United States v. Strobehn ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50167
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00712-SJO
PATRICK THOMAS STROBEHN, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
June 9, 2005—Pasadena, California
Filed August 31, 2005
Before: Betty B. Fletcher, Pamela Ann Rymer, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge B. Fletcher
11955
UNITED STATES v. STROBEHN 11957
COUNSEL
Marilyn E. Bednarski, Kaye McLane & Bednarski, Pasadena,
California, for the defendant-appellant.
Antoine Raphael, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
11958 UNITED STATES v. STROBEHN
OPINION
RYMER, Circuit Judge:
After Patrick Strobehn, Jr. arrived at the San Dimas branch
of Washington Mutual Bank with a shotgun, he approached
Victory Le, a security guard, from the rear. The guard was
patrolling in front of the bank near the parking lot. Strobehn
ordered Le to turn around, walk toward the bank, open the
door, go inside, and lie face down on the floor. Within 45 sec-
onds, Strobehn had robbed the bank of $8,144. Thanks to a tip
from a (former) friend, Strobehn was eventually apprehended
and charged with armed bank robbery with forced accompani-
ment in violation of 18 U.S.C. §§ 2113(a), (d) and (e), and
with use of a firearm in connection with a crime of violence
in violation of 18 U.S.C. § 924(c). He was convicted and now
contends that the evidence was insufficient to prove the
forced accompaniment charge under § 2113(e) because the
asportation was insubstantial. We conclude that Strobehn
forced accompaniment without consent, which is what
§ 2113(e) requires. As we see no abuse of discretion in the
evidentiary rulings about which Strobehn also complains, we
affirm.
I
Section 2113(e) applies to bank robberies and provides for
enhanced punishment for aggravated conduct, as follows:
Whoever, in committing any offense defined in this
section, or in avoiding or attempting to avoid appre-
hension for the commission of such offense, or in
freeing himself or attempting to free himself from
arrest or confinement for such offense, kills any per-
son, or forces any person to accompany him without
the consent of such person, shall be imprisoned not
less than ten years, or if death results shall be pun-
ished by death or life imprisonment.
UNITED STATES v. STROBEHN 11959
[1] Strobehn maintains that forced accompaniment should
not have been submitted to the jury in light of evidence that
the security guard was moved for only a few seconds, over a
matter of feet, and without increasing the danger already
inherent in an armed bank robbery. What proves a forced
accompaniment is an issue on which we have not yet directly
spoken.
[2] We have dubbed subsection (e) a “killing” and “kidnap-
ing” enhancement, see, e.g., United States v. Jones, 678 F.2d
102, 103, 104 (9th Cir. 1982); United States v. Faleafine, 492
F.2d 18, 20 (9th Cir. 1974) (en banc), but of course the statute
does not literally incorporate the elements of a kidnaping
offense. On its face, the enhancing elements are that a defen-
dant (1) in the course of committing a bank robbery (2) forces
a person (3) to accompany him (4) without that person’s con-
sent. While “kidnaping” works as a shorthand description
because § 2113(e) contemplates moving someone by force to
someplace he doesn’t want to go, the statute plainly, and only,
requires accompaniment that is forced and without consent.
[3] Strobehn urges us to embrace a substantiality require-
ment measured by the duration and distance of the asportation
and whether it changes the environment beyond what is rou-
tine for a bank robbery. The statute has no such qualifying
language. Nevertheless, Strobehn relies on two cases that did
adopt a substantiality analysis: United States v. Marx, 485
F.2d 1179 (10th Cir. 1973), where the court felt that more is
required than forcing a bank manager to enter his own home
or forcing his family to move from one room to another, and
United States v. Sanchez, 782 F. Supp. 94 (C.D. Cal. 1992)
(Tashima, J.), in which the court in a bench trial acquitted a
defendant who took a bank employee hostage at knifepoint
and forced her to walk with him inside the bank for 15 feet
for less than 10 seconds. Since then, a number of circuit
courts of appeals have reviewed § 2113(e) convictions, and
they have uniformly upheld convictions where the asportation
met the statute’s unadorned requirements.
11960 UNITED STATES v. STROBEHN
In United States v. Bauer, 956 F.2d 239, 241 (11th Cir.
1992), the court upheld the conviction of a bank robber who
forced two people at gunpoint to accompany him from the
back to the front of the bank and one of them to exit the bank
with his gun, rejecting an argument similar to that which Stro-
behn advances here — that the statute requires that “hostages
traverse a particular number of feet, that the hostages be held
against their will for a particular time period, or that the hos-
tages be placed in a certain quantum of danger.” In United
States v. Reed, 26 F.3d 523 (5th Cir. 1994), the court upheld
the conviction of a bank robber who accosted a bank
employee as she was about to open the bank for the day,
forced her at gunpoint to unlock the door, enter the bank, turn
off the alarm, go to the vault, put money into his bag, and lie
face down where he bound her hands and feet. Reed also
rejected a “substantiality” argument, holding that it was suffi-
cient that the defendant forced the employee to enter the bank
from the outside. In United States v. Davis, 48 F.3d 277 (7th
Cir. 1995), the robber also accosted an employee as she was
unlocking the credit union in the morning, and forced her at
gunpoint to enter the facility, deactivate the alarm, turn on the
lights, get her keys to the vault, and get money. The court
refused to accept a challenge similar to Strobehn’s, explain-
ing:
Davis ignores the critical fact supporting his convic-
tion on this count: that he forced Woodman [the
credit union employee], at gunpoint, to go from the
parking lot into the credit union. Clearly, the phrase
‘forces any persons [sic] to accompany him without
. . . consent’ encompasses forcing someone outside
a building to enter the building. There is nothing in
the text of the statute that requires that the elements
of a federal kidnapping or any other crime be satis-
fied. The statute simply requires what it says: forced
accompaniment without consent. It is an apt descrip-
tion for what Davis compelled Woodman to do.
UNITED STATES v. STROBEHN 11961
Id. at 279. Most recently, in United States v. Turner, 389 F.3d
111 (4th Cir. 2004), the court found evidence that the bank
robber forced the bank manager to accompany him to the
vault and put money into a pillowcase sufficient to uphold a
§ 2113(e) conviction.
[4] We align ourselves with the weight of circuit authority
and uphold Strobehn’s conviction. He forced Le at gunpoint
to go from his post outside the bank, open the door, and lie
face down on the floor inside the bank while Strobehn got
money from the tellers and escaped. This evidence suffices
for a jury to find beyond a reasonable doubt that Strobehn
forced Le to accompany him without Le’s consent while Stro-
behn was committing a bank robbery.1 See Faleafine, 492
F.2d at 21 (noting as example of conduct running afoul of
§ 2113(e) an armed bank robber accosting a bank manager on
the street when the bank was closed and forcing the manager
to accompany him to the bank).
II
On the day of the robbery, Strobehn left seven pages (con-
sisting of five sheets of paper, two of which had writing on
both sides) on the kitchen table of the apartment that he
shared with his wife, Kimberly, and their children. On the
first page Strobehn wrote “Kimberly, honey, I hope to God
you never get to read this letter,” and there followed a note
that continued over to the opposite side of the paper, where
about a third of the way down a line was drawn across the
page. His last words before the line were “just a second —”
1
We do not decide whether less substantial movement would suffice in
a different case. Contrary to the dissent’s understanding, we do not hold
that “§ 2113(e) ‘plainly’ applies to any forced accompaniment, no matter
how slight.” Dissent, at 11966. Rather, we hold only that Strobehn’s
actions in accosting Le at gunpoint in the bank parking lot, forcing Le to
walk a non-trivial distance from the parking lot to the interior of the bank,
and then forcing him to lie face down inside the bank, satisfy the require-
ments for application of the § 2113(e) enhancement.
11962 UNITED STATES v. STROBEHN
and after the line he wrote: “To Debbie, Larry, & Naomi,”
followed by a few lines addressed to them taking up another
third of the page, ending with “Love ya,” then another line
across the page, after which he wrote: “To Marc, Christy, &
Nicole, & Krystal” followed by a message to them that spilled
over to the next page and concluded with “Love ya.” Follow-
ing that message, about two-thirds of the way down the third
page, Strobehn drew another line across the paper after which
he wrote: “To mom, dad, & (Noella & family).” This message
concluded with “I love you all.” On the top of the opposite
side of this page Strobehn wrote: “To Mike, Sasha, & Lisa,”
and about half way down, drew a line after which he wrote:
“Grandma Peggy, Lots of love 4 U. Your too sweet,” then
drew another line, after which he wrote: “Okay, honey (Kim-
berly) I’m back . . . .” The next page starts with “And I say
hi, to Mikie, Sean, Joanne, & to Big Marc, & of course
Annette, . . . Sally, Eric, & Manuel. And Kerri.” The sixth
page starts with “To the family I love, —” and the seventh,
“It’s been great to be your husband,” signed “Your husband
forever, Patrick.”
Strobehn moved to exclude this evidence as privileged, but
the district court found that the note was not intended to be
a confidential marital communication because only limited
portions (page 1 and part of page 2, part of page 4, and page
5) are addressed to Strobehn’s wife and the rest is expressly
directed to third parties. Strobehn argues that the district
court’s ruling relied too heavily on the formatting and
addressing of the note, and ignored other facts that showed
that Strobehn intended the note to be confidential. We dis-
agree.
[5] The marital communications privilege protects state-
ments or actions that are intended as a communication by one
spouse to the other, that are made during the existence of a
valid marriage, and that are intended as confidential by the
spouse who makes the communication. United States v.
Marashi, 913 F.2d 724, 729-30 (9th Cir. 1990) (so holding,
UNITED STATES v. STROBEHN 11963
but indicating that the privilege is narrowly construed in crim-
inal cases because it impedes the search for truth). Federal
common law assumes that private communications between
spouses are intended to be confidential, and thus privileged.
Wolfle v. United States, 291 U.S. 7, 14 (1934). For this rea-
son, the government bears the burden of showing that the
communication was not intended to be confidential. Blau v.
United States, 340 U.S. 332, 333 (1951); Marashi, 913 F.2d
at 730.
[6] Here, Strobehn’s note was discontinuous, sequentially
addressed to twenty-four people, with his opening one-and-
one-third-page message to his wife immediately giving way
on the same page to two messages addressed to separate
groups of other people. Even if he assumed that his wife
would have no reason to pass the messages on if he survived,
as written the compilation was manifestly intended to be com-
municated to all twenty-four individuals to whom it was
addressed. Therefore, the district court did not err in conclud-
ing that the marital communications privilege does not apply.
See United States v. Duran, 884 F. Supp. 537, 539, 540-41,
543 (D.D.C. 1995).
III
[7] Bank photographs showed the robber carrying a gun.
Strobehn’s wife said it looked like a shotgun Strobehn owned
and that she had fired a couple of times in Kansas, where they
used to live. Over objection, the district court allowed FBI
Special Agent James Elliott to testify that, based on the sur-
veillance pictures, the gun used by the robber was an NEF
SB-1021 20 gauge shotgun, the same type of gun that Stro-
behn owned. Strobehn contends that this was error because
the jury was capable of determining whether the rifle carried
by the robber had the same features as the type of rifle that
Strobehn owned. If this is correct, Strobehn submits, United
States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), indi-
11964 UNITED STATES v. STROBEHN
cates that allowing expert opinion on the issue is impermissi-
ble under Federal Rule of Evidence 702.
LaPierre is distinguishable. It involved lay testimony used
to compare the person in bank surveillance photographs with
the defendant. As we explained, the jury is able to look at the
surveillance photographs of the robber and at the defendant
and make an independent determination of whether the indi-
vidual in the photographs is in fact the defendant. 998 F.2d at
1465. The characteristics of a gun are quite different. Elliott
compared specific features of the gun in the surveillance pho-
tographs with the same features of the gun that Strobehn
owned — the external hammer, round trigger guard, narrow-
ing in the foregrip, thickness of the barrel in relation to the
foregrip, and the Monte Carlo stock comb — and based on his
knowledge and experience with guns of this sort, concluded
that these characteristics of the gun in the surveillance photo-
graphs and the gun owned by Strobehn were the same. He
also testified that although some of these features are also
similar to other guns, the questioned gun was not similar in
all these respects to any other gun but Strobehn’s. It is
unlikely that anyone not experienced in handling and using
firearms would know what features to look at, or how to com-
pare them. Accordingly, the district court was well within its
discretion in finding that Elliot’s testimony would assist the
jury in understanding the evidence. See United States v.
Brown, 501 F.2d 146, 150 (9th Cir. 1974), rev’d on other
grounds sub nom. United States v. Nobles, 422 U.S. 225
(1975) (noting that jurors may “utterly lack experience to dis-
tinguish or recognize certain objects such as firearms”).
As we see no error at all, we need not reach Strobehn’s
argument that reversal is required for cumulative error.
AFFIRMED.
UNITED STATES v. STROBEHN 11965
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the denial of Strobehn’s insuffi-
cient evidence claim. Section 2113(e) increases the minimum
penalty for bank robbery from no minimum to ten years
imprisonment for certain aggravating conduct — killing or
forced accompaniment without consent. The question here is
what conduct qualifies as forced accompaniment under
§ 2113(e) and thereby subjects the defendant to the signifi-
cantly harsher minimum penalty that the provision mandates.
There is little direct authority in the Ninth Circuit. However,
the first circuit to address this question, the Tenth Circuit,
held that Congress intended for § 2113(e)’s significant sen-
tence enhancement to apply only to bank robbers who
engaged in significantly aggravating conduct — as opposed to
any forced accompaniment regardless of substantiality or cul-
pability. United States v. Marx, 485 F.2d 1179, 1186 (10th
Cir. 1973). In addition, Judge Tashima, while a district court
judge, decided United States v. Sanchez, 782 F. Supp. 94 (C.D.
Cal. 1992) (Tashima, J.). He concluded that “kidnapping
under § 2113(e) requires asportation of the victim that is not
insubstantial” and held that forcibly moving a bank teller
from behind her desk toward the bank’s exit did not suffice.
Id. at 97. Similarly, I conclude that moving a guard to a place
where he can be watched while one robs a bank is so integral
a part of the underlying crime that it should not be used for
enhancement.
A review of cases discussing § 2113(e) suggests that courts
long understood the forced accompaniment clause of
§ 2113(e) to encompass only aggravating conduct akin to kid-
napping or hostage-taking. See, e.g., Clark v. United States,
281 F.2d 230, 232-33 (10th Cir. 1960) (“The kidnapping stat-
ute, Subsection 2113 (e) . . . was undoubtedly designed to
provide a more severe penalty . . . for the bank robber who
kidnaps to avoid apprehension for the commission of the
offense of robbery . . . .” ); Marx, 485 F.2d at 1186
(“concluding § 2113(e) incorporates elements of kidnapping
11966 UNITED STATES v. STROBEHN
“similar to those under the common law and the federal kid-
napping statute”); United States v. McGhee, 488 F.2d 781,
785 (5th Cir. 1974) (noting that the necessary elements of a
§ 2113(e) offense are “(1) the taking of a hostage (2) in the
course of committing some other § 2113 offense”); United
States v. Jones, 678 F.2d 102, 105 (9th Cir. 1982) (“The
‘essential elements’ of subsection (e) are the commission of
a robbery and the killing or kidnapping in connection with
it.”).
The majority dismisses these numerous references to
§ 2113(e) as the “killing and kidnapping” statute, asserting
that the courts have simply used terms such as “kidnapping”
and “taking of a hostage” as short hand for forced accompani-
ment and implying that § 2113(e) “plainly” applies to any
forced accompaniment, no matter how slight.1 However, the
“killing and kidnapping” label is not mere judicial shorthand:
subsection (e) was originally codified as 12 U.S.C. § 588c and
entitled, “killing or kidnapping as incident to robbery.” 12
U.S.C. § 588c (1940); see also Barkdoll v. United States, 147
F.2d 617 (9th Cir. 1945) (quoting 12 U.S.C. § 588c);
S.Rep.No.537, 73d Cong. 2d Sess. (1934) (using the terms
“homicide or kidnaping” to describe the statute).
1
I realize that the majority now notes in response to my dissent that it
does not decide “whether less substantial movement would suffice in a
different case.” Maj. Op. at 11961 n.1. Perhaps, then, it would be more
accurate for me to say that the majority suggests that § 2113(e) “ ‘plainly’
applies to any forced accompaniment, or at least that which is more than
slight.” However, the “plain language” of § 2113(e) does not say “more
than slight forced accompaniment” or “more than de minimus forced
accompaniment” just as it does not say “any forced accompaniment” or
“substantial forced accompaniment.” In other words — by acknowledging
that the scope of § 2113(e) must be determined, the majority proves my
point: The scope of § 2113(e) is ambiguous, and we must determine
whether Congress intended to reach “any,” “more than de minimus,” or
“substantial” forced accompaniment. For the reasons stated herein, I am
persuaded that Congress intended to reach only substantial forced accom-
paniment.
UNITED STATES v. STROBEHN 11967
Moreover, the meaning of § 2113(e) is not as “plain” as the
majority would have it: as Judge Tashima noted, the statute
is actually silent regarding the requisite degree of forced
accompaniment. Sanchez, 782 F. Supp. at 97-98 (Ҥ 2113(e)
does not tell us, on its face, what its asportation requirement
is.”); see also United States v. Reed, 26 F.3d 523, 526 (5th
Cir. 1994) (“Section 2113(e) does not expressly set forth how
extensive the accompaniment must be to prove this aggra-
vated form of bank robbery.”). Although it may seem simpler
to read the word “any” into the language of § 2113(e) and
assume that the Legislature intended for the enhancement to
apply to “any” forced accompaniment, “[i]t is incorrect to
make assumptions on congressional intent from Congress’s
silence on the issue . . . .” CHW West Bay v. Thompson, 246
F.3d 1218, 1224 (9th Cir. 2001). Section 2113(e) does not
state that it applies to “any” forced accompaniment more
plainly than it states that it applies to “substantial” forced
accompaniment. Cf. Holloway v. United States, 526 U.S. 1, 7
(1999) (explaining that statutory phrase, “with the intent to
cause death or serious bodily harm,” could describe condi-
tional intent, unconditional intent, or both).; see also Chevron
U.S.A., Inc. v. National Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984) (contrasting statutes that clearly indi-
cate Congressional intent with statutes that are “silent or
ambiguous” with respect to a specific issue).
The majority not only errs by creating “plain meaning” out
of silence, it also errs by failing to consider § 2113(e) in con-
text. “Just as a single word cannot be read in isolation, nor can
a single provision of a statute.” Smith v. United States, 508
U.S. 223, 233 (1993); see also Holloway, 526 U.S. at 7 (“As
we have repeatedly stated, the meaning of statutory language,
plain or not, depends on context.” (internal quotation marks
and citations omitted)); United States v. Thompson, 82 F.3d
849, 852-53 (9th Cir. 1996) (same). “Context in this regard
relates to ‘the design of the statute as a whole and its object
and policy.’ ” Gozlon-Peretz v. United States, 498 U.S. 395,
407 (1991) (quoting Crandon v. United States, 494 U.S. 152,
11968 UNITED STATES v. STROBEHN
158 (1990)); see also United States v. Bahe, 201 F.3d 1124,
1130 (9th Cir. 2000).
Here, consideration of “not only the bare meaning of the
critical word or phrase but also its placement and purpose in
the statutory scheme,” Holloway, 526 U.S. at 6 (internal quo-
tation marks and citation omitted), supports the conclusion
that Congress intended § 2113(e) to enhance the sentence
only in cases involving substantial forced accompaniment.
First, § 2113(e) imposes the same minimum punishment for
forced accompaniment without consent as it imposes for
homicide, which suggests that “forced accompaniment” must
refer to conduct that is comparable in degree of culpability to
homicide.
Second, § 2113 creates a scale of increasingly serious
crimes and corresponding increasingly severe penalties. See
generally, 18 U.S.C. § 2113 (2005), see also United States v.
Faleafine, 492 F.2d 18, 20 (9th Cir. 1974) (“We are of the
opinion that subsection (d) . . . and subsection (e) insofar as
it deals with homicide or kidnaping occurring ‘in committing
[bank robbery] each prescribes a more severe punishment for
the substantive offense defined elsewhere in section 2113
. . . .”); Clark, 281 F.2d at 233 (finding that § 2113(e) was
intended “to create a separate, distinct and more serious
offense for which an additional and more severe penalty was
authorized”). Specifically, subsections (a) and (b) of § 2113
establish the crime of bank robbery; under § 2113(a), the pen-
alty for bank robbery by “force and violence” or “intimida-
tion” is a fine and/or imprisonment up to twenty years.2
Subsection (d) enhances the sentence for bank robbery aggra-
2
Subsection (a) addresses bank robbery “by force and violence, or by
intimidation” while subsection (b) addresses bank robbery without force.
Subsection (c) establishes criminal liability for any person who “receives,
possesses, conceals,” etc. any thing of value obtained in the course of a
bank robbery. 18 U.S.C. § 2113.
UNITED STATES v. STROBEHN 11969
vated by assault, endangerment of a life, or use of a dangerous
weapon, increasing the maximum prison sentence to twenty-
five years (but leaving the minimum prison sentence at zero).
Subsection (e) further enhances the sentence for bank robbery
aggravated by killing or forced accompaniment, increasing
the minimum prison sentence from zero to ten years, and
authorizing the death penalty if death results. 18 U.S.C.
§ 2113 (2005).
The fact that subsection (e) prescribes a substantially more
severe punishment for bank robbery than subsection (d) is
evidence that Congress intended for subsection (e) to reach
conduct substantially more egregious than that which is
reached by subsection (d). Cf. Thompson, 82 F.3d at 853 (con-
cluding that offense of using firearm equipped with silencer
during and in relation to drug trafficking crime required active
employment of such a firearm because “Congress could not
have intended to impose a five-year penalty only if a drug
trafficker actively employed a firearm, but mandate a 20-year
sentence if that same defendant happened to own a compati-
ble silencer that played no role in the predicate crime”).
The legislative history and purpose of § 2113(e) confirms
what is evident from reading the provision in context. See
Small v. United States, 125 S. Ct. 1752, 1756-58 (2005) (con-
struing statute based on language, context, history, and pur-
pose). As the Tenth Circuit concluded, “the legislative history
[of § 2113(e)] suggests it was enacted to combat the multitude
of murders and kidnappings occurring during attempts by
bank robbers to flee the scene of the crime.” Marx, 485 F.2d
at 1186.
For example, the House adopted the following description
of the bank robbery statute:
This bill provides punishment for those who rob,
burglarize, or steal from [banks], or attempt to do so.
A heavier penalty is imposed, if in an attempt to
11970 UNITED STATES v. STROBEHN
commit any such offense any person is assaulted, or
his life is put in jeopardy by use of a dangerous
weapon. A maximum penalty is imposed on anyone
who commits a homicide or kidnaping in the course
of such unlawful act.
H.R.Rep.No.1461, 73d Cong. 2d Sess. (1934) (quoting state-
ment of Attorney General to the Committee on the Judiciary)
(emphasis added); see also S.Rep.No.537, 73d Cong. 2d Sess.
(1934) (quoting similar language from a Department of Jus-
tice memorandum).
If any doubt remains that Congress had only substantial
forced accompaniment in mind when it created the “killing
and kidnapping” provision, examination of the statute’s origi-
nal language should eliminate it: § 2113(e) originally autho-
rized the death penalty for bank robbery involving forced
accompaniment without consent — even in cases where the
forced accompaniment did not cause the death of a victim.
See 12 U.S.C. § 588c (1940) (“Whoever, in committing any
offense defined in this section . . . kills any person, or forces
any person to accompany him without the consent of such
person, shall be punished by imprisonment for not less than
ten years, or by death if the verdict of the jury shall so
direct.”); see also H.R.Rep.No.1461, 73d Cong. 2d Sess.
(1934) ( “If murder or kidnaping be committed in connection
therewith the penalty shall be imprisonment from 10 years to
life, or death if the jury shall so direct in the verdict.” (empha-
sis added)).3 The fact that the original version of § 2113(e)
authorized the most severe penalty for bank robbery involving
forced accompaniment, and essentially equated forced accom-
paniment with killing, confirms that Congress intended
§ 2113(e) to reach only forced accompaniment that signifi-
3
Congress amended § 2113(e) in 1994 by striking “or punished by death
if the verdict of the jury shall so direct” and inserting “or if death results
shall be punished by death or life imprisonment”. Pub. L. No. 103-322,
108 Stat 1796.
UNITED STATES v. STROBEHN 11971
cantly increases the culpability of the underlying crime, i.e.,
conduct akin to kidnapping or hostage-taking. Conversely,
Congress could not have intended to authorize such a severe
penalty enhancement for insubstantial asportation or forced
movement inherent to the underlying crime.4
It is true that other circuits have construed § 2113(e) to
broadly encompass any forced accompaniment. Maj. Op. at
11960-61 (citing United States v. Bauer, 956 F.2d 239 (11th
Cir. 1992); United States v. Davis, 48 F.3d 277 (7th Cir.
1995); and United States v. Turner, 389 F.3d 111 (4th Cir.
2004)). However, these courts, like the majority, interpreted
§ 2113(e) acontextually and without the requisite inquiry into
Congressional intent.
The majority also cites United States v. Reed, 26 F.3d 523
(5th Cir. 1994); however, it is worth noting that the Reed
court neither found the meaning of § 2113(e) to be plain nor
held that § 2113(e) applies to any forced accompaniment.
Rather, the Fifth Circuit explained that
[w]ithin the context of a bank robbery, there will
often be movement within the bank by a bank
employee — movement orchestrated by the robber.
This orchestration will no doubt sometimes occur in
concert with the movement of the robber himself. To
conclude such circumstances are an aggravating
accompaniment would likely convert numerous ordi-
nary . . . bank robberies to aggravated bank robberies
4
Even if one is not completely persuaded by the evidence that Congress
intended for § 2113(e) to apply only to substantial forced accompaniment,
the rule of lenity weighs in favor of the narrower construction: we must
“not interpret a federal criminal statute so as to increase the penalty that
it places on an individual when such an interpretation can be based on no
more than a guess as to what Congress intended.” Bifulco v. United States,
447 U.S. 381, 387 (1980) (quoting Ladner v. United States, 358 U.S. 169,
178 (1958)); see also United States v. Ramirez, 347 F.3d 792, 802 (9th
Cir. 2003).
11972 UNITED STATES v. STROBEHN
with only the faintest of distinctions between accom-
panied, i.e., aggravated, and non-accompanied, non-
aggravated bank robbers.
26 F.3d at 527-28. I agree. I part ways with the Fifth Circuit
only where it holds that forced movement across a bank’s
threshold is per se “accompaniment” under § 2113(e).
Drawing such a bright line between movement within a
bank and movement across a bank’s threshold is not only
arbitrary, but also risks both underbreadth and overbreadth.
On the one hand, this threshold-crossing test reaches Strobe-
hn’s conduct, despite the fact that there is little meaningful
distinction between forcing a security guard to move inside a
bank and forcing a security guard to move 15 feet within a
bank. On the other hand, the test excludes some truly aggra-
vating conduct, such as that at issue in United States v. Bauer:
in that case, the bank robber actually took hostages in an
escape attempt, but he never left the bank with them because
the police presence outside was overwhelming. 956 F.2d at
241-42.
For these reasons, Judge Tashima’s approach, which
weighs duration, distance, and increase in danger to the vic-
tim, makes more sense. Sanchez, 782 F. Supp. at 97 (“The
substantiality of the asportation, although there can be no
bright line, should be measured by duration, distance and any
change in environment tending to increase the danger to
which the victim is exposed, other than any danger inherent
in the underlying offense.”). This approach captures truly
aggravating forced accompaniment — whether the robber
crosses the bank’s threshold or not — but avoids the danger
of turning nearly every bank robbery that involves some
movement orchestrated by the robber into the most egregious
(and most harshly punished) form of aggravated bank rob-
bery.
Under the Sanchez approach, the forced accompaniment
committed by Strobehn is not sufficiently substantial to sup-
UNITED STATES v. STROBEHN 11973
port a conviction under § 2113(e). Strobehn forced the guard
to move inside the bank and lie down on the floor, that is, to
move into a position from which he could be more easily
watched. Strobehn did not take the guard hostage, use him as
a shield, or threaten the guard’s life in order to coerce others.
Thus, the asportation was relatively short in duration and dis-
tance, and, more importantly, it did not tend to increase the
danger to which the guard was exposed beyond that inherent
in the underlying offense. Here, as in Sanchez, “there was sig-
nificant danger to the victim . . . by the presence of the
[weapon], but that danger was present by virtue of the [under-
lying] § 2113(d) offense, assault by the use of a dangerous
weapon, and not by reason of any trivial movement over a
distance of 15 feet.” Id. at 96; see also Marx, 485 F.2d at
1186 (finding insufficient asportation where the defendants
caught the bank manager victim outside his home and forced
him to go inside as well as forced the victim and his family
to move from room to room).
The only construction of § 2113(e) that is consistent with
Congressional intent, as evinced by the statute’s language,
context, history, and purpose, is one that requires substantial
forced accompaniment. Because Strobehn was also convicted
under § 2113(d) for endangering the life of another by the use
of a dangerous weapon in the course of a bank robbery, the
district court was already authorized by Congress to give
Strobehn a significantly enhanced prison sentence. Like forc-
ing a teller to move to another station or a bank customer to
lie down on the floor, forcing the guard to move inside and
lie down on the bank floor was an integral part of the underly-
ing crime. This forced movement did not significantly aggra-
vate the underlying crime of armed bank robbery. Strobehn
should not have been subject to the more severe penalty man-
dated by § 2113(e) on the basis of that conduct alone.