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8.162 Bank Robbery

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8.162 BANK ROBBERY (18 U.S.C. § 2113)

The defendant is charged in [Count _______ of] the indictment with [armed] bank robbery in violation of Section 2113 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant took money belonging to [specify financial institution];

Second, the defendant used force and violence, or intimidation in doing so; [and]

Third, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board][.] [; and]

[Fourth, the defendant intentionally [[struck or wounded [name of victim]] [made a display of force that reasonably caused [name of victim] to fear bodily harm] by using a [specify dangerous weapon or device]. [A weapon or device is dangerous if it is something that creates a greater apprehension in the victim and increases the likelihood that police or bystanders would react using deadly force.]]

Comment

The fourth element should be used when the charge includes the enhancement in 18 U.S.C. § 2113(d) for use of a dangerous weapon. Frequently, the weapon used is a firearm in which case there is not likely to be an issue about whether a dangerous weapon was used. In such cases, the last bracketed sentence in the fourth element might be omitted.

There may be cases in which a jury must decide whether the weapon or device is dangerous. In such cases the bracketed last sentence in the fourth element should be used. The definition of dangerous weapon is derived from a discussion in United States v. Pike, 473 F.3d 1053, 1060 (9th Cir.2007), cert. denied, 552 U.S. 910 (2007), which did not involve a dangerous weapon issue. The Ninth Circuit explained that its previous decisions in United States v. Taylor, 960 F.2d 115, 116-17 (9th Cir.1992) and United States v. Boyd, 924 F.2d 945, 947 (9th Cir.1991), had held devices to be dangerous because the device increased victim apprehension and increased the likelihood of police or bystanders responding with deadly force. Pike, 473 F.3d at 1060.

In order to convict a defendant for armed bank robbery under an aiding and abetting theory, the Ninth Circuit requires the government to show beyond a reasonable doubt both that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery, and that the defendant intended to aid in that endeavor. United States v. Dinkane, 17 F.3d 1192, 1195 (9th Cir.1994). Failure to properly instruct the jury on this issue constitutes reversible error. Id.

Bank robbery is a general intent crime. See, e.g., United States v. Burdeau, 168 F.3d 352, 356 (9th Cir.1999) (citing United States v. Foppe, 993 F.2d 1444, 1451 (9thCir.1993)).