U.S. v. Ray, No. 92-3261

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRANDOLPH; WILL
Citation21 F.3d 1134,305 U.S. App. D.C. 386
Docket NumberNo. 92-3261
Decision Date22 April 1994
PartiesUNITED STATES of America, Appellee, v. David RAY, A/K/A David Young, Appellant.

Page 1134

21 F.3d 1134
305 U.S.App.D.C. 386
UNITED STATES of America, Appellee,
v.
David RAY, A/K/A David Young, Appellant.
No. 92-3261.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 13, 1993.
Decided April 22, 1994.

Page 1135

Appeal from the United States District Court for the District of Columbia.

Edward C. Sussman, appointed by the court, argued the cause and filed the briefs for appellant.

Barbara K. Bracher, Asst. U.S. Atty., argued the cause for appellee. With her on the brief were J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black and Edward F. McCormack, Asst. U.S. Attys.

Before: GINSBURG and RANDOLPH, Circuit Judges, and HUBERT L. WILL, * Senior District Judge.

Opinion for the court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and dissenting in part filed by Senior District Judge WILL.

RANDOLPH, Circuit Judge:

Within one month David Ray robbed the same bank twice. Both times he approached a teller and ordered her to turn over cash or he would "blow [her] head off." The tellers involved did not see a weapon or the outline of one. Both said Ray "moved his hands around a lot," putting one hand in his pocket and removing it. When the police arrested Ray several days after the second robbery, they found no weapon. The driver of the get-away car in the first robbery, who testified for the prosecution pursuant to a plea bargain, said that he had not seen Ray with a gun.

The jury convicted Ray of two counts of aggravated bank robbery, in violation of 18 U.S.C. Sec. 2113(d). 1 The issue is whether the

Page 1136

trial court correctly charged the jury on the elements of that offense. The crime of bank robbery occurs when an individual obtains or attempts to obtain money from a federally insured bank "by force and violence, or by intimidation," 18 U.S.C. Sec. 2113(a). The more serious offense (an additional maximum of five years' imprisonment and a $5,000 fine) of aggravated bank robbery occurs when the robber, while violating Sec. 2113(a), also "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device." Explaining the language from Sec. 2113(d) just quoted, the court told the jury: "the government must prove that the defendant during the commission of the bank robbery committed acts or said words that would have caused an ordinary person reasonably to expect to die or face serious injury by the defendant's use of a dangerous weapon or device."

The instruction authorized the jury to convict on the aggravated bank robbery charges regardless whether Ray had a weapon hidden in his pocket. Everything turned on what a reasonable person would perceive from Ray's threats and actions. Nothing depended on whether Ray actually had a weapon or other object, whether he displayed any object, or whether he could have carried out his threats. 2

I

We will begin by assuming that Ray did not have a weapon during the robberies. Even so, we can see an argument in favor of the district court's view of Sec. 2113(d). It proceeds this way. In terms of danger, there is no meaningful distinction between Ray and a robber brandishing a toy replica of a pistol. Both accomplish their crime by inducing fear and apprehension. Because they are convincing, both commit an assault by placing others in "immediate apprehension of personal injury." Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 212, 3 L.Ed.2d 199 (1958). Neither can carry out his threat to kill. Yet lives may be endangered in both instances, and for the same reason: the robber's threat may provoke a violent response. This prospect is enough, according to McLaughlin v. United States, 476 U.S. 16, 17-18 & n. 3, 106 S.Ct. 1677, 1678 n. 3, 90 L.Ed.2d 15 (1986), to render an unloaded firearm a "dangerous weapon," and it is also enough to make a wooden gun "dangerous" within Sec. 2113(d)'s meaning. See United States v. Martinez-Jimenez, 864 F.2d 664, 668 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989). 3 There is no difference in culpability between Ray and the bank robber displaying a toy pistol. Neither may have used a "dangerous weapon," that is, "an article that is typically and characteristically dangerous" such as a 9 millimeter semi-automatic pistol. McLaughlin, 476 U.S. at 17, 106 S.Ct. at 1678. But both used a "device." A "device" may be an object, as in "a computer is a complicated device." The word, however, is also commonly used (in the securities laws for example) to denote a scheme to deceive. 4 See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197-99, 96 S.Ct. 1375, 1382-84, 47 L.Ed.2d 668 (1976). Devices of the latter sort can be

Page 1137

"dangerous." Ray's was for the reasons already mentioned. Thus, Ray violated Sec. 2113(d) by conveying the impression that he had a gun, just as the robber with the toy gun violated Sec. 2113(d).

The argument, though respectable, encounters several difficulties. It makes the unsupported assumption that, in terms of danger, there is no significant difference between the two robberies; it blurs any distinction between Sec. 2113(a) and Sec. 2113(d); and it does not come to grips with the precise holding of McLaughlin regarding the prospect of a violent response. As to McLaughlin, the Court wrote: "the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue." 476 U.S. at 17-18, 106 S.Ct. at 1678. The Court dropped a footnote in the middle of this sentence indicating that "an apparently dangerous article (such as a wooden gun)" would also be " 'dangerous' within the meaning of the statute." Id. at 18 n. 3, 106 S.Ct. at 1678 n. 3. We have italicized the key words. They make the point that "use of a dangerous weapon or device" occurs when the criminal displays an ostensibly dangerous weapon during the robbery. It is the brandishing or displaying, in other words, that the Court said heightened the danger in McLaughlin to the point where Congress deemed enhanced punishment under Sec. 2113(d) appropriate.

Justice Stevens, writing for the Court in McLaughlin, of course chose his words carefully. He drew the line we have described at the urging of the United States. The Solicitor General, through an example, represented the government's position as follows: "Robbers frequently pass notes to tellers demanding money and suggesting that they are armed, although they may be unarmed. In such cases, Section 2113(a) clearly applies and Section 2113(d) does not." Brief for the United States at 18, McLaughlin (No. 85-5189). The Solicitor General's explanation for this reading of Sec. 2113 is of such importance, and so totally contradicts the United States Attorney's stance here, that it deserves full quotation:

Even in the case of a robber who is in fact armed, there are situations where Section 2113(a) applies although Section 2113(d) may not. For example, if a robber approaches a teller and demands money, without displaying a weapon, it appears that the robber would not be subject to punishment under Section 2113(d), even if in fact the robber has a concealed weapon. 17 The reason for that, in the language of the statute, is that the robber has not "used" the weapon to "assault" anyone, as Section 2113(d) requires. 18 By keeping his weapon concealed, the robber has not created the sort of charged atmosphere likely to provoke violence described by the Fourth Circuit in [United States v.] Bennett [, 675 F.2d 596 (4th Cir.), cert. denied, 456 U.S. 1011[, 102 S.Ct. 2306, 73 L.Ed.2d 1307] (1982) ]. A robber who might have a gun in his pocket may inspire some apprehension, but certainly not to the same degree as a robber who has a gun in his hand, especially one who is pointing it at someone. Thus there is much less danger that a guard or a passing policeman will reflexively fire, endangering bank employees and customers. Furthermore, any danger of pistol whipping is at least less imminent when a gun is not on display. In short, the brandishing of a gun creates special dangers, and it is reasonable to construe Section 2113(d) as being addressed to that added danger. 19 So construed, Section 2113(d) is clearly not at all redundant with Section 2113(a).

Id. at 18-20.

Page 1138

The Solicitor General was rightly concerned about Sec. 2113(d)'s engulfing Sec. 2113(a). By definition, every violation of Sec. 2113(a) involves the use of "force and violence, or intimidation." 5 It therefore seems likely that every bank robbery entails the prospect of a response, by police or guards or bank employees or customers or onlookers, that could turn violent. If that prospect renders whatever the robber does or says a "dangerous device" under Sec. 2113(d), then Sec. 2113(a) would be subsumed. Furthermore, it is not self-evident that the danger stemming from the reaction of law enforcement officers is appreciably different when the criminal is using force, violence or intimidation to carry out the robbery, than when he is deceiving bank employees into believing he has a concealed weapon.

The Supreme Court in McLaughlin, 476 U.S. at 18 n. 3, 106 S.Ct. at 1678 n. 3, and in Simpson, 435 U.S. at 10 n. 4, 98 S.Ct. at 911-12 n. 4, placed weight on an amendment to the bill that became Sec. 2113(d) inserting the words "or device" after "dangerous weapon," and on the accompanying exchange of remarks on the House floor. Representative Blanton expressed concern that courts might not consider certain instrumentalities weapons. He gave three examples: "a bottle of nitroglycerin," "a bottle of water asserted to be nitroglycerin, which would have the same effect psychologically on the minds of the people in the bank," and "one of these new kind of Indiana six shooters carved out of a piece of wood with a pocket knife." 78 CONG.REC. 8132-33 (1934). The illustrations contemplate that the robbers will display...

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  • U.S. v. Bailey, Nos. 90-3119
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 4, 1994
    ...a statutory ambiguity that under the rule of lenity should be resolved in favor of the narrow construction. In United States v. Ray, 21 F.3d 1134 (D.C.Cir.1994), we relied heavily on the Solicitor General's McLaughlin brief, saying, in our exposition of the word "use", "It is the brandishin......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2021
    ...instead suggested that it would not do so. See United States v. Wolfe , 245 F.3d 257, 259, 261–62 (3d Cir. 2001) ; United States v. Ray , 21 F.3d 1134, 1135–40 (D.C. Cir. 1994). At day's end, neither McLaughlin nor any other precedent can justify the atextual conclusion that a concealed han......
  • Ob'Saint v. Warden, Toledo Correctional Inst., Case No. 1:08-cv-640.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • December 21, 2009
    ...cases do not assist Ob'Saint, however, because the federal statute differs from the Ohio specification statute. For example, U.S. v. Ray, 21 F.3d 1134 (D.C.Cir. 1994) was an appeal from a conviction for aggravated armed bank robbery under 18 U.S.C. § 2113(d). That section applies if the evi......
  • General Electric Company v. E.P.A., No. 03-5114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 2004
    ...194 congressional intent. See Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984); United States v. Ray, 21 F.3d 1134, 1138 (D.C.Cir.1994). In any event, the EPA's functional approach ignores the plain language of § 113(h), which limits the bar to any challen......
  • Request a trial to view additional results
21 cases
  • U.S. v. Bailey, Nos. 90-3119
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 4, 1994
    ...a statutory ambiguity that under the rule of lenity should be resolved in favor of the narrow construction. In United States v. Ray, 21 F.3d 1134 (D.C.Cir.1994), we relied heavily on the Solicitor General's McLaughlin brief, saying, in our exposition of the word "use", "It is the brandishin......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2021
    ...instead suggested that it would not do so. See United States v. Wolfe , 245 F.3d 257, 259, 261–62 (3d Cir. 2001) ; United States v. Ray , 21 F.3d 1134, 1135–40 (D.C. Cir. 1994). At day's end, neither McLaughlin nor any other precedent can justify the atextual conclusion that a concealed han......
  • Ob'Saint v. Warden, Toledo Correctional Inst., Case No. 1:08-cv-640.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • December 21, 2009
    ...cases do not assist Ob'Saint, however, because the federal statute differs from the Ohio specification statute. For example, U.S. v. Ray, 21 F.3d 1134 (D.C.Cir. 1994) was an appeal from a conviction for aggravated armed bank robbery under 18 U.S.C. § 2113(d). That section applies if the evi......
  • General Electric Company v. E.P.A., No. 03-5114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 2004
    ...194 congressional intent. See Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984); United States v. Ray, 21 F.3d 1134, 1138 (D.C.Cir.1994). In any event, the EPA's functional approach ignores the plain language of § 113(h), which limits the bar to any challen......
  • Request a trial to view additional results

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