Submitted February 15, 2018 [*] San Francisco, California
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.
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.
panel affirmed a conviction by jury trial for bank robbery
resulting in death, in violation of 18 U.S.C. § 2113(e).
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
panel addressed other issues in a concurrently-filed
SMITH, Circuit Judge.
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).
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.
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.
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.
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. The ...