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United States v. McDuffy

United States Court of Appeals, Ninth Circuit

May 15, 2018

United States of America, Plaintiff-Appellee,
v.
Van McDuffy, AKA Van McDuffie, Defendant-Appellant.

          Submitted February 15, 2018 [*] San Francisco, California

          Appeal from the United States District Court No. 3:13-cr-00108-MMD-VPC-1 for the District of Nevada Miranda M. Du, District Judge, Presiding

          Michael J. Kennedy, Law Offices of Michael Jerome Kennedy PLLC, Reno, Nevada, for Defendant-Appellant.

          Adam Flake, Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Steven W. Myhre, Acting United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

          Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye, [**] District Judge.

         SUMMARY [***]

         Criminal Law

         The panel affirmed a conviction by jury trial for bank robbery resulting in death, in violation of 18 U.S.C. § 2113(e).

         Rejecting the argument that the sentence enhancement in § 2113(e) applies only when a bank robber knowingly kills a person in the course of a bank robbery, and agreeing with other circuits, the panel concluded that the only mens rea required is the mens rea necessary to commit the underlying bank robbery.

         The panel addressed other issues in a concurrently-filed memorandum disposition.

          OPINION

          N.R. SMITH, Circuit Judge.

         We agree with the Supreme Court: "Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns." Dean v. United States, 556 U.S. 568, 570 (2009).

         In 18 U.S.C § 2113(e), Congress mandated an enhanced punishment for an individual who kills a person in the course of committing a bank robbery. We conclude the enhancement applies even when the bank robber accidentally kills someone. The enhancement does not require a separate mens rea; the only mens rea required is the mens rea necessary to commit the underlying bank robbery.[1]

         I. Background

         On October 16, 2013, Van McDuffy entered a Bank of America branch in Reno, Nevada, brandished a handgun, and demanded money from one of the bank tellers. The teller took the money from the till, put it in a plastic bag, and handed it to McDuffy. At that moment, Charles Sperry (a bank customer) attempted to grab the gun from McDuffy. However, "as he went to grab the gun, [McDuffy] shot him in the chest." Sperry subsequently died from his wound. After shooting Sperry, McDuffy did not end the robbery. Instead, he calmly approached another teller and forced her to hand over the money from her till. With the money in hand, McDuffy then fled the bank. An off-duty police officer who was in the bank during the robbery pursued McDuffy and apprehended him at a nearby bus stop.

         The government charged McDuffy with violating several sections of 18 U.S.C § 2113, which criminalize various acts of theft perpetrated against banks. Section 2113(a) criminalizes generic bank robbery, United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018); § 2113(d) provides an enhanced sentence if the bank robber assaults any person with a dangerous weapon; and § 2113(e) provides a further enhanced sentence "if death results" from the defendant's conduct during the bank robbery.

         Section 2113(e) does not contain an explicit mens rea requirement. Nevertheless, McDuffy urged the district court to read a mens rea requirement into § 2113(e). He argued that the enhancement in § 2113(e) should apply only when a bank robber "knowingly" kills a person in the course of a bank robbery.[2] The ...


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