U.S. v. Hopkins
| Decision Date | 12 April 1983 |
| Docket Number | No. 82-1567,82-1567 |
| Citation | 703 F.2d 1102 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terrill Douglas HOPKINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John S. Moot, Federal Defender, San Diego, Cal., for defendant-appellant.
Hector E. Salitrero, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Hector E. Salitrero, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ELY, SCHROEDER, and PREGERSON, Circuit Judges.
A jury convicted Hopkins of attempted bank robbery by intimidation in violation of 18 U.S.C. Sec. 2113(a). He appeals.
On March 31, 1982, Hopkins entered a Crocker National Bank and presented a demand note to teller Oliaz. The note stated: When Oliaz replied that she had no hundreds or fifties, Hopkins stated: "Okay, then give me what you've got." Oliaz left the teller window, ostensibly to obtain money, and informed several bank employees that she was being robbed. After Oliaz entered the bank vault, Hopkins left the bank in a nonchalant manner. Oliaz testified that during the course of Hopkins' attempt she felt intimidated, frightened, and concerned for her unborn child.
Hopkins first argues that his conduct and demeanor were not sufficiently intimidating to support a conviction for robbery. Although the evidence showed that Hopkins spoke calmly, made no threats, and was clearly unarmed, we have previously held that "express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon[s]" are not required for a conviction for bank robbery by intimidation. United States v. Bingham, 628 F.2d 548, 549 (9th Cir.1980). We believe that the threats implicit in Hopkins' written and verbal demands for money provide sufficient evidence of intimidation to support the jury's verdict.
Hopkins next argues that the district court abused its discretion in refusing to modify the Devitt & Blackmar Sec. 44.05 jury instruction on intimidation to conform to this court's suggestion in United States v. Alsop, 479 F.2d 65, 67 n. 4 (9th Cir.1973). The modified jury instruction set forth in Alsop states, in relevant part, "To take, or attempt to take, 'by intimidation' means wilfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm." Id. (emphasis added). The Devitt & Blackmar instruction adds that "A taking 'by intimidation' must be established by proof of one or more acts or statements, ... under such circumstances, as would produce...
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