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62.2 Bank Robbery (Subsections (a) and (d) Alleged In Separate Counts) 18 USC § 2113(a) and (d) Title 18, United States Code, Section 2113(a), makes it a Federal crime or offense for anyone to take [or to attempt 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 credit union] [insured savings and loan association]. The Defendant can be found guilty of that offense as charged in Count of the indictment, only if all of the following facts are proved beyond a reasonable doubt: First: That the Defendant knowingly took [or attempted to take] 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] [savings and loan association] as charged; and Second: That the Defendant did so [by means of force or violence] [by means of intimidation; [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. ] Title 18, United States Code, Section 2113(d) makes it a more serious offense for anyone, while in the process of violating subsection (a) of the statute, [to assault] [to put in jeopardy the life of any person by the use of a dangerous weapon or device]. In order to establish that offense as charged in Count of the indictment, the Government must prove beyond a reasonable doubt each of the two specific facts I mentioned a moment ago in discussing Count, and must also prove, beyond a reasonable doubt, a third specific fact, namely: That the Defendant knowingly [assaulted] [put in jeopardy the life of a person by the use of a dangerous weapon or device] while engaged in stealing property or money from [the bank] [credit union] [savings and loan association] as charged. [An " assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes a 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.] [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.] 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, 6 15 F.2d 1 08 0 (5 t h Cir. 1 98 0). 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 § 21 13 (d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).