2015 Chapter 3 United States Sentencing Commission

Bank Robbery (Subsections (a) and (d) Alleged In The Same Count) 18 USC § 2113(a) and (d)

Title 18, United States Code, Sections 2113(a) and (d), makes it a Federal crime or offense for anyone to take from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured savings and loan association], and in the process of so doing to [assault any person] [put in jeopardy the life of any person by the use of a dangerous weapon or device]. The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

First: That the Defendant knowingly took from the person or the presence of the person described in the indictment, money or property then in the possession of a federally [insured bank] [credit union] [insured savings and loan association], as charged;

Second: That the Defendant did so [by means of force or violence] [by means of intimidation];

Third: That the Defendant [assaulted] [put in jeopardy the life of some person by the use of a dangerous weapon or device] while engaged in taking the property or money, as charged.

[A " federally insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State-chartered credit union the accounts of which are insured by the National Credit Union Administration Board.] [A " federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.]

[To take " by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.]

[An " assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes an intentional attempt or threat to injure someone else, and also has an apparent, present ability to carry out the threat such as by flourishing or pointing a dangerous weapon or device at the other.]

[A "dangerous weapon or device" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person. To "put in jeopardy the life of any person by the use of a dangerous weapon or device" means, then, to expose someone else to a risk of death by the use of such dangerous weapon or device.]

In some cases the law which a Defendant is charged with breaking actually covers two separate crimes - - one is more serious than the second, and the second is generally called a "lesser included offense." So, in this case, if you should unanimously find the Defendant "Not Guilty" of the crime charged in the indictment, you must then proceed to determine the guilt or innocence of the Defendant as to a lesser included offense.

The crime of robbing a bank, accompanied by [an assault] [the putting in jeopardy of the life of another person by the use of a dangerous weapon or device] as charged in the indictment, necessarily includes the lesser offense of robbery of a bank, without [an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

With respect to the offense charged in the indictment, then, if you should find the Defendant not guilty as charged, you must then proceed to determine whether the Defendant is guilty or not guilty of the lesser included offense of robbery of a bank without [committing an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

ANNOTATIONS AND COMMENTS

18 USC § 2113(a) and (d) provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States]. (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).