United States of America v. MICKEY LONIELLO and NATHANIEL AGUILAR

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1494
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MICKEY LONIELLO and NATHANIEL AGUILAR,
Defendants-Appellees.
No. 09-1606
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WALTER THORNTON,
Defendant-Appellee.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 05 CR 813 & 07 CR 336—James B. Zagel, Judge.
ARGUED SEPTEMBER 14, 2009—DECIDED JUNE 29, 2010
Before EASTERBROOK, Chief Judge, and BAUER and
EVANS, Circuit Judges.

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2 Nos. 09-1494 & 09-1606
EASTERBROOK, Chief Judge. The federal bank-robbery
statute, 18 U.S.C. §2113, comprises several crimes, in-
cluding attempted bank robbery, armed bank robbery,
unarmed bank robbery, assault during a bank robbery,
and receiving the proceeds of a bank robbery. This
appeal presents the question whether this statute’s first
subsection creates one crime or two. This subsection
provides:
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 associ-
ation, 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). The prosecutor contends that the first
two paragraphs of §2113(a) create distinct offenses. But

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Nos. 09-1494 & 09-1606 3
the district court held that §2113(a) creates only one
offense. United States v. Loniello, 2009 U.S. Dist. LEXIS 6289
(N.D. Ill. Jan. 28, 2009); United States v. Thornton, 2009
U.S. Dist. LEXIS 11274 (N.D. Ill. Feb. 12, 2009).
The difference matters because all three defendants
(Mickey Loniello and Nathaniel Aguilar in one prosecu-
tion, Walter Thornton in the other) have been acquitted
of violating §2113(a) ¶1, which forbids attempting to rob
a bank by force or intimidation. Thornton was convicted
of this charge after evidence at trial showed that, while
armed and disguised, he walked to the door of a bank
and began to open it, then fled when a passerby saw
what was happening. We reversed his conviction after
concluding that §2113(a) ¶1 requires proof that the defen-
dant actually used force or intimidation; the attempt
aspect of ¶1 deals with an attempt to rob the bank, not
an attempt to use force or intimidation. United States
v. Thornton, 539 F.3d 741 (7th Cir. 2008). Because the
evidence did not show that Thornton used force or
intimidation, we held that he was entitled to be
acquitted of the charge under ¶1, though we added that
his acts appeared to violate ¶2. Loniello and Aguilar,
who were convicted on facts similar to Thornton’s,
had motions for acquittal pending when our opinion in
Thornton was released. The district court granted those
motions without opposition from the prosecutor—who
then obtained new indictments charging Thornton,
Loniello, and Aguilar with violating §2113(a) ¶2. The
district court dismissed these new charges, concluding
that, because §2113(a) creates a single offense, the fifth
amendment’s double jeopardy clause blocks another
prosecution.

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4 Nos. 09-1494 & 09-1606
The prosecutor’s argument on appeal under 18 U.S.C.
§3731 ¶1 starts with Blockburger v. United States, 284
U.S. 299 (1932), which holds that the statutory elements
define how many distinct crimes have been created. If
each statute contains an element that the other does
not, then the offenses are different. If one statute has
an element missing from the second, but all of the
second’s elements are in the first, then the second is a
lesser included offense of the first. And if the statutes’
elements are identical, then they are one offense. See
also, e.g., Schmuck v. United States, 489 U.S. 705, 715–21
(1989). If two statutes create one offense, or one statute
creates a lesser included offense of another, then
the double jeopardy clause limits to one the number of
permissible prosecutions. United States v. Dixon, 509 U.S.
688 (1993); Brown v. Ohio, 432 U.S. 161 (1977).
When different indictments charge crimes with differ-
ent elements, successive trials do not violate the double
jeopardy clause. Arguments that all crimes arising from
the same facts or same transaction must be charged and
tried together have not prevailed. See, e.g., Garrett v.
United States, 471 U.S. 773, 790 (1985); Dixon, 509 U.S. at
709 n.14. A partial version of the same-transaction ap-
proach has been adopted via the law of issue preclusion
(collateral estoppel): if a jury at the first trial resolves in
a defendant’s favor facts that are essential to a second
prosecution, then the double jeopardy clause blocks
the second trial. See, e.g., Yeager v. United States, 129 S. Ct.
2360 (2009); Ashe v. Swenson, 397 U.S. 436 (1970). But the
triers of fact on the ¶1 charges (juries for Thornton
and Aguilar, a judge in a bench trial for Loniello) resolved

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Nos. 09-1494 & 09-1606 5
all factual disputes in the prosecution’s favor, so the
fact that the multiple indictments arise from the same
transaction does not assist these defendants.
Paragraphs 1 and 2 of §2113(a) create different offenses
under the Blockburger standard. Paragraph 1 requires
proof of force or intimidation, while ¶2 does not. Para-
graph 2 requires proof of an actual or attempted entry of
a bank, while ¶1 does not. It is possible to violate §2113(a)
¶1 without coming anywhere near a bank—the robber
could steal the bank’s money from an armored car or
obtain it by kidnapping a bank’s employee and de-
manding that a ransom be left at a pick-up point far
from the bank. See United States v. Hackett, 623 F.2d 343
(4th Cir. 1980). By contrast, it is impossible to violate ¶2
without at least attempting to enter the bank. There
are other differences too. This much is common ground
among the parties and the district judge. But defendants
contend that we should not use the Blockburger standard.
They have two reasons. First, paragraphs 1 and 2 are
part of a single subsection, and defendants maintain that
this evinces a legislative determination that there is only
one offense. Second, the Supreme Court has held that
convictions under multiple subsections of §2113 sup-
port only one sentence. See, e.g., Prince v. United States,
352 U.S. 322 (1957). Defendants insist that this must
mean that all components of §2113 are a single crime,
no matter how much the elements of one subsection
differ from those of another.
Defendants’ first line of argument makes too much of
the numbering system, often the work of the Office of the

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6 Nos. 09-1494 & 09-1606
Law Revision Counsel (which converts the Statutes at
Large into the United States Code, see 2 U.S.C. §285b)
rather than of Congress itself. There is no rule that one
section or subdivision of a statute may contain just one
crime, or that every separate number must create a dif-
ferent crime.
We cannot imagine any reason why the Constitution
would be thought to allow successive prosecutions if
§2113(a) ¶1 were redesignated §2113(a)(1), and ¶2 as
§2113(a)(2), or if they were renumbered as §2113(a) and
§2113(b), with the letters designating other subsections
incremented by one. Different offenses may end up as
different paragraphs precisely because drafters do not
want to renumber other subsections, whose designations
have become familiar. Section 2113(e), for example, deals
with murder during the course of a bank robbery. It
has been codified at that address for a long time, and
turning it into §2113(f) in order to make §2113(a) into
two subsections would cause confusion when people try
to collect or cite earlier decisions construing or applying
the (original) §2113(e). Worse, changing one subsection’s
designation in order to make room for another can
wreak havoc with cross-references elsewhere in the
United States Code. See United States v. Head, 552 F.3d
640 (7th Cir. 2009). Prudent drafters prefer to avoid that
risk, even if it means adding paragraphs or sub-parts
to other subdivisions of a statute.
The current structure of §2113 is the work of the Law
Revision Counsel rather than the legislature—and its
history does not suggest any plan to equate each section

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Nos. 09-1494 & 09-1606 7
heading with one offense. What is now codified as §2113
was enacted in 1934. The statute contained a single para-
graph covering bank robbery, bank robbery accom-
plished by aggravated assault, and homicide during a
bank robbery. (Prince narrates this history; we omit cita-
tions to the Statutes at Large.) Such a concatenation
of crimes does not convey the idea that one section = one
offense. In 1937 Congress added to §2113 prohibitions
of larceny and burglary or entry with intent to commit
a theft. All of these new crimes, and all of the original
ones, were placed into a single lengthy paragraph.
Title 18 was codified in 1948 (with the drafting work
done by the Law Revision Counsel), and the code was
enacted into positive law. The Law Revision Counsel
broke the long legislative paragraph into easier-to-
digest parts. It was in 1948 that murder during a bank
robbery was moved to subsection (e), robbery by assault
or the use of a deadly weapon to subsection (d), and
receiving or possessing the proceeds of a bank robbery
to subsection (c). Subsection (f) was used for definitions.
Variations on robbery and burglary (including attempts)
went into subsection (a) and variations on larceny
into subsection (b)—which like subsection (a) has unnum-
bered paragraphs. Subsection (b) ¶1 now covers larceny
of $1,000 or more and sets a maximum punishment of
10 years; §2113(b) ¶2 covers lower sums and sets a maxi-
mum punishment of one year in prison. The two para-
graphs of subsection (b) state separate crimes (the
second paragraph being a lesser included offense of the
first); it makes sense to conclude that the two para-
graphs of subsection (a) likewise create distinct offenses.

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8 Nos. 09-1494 & 09-1606
(Defendants do not contend that §2113(a) ¶2 is a lesser
included offense of §2113(a) ¶1.)
To counteract this history, defendants stress the word
“or” between the first two paragraphs of §2113(a).
This means, they contend, that the two paragraphs state
alternative means to commit a single crime. Yet drafters
commonly use “or” to distinguish different offenses in
a sequence. Take 15 U.S.C. §1644, which uses “or” several
times to separate its subsections. United States v. Dennison,
730 F.2d 1086 (7th Cir. 1984), holds that this use of “or”
does not affect the fact that each separate paragraph in
§1644 creates a separate offense. Defendants ask us to
distinguish Dennison and similar decisions, including
Jones v. United States, 526 U.S. 227 (1999), on the ground
that the word “or” in §1644 occurs between numbered
subsections, while the word “or” in §2113(a) comes be-
tween unnumbered paragraphs. But we’ve already ex-
plained why the choice between paragraphs and sub-
sections is not a good reason to expand (or collapse)
the number of separate crimes. The Blockburger elements
test is designed for that purpose, and for more than
75 years the Justices have declined to replace Blockburger
with some other approach. See Dixon, 509 U.S. at 704–09.
We think Blockburger much superior to making every-
thing turn on how the subheadings of the United States
Code are arranged.
True enough, an “or” can be informative. Suppose that
a statute says something like: “It is unlawful to conduct
a business that takes bets on baseball games or horse
races.” Then it would be sensible to say that the “or”

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Nos. 09-1494 & 09-1606 9
separates different ways of committing a single offense;
to obtain a conviction, the prosecutor must show that
the defendant took bets on horse races or baseball
games, but need not show both—and, if the defendant
is acquitted of a charge that he took bets on baseball, he
could not later be tried on a charge that he took bets on
horse races (not, at least, if the charge covers the same
time). See Sanabria v. United States, 437 U.S. 54, 69–74
(1978). So if the first indictment had charged Thornton
with attempting to rob the bank by force, in violation
of §2113(a) ¶1, he could not later be charged with at-
tempting to rob the same bank (at the same time) by
intimidation, for the phrase “by force and violence, or
by intimidation” in §2113(a) ¶1 sets out two ways of com-
mitting the offense. But it does not follow from Sanabria
or similar decisions that every use of the word “or” in
the Criminal Code groups the text on both sides into
a single offense.
Interpretation depends on context, and the context of
“or” in the phrase “by force and violence, or by intimida-
tion” is completely different from the context of “or” as a
conjunction between self-contained units. The function of
“or” in §2113(a), as in §1644 and many other criminal
statutes, is to group multiple offenses to show that the
same penalty applies. The form in §2113(a) is “Who-
ever does x [comprising elements 1, 2, 3, and 4] or y
[comprising elements 3, 4, 5, and 6] shall be imprisoned not
more than z years,” where each set of 4 elements describes
a complete offense. Events grouped together in x and y are
to be treated alike for the purpose of punishment; this
is not at all to say that x and y are one offense. A phrase

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10 Nos. 09-1494 & 09-1606
such as “by force and violence, or by intimidation”, by
contrast, does not specify all elements of any offense, so
the word “or” is best read, as in Sanabria, to identify
different ways of committing one element of the offense
in which the phrase is embedded.
We conclude that neither the numbering scheme that
the Law Revision Counsel used to codify §2113, nor the
word “or” between ¶1 and ¶2, implies that the two para-
graphs create a single offense. And this view is implicit
in our opinion in Thornton. We concluded that the proof
at Thornton’s trial would have supported a conviction
under §2113(a) ¶2, but that because he had been charged
under ¶1, which requires proof of force or intimidation,
he was entitled to be acquitted. That disposition was
proper only if ¶1 and ¶2 establish separate crimes. If they
are a single crime, then the right disposition should
have been a remand for a new trial, at which the jury
would have been given instructions appropriate under
¶2. Reversal because of an error in the jury instructions
may be followed by a new trial without offending the
double jeopardy clause. Only a reversal for insufficient
evidence forbids a second trial. See Burks v. United States,
437 U.S. 1 (1978). And, if ¶1 and ¶2 are different ways
to commit a single offense, then the evidence at
Thornton’s trial was not insufficient. The only problem
would have been bad jury instructions.
Thus we arrive at defendants’ second line of argument:
that Prince jettisoned Blockburger for §2113 and establishes
that all of its five substantive subsections create one
offense. If defendants are right about the effect of Prince,

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Nos. 09-1494 & 09-1606 11
then we were wrong in Thornton to think that Thornton
was entitled to an acquittal for insufficient evidence—
but, because the United States did not ask the Supreme
Court to review our decision, that acquittal must stand.
It would prevent a retrial for the same offense as
Prince understood it, even though that was not the “same
offense” as our Thornton opinion understood it. We con-
clude, however, that Prince does not treat all subsections
of §2113 as part of one offense. Its holding, rather, is
that the subsections of §2113 do not allow cumulative
sentences, even though they establish distinct offenses.
Prince was convicted of entering a bank with intent to
steal (§2113(a) ¶2) plus armed bank robbery (§2113(a)
¶1 and (d)). He was sentenced to 15 years on one count
and 20 years on the other. The Supreme Court held,
however, that a preparatory act such as an unlawful
entry “merges into the completed crime if the robbery
is consummated”. 352 U.S. at 328 (emphasis added).
Then the maximum sentence for any single bank robbery
is the sentence for the most serious of the related of-
fenses—entering the bank with intent to steal, armed
robbery, shooting a teller, carrying away the proceeds,
and so on. It would have been possible to accomplish
this result by holding that all subsections are variations
on a single offense; this is how defendants want us to
read Prince. But what the Court actually said is that the
offenses are not “consecutively punishable in a typical
bank robbery situation.” 352 U.S. at 324. If the Justices
had a “one offense” view of §2113, then they should
have held the separate counts of Prince’s indictment to
be multiplicitous. But what Prince said is that all of the

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12 Nos. 09-1494 & 09-1606
counts charging related offenses should go to the jury,
and sentence should be imposed on the most serious
conviction. That’s a very different approach. See United
States v. Peel, 595 F.3d 763 (7th Cir. 2010). The Court began
its opinion by saying that §2113 “creates and defines
several crimes incidental to and related to thefts from
banks”. 352 U.S. at 323. That’s hardly an apt phrase if,
as defendants contend, the Justices thought that all of
§2113 creates just one crime.
Prince was the first in a series of decisions arising from
the fact that Congress has not clearly specified how the
multiple subsections of §2113 relate to one another for
the purposes of punishment. The next case was Heflin v.
United States, 358 U.S. 415 (1959). Heflin was convicted
of both bank robbery (§2113(a) ¶1, (d)) and possessing
the loot (§2113(c)); the district court imposed consecu-
tive sentences. The Justices held, however, that “sub-
section (c) was not designed to increase the punish-
ment for him who robs a bank but only to provide punish-
ment for those who receive the loot from the robber.” 358
U.S. at 419. The Court again prescribed merger of the
sentences, so that the defendant was exposed to the
highest sentence on any one count. Heflin does not hold
that possessing or receiving stolen property is the “same
offense” as robbing a bank; the Court’s view instead
was that they are different offenses but that only one
sentence has been authorized. See United States v. Bacani,
236 F.3d 857, 859–60 (7th Cir. 2001).
Milanovich v. United States, 365 U.S. 551 (1961), gen-
eralizes Heflin by concluding that its approach applies to

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Nos. 09-1494 & 09-1606 13
all federal robbery and receipt-of-stolen-goods prosecu-
tions. The statute at issue in Milanovich was 18 U.S.C. §641,
which deals with the theft of the federal government’s
property. The conclusion that theft and receipt convic-
tions under §641 merge shows that Prince and Heflin
do not establish a special rule for §2113. Instead they
adopt a norm for the entire Criminal Code: No matter
how many statutes a person violates when preparing
to commit a robbery, actually committing it, and
handling the loot, only one sentence is appropriate, see
Simpson v. United States, 435 U.S. 6 (1978)—unless
Congress specifies a different treatment, as it sometimes
does, see 18 U.S.C. §924(c), which was amended after
Simpson to require consecutive sentences for armed
bank robbery and using a firearm in the course of that
robbery. See also United States v. Gonzales, 520 U.S. 1, 10–11
(1997) (concluding that the amendment to §924(c) super-
sedes Simpson); United States v. Harris, 832 F.2d 88 (7th
Cir. 1987) (same).
Milanovich changed the Court’s understanding in one
respect: it holds that the jury rather than the judge should
make the decision. United States v. Gaddis, 424 U.S. 544
(1976), extended Milanovich from §641 to §2113 (and
other similar statutes). Once again the Court did not
instruct judges to treat a multi-count indictment under
§2113 as multiplicitous, as it would be if the statute
established only one offense. Instead it adopted this
protocol:
Situations will no doubt often exist where there
is evidence before a grand jury or prosecutor

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14 Nos. 09-1494 & 09-1606
that a certain person participated in a bank rob-
bery and also evidence that that person, though
not himself the robber, at least knowingly
received the proceeds of the robbery. In such a
case there can be no impropriety for a grand jury
to return an indictment or for a prosecutor to
file an information containing counts charging
violations of 18 U.S.C. §2113 (a), (b), or (d), as well
as of §2113(c). If, upon the trial of the case the
District Judge is satisfied that there is sufficient
evidence to go to the jury upon both counts, he
must, under Heflin and Milanovich, instruct the
members of the jury that they may not convict
the defendant both for robbing a bank and for
receiving the proceeds of the robbery. He should
instruct them that they must first consider the
charges under §2113(a), (b), or (d), and should
consider the charge under §2113(c) only if they
find insufficient proof that the defendant him-
self was a participant in the robbery.
424 U.S. at 550 (footnotes omitted). Accord, Ball v. United
States, 470 U.S. 856, 860–61 n.8 (1985). This is appropriate
if §2113 establishes many offenses, only the most serious
of which should lead to punishment. It is not the right
way to go about things if, as defendants contend, all
of §2113 creates but a single crime. If defendants are
right, the prosecutor must elect one charge and all others
must be dismissed. Before Gaddis, this circuit had under-
stood the Prince sequence to require such an approach, see
Wright v. United States, 519 F.2d 13, 18–20 (7th Cir. 1975),
but after Gaddis held that all charges may be submitted

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Nos. 09-1494 & 09-1606 15
to the jury and that only sentences merge, see 424 U.S. at
549 n.12, courts of appeals regularly reject the conten-
tion that all subsections of §2113 create just one crime.
See Bryan v. United States, 721 F.2d 572 (6th Cir. 1983)
(collecting decisions, though noting that some conflict
remains).
One final decision is worth brief mention. The Court
held in Carter v. United States, 530 U.S. 255 (2000), that
§2113(a) and §2113(b) create distinct offenses—in particu-
lar, that neither subsection of §2113(b) is a lesser
included offense of either subsection of §2113(a). The
Justices could not have said more plainly that §2113
creates multiple crimes. Appellate decisions before 2000
suggesting that all of §2113 creates only one crime are
no longer authoritative. (Some of these decisions, which
do not discuss the full Prince sequence as we have
done here, were issued by this circuit. E.g., United States
v. Marzano, 537 F.2d 257, 272 (7th Cir. 1976). None sur-
vived Carter.)
After Carter, we can be confident that the Prince line of
decisions requires merger of sentences, not of offenses.
This also implies that Rutledge v. United States, 517 U.S.
292 (1996), which held that a conviction is itself “punish-
ment” for double-jeopardy purposes, even if it does not
lead to a separate sentence, should not be read together
with the Prince line to suggest that because sentences
merge under §2113 there must be only one crime; such
an understanding would contradict Carter, which was
decided after Rutledge.
None of the decisions in the Prince sequence mentions
the double jeopardy clause. That would be inexplicable

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16 Nos. 09-1494 & 09-1606
if Prince and its successors were displacing Blockburger
and holding that all subsections of §2113 are one crime
for double-jeopardy purposes. But the way the opinions
are written is easy to understand if Prince and later
cases are about cumulative punishment rather than
figuring out how many distinct crimes §2113 creates.
We take the Court at its word and treat Prince as a
decision about how district judges determine the maxi-
mum punishment for a person convicted of multiple
crimes under §2113. The Supreme Court did not hold
in Prince, and has not held since, that §2113 creates
only one crime. Blockburger tells us that §2113(a) creates
two crimes. Thornton, Loniello, and Aguilar have been
acquitted of the crime defined in §2113(a) ¶1. They have
yet to be tried on the charge that they committed the
separate crime defined in §2113(a) ¶2. Only if the
double jeopardy clause requires all crimes that may have
been committed by a single transaction to be tried at
one time would there be a double jeopardy problem in
these successive charges. And, as the Justices have
rejected the same-transaction or same-evidence ap-
proach, there is no constitutional problem with these
charges.
The decisions of the district court are reversed, and the
cases are remanded for proceedings consistent with
this opinion.
6-29-10

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