U.S. v. Parks, No. 2:03 CR 213.

• Decision Date: 23 August 2005
• Docket Number: No. 2:03 CR 213.
• Citation: 411 F.Supp.2d 846
• Parties: UNITED STATES of America, Plaintiff, v. Jabrown PARKS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 846

411 F.Supp.2d 846

UNITED STATES of America, Plaintiff, v. Jabrown PARKS, et al., Defendants.

No. 2:03 CR 213.

United States District Court, S.D. Ohio, Eastern Division.

August 23, 2005.

Richard Allen Cline, Mitchell, Allen, Catalano & Boda Co., LPA, Jane Susan

Messmer, Steven Scott Nolder, Federal Public Defender, Frederick Douglas Benton, Columbus, OH, for Defendants.

David Devillers, United States Attorney, J. Michael Marous, United States Attorney's Office, Columbus, OH, for Plaintiff.

MEMORANDUM & ORDER

HOLSCHUH, District Judge.

This matter is currently before the Court on Defendant Jabrown Parks' "motion to include an actus reus or criminal conduct requirement, a malice aforethought mens rea requirement, and a proximate cause requirement in the `kill' element of 18 U.S.C. § 2113(e)¹ or, in the alternative, to declare § 2113(e) unconstitutional as applied to him" (Record at 44), and on Defendant's related motion for a bill of particulars on Count 3 of the indictment (Record at 31, 32).² For the reasons stated below, the motion concerning § 2113(e) is granted in part and denied in part. The motion for a bill of particulars is denied.

I. Preface

This case involves the interpretation and application of 18 U.S.C. § 2113(e), the penalty enhancement provision of the federal bank robbery statute. It provides that whoever "kills" any person in connection with a bank robbery "shall be punished by death or life imprisonment." 18 U.S.C. § 2113(e).

Another judge of this Court has recently entered an Opinion and Order dealing with 18 U.S.C. § 1201, the federal kidnaping statute that contains an analogous enhanced penalty provision. It states, "if the death of any person results, [defendant] shall be punished by death or life imprisonment." 18 U.S.C. § 1201(a)(5). United States v. Mayhew, No. 2:03-cr-165, 2005 WL 1845171 (S.D.Ohio Aug.1, 2005). Unlike the present case, the Government in Mayhew sought the death penalty for the defendant who had kidnapped and allegedly killed his daughter. Consequently, the Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. §§ 3591-3598, was applicable in that case. Of significance to the present case, however, is Judge Marbley's conclusion that the language in 18 U.S.C. § 1201, "if the death of any person results, [defendant] shall be punished by death or life imprisonment" does not require that the Government prove criminal intent or mens rea in causing the death. This conclusion was based on the controlling Sixth Circuit case of United States v. Poindexter, 44 F.3d 406 (6th Cir.1995).

Although I, like Judge Marbley, am required to follow the appellate court's opinion in the Poindexter case, an argument could be made that Congress intended the enhanced penalty provisions of 18 U.S.C. § 2113(e) to apply to those cases in which a defendant murders or kidnaps an innocent person in connection with a bank robbery, and not to a situation in which an accomplice is accidentally killed in a car accident during the attempted getaway. Such an argument would be based, in part, on the legislative history of the statute which shows that it was intended to apply to cases in which "murder or kidnapping [is] committed" in connection with a bank robbery. H.R. No. 1461, 73rd Cong., 2d Sess. (1934)(emphasis added).³ As the Tenth Circuit has noted, "the legislative history suggests [18 U.S.C. § 2113(e) ] was enacted to combat the multitude of murders and kidnappings occurring during attempts by bank robbers to flee the scene of the crime." United States v. Marx, 485 F.2d 1179, 1186 (10th Cir.1973).

The Sixth Circuit in Poindexter, however, using Black's Law Dictionary, contrasted the word "kill" with the word "murder" and concluded that because the statute in question does not say "murder," no criminal intent or mens rea is required. The Court bolstered its conclusion "by the fact that at the time § 2113(e) was enacted, the common law felony murder doctrine was well-established." Poindexter, 44 F.3d at 409. It is apparent, therefore, that the Sixth Circuit regards § 2113(e) as a felony murder statute, and there is substantial authority that proof of the defendant's intent to commit the predicate felony offense is sufficient to satisfy a mens rea requirement for the death in question. In the opinion that follows, in accordance with Poindexter, § 2113(e) will be considered a specific felony murder statute.

Judge Marbley's opinion in Mayhew is also significant with respect to one other issue that is relevant to the present case. He concluded that while the Government need not prove intent to cause a person's death, the Government is nevertheless required to prove that the defendant's own conduct was a proximate cause of the person's death. This proximate cause requirement, as it applies to the facts in the present case, is also discussed in the opinion that follows.

II. Background

On December 18, 2003, a grand jury indicted Lavelle Parks, Jabrown Parks, and Chaz Frier. Count 3 of the indictment alleges that on December 2, 2003, the three Defendants:

... did take by force and violence, or by intimidation, from the person and presence of another, approximately $5,347.00, belonging to and in the care, custody, control, management, or possession of First Federal Savings and Loan, 182 West Broad Street, Pataskala, Ohio, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation, and in so doing, did cause to be put in jeopardy the lives of bank employees by means and use of a dangerous weapon, that is a firearm and further, in committing such offense or in attempting to avoiding [sic] apprehension for the commission of such offense, defendants LAVELLE PARKS, CHAZ FRIER and JABROWN PARKS, did kill Daryl A. Williams, II.

In violation of 18 U.S.C. § 2113(a), (d) & (e) and § 2.

Daryl A. Williams, II, the deceased, was allegedly a participant in the armed robbery. He, Chaz Frier, and Jabrown Parks allegedly robbed the First Federal Savings and Loan at gunpoint. They then sped away in a car driven by Lavelle Parks. An eyewitness alerted the Pataskala Police Department and a high speed chase ensued. Eventually, the getaway car crashed into two other vehicles. Williams, who was not wearing a seat belt, was ejected from his seat and was killed instantly when the getaway car rolled over and landed on top of him.

III. Motion re: Elements and Constitutionality of 18 U.S.C. § 2113(e)

As noted above, Defendants were indicted for violations of 18 U.S.C. § 2113(a),(d), and (e), as well as aiding and abetting the commission of those crimes in violation of 18 U.S.C. § 2. Section 2113 reads, in pertinent part, as follows:

(a) 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; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny-Shall be fined under this title or imprisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than one year, or both.

(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank, credit union, or savings and loan association in violation of subsection (b), knowing the same to be property which has been stolen shall be subject to the punishment provided in subsection (b) for the taker.

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

(e) 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 if death results shall be punished by death or life imprisonment.

18 U.S.C. § 2113.

The target of the pending motions is subsection (e), which was written as a penalty enhancement provision. Congress contemplated that, during the sentencing phase of the trial, the judge would determine, by a preponderance of the evidence, whether someone had been killed in connection with an offense described in § 2113. If so, the defendant would be subjected to an increased penalty of death or life imprisonment.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (200...