THE FEDERAL BANK ROBBERY ACT: WHY THE CURRENT SPLIT INVOLVING THE USE OF FORCE REQUIREMENT FOR ATTEMPTED BANK ROBBERY IS REALLY AN EXCEPTION.

• Author: Piaskoski, Paul R.

1. INTRODUCTION

   Bonnie Elizabeth Parker and Clyde Chestnut Barrow were about the age of typical first-year law students, just twenty-one and twenty-two years old respectively, when they embarked on their infamous bank-robbing spree in the spring of 1932. (1) Their "brief era of banditry" would last for little more than two years, a period during which they robbed at least ten banks in five Midwestern states, deliberately skirting the borders of those states to take advantage of what was then an almost total lack of communication and coordination among law enforcement in different jurisdictions. (2) The tactic, however, was hardly a trade secret, and at the time robbing banks was a growth industry. (3)

   In fact, the years between 1931 and 1935 are collectively referred to as "The Public Enemies Era," a time during which the number of bank robberies in the United States skyrocketed, thanks in no small part to a pantheon of notorious gangsters carved from the unyielding granite of the Great Depression: John Dillinger, Baby Face Nelson, and Pretty Boy Floyd, to name a few. (4) Many people saw these colorful criminals as folk heroes, striking at the banks--the very institutions millions of Americans, including some members of Congress, blamed for their sudden plunge into poverty. (5) Bonnie and Clyde were no exception. (6) The image of star-crossed young lovers as avenging outlaws was as irresistible to the press and the public then as it is now. (7) Public opinion, however, began to turn as the body count rose. (8) At least nine police officers were killed during Bonnie and Clyde's spree, in addition to several innocent civilians. (9)

   Bonnie and Clyde's "final run" came in May 1934, when investigators who had studied their movements set up an ambush along a secluded country road in Bienville Parish, Louisiana. (10) Like many of their hapless victims, the young outlaws never stood a chance. When their stolen Ford Deluxe finally appeared, police opened fire on the vehicle with Thompson submachine guns, and they continued firing until they ran out of bullets." Bonnie Parker and Clyde Barrow were both killed, the coroner later determining that each suffered "many potentially fatal wounds." (12)

   Bonnie and Clyde's grisly and glamorized story is not only representative of the broader criminal trend of the time, but also encapsulates the specific policy considerations behind the passage of the Bank Robbery Act later that same summer: ending the bloodshed, and eliminating the exploitable jurisdictional weaknesses between states. (13)

   In the years since, the Act has provided a comprehensive scheme for prosecuting and penalizing those who steal from a federally insured bank. (14) The statute encompasses the underlying crimes of entering with felonious intent, robbery, petit and grand larceny, and receiving property stolen from a bank. (15)

   Even today, the Federal Bureau of Investigation's ("FBI") stated priority in terms of enforcing the Bank Robbery Act reflects these foundational policy considerations of safeguarding the public and closing the jurisdictional gaps: "[The FBI] focuses its investigative resources on those suspects who pos[e] the greatest threats to the public, including the most violent and/or the most prolific serial offenders who often cross jurisdictional boundaries." (16)

   However, it is now said that a split exists among the federal circuits regarding the necessary elements of attempted bank robbery as prescribed by the Act. The split specifically concerns the use of force, violence or intimidation under the first paragraph of [section] 2113(a), which reads in relevant part:

   Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ... [s]hall be fined under this title or imprisoned not more than twenty years, or both. (17) As typically presented, the controversy centers entirely on the first thirteen words of [section]2113(a), and whether the word "attempts" applies exclusively to the word "take," or if it also reaches back in the sentence to modify the words "force," "violence," and "intimidation." (18) The difference is dispositive in terms of the required elements of the crime. Under the narrower reading, where "attempts" only modifies "take," the government must show and prove that the defendant used actual force and violence, or intimidation to gain a conviction. (19) Under the broader reading, where "attempts" modifies the force clause in addition to the word "take," in order to convict, the government must only prove that the defendant attempted to use force and violence, or intimidation--a significantly lower hurdle. (20) The Fifth and Seventh Circuit Courts of Appeal have held that the word "attempts" only modifies the word "take," as a plain reading of the statute suggests, and accordingly, that the government must show and prove actual force and violence or intimidation in order to sustain a conviction of attempted bank robbery. (21) On the other hand, the Second, Fourth, Sixth, and Ninth Circuits have all held that attempted force is sufficient for a conviction. (22)

   Legal scholars have repeatedly framed this controversy as a consequence of "conflicting methods of statutory interpretation," arguing that a reading of the first paragraph of [section] 2113(a) whereby the word "attempts" also modifies the words "force," "violence," and "intimidation" is implicit in the majority's decisions. (23) However, this framing presupposes that the majority is, in fact, engaged in statutory interpretation. (24) A closer examination of the case law reveals they are not. (25) Accordingly, in this Comment, I argue that the so-called split among the circuits is really an exception, the triggering circumstances for which are: (1) at least some foreknowledge of the crime by law enforcement; and (2) the corresponding opportunity for law enforcement to intervene before innocent bystanders are put at risk. (26) I further argue that the clear policy consideration girding the majority's decisions is one of the primary considerations invoked in the passage and current enforcement of the Act: neutralizing threats to the public. (27)

   In Part II, I trace the legislative history of the Bank Robbery Act and diagram its present construction. In Part III, I establish a threshold distinction between statutory interpretation and statutory application (or construction) before chronologically illustrating the majority and minority decisions from the federal circuits. I also survey the generally accepted definitions of a true circuit split, and explain why the so-called split involving the first paragraph of [section] 2113(a) of the Bank Robbery Act is really an exception. In Part IV, I explore the various ways in which the majority's valid policy considerations might be harmonized with the letter of the law, and in Part V, I offer my specific recommendation for doing so.

2. BACKGROUND

   1. THE LEGISLATIVE HISTORY OF THE BANK ROBBERY ACT

      The Bank Robbery Act made robbing or attempting to rob a bank a federal offense, but according to the Record of the Seventy-Third Congress, there was some initial resistance to the idea on the part of the House Judiciary Committee. (28) Prior to 1934, bank robbery had been considered strictly a state law crime, and some lawmakers believed that federalizing the offense would infringe on the "police powers of the states." (29) Ironically, it was John Dillinger who managed to whip up the necessary votes. (30) In April 1934, just as lawmakers were debating the change, Dillinger went on a violent tear, raiding a police armory in Indiana, shooting his way out of an FBI trap at the Little Bohemia Lodge near Rhinelander, Wisconsin (one FBI agent was killed), and engaging in a second gun battle and high speed chase with federal agents in Minnesota. (31) According to the congressional record, opposition to what would become the Bank Robbery Act then "gave way" under withering public reaction to "the exploits of the escaped convict John Dillinger." (32) On May 18, 1932, President Franklin Delano Roosevelt signed six of the anti-crime bills recommended by then-Attorney General Homer Cummings, including measures that made it a federal offense to rob a Federal Reserve member bank, or to transport stolen goods, including money, across state lines. (33) Codified as 18 U.S.C. [section] 2113, the statute brought such offenses directly under the purview of the newly designated FBI. (34) The concrete sanctuary that ethereal state lines once provided marauding gangsters vanished with the stroke of FDR's pen, and so too did the serial killing that frequently accompanied such crimes. (35) The Public Enemies Era was over, but the debate over the language and effectiveness of the Act was just beginning. (36)

      In fact, by 1937, it was clear the Bank Robbery Act needed some tweaking. (37) As originally constructed, the Act applied only to "robbery, robbery accompanied by an aggravated assault, and homicide perpetrated in committing a robbery or escaping thereafter." (38) Given the sort of violent collateral damage described above, and the concerns of some lawmakers regarding federal overreach, one can certainly understand why the statute was narrowly tailored to address only the most serious and violent offenses.

      Nevertheless, by 1937, Attorney General Cummings urged Congress to broaden the language of the Act to include lesser crimes against banks, such as larceny. (39) To illustrate the need, Cummings cited one case in particular, in which a man was caught red-handed trying to walk out of a bank with thousands of dollars in stolen money, but escaped prosecution under the Act because he did not use "force and violence, or...