway car. Moore pulled Thornton’s car around to the

back of the Shoe Warehouse and waited while Thornton

returned to the store. After a few minutes, Thornton

emerged from the store wearing the same disguise and

carrying a duffel bag that appeared to have “stuff” in it.

Moore drove Thornton’s car through the alleys to Bank

One, dropped off Thornton, and parked the car in a

nearby alley to wait. Bank surveillance photos depict a

passenger wearing dark colors, a hat, and a bandana

over his face exiting the car and walking up to the bank’s

front exterior doors leading to the lobby.

Shortly before 10:00 a.m. Jaime Contreras was driving

into Bank One’s parking lot—he was going to the bank to

conduct a personal banking transaction—when he observed an African-American male who appeared to be

attempting to enter the bank. The man was wearing dark

clothing and a hat, had a bandana over the lower portion

of his face, and was carrying a dark-colored duffel bag. The

man had his hand on the bank’s exterior door handle.
4 No. 07-2839

Contreras and the man made eye contact, and one second

later, the man walked away from the door, never having

opened it. Contreras pulled up next to the man and asked,

“What the f—— are you doing?” At trial Contreras explained that he said this because of the unusual situation

at the bank—the man was masked and wearing pretty big

clothing. After Contreras confronted the individual, the

man began to panic and curse at Contreras. Contreras

could not recall the exact words, other than “f—,” because

he was more worried about getting shot. Contreras responded, “Okay. You know, I didn’t see nothing. I didn’t

do anything.” Contreras testified that he was frightened

because he saw the man reaching for something in his

jacket pockets. He thought the man was reaching for a gun.

Contreras said, “I’m sorry, I didn’t see nothing,” and tried

to avoid any more contact with the masked man. Contreras

drove away from the bank and then called 911. He explained that he drove away from the bank first because

he did not want the man to shoot him if he saw him

making the call.

Thornton ran from the bank and toward his car and

Moore. Olga Salazar, who was driving to work at the

nearby Harris Bank—ironically the one Thornton and

Moore had planned to rob—saw him and thought she was

witnessing a bank robbery. Salazar watched as he ran into

the alley and jumped into the passenger side of the getaway car. She could see that the driver was an AfricanAmerican male, wearing a blue and white collared shirt.

Moore testified that Thornton said, “They saw me. They

saw me.” Thornton told Moore to drive and, as Moore

drove, Thornton began taking off his clothing and disguise.
No. 07-2839 5

Salazar followed, keeping the car in view. At one point, she

saw the front license plate—it was silver and said “Pontiac.” She also saw the passenger taking off his clothes in

the car. Salazar observed the license plate and later informed police that the plate number was 447171. The

driver parked the car near the Shoe Warehouse and

Salazar watched as the two men ran into the store. She

went to the Harris Bank and the police were called.

According to Moore, Thornton told him to remove the

old license plate from his car. He did. Meanwhile Thornton

was in the bathroom, changing his clothes again and

cleaning the makeup from his face. Moore testified that

Thornton went to the front of the store to make it seem as

though it was “business as usual” and asked Moore to

check the bathroom to make sure all the makeup and any

other evidence of the crime was gone.

A while later, police officers from the Berwyn Police

Department arrived. They questioned Thornton and

Moore. Detective Thomas Tate searched Thornton’s

Pontiac. Near the car he found a fake mustache. Inside the

car he found another fake mustache, sunglasses, a white

pillow, sketches of a bank’s layout—the Harris Bank—and

two receipts for spirit gum and three bald caps. The police

searched the Shoe Warehouse. In the back room Sergeant

Thomas Bojovic found a damp white T-shirt. He saw a

ladder leaning against the wall and several missing ceiling

tiles, so he climbed the ladder and looked into the ceiling.

There he discovered a dark blue duffel bag, which contained a men’s black hoodie, a men’s white button dress

shirt, a pair of dark pants, a red bandana, black makeup
6 No. 07-2839

and applicators, a gray ball cap, other disguise items, and

an Intratec 9-millimeter (TEC-9) machine gun. Sgt. Bojovic

also found a shopping bag containing an Illinois license

plate, number 4421211, black costume makeup, sponges

and other applicators, a container for false hair, and a

bald cap.

Sgt. Bojovic interviewed Salazar at the Harris Bank. He

then took her to the Shoe Warehouse where she identified

Thornton’s car as the one she had seen earlier but with a

different license plate. Salazar immediately identified

Moore as the driver and Thornton as the passenger of the

car she had followed, indicating, though, that Thornton

had changed clothes and had a lighter complexion. (At trial

Salazar also identified Thornton as the passenger of the

car.) The police asked Contreras if he could identify

Thornton as the man he had seen at Bank One. Contreras

thought Thornton could have been the same person, but

he was not sure because his appearance had changed.

A grand jury charged that Thornton, by force and

violence or intimidation, attempted to rob Bank One on

September 26, 2005, in violation of the first paragraph of

18 U.S.C. § 2113(a). He also was charged with possessing

a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). The case was tried to a jury.

On direct examination, Thornton admitted that he and

Moore had discussed robbing a bank and he testified that

he had robbed a bank in Canada. On cross-examination,

the government brought out the details of the Canadian

robbery, including that Thornton had a gun. The jury

found Thornton guilty as charged. He moved for a judg-
No. 07-2839 7

ment of acquittal under Federal Rule of Criminal Procedure 29(a) and (c) and moved for a new trial under Rule 33.

The district court denied his motions, entered judgment on

the jury’s verdicts, and sentenced Thornton to 132 months’

imprisonment: 72 months on the attempted bank robbery

and the mandatory minimum of 60 consecutive months

on the firearm count. He appeals.

II. Analysis

Thornton raises several issues on appeal. He first

argues that the district court erred in instructing the jury

that they could find him guilty of attempted bank robbery

as alleged in Count One of the indictment if they found

that he “acted to attempt to take [Bank One’s] money by

force and violence or by intimidation.” He next contends

that his firearm conviction must be vacated because

attempted bank robbery by attempted intimidation is not

a crime of violence. He also challenges the sufficiency of

the evidence to convict him of both the attempted bank

robbery and the firearm charges. Lastly, he argues that

the court abused its discretion in admitting evidence of

his prior bank robbery conviction under Rule 404(b) of

the Federal Rules of Evidence, but given our resolution

of the other issues, we do not reach this argument. We

begin with the challenge to the jury instruction.

A. Attempted Bank Robbery: Jury Instruction

Thornton contends that the district court erred in instructing the jury on the elements of attempted bank
8 No. 07-2839

robbery under § 2113(a) because the instruction did not

require actual force and violence or intimidation. We

review questions of statutory interpretation de novo,

United States v. Genendo Pharm., N.V., 485 F.3d 958, 962 (7th

Cir.), cert. denied, 128 S. Ct. 670 (2007), and we review jury

instructions for correct statements of the law de novo

as well, United States v. Cote, 504 F.3d 682, 687 (7th Cir.

2007), cert. denied, 128 S. Ct. 2519 (2008). We will “reverse

only if the instructions, viewed as a whole, misguide the

jury to the litigant’s prejudice.” Id. (quotation omitted);

United States v. Palivos, 486 F.3d 250, 257 (7th Cir. 2007)

(indicating that when the jury instructions contain an

error of law, we reverse if the instructions “viewed as a

whole, misguide the jury to the litigant’s prejudice”

(citation omitted)).

The district court instructed the jury:

To sustain the charge of attempted bank robbery, as

alleged in Count 1 of the indictment, the government

must prove the following propositions:

First, that the defendant attempted to take from the

person or presence of another money belonging to and

in the care, custody, control, management, or possession of Bank One, 6532 West Cermak Road, Berwyn,

Illinois;

Second, that at the time charged in the indictment,

Bank One, 6532 West Cermak Road, Berwyn, Illinois,

had its deposits insured by the Federal Deposit Insurance Corporation; and

Third, the defendant acted to attempt to take such

money by force and violence or by intimidation.
No. 07-2839 9

In considering whether this instruction correctly states the

law, we look to the statute itself, which states:

Whoever, by force and violence, or by intimidation,

takes, or attempts to take, from the person or presence

of another, or obtains or attempts to obtain by extortion

any property or money or any other thing of value

belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any

savings and loan association; or

Whoever enters or attempts to enter any bank, credit

union, or any savings and loan association, or any

building used in whole or in part as a bank, credit

union, or as a savings and loan association, with intent

to commit in such bank, credit union, or in such

savings and loan association, or building, or part

thereof, so used, any felony affecting such bank, credit

union, or such savings and loan association and in

violation of any statute of the United States, or any

larceny—

Shall be fined under this title or imprisoned not more

than twenty years, or both.

18 U.S.C. § 2113(a). Thornton was charged under the first

paragraph of § 2113(a). He contends that the statute’s plain

language requires a finding of actual force and violence

or intimidation. He also asserts that the structure of

§ 2113(a) as a whole, legislative history, case law, and

policy considerations all support the conclusion that

actual force and violence or intimidation are required. We

need go no further than the statutory language itself.
10 No. 07-2839

In analyzing the first paragraph of § 2113(a), we “begin

by examining the text.” Carter v. United States, 530 U.S. 255,

271 (2000). The relevant language for our purposes is:

“Whoever, by force and violence, or by intimidation, takes,

or attempts to take. . . .” 18 U.S.C. § 2113(a). Among the

circuits that have directly addressed the issue, there is a

split as to whether the statute requires proof of actual force

and violence or intimidation. In United States v. Bellew, 369

F.3d 450, 453-56 (5th Cir. 2004), the Fifth Circuit held

that the most natural reading of the text of the statute

requires that a defendant actually commit an act of intimidation; attempted intimidation is insufficient under the

first paragraph of § 2113(a). See also United States v. Brown,

412 F.2d 381, 384 n.4 (8th Cir. 1969) (approving of jury

instruction on intimidation that required proof of one

or more acts or statements done or made so as to produce

in an ordinary person fear of bodily harm); United States v.

Baker, 129 F. Supp. 684, 686 (S.D. Cal. 1955) (“It is apparent

that in [the first paragraph of § 2113(a)] the ‘attempt’

relates to the taking and not to the intimidation”). In Bellew,

the Fifth Circuit further considered § 2113(a)’s legislative

history as interpreted by the Supreme Court in Prince v.

United States, 352 U.S. 322 (1957), as support for its conclusion. Bellew, 369 F.3d at 455 (“It is a fair inference

from the wording in the Act, uncontradicted by anything

in the meager legislative history, that the unlawful entry

provision was inserted [as the second paragraph of

Section 2113(a)] to cover the situation where a person

enters a bank for the purpose of committing a crime, but

is frustrated for some reason before completing the crime.”

(alteration in original) (quoting Prince, 352 U.S. at 328)).
No. 07-2839 11

At oral argument we requested supplemental briefing on

1

the effect of Salgado which was decided after the briefing in this

case.

The Second, Fourth, Sixth, and Ninth Circuits, however,

have concluded that an attempt to use force and violence

or intimidate is sufficient under the statute, United States

v. Jackson, 560 F.2d 112, 116-17 (2d Cir. 1977) (applying

the logic of United States v. Stallworth, 543 F.2d 1038, 1040

(2d Cir. 1976), which addressed the “substantial step”

element of attempt crime, to the first paragraph of

§ 2113(a)); United States v. McFadden, 739 F.2d 149, 152 (4th

Cir. 1984) (following Jackson); United States v. Wesley, 417

F.3d 612, 618 (6th Cir. 2005); United States v. Moore, 921

F.2d 207, 209 (9th Cir. 1990), but they did so without

analyzing the statutory text. These courts relied on the

elements of an attempt crime—the specific intent to

commit a crime and a substantial step towards the commission of that crime—instead. We do not find these cases

persuasive because they omit an appropriate statutory

analysis.

The Fifth Circuit’s approach to interpreting § 2113(a)

comports with the approach we have taken in analyzing 18

U.S.C. § 2114(a)—we examine the statutory text. In United

States v. Salgado, 519 F.3d 411 (7th Cir. 2008), we considered

the meaning of 18 U.S.C. § 2114(a), adhering to the plain

language because it was clear and unambiguous. Salgado 1

points us in the right direction to answer the question

before us: simply read the text. Under a straightforward

reading of § 2113(a), the “attempt” language relates only
12 No. 07-2839

In fact, he was initially charged with a violation of the second 2

paragraph of § 2113(a) in the complaint when he was arrested.

It appears that this suitable charge was abandoned in favor of

the first paragraph count in the indictment so that the firearm

count (with a mandatory consecutive penalty) could be added.

to the taking and not to the intimidation. The government

argues that all that is necessary is that a defendant attempt

to intimidate while attempting to rob a bank. If that were

so, attempt would relate to the “by force and violence or

intimidation” language and the statute would have

begun with, “Whoever attempts by force and violence or

intimidation to take . . . .” The “by force and violence, or by

intimidation” language relates to both “takes” and the

phrase “attempts to take.” Accordingly, actual force and

violence or intimidation is required for a conviction

under the first paragraph of § 2113(a), whether the defendant succeeds (takes) or fails (attempts to take) in his

robbery attempt.

As the government did in Salgado, it again attempts to

stretch federal law to cover an act that is not criminalized

by the statute at issue. In both cases in its effort to do so,

the government relied on the elements of an attempt crime

and “a parade of horribles.” Salgado, 519 F.3d at 413.

Thornton could have been prosecuted under the second

paragraph of § 2113(a) so the government is not without 2

a law under which to seek conviction of defendants under

similar factual circumstances. The government notes that

the second paragraph of § 2113(a) cannot serve as a

predicate crime of violence to support a § 924(c)(3) charge.

That is correct. But we cannot bend the statute simply
No. 07-2839 13

to accommodate the government’s zeal to obtain stiffer

penalties.

We begin and end with the statutory text, see Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992): the

first paragraph of § 2113(a) requires actual intimidation

for a conviction. The district court’s instruction did not

require the jury to find actual intimidation, thus omitting

an essential element necessary for a conviction. This

legal error prejudiced Thornton because it allowed the

jury to convict him without finding actual intimidation

beyond a reasonable doubt, and so we will reverse the

conviction under § 2113(a). See, e.g., United States v. Perez,

43 F.3d 1131, 1139-40 (7th Cir. 1994) (noting that the

failure to correctly instruct on the elements of the offense

usually results in reversal). The next section determines

whether the reversal should be accompanied by a new

trial or a judgment of acquittal.

B. Attempted Bank Robbery:

Sufficiency of the Evidence

Thornton challenges the sufficiency of the evidence to

convict him under § 2113(a), arguing that the government failed to prove actual intimidation. The government did not argue that Thornton used “force and violence,” but instead rested its case on intimidation. When

presented with a challenge to the sufficiency of the evidence, we will uphold the jury’s determination if “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United
14 No. 07-2839

States v. Seymour, 519 F.3d 700, 714 (7th Cir. 2008) (internal

quotation marks and citation omitted). Under this standard, we will not reverse “unless the record is devoid of

evidence from which a reasonable jury could find guilt

beyond a reasonable doubt.” Id. And if the evidence is

insufficient to support a guilty verdict, “we must reverse

with instructions that the district court grant a judgment

of acquittal.” United States v. Gee, 226 F.3d 885, 892 (7th

Cir. 2000).

“We have defined intimidation under § 2113(a) as ‘saying

or doing something in such a way as would place a reasonable person in fear.’ ” United States v. Burnley, No. 07-

1314, --- F.3d ----, 2008 WL 2791670, at *2 (7th Cir. July 21,

2008) (quoting United States v. Clark, 227 F.3d 771, 775 (7th

Cir. 2000)). Intimidation is the threat of force, United States

v. Hill, 187 F.3d 698, 701 (7th Cir. 1999); United States v.

Smith, 131 F.3d 685, 688 (7th Cir. 1997); United States v.

Jones, 932 F.2d 624, 625 (7th Cir. 1991), which “ ‘exists in

situations where the defendant’s conduct and words

were calculated to create the impression that any

resistance or defiance . . . would be met with force.’ ”

Burnley, 2008 WL 2791670, at *2 (quoting Clark, 227 F.3d

at 775) (internal quotation marks and citation omitted);

Smith, 131 F.3d at 688. We apply an objective test: would

the defendant’s words or acts cause an ordinary person

to reasonably feel threatened under the circumstances?

Clark, 227 F.3d at 775; Hill, 187 F.3d at 702. We have said

that “the context of the crime provides evidence of intimidation and . . . the defendant’s appearance and actions

during the course of the offense ‘figure into the [intimidation] assessment.’ ” Clark, 227 F.3d at 775 (quoting Hill, 187

F.3d at 701).
No. 07-2839 15

Our cases illustrate what conduct amounts to intimidation. Most recently in Burnley we emphasized that

“[c]redibly implying that a refusal to comply with a

demand for money will be met with more forceful measures is enough” to prove intimidation. Burnley, 2008

WL 2791670, at *2. The Burnley defendants entered the

banks, conveyed to the tellers their demands for the

banks’ money, and made it clear that they wanted no dye

packs or bait bills. The tellers understood that the

demands were not mere requests which could be ignored,

but rather, felt compelled to comply. Id. at *1. We held that

this evidence was sufficient to support the finding of

intimidation. Id. at *2. Similarly, in Clark the defendant

entered the bank, approached the teller and slid a note

across the counter which instructed: “[R]emain calm and

place all of your twenties, fifties, and hundred dollar

bills on the counter and act normal for the next fifteen

minutes.” The teller was unsure what was happening and

asked the defendant, “Huh?” to which he responded, “Yes,

Ma’am, this is a holdup.” 227 F.3d at 772-73. We held that

the combination of the defendant’s actions amounted to

intimidation, indicating that it was reasonable for the teller

to fear that the defendant “might use physical force to

compel satisfaction of his demand for money.” Id. at 775.

Likewise, in Hill the defendant entered the bank, approached a teller and, while at arm’s length from her,

demanded, “Give me all your money” and added, “[D]on’t

give me any of the funny money.” The teller complied, but

not fast enough to suit the defendant, so he warned,

“Hurry up, hurry up, bitch.” 187 F.3d at 699-700. We held

that the defendant’s actions could be considered intimida-
16 No. 07-2839

tion even though he did not expressly threaten the bank

teller, he did not carry a weapon, he spoke softly, and he

was not an imposing figure. Id. at 701. And, similarly in

Jones, the defendant walked up to the teller, announced,

“This is a hold up,” demanded money from the teller, and

when the teller hesitated, he leapt onto the counter, opened

the drawer, grabbed the money, and ran out of the bank.

The defendant had a bag as did his accomplice, which

the teller thought contained a weapon. The accomplice

repeatedly warned the teller, “Don’t touch nothing.” 932

F.2d at 625. We found this ample evidence to support an

inference that the defendant and his accomplice’s behavior

constituted the threat of force. Id. Each of these cases

share two critical facts: the defendant entered the bank

and made a demand for money. In contrast, Thornton

never even made it into the bank or made a demand

for money.

This case compares to those in which other circuits have

held that the evidence was insufficient as a matter of law

to support a jury finding of intimidation under § 2113(a).

In United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989), for

example, the evidence was that the defendant entered

the bank, approached the tellers’ counter, and put on a

ski mask and sunglasses as he walked through an open

gate into the teller area. He began taking money from

an open cash drawer, getting $45 before a customer

attacked him and he fled. Wagstaff never was within eight

feet of the nearest teller, he was neither wearing nor

carrying a weapon, and he never produced a note, said

anything, or made any overtly threatening gestures. The

nearest teller testified that she was afraid and that she
No. 07-2839 17

had been taught to assume that any person taking money

from the bank was armed. Id. at 627. The Fourth Circuit

acknowledged that being present during and witnessing a

bank robbery “may well be a fear-inducing experience,” id.

at 629, but held as a matter of law that the evidence was

insufficient to prove a taking by intimidation under

§ 2113(a), id. The court said that “the presumption that

every robbery involves a weapon would seem to make

the ‘intimidation’ requirement redundant.” Id. It reasoned that to submit the question of intimidation to the

jury in the absence of either an explicit threat of harm or

an implicit threat of a weapon would:

substitute[ ] a set of assumptions about the actions of

a person taking money from a bank for the individualized analysis of that person’s actual behavior called

for by the § 2113(a) “intimidation” requirement. This

in effect eliminates the statutory command that the

government prove intimidation as a separate element

of the crime of bank robbery. 

Id.

Similarly, in Bellew the defendant entered the lobby of

the bank, wearing what was described by a bank employee as an “obvious wig” and carrying a briefcase, which

was later found to contain a firearm, instructions on

how to rob the bank, and a demand note. Bellew asked to

speak with the manager, was told the manager was busy

and was asked to wait. Bellew initially waited a few

minutes, but then left the bank, returning later to learn

that the manager was still unavailable. 369 F.3d at 451. A

bank employee reported Bellew’s suspicious activity, and
18 No. 07-2839

the manager called the police, who confronted Bellew

outside the bank. Bellew eventually admitted his intent

to rob the bank. Id. at 452. Bellew made no explicit or

implicit threats. And although he carried a gun in his

briefcase, no one had seen it. The Fifth Circuit concluded that Bellew never used force and violence or

intimidation as required under § 2113(a), thus reversing

the conviction and remanding for a judgment of acquittal

of the attempted robbery count. Id. at 454, 456.

Burnley, Clark, Hill, and Jones represent the more

typical attempted bank robbery charged under the first

paragraph of § 2113(a) in which the would-be bank robber

enters the bank, interacts with bank personnel, and threatens a teller or other bank employee—or at the very least

makes a demand for money, which may be viewed as an

implicit threat of force. But here Thornton never even

made it into the bank. He had no contact with any bank

personnel and no one inside the bank even knew that a

masked and disguised man was right outside the bank

door. There was no evidence of either an explicit or

implicit threat. Thornton made no demand for money.

There was no evidence from which anyone at the

bank—whether bank personnel, a bank customer like

Contreras, or even a simple passerby—could reasonably

infer that Thornton had a weapon or would use force.

Thornton’s mere presence at the bank’s exterior door in

an apparent disguise, carrying a duffle bag, and with his

hand on the door does not even approach conduct suggestive of a demand for money or an implication that

force would follow noncompliance with the as-yet unmade

demand.
No. 07-2839 19

Contreras did testify that he inferred the masked man

was up to no good and said that he was afraid because

he thought the man had a gun and might shoot him. But

even though Contreras’s fear may be “probative of whether

a reasonable person would have been afraid under the

same circumstances,” Hill, 187 F.3d at 702, it is not conclusive. We do not doubt that Contreras was afraid. Yet his

fear that the man at the bank had a gun and might shoot

him was not reasonably based on any words or actions

of Thornton. Contreras’s fear was based not only on

what he observed and heard, but also, as in Wagstaff, on

assumptions about what a would-be bank robber might

do. Contreras had every right to infer that something was

not right about the situation, but Thornton’s words and

actions did not give rise to a reasonable fear of the threat

of force. The evidence allowed the jury to find that Thornton had a gun in his duffle bag, but Contreras never

saw the gun and he had no reason to believe that Thornton

had a gun. Thornton’s action in reaching for something

in his jacket pockets does not constitute a threatening

gesture in itself and does not reasonably suggest that he

carried a weapon. Under the circumstances presented, no

reasonable person in Contreras’s shoes would have felt

threatened by acts or words of intimidation; the only

words and actions that even begin to approach intimidating conduct occurred after Thornton already had abandoned his attempt to enter (and rob) the bank.

And if there could be any doubt as to whether the

evidence measures up to intimidation, tellingly, the

government has not contended—in its brief or at oral

argument—that it proved actual intimidation. In response
20 No. 07-2839

We do not quarrel with the government’s view of the evidence 3

as sufficient to prove substantial step and culpable intent, but

that is not enough to support Thornton’s conviction.

to Thornton’s challenge to the sufficiency of the evidence of actual intimidation, it argued only that it had

proven a substantial step toward the commission of the

crime and culpable intent. The government also asserts 3

that the evidence showed Thornton’s “intent to use intimidation” and “intent to intimidate.” But as we have decided,

this does not suffice under a correct reading of the first

paragraph of § 2113(a). And if that were not enough, the

government clearly concedes in its brief that Thornton

“never engaged in actual intimidation.” (Appellee Br. 39.)

The evidence at trial fits the second paragraph of § 2113(a)

rather than the first; but Thornton was not charged

under the second paragraph.

No reasonable jury could find beyond a reasonable doubt

that Thornton said or did something that amounts to

intimidation under § 2113(a). Thus, the government

failed to prove an essential element of the crime of attempted bank robbery as charged in Count One. We

accordingly reverse the conviction on Count One with

instructions that the district court grant a judgment of

acquittal.

C. Firearm Charge

Thornton also contends that his conviction under the

firearm charge in Count Two, 18 U.S.C. § 924(c)(1)(A),
No. 07-2839 21

must be vacated. A conviction under § 924(c) must be

predicated upon a crime of violence. 18 U.S.C.

§ 924(c)(1)(A)(I) (“[A]ny person who, during and in

relation to any crime of violence . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm, shall . . . [be sentenced to an additional

term of imprisonment].”); see also United States v. Jones, 993

F.2d 58, 61-62 (5th Cir. 1993) (“Section 924(c)(1) requires

the commission of a crime of violence in addition to the

use of a firearm during the commission of that crime.”).

Because the firearm conviction turns on the attempted

bank robbery charge, we must reverse the conviction on

Count Two as well and remand for entry of a judgment

of acquittal.

III. Conclusion

For the foregoing reasons, we REVERSE Thornton’s

convictions and VACATE his sentence with instructions

to the district court to grant Thornton’s motion for a

judgment of acquittal as to both counts of the indictment.

8-26-08