Sunday, May 27, 2018

Case o' The Week: "Damned be him that first cries hold, enough" custodial time -- A Toughy for McDuffy

“Lay on, MacDuff, and damned be him that first cries hold enough.” MacBeth, Act 5, Scene VII.

United States v. McDuffy, 2018 WL 2207243 (9th Cir. May 15, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges Carlos Bea and D.J. Nye.  

Facts: McDuffy robbed a bank while brandishing a handgun. Id. at *1. When a customer tried to grab the gun,  McDuffy shot him in the chest (he later died from the wound). Id. McDuffy was arrested, charged with several federal bank robbery offenses, and went to trial. Id.
  One charge at trial was Section 2113(e) of Title 18; that statute requires “an enhanced punishment for an individual who kills a person in the course of committing a bank robbery.” Id. at *1. McDuffy argued for an instruction that would require the government to prove he “knowingly” killed a person in the course of a bank robbery. Id. (There was some evidence introduced at the trial that McDuffy accidentally discharged the gun. Id. at *1 & n.2.) The court rejected that request, and gave the standard general intent instruction instead. Id.
   McDuffy was convicted and, as required by § 2113(e), was sentenced to life. Id.

Issue(s): “McDuffy appeals, claiming the district court misstated the law when it instructed the jury that § 2113(e) applies to accidental killings.” Id. at *2.

Held:On de novo review, we find § 2113(e) does not contain a separate requirement that the defendant intend the killing which results from his bank robbery (hereafter, the ‘mens rea requirement’). Thus, the enhancement applies even if a bank robber accidentally kills someone in the course of a bank robbery..” Id. at *2.
  “[T]he district court did not err in instructing the jury that § 2113(e) applies as long as the bank robber kills someone in the course of the bank robbery, regardless of whether the killing was accidental. The only mens rea required is the mens rea necessary to commit the underlying bank robbery
.” Id. at *5.

Of Note: Troubling business, when a life sentence results from a general intent offense. The die was cast, however, in Dean v. United States, where CJ Roberts quipped: “Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns.” 556 U.S 568, 570 (2009). 
  Judge Smith tracks the Dean holding requiring minimal mens rea showings for enhanced sentencing under Section 924(c)(1)(A)(iii). Id. at *3-*5. Dean, the Ninth concludes, controls the mens rea issue for Section 2113(e): Congress didn’t intend a higher scienter requirement for this statute, and the Ninth won’t either. Id. at *4. 
  Admittedly not a surprising result – the 7th, 8th, and 10th have the same rule – but disappointing nonetheless.

How to Use: Section 2113(e) is high-stakes sentencing statute for our clients. As held in McDuffy, the government has distressingly low mens rea requirements needed to obtain a life sentence. Note the death of a victim is not the only way to trigger that statute – the enhancement can also be imposed if the robber forces anyone to “accompany him without the consent of such person.” See Section 2113 here.  
  Judge N.R. Nelson explains that the Ninth doesn’t get to that aspect of the statute in McDuffy, id. at *2 & n.3: that fight may be available for another day (although a theory of “accidental” kidnapping does seem a tough row to hoe).
For Further Reading: In the old days, the “force and violence” prong of the federal bank robbery statute did not require intentional violent force. See e.g. United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976) (upholding conviction when a teller was pushed to the floor). 
  Bewilderingly, in United States v. Watson, 881 F.3d 782 (9th Cir. 2018), the Ninth nonetheless held that armed bank robbery is a crime of violence that meets Johnson requirements – the intentional use of violent force. 
  Let’s take Watson at its word, revisit bank robbery jury instructions, and require the new Watson / Johnson elements. For a historical look at the origins of the current, weirdly inconsistent status of bank robbery mens rea, see, “Take the Money and Split: The Current Circuit Split and Why Actual Force and Violence or Intimidation Should Not Be Required Under Section 2113(a) of the Bank Robbery Act,” available here. 

Steven Kalar, Federal Public Defender, ND Cal. Website at

Labels: , , , ,


Post a Comment

<< Home