US v. Sanchez, CR 91-906 AWT.

• Decision Date: 03 January 1992
• Docket Number: No. CR 91-906 AWT.,CR 91-906 AWT.
• Citation: 782 F. Supp. 94
• Parties: UNITED STATES of America, Plaintiff, v. Eduardo Palayo SANCHEZ, Defendant.
• Court: U.S. District Court — Central District of California

782 F. Supp. 94

UNITED STATES of America, Plaintiff, v. Eduardo Palayo SANCHEZ, Defendant.

No. CR 91-906 AWT.

United States District Court, C.D. California.

January 3, 1992.

Lourdes G. Baird, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Appeals Mark D. Larsen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff.

Peter M. Horstman, Federal Public Defender, Gerald C. Salseda, Deputy Federal Public Defender, Los Angeles, Cal., for defendant.

MEMORANDUM OPINION

TASHIMA, District Judge.

Defendant Eduardo Palayo Sanchez is charged in a single count indictment with bank robbery and use of a dangerous weapon and kidnapping in committing the robbery, in violation of 18 U.S.C. § 2113(a), (d) and (e). He pleaded guilty to the (a) and (d) charges, but pleaded not guilty to the subsection (e) charge of kidnapping. Trial by jury has been waived and the matter has been tried to the court.

FACTS

The facts in this case are simple and are largely undisputed. They are fairly summarized in the government's trial brief, as follows:¹

On October 16, 1991, at approximately 12:40 p.m., California Federal Bank employee Silva Serafian noticed defendant Eduardo Palayo Sanchez ("Defendant") walk into that bank ... Defendant then ... walked ... to Ms. Serafian's desk. Ms. Serafian turned to ask Defendant if she could help him. Defendant pulled a long butcher knife from behind his body, grabbed Ms. Serafian from behind as she sat at her desk, placed the knife near her throat and demanded money.

Patrick Harris, the bank's Personal Banking Representative, was returning from lunch as he looked through the bank's lobby area and saw Defendant standing behind Ms. Serafian with the knife to her throat. Mr. Harris approached Ms. Serafian's desk and asked Defendant what he wanted. Defendant demanded money and threw a blue/green pillowcase to the ground. Mr. Harris took the pillowcase to teller windows occupied by Elsa Marquez and Luis Calderon, who gave cash to Harris as Defendant yelled "I'm giving you ten seconds. Hurry up." ... Harris put the money in the pillowcase and walked back towards Defendant who still was standing behind Ms. Serafin holding the knife to her throat.

Defendant refused the pillowcase, demanded more money, told Mr. Harris that he had ten seconds and began counting backwards from ten with the knife now pressing harder against Ms. Serafian's throat. Mr. Harris returned to the tellers who gave him more money which was placed in the pillowcase. Harris turned and walked towards the robber again who once more refused the pillowcase, demanding more cash. Harris went back to teller Marquez a third time who gave Harris her coins as Defendant again began counting ... with the knife to Serafian's throat ...

Mr. Harris approached Defendant a third time and told Defendant that this was all the money the bank had. Defendant directed Harris to put the pillowcase on a desk positioned toward the bank's exit door.

Defendant, remaining behind Serafian with the knife on or near her throat, forced Serafian to stand and forcibly marched her around her desk toward the exit door and the desk where the pillowcase had been left by Mr. Harris. No one in the bank moved toward Defendant or the exit door. As Defendant reached the middle of the lobby in the immediate proximity of the pillowcase, he gradually released Serafian. Defendant warned everyone in the bank not to follow him because he had four men outside and anyone following him would be killed. Defendant picked up the pillowcase and, with the way now clear, walked quickly out of the bank.

The distance, within the bank, over which defendant forced Ms. Serafian to accompany him, was estimated by eyewitnesses as being 15 feet, or less. The entire robbery took approximately two to three minutes. The duration of the forced accompaniment was approximately 10 seconds.

ISSUE

Will the above facts, which the court finds, support a finding of kidnapping in aid of bank robbery under 18 U.S.C. § 2113(e)?

THE STATUTE

The federal kidnapping in aid of bank robbery statute provides:

Whoever, in committing any offense defined in this section i.e., bank robbery, or in avoiding or attempting to avoid apprehension for the commission of such offense, ... forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years....

18 U.S.C. § 2113(e).

DISCUSSION

There are not a great many reported cases interpreting the asportation requirement of this statute. The court agrees with the government's position that this offense is similar to the federal statutory crime of kidnapping, 18 U.S.C. § 1202, and the common law. United States v. Jones, 678 F.2d 102, 105 (9th Cir.1982) (essential elements of subsection (e) include kidnapping in connection with the robbery); United States v. Marx, 485 F.2d 1179, 1186 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974) (elements under § 2113(e) "are similar to those under the common law and the federal kidnapping statute"). Marx further held that some asportation requirement had to be met.

Although we do not feel it necessary under § 2113(e) to transport the seized person across state lines, we do feel more is required than forcing Adams the bank president to enter his own house or forcing the Adams family to move from the den to a bedroom.

Id.

The government contends that the asportation "need only be more than slight." However, the cases cited in support of this proposition paint a different picture. The government relies first on Government of the Virgin Islands v. Alment, 820 F.2d 635 (3d Cir.1987). While the court there reversed the district court's vacatur of a kidnapping conviction, the facts regarding asportation were quite different from those in the case at bench. There the defendant dragged the victim by the neck from her lighted office, along an outdoor corridor and down a flight of steps, a distance of 31 feet. He then carried her another 44 feet into an area of bushes. Id. at 636. The Third Circuit applied its earlier announced two-prong test² to determine whether a kidnapping had been committed: (1) The duration of the asportation, and (2) Any significant danger to the victim independent of the underlying offense. Id. at 637. In our case, the duration of the asportation, 10 seconds, could hardly be any more minimal. No doubt there was significant danger to the victim teller by the presence of the knife, but that danger was present by virtue of the § 2113(d) offense, assault by the use of a dangerous weapon, and not by reason of any trivial movement over a distance of 15 feet.

The government also relies on People v. Stender, 47 Cal.App.3d 413, 422, 121 Cal. Rptr. 334 (1975). But there, the victim was forced out of her home, past three houses, over a seawall and across a beach to underneath a pier, a distance of approximately 200 feet. The court characterized the asportation as "substantial in character" and not trivial. Id. The California cases involving both "simple" kidnapping, under Cal.Pen.Code § 207, and "aggravated" kidnapping, under Cal.Pen.Code § 209, are consistently of the same view. Movements which are trivial or merely incidental to other crimes do not constitute kidnapping. People v. Stanworth, 11 Cal.3d 588, 600, 114 Cal.Rptr. 250, 522 P.2d 1058 (1974); People v. Daniels, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225 (1969); Cotton v. Superior Court, 56 Cal.2d 459, 465, 15 Cal.Rptr. 65, 364...