                             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 transac-
tion 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 infor-
mant; the site of the transaction was teeming with con-
cealed 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 mat-
ter, 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 pro-
tect 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 assur-
ance 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 at-
tempt 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 at-
tempt 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 rob-
bery 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, intimi-
dates, or interferes with any person designated in sec-
tion 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 Gov-
ernment (including any member of the uniformed serv-
ices) while such officer or employee is engaged in or on
account of the performance of official duties, or any per-
son assisting such an officer or employee in the perfor-
mance 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 every-
one 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 assist-
ance 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 con-
test 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 prose-
cutor 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 ob-
jective. Just as it does not matter that a bank that con-
spirators planned to rob turned out to lack deposit insur-
ance, 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 con-
spirators 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 sen-
tence 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
