678 F.2d 102 (9th Cir. 1982), 80-1840, United States v. Jones

Docket Nº:80-1840.
Citation:678 F.2d 102
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Chippy JONES, Defendant-Appellant.
Case Date:May 26, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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678 F.2d 102 (9th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Chippy JONES, Defendant-Appellant.

No. 80-1840.

United States Court of Appeals, Ninth Circuit

May 26, 1982

Argued and Submitted Jan. 5, 1982.

Page 103

Baird A. Brown, Los Angeles, Cal., for defendant-appellant.

Kathleen P. March, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY and SCHROEDER, Circuit Judges, and SOLOMON, [*] District Judge.

SCHROEDER, Circuit Judge:

Appellant, Chippy Jones, was one of four participants in a bank robbery that resulted in the killing of a bank security guard. Jones, who was present at the scene of the crime but who did not fire the fatal shot, was convicted after a jury trial of aiding and abetting the violation of both 18 U.S.C. § 2113(a), the general bank robbery statute, and 18 U.S.C. § 2113(e), which provides greater punishment for commission of a robbery in which a killing or kidnapping occurs. He was sentenced to life imprisonment in accordance with the enhancement provisions of § 2113(e).

Jones's principal argument on appeal is that 18 U.S.C. § 2113(e) is applicable only to the perpetrator of a killing or kidnapping and cannot provide a foundation for accomplice liability. Although we cannot agree with such a restrictive reading, we agree that the jury was improperly instructed on the elements on the § 2113(e) offense. Accordingly, we reverse the § 2113(e) conviction. We remand to the district court for resentencing under § 2113(a), or, if the government so elects, for retrial of the entire case. United States v. Short, 500 F.2d 676, 677 (9th Cir.), modifying 493 F.2d 1170, cert. denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974).

Section 2113, 1 entitled "Bank robbery and incidental crimes," defines the federal offense of bank robbery and specifies

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the applicable criminal sanctions. Because § 2113 defines a crime against the United States, any person who aids or abets such an offense is punishable as a principal under 18 U.S.C. § 2(a). 2

The interaction of the subsections of § 2113 is critical to this appeal. Subsection (a) proscribes the taking of anything of value by "force, violence, or intimidation" from a covered banking institution. Violations carry a fine of $5,000, imprisonment of not more than twenty years, or both. Subsection (d) proscribes the same conduct prohibited under (a), but provides a fine of $10,000, imprisonment of not more than twenty-five years, or both, when, during the course of the robbery, the perpetrator "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device ...." Finally, subsection (e) relates to robberies in which a killing or kidnapping occurs. It provides:

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.

Subsection (e), like subsection (d), provides enhanced punishment for bank robberies in which there is "aggravating" conduct in addition to the basic § 2113(a) offense.

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United States v. Faleafine, 492 F.2d 18, 25 (9th Cir. 1974) (en banc). The applicability of enhanced punishment depends, of course, on whether the actor's conduct fits within the precise language of the enhancement subsections.

In this case, Jones was charged with aiding and abetting the violation of § 2113. He argues that the aiding and...

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