Most armed robberies are state crimes, with some exceptions—for instance, it’s a federal crime to rob any financial institution. Beneath 18 U.S.C. § 2113(a), anybody who “by power and violence, or by intimidation, takes, or makes an attempt to take, from the particular person or presence of one other . . . cash . . . belonging to, or within the care, custody, management, administration, or possession of, any financial institution” is committing a federal crime. The offense is punishable by as much as 25 years in jail.
Whereas the statute is obvious sufficient, it raises an attention-grabbing authorized query: what when you power an individual to withdraw cash from an ATM at gunpoint or below the specter of violence? Does that represent robbing a financial institution below § 2113? The query is just not a mere hypothetical—it has arisen in three separate federal courts of enchantment. And the implications aren’t insignificant; if robbing somebody at an ATM is deemed to be a federal crime, perpetrators might face each federal and state prices for a similar offense.
For now, the reply is not clear. However after a latest tenth Circuit opinion, United States v. Chavez, there’s a 2-1 break up amongst federal circuit courts on the problem.
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A Circuit Cut up
In 2005, the Seventh Circuit held in United States v. McCarter that forcing somebody to take out cash from an ATM to rob them fell below the purview of § 2113. The defendant in that case accosted a girl in a parking storage, pressured her into her automotive, and ordered her to drive to an ATM. Earlier than they left the storage, the lady screamed for assist and the defendant fled; he was thus charged with tried theft below the federal statute.
Decide Richard Posner, writing for the Seventh Circuit, upheld the defendant’s tried financial institution theft conviction. He famous that there have been two questions concerned:
- Is cash in an ATM below the management of the financial institution?
- Is forcing a buyer to withdraw money additionally robbing the financial institution?
Decide Posner held that the reply to the primary query was “clearly” sure. As for the second, he wrote that “if, because the defendant meant right here, the robber forces the financial institution’s buyer to withdraw the cash, the client turns into the unwilling agent of the robber, and the financial institution is robbed.” The McCarter court docket thus upheld the conviction of tried theft below § 2113.
However in the identical yr, the Fifth Circuit held otherwise, in United States v. Burton. The defendant in that case grabbed the sufferer from behind and demanded cash. When the sufferer instructed the defendant that she solely had just a few {dollars} and gave him her pockets and ATM card, the defendant pressured her into his automotive and drove to a drive-through ATM. The sufferer withdrew $150 and gave it to the defendant.
The Burton court docket reasoned that the defendant knew that the lady he had kidnapped at gunpoint had funds in her checking account. Following that logic, the defendant was not looking for the financial institution’s cash, however the sufferer’s. Nor was the financial institution in charge of the funds, because it was a legitimate, albeit coerced, switch of the cash—and it was solely within the sufferer’s possession for a short time when she withdrew the money. The fifth Circuit thus vacated the conviction of federal theft.
tenth Circuit Follows seventh Circuit’s Reasoning
In 2019, Charles Chavez ran as much as the window of a automotive at a Wells Fargo ATM, armed with a rifle. He demanded cash from the folks within the automobile. The ATM was not situated on the premises of a Wells Fargo financial institution department. The victims didn’t have any money, at which level Chavez demanded they take cash out of the ATM. They stated they didn’t have any cash of their account, as that they had simply deposited a verify. Earlier than issues might progress, a police officer arrived on scene. Chavez was later charged with a number of felonies, together with for tried financial institution theft below § 2113. The district court docket dismissed the federal prices, and the federal government appealed.
The Tenth Circuit adopted the Seventh Circuit’s rationale. Decide Emilio Garza, writing for a unanimous panel, wrote that “[w]e reject the Fifth Circuit’s place that the possession of the cash is just not measured till the defendant bodily locations his arms on it, with out regard to how the defendant acquired it. Not solely would this produce absurd outcomes, however the statute’s textual content plainly requires evaluating the cash’s standing on the time of its [taking].” In different phrases, as a result of Chavez was tried to take cash from the ATM, and easily utilizing the sufferer as a proxy to entry the cash, he was primarily robbing the financial institution.
The Tenth Circuit thus reverse the dismissal of the federal prices.
Armed theft, whether or not prosecuted on the state or federal stage, at all times carries important penalties. However a minimum of within the tenth and seventh Circuits, defendants might face each state and federal prices in the event that they try and rob somebody at an ATM.
