U.S. v. Parks

• Decision Date: 16 October 2009
• Docket Number: No. 07-3944.,07-3944.
• Citation: 583 F.3d 923
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lavelle PARKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

583 F.3d 923

UNITED STATES of America, Plaintiff-Appellee, v. Lavelle PARKS, Defendant-Appellant.

No. 07-3944.

United States Court of Appeals, Sixth Circuit.

Submitted: April 29, 2009.

Decided and Filed: October 16, 2009.

ON BRIEF: Richard A. Cline, Richard A. Cline & Co., LLC, Columbus, Ohio, for Appellant. David M. DeVillers, J. Michael Marous, Assistant United States Attorneys, Columbus, Ohio, for Appellee.

Before: MERRITT, COOK, and WHITE, Circuit Judges.

MERRITT, J., delivered the opinion of the court. WHITE, J. (pp. 928-29), delivered a separate concurring opinion. COOK, J. (pp. 929-30), delivered a separate opinion concurring in part and dissenting.

OPINION

MERRITT, Circuit Judge.

On December 2, 2003, three men robbed a bank in Pataskala, Ohio, while their getaway driver, Lavelle Parks, waited outside. The men made off with $5,347, and a high-speed chase ensued. While trying to evade police, Parks crashed the getaway car into another vehicle, resulting in the death of Daryl Williams, one of Parks's passengers and co-participants.

This case raises two questions of statutory construction with regard to a provision of the federal bank robbery statute, 18 U.S.C. § 2113(e). First, what mens rea, if any, does the government need to prove to establish a violation of § 2113(e), which punishes anyone who, in "attempting to avoid apprehension for [a bank robbery], ... kills any person"? Second, what is the minimum penalty for such a killing? Though distinct, these questions are intertwined in at least one important respect: if, as the prosecution asserts, the minimum penalty for violating the statute is life imprisonment, a court should be less inclined to conclude that the statute itself dispenses with any mens rea requirement, since "the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea." Staples v. United States, 511 U.S. 600, 616, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). The District Court, while expressing reluctance to impose a life sentence, believed that United States v. Poindexter, 44 F.3d 406 (6th Cir.1995), controlled the outcome of this case and required a mandatory life sentence for even an accidental killing.¹ The parties did not point out to the District Court that the language of the statute interpreted in Poindexter is different from the language of the statute we interpret here. Because Poindexter interpreted an earlier version of the statute, which said nothing about life imprisonment, we vacate Parks's sentence and remand the case to the District Court for reconsideration. Because Judges Cook and White agree that the conviction under § 2113(e) must be upheld and Judge White and I agree that the sentence must be reversed, our judgment in this case is that the conviction is affirmed but the sentence is vacated and the case remanded for reconsideration.

When 18 U.S.C. § 2113 was passed in 1934, subsection (e) read:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

Thus, whoever, while engaged in any one of three bank-robbery-related activities, killed any person or forced any person to accompany him, would be imprisoned for at least ten years, with no statutory maximum imposed. Notably, this statute permitted the imposition of the death penalty on a defendant who forced a person to accompany him, even if that forced accompaniment did not result in the loss of life.

In Poindexter, a panel of this Court held that Congress "did not intend to add an additional scienter requirement to the killing component of" § 2113(e). Poindexter, 44 F.3d at 409. In other words, the mens rea for killing a person while fleeing a bank robbery was, according to Poindexter, strict liability. Under this reading, a person would seemingly violate § 2113(e) if he jovially slapped his accomplice on the back to congratulate him on a job well done and thereby inadvertently caused food to lodge in his windpipe, resulting in his death.² The Poindexter Court reached this holding by first stating that a court should follow the plain meaning of a statute, except in rare and exceptional circumstances. It then consulted the Black's Law Dictionary definition of "kill" and noted that it, unlike the definition of "murder," did not include an element of scienter. It concluded that "[b]ecause the plain language of the statute says simply `kills,' and not `intentionally kills' or `murders,' the settled principles of construction direct us to conclude that the legislature did not intend to add an additional scienter requirement to the killing component of the crime." Id. at 409.

This interpretive methodology appears to be in significant tension with a long line of Supreme Court cases, the twentieth-century progenitor of which is Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In Morisette, the Court explained that

[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Id. at 250-51, 72 S.Ct. 240 (footnotes omitted).

Because of this unqualified acceptance, "[a]s the states codified the common law of crimes, even if their enactments were silent on the subject [of intent], their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law." Id. at 252, 72 S.Ct. 240. Applying these background principles of interpretation, the Court concluded that "[c]ongressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except in the Act." Id. at 262, 72 S.Ct. 240. Put more concretely, if Congress wants to eliminate a mental element from its codification of a common law crime, it must state its intention to do so clearly. See id. at 263, 72 S.Ct. 240; United States v. Hill, 55 F.3d 1197, 1203 (6th Cir.1995) ("[T]he Supreme Court has required evidence of Congressional intent to dispense with mens rea as an element of a crime before the Court will do so itself."). This principle has been reaffirmed many times since Morisette. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Staples, 511 U.S. at 600, 114 S.Ct. 1793; Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). Poindexter's statement that, because Congress did not say "intentionally kills," the statute must be read to reach unintentional killings, seems irreconcilable with Morissette's interpretive methodology.³

But even if Poindexter and Morissette could theoretically be harmonized,⁴ the precedential value of Poindexter for the sentence in this case has been vitiated by the 1994 amendment of § 2113(e), which struck out the final 13 words and replaced them as follows:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct, or if death results shall be punished by death or life imprisonment.

This amended version now states, in relevant part, that "[w]hoever, in ... attempting to avoid apprehension for the commission of [a bank robbery], ... kills any person ... shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment." Read literally, this suggests that a killing carries a mandatory minimum sentence of ten years, but a killing in which death results carries a mandatory minimum sentence of life imprisonment. Needless to say, this purports to set out a nonsensical distinction, since every killing, by definition, results in death.

The history of this amendment sheds some light on the introduction of this ambiguity. When the District Court reconsiders this case, we would point out for its consideration the fact that § 2113(e) was amended as part of the Federal Death Penalty Act, which appeared as Title VI of the Violent Crime Control and Law Enforcement Act of 1994. The Federal Death Penalty Act creates a structured system of mitigators and aggravators — including provisions concerning the intention of the...