U.S. v. Snell

• Decision Date: 21 March 1977
• Docket Number: 76-1907,Nos. 76-1985,s. 76-1985
• Citation: 550 F.2d 515
• Parties: UNITED STATES of America, Appellee, v. Edward Frank SNELL and Erwin William Schmidt, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 515

550 F.2d 515

UNITED STATES of America, Appellee, v. Edward Frank SNELL and Erwin William Schmidt, Appellants.

Nos. 76-1985, 76-1907.

United States Court of Appeals Ninth Circuit.

March 21, 1977.

Douglas H. Westbrook, Crim. Div., Dept. of Justice, Washington, D. C., for appellee.

Barry J. Portman, Asst. Federal Public Defender, San Francisco, Cal., for appellant Schmidt.

Paul H. Alvarado, San Francisco, Cal., for appellant Snell.

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

Before DUNIWAY and ELY, Circuit Judges, and BELLONI, ^* District Judge.

ELY, Circuit Judge:

After a jury trial, defendants Schmidt and Snell were convicted of attempting to obstruct commerce by extortion, in violation of 18 U.S.C. § 1951 ("Hobbs Act" or "Act"), ¹ and of conspiracy to rob a federally insured bank, in violation of 18 U.S.C. §§ 371 ² and 2113(a). ³ The District Court sentenced Schmidt to five years of confinement for each of the two offenses, the sentences to run concurrently. Snell received a twenty-year term of confinement on the attempted extortion conviction and a five-year term for the conspiracy offense, these sentences also to run concurrently. We reverse the convictions for attempted extortion under the Hobbs Act and affirm the convictions for conspiracy to commit bank robbery.

An unindicted co-conspirator named Prickett provided most of the incriminating evidence against the appellants. Prickett testified that Schmidt and Snell devised two contingency plans to extort $150,000 from the federally insured Southland Center Branch of the Bank of America in Hayward, California, on December 11, 1975. Pursuant to the first plan, the conspirators contemplated holding the bank manager and his wife, Mr. and Mrs. Aimes, as overnight hostages in their own home. The following day, Mr. Aimes was to be taken to the bank in order to secure the ransom money. Alternatively, the defendants intended to kidnap Mrs. Aimes, photograph her, and then confront her husband at the bank with their ransom demand. In either event, Schmidt and Snell agreed to murder Mr. Aimes and thereby foreclose the possibility of future identification by him. To this same end, Mrs. Aimes was to be sprayed with mace and thereafter taken into custody without being able to observe her assailants.

Prickett and Schmidt first surveyed the Aimes' residence on December 8, 1975. During the early morning of the next day, December 9, Prickett and Schmidt bought gloves in a drug store located across the street from the shopping center in which the bank is situated. A short time later, Schmidt and Prickett rendezvoused with Snell in the shopping center parking lot. Here, Schmidt and Snell pointed out to Prickett both Aimes individually and the latter's automobile as he arrived for work. That evening, Prickett and Schmidt observed Aimes arrive at his home after leaving his place of work.

On the evening of the following day, December 10, 1975, the conspirators prepared to execute the first of the plans that we have above described. The attempt was aborted, however, due to the presence of a highway patrolman in the immediate vicinity of the Aimes' residence.

Finally, on December 11, 1975, an attempt was made to implement the second plan. Schmidt, Snell, and Prickett drove in two cars to the Aimes' residence. Schmidt and Snell approached the home with the intent of kidnapping Mrs. Aimes. To their consternation, however, Mrs. Aimes answered the door with a huge dog a great Dane at her side. Snell introduced himself and Schmidt as police officers, flashed a fictitious police identification, and requested to speak with Mr. Aimes. Mrs. Aimes responded that her husband would not be home until six o'clock that evening. Following a further brief exchange of conversation, Schmidt leaned forward as if to pet the dog or perhaps to touch Mrs. Aimes, whereupon the dog lunged forward toward Schmidt and snarled. Schmidt stepped immediately back, and, shortly thereafter, Snell stated to Mrs. Aimes that they would return later. Schmidt and Snell then departed, their criminal scheme finally thwarted and terminated.

Schmidt and Snell contend, among numerous assignments of error, that the record does not contain sufficient evidence to sustain the convictions for attempted extortion. We need not and do not resolve whether or not the defendants' conduct can be characterized, legally, as an "attempt." Assuming arguendo the sufficiency of the evidence in support of such a conclusion, the convictions under the Hobbs Act are, nonetheless, fatally defective in light of our holding today that the federal bank theft statute, 18 U.S.C. § 2113, provides exclusive federal remedies for offensive conduct fully within its coverage.

18 U.S.C. § 2113 subdivides the offense of bank robbery into a series of continuing steps ranging from attempted entry and entry with intent to rob; to robbery and attempted robbery by force, violence, or intimidation; to robbery utilizing a dangerous weapon; to robbery resulting in death or kidnapping. The statute provides for penalties in increasing increments corresponding to the aggravated nature of the theft. ⁴

The appellants urge, and we agree, that 18 U.S.C. § 2113 constitutes a comprehensive bank theft statute which provides the exclusive remedy for conduct fully within its coverage. Our conclusion accords with recent decisions of two other Courts of Appeals, that of the Sixth Circuit and that of the District of Columbia Circuit. See United States v. Beck, 511 F.2d 997 (6th Cir. 1975); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972).

In United States v. Canty, supra, the defendant was chargeable under 18 U.S.C. § 2113(d) for assault with a dangerous weapon in connection with the robbery of a federally insured bank. Rather than prosecuting the defendant solely under the bank robbery statute, the Government charged him with unarmed bank robbery in violation of 18 U.S.C. § 2113(a), and with assault with a dangerous weapon in violation of a catch-all provision of the District of Columbia Code. By venturing outside of the federal bank robbery statute, the prosecution was able to circumvent the carefully structured hierarchy of penalties therein set forth and, ultimately, to obtain a sentence longer than the maximum sentence authorized under the highest tier of the general federal statute. Reasoning from Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), wherein the Supreme Court prohibited the pyramiding of sentences under the federal bank robbery statute, the Court of Appeals vacated the conviction for assault in violation of the local criminal code.

In United States v. Beck, supra, the Sixth Circuit directly addressed the exclusivity of the federal bank robbery statute in reference to the Hobbs Act. The defendant, according to the court, was chargeable with bank robbery under 18 U.S.C. § 2113(a). 511 F.2d at 1000; see United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974). The Government, however, charged the defendant with bank larceny under 18 U.S.C. § 2113(b) and with extortion under the Hobbs Act. As in Canty, the prosecution was thereby permitted to obtain a sentence longer than the maximum sentence allowed under the highest applicable tier of the federal bank robbery statute. The court vacated the conviction under the Hobbs Act, agreeing with the Canty court that the bank robbery statute, being a comprehensive scheme, was intended exclusively to proscribe conduct fully within its coverage. 511 F.2d at 1000.

Agreeing, as we do, that the bank robbery statute provides the exclusive remedy for conduct within its coverage, we are compelled to reverse Schmidt and Snell's convictions for attempted extortion. The defendants were chargeable under 18 U.S.C. § 2113(a) with attempted bank robbery by force, violence, or intimidation. See United States v. Marx, supra. Precisely why the Government, which indicted Schmidt and Snell for conspiracy to commit bank robbery, elected to charge them further with attempted extortion rather than with attempted bank robbery, is not apparent. We can only note that, by venturing away from the bank robbery statute, the Government subjected Schmidt and Snell potentially to combined fines and terms of confinement in excess of that provided in 18 U.S.C. § 2113(a). ⁵ In any event, since Schmidt and Snell were chargeable under the bank robbery statute, they were not legally chargeable under the Hobbs Act or any other federal criminal statute ostensibly reaching conduct fully within the reach of the bank robbery statute. ⁶ While we can speculate that Schmidt and Snell would likely have been convicted of attempted bank robbery under 18 U.S.C. § 2113(a), we obviously cannot convict them of an offense for which they were not charged or tried. ⁷

There was ample evidence to support the...