No. 13-9026
IN THE
Supreme Court of the United States
LARRY WHITFIELD,
Petitioner,
v.
UNITED STATES,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals?for the Fourth Circuit
BRIEF OF PETITIONER
MATTHEW S. HELLMAN
ADAM G. UNIKOWSKY
ERICA L. ROSS
R. TRENT MCCOTTER
JENNER & BLOCK LLP
1099 New York Ave., N.W.
Washington, DC 20001
(202) 639-6000
ROSS RICHARDSON
Executive Director
JOSHUA B. CARPENTER*
FEDERAL DEFENDERS OF
WESTERN N.C., INC.
1 Page Ave., Suite 210
Asheville, NC 28801
(828) 232-9992
Joshua_Carpenter@fd.org
*Counsel of Record
MATTHEW R. SEGAL
211 Congress Street
Third Floor
Boston, MA 02110
(617) 482-3170
Counsel for Petitioner
QUESTION PRESENTED
A conviction under the federal bank robbery?statute carries a maximum sentence of 20 years in?prison, but no minimum sentence. 18 U.S.C. ? 2113(a).
If the bank robber forces another person ?to?accompany him? in committing the robbery or while in?flight, however, that additional offense carries a?minimum sentence of ten years in prison and a?maximum sentence of life imprisonment. 18 U.S.C.?? 2113(e).
The question presented is whether ? 2113(e)?s?forced-accompaniment offense requires proof of more?than a de minimis movement of the victim.
OPINIONS BELOW
The Fourth Circuit?s first opinion in this case, JA?24a-66a, is published at 695 F.3d 288.1 The district?court?s sentencing order on remand, JA 67a-74a, is?unpublished. The Fourth Circuit?s second opinion, JA?18a-22a, is unpublished, but is reprinted at 548 F. App?x?70.
JURISDICTION
The Fourth Circuit entered its judgment on?December 10, 2013. Larry Whitfield timely filed a?petition for certiorari on March 7, 2014. This Court?granted the petition on June 23, 2014. This Court?s?jurisdiction rests on 28 U.S.C. ? 1254(1).
STATUTORY PROVISION INVOLVED
This case involves an application of 18 U.S.C.?? 2113(e). The full text of ? 2113 is reprinted in an?addendum at the end of this brief.
STATEMENT OF THE CASE
The federal bank robbery statute creates a series of?increasingly serious offenses that carry increasingly?serious penalties. See 18 U.S.C. ? 2113. Subsection (a)?defines the basic offense and sets a 20-year statutory?maximum. 18 U.S.C. ? 2113(a). Subsection (d)?1 Due to Petitioner?s in forma pauperis status, the petition?appendix in this case was not filed in booklet form. All materials
from that appendix are reprinted for the Court?s convenience in?the joint appendix pursuant to Rule 26.1.2?increases the maximum to 25 years for an aggravated?offense where the bank robber uses ?a dangerous?weapon or device? to ?assault[] any person, or put[] in?jeopardy the life of any person.? 18 U.S.C. ? 2113(d).?Subsection (e), the provision at issue in this case,?covers the most serious conduct and imposes the most?serious penalties. It sets a 10-year mandatory?minimum and a maximum of life if the robber ?forces?another person to accompany him? in committing the?robbery or while in flight. 18 U.S.C. ? 2113(e). It also?provides a mandatory minimum of life in prison if the?victim dies as a result of the forced accompaniment or if?the robber kills someone (separate and apart from any?forced-accompaniment offense). Id.?Consistent with both the statutory text and the?logic of ? 2113?s tiered penalty structure, the Fifth and?Tenth Circuits have held that subsection (e)?s forcedaccompaniment?offense requires more substantial?movement of a victim than what occurs in an ordinary?bank robbery. (Think of the robber who orders a teller?to retrieve money from the vault or a customer to lie?down on the floor.) See United States v. Reed, 26 F.3d?523, 527-28 (5th Cir. 1994); United States v. Marx, 485?F.2d 1179, 1186 (10th Cir. 1973).
In this case, by contrast, the Fourth Circuit held?that ? 2113(e) and its dramatically escalated penalties?apply to any forced movement, no matter how?insubstantial. That broad construction was necessary?to sustain Whitfield?s ? 2113(e) conviction because, as?the court of appeals noted, the ?forced accompaniment??in question covered ?only a short distance? entirely??within [the victim?s] own home,? which Whitfield?entered, unarmed, while fleeing after a failed robbery?attempt. JA 65a. If something more than de minimis?movement is required, Whitfield?s conviction cannot?stand.
The Fourth Circuit?s judgment must be reversed.
Its expansive interpretation conflicts with the statute?s?plain text and ? 2113?s escalating penalty structure.?Under the Fourth Circuit?s view, the enhanced?penalties for a forced-accompaniment offense are not?reserved for especially egregious bank robbery?offenses, but instead could be applied?in the hands of a?zealous prosecutor?to virtually every bank robbery?offense. This Court should reject that interpretation?and hold that the enhanced penalties of ? 2113(e) are?triggered only by substantial movement, such as where?a defendant takes a hostage with him in escaping from?the bank.
A. Factual Background?
In September 2008, Larry Whitfield was a 20-yearold?with a high-school diploma and no criminal record.?His mother was serving an extended tour of military?duty overseas, leaving Whitfield alone to care for?himself and his younger brother. Unable to carry this?burden financially and overwhelmed by the recent loss?of his job and car, Whitfield decided?together with?Quanterrious McCoy?to rob a credit union in Gastonia,?North Carolina. CAJA 437-38.2 But as they attempted?to enter the credit union a metal detector triggered an?automatic lock on the inner doors. This prompted?Whitfield and McCoy to drive away, but McCoy?eventually lost control of the car and got stuck in a?median. JA 26a; CAJA 423-25. The two men then fled?on foot into the woods, discarded two firearms, and?separated from one another. JA 26a.
Now unarmed, Whitfield first hid in the home of?Tina Walden, who was away at work. When Walden?returned home, Whitfield confronted her at the front?door with a kitchen knife in his hand, which caused her?to run away. JA 26a; CAJA 533-34. Whitfield also fled,?discarded the knife, and next entered the unlocked?home of Mary and Herman Parnell. Mrs. Parnell, a 79-year-old woman with heart disease and high blood?pressure, was home alone, but not in the room where?Whitfield entered. JA 111a-112a, 154a-155a; CAJA 813,?1177. She became upset and began crying when she?saw Whitfield, but he said to her, ?I don?t have no?weapons and I?m not here to hurt you. I just need?somewhere to stay.? JA 26a-27a, 155a.
At that point, Whitfield engaged in the conduct?underlying his forced-accompaniment conviction. The
government?s sole evidence of this conduct came fromWhitfield?s answers to extensive police questioning and?two officer-written statements that he signed during?his interrogation.3 In one statement Whitfield said that?he ?asked [Mrs. Parnell] where could we go in the?house where the police couldn?t see us? and that he??asked her to go into the computer room.? JA 128a.
During questioning Whitfield explained that he first?met Mrs. Parnell as she was ?coming from the hallway.??JA 154a. Then, when he asked where they could go to?not be seen, they ?just took . . . the first room [i.e. the?computer room].? JA 35a, 162a. Mrs. Parnell ?sat?down? on a chair, while Whitfield ?took a couple steps?in? to the room but then ?went [to another room] to get?the phone.? JA 163a.
Whitfield initially agreed with the officer?s?suggestion that he ?guide[d]? Mrs. Parnell to the?computer room. JA 35a, 156a. But he immediately?clarified that he hadn?t touched her:
Like I didn?t, no. I didn?t . . . . I just know, she,?she was in front of me and she went into the?computer room. I don?t remember to-, I really?don?t remember touching her. Like come on,?ma?am . . . . I was cooperative with her and she?was cooperative with me. I didn?t put my hands?on her.?JA 35a, 156a.
Consistent with Whitfield?s clarification,?the investigation revealed ?no evidence? that Mrs.
Parnell had suffered ?any recent bruises, injuries, [or]?things of that nature? and ?[n]o evidence of violence.??JA 110a-111a. The trial evidence showed that Mrs.?Parnell?s movement from the hallway to the computer?room was between four and nine feet. See JA 81a?(testimony of Mr. Parnell that the computer room was??about eight feet down the hallway on the right?); JA?176a (rough diagram of house with inconsistent?measurements, which shows that the computer room??which is the first ?bedroom? on the right?is 110 inches?down the hallway, but is just past and across from a
doorway that is 38 inches down the hallway).
While in the Parnell home, Whitfield sent a text?message to a friend, Tamecia Sanders, who agreed to?pick him up. JA 26a-27a. During a subsequent phone?call with Whitfield, Sanders overheard Whitfield say to?Mrs. Parnell, ?[M]a?am, just calm down. I?m probably?more scared than you are, and I?m actually just trying?to leave.? JA 27a, 87a.
Soon thereafter, Mrs. Parnell agreed to speak to?Sanders on the phone to provide directions to the?Parnell home. According to Sanders, she deduced that?Mrs. Parnell had been ?afraid at first? (i.e. when?Sanders overheard Whitfield ask her to calm down).?JA 92a. But Sanders said that by the time they spoke?on the phone Mrs. Parnell ?sounded calm? and was??relieved? that Sanders was nearby. JA 27a, 86a-88a,?101a. Ultimately, however, Sanders was unable to?reach the Parnell home because the police had blocked?off the street. JA 102a-103a.
While Whitfield was still on the phone with Sanders,?Mrs. Parnell developed difficulty breathing. JA 27a.?Sanders overheard Whitfield ask Mrs. Parnell if he??could get her a glass of water? or ?any aspirin or?anything that she usually takes.? JA 27a, 103a-104a.?Sanders suggested that Whitfield give Mrs. Parnell ?a?minute? and then call an ambulance. JA 27a. Whitfield?soon informed Sanders that it appeared Mrs. Parnell?had stopped breathing and seemed unconscious, but?that he was too scared to go into the room to check on?her. JA 107a-108a. Whitfield then began crying on the?phone. JA 109a.
A few minutes later Whitfield ended his call with?Sanders when he heard someone knocking on the front
door. JA 27a-28a. He ran from the house and hid in the?woods, where he was ultimately apprehended. Id.; JA?134a-135a. Mrs. Parnell was later found dead in a chair?in the computer room of her home, having suffered a?heart attack. JA 28a.
B. Proceedings Below?
A grand jury in the Western District of North?Carolina indicted Whitfield on four charges. The first?three alleged (1) attempted bank robbery in violation of?18 U.S.C. ? 2113(a) (Count One), (2) conspiracy to use a?firearm during the attempted robbery in violation of 18?U.S.C. ? 924(c) & (o) (Count Two); and (3) carrying a?firearm during the attempted robbery in violation of 18?U.S.C. ? 924(c) (Count Three). The fourth and most?serious charge alleged that while trying to avoid?apprehension for the attempted bank robbery,?Whitfield ?forced [Mrs. Parnell] to accompany him?without her consent, and killed [her],? in violation of 18?U.S.C. ? 2113(e) (Count Four). JA 29a-30a.
In seeking to prove ?forced accompaniment,? the?government?s primary theory was that Whitfield had?confined Mrs. Parnell to her home. Indeed, the?government repeatedly conflated accompaniment with?confinement. In its opening statement, for example,?the government argued that Whitfield ?forced Mrs.?Parnell to accompany him against her will. That means,?basically, held her against her will.? CAJA 248; see also?CAJA 250 (again equating ?forcing Mrs. Parnell to?accompany him? with ?holding her against her will?).
The government returned to this theme in its closing,?arguing that Whitfield should be convicted of forced?accompaniment because Mrs. Parnell had been ?held?against her will.? CAJA 1202-03.
The government also alleged that Whitfield was?liable for ?killing? Mrs. Parnell under ? 2113(e), but it?never alleged that he touched her or harmed her?intentionally. At trial it sought to prove the ?killed?
offense with expert testimony contending that?Whitfield?s presence in Mrs. Parnell?s home caused a?fatal cardiac arrhythmia. CAJA 248-50 (opening?statement); CAJA 1179-80 (closing argument).
At the end of trial the district court used a special?verdict form on Count Four. It asked the jury to?decide (1) whether Whitfield killed Mrs. Parnell; (2)?whether he forced her to accompany him; and, (3) if yes?as to (2), whether the forced accompaniment resulted in?Mrs. Parnell?s death. JA 42a-43a, 119a.
The court?s instructions on Count Four included no?minimum limit on the degree of accompaniment?necessary to establish the forced-accompaniment?offense. Instead, the court instructed the jury that??accompaniment? includes ?forcing a person to move?from one part of a building to another against her will.??JA 42a, 116a. It further instructed that the?government was ?not require[d] . . . [to] show that the?defendant crossed a property line, moved a person a?particular number of feet, held the person for a?particular period of time, or placed the person at a?certain level of danger.? JA 41a-42a, 116a.
The jury deliberated for nearly four hours and?asked several questions about the instructions on?Count Four?s forced-accompaniment offense. JA 42a.?Ultimately, the jury found Whitfield guilty of Counts
One through Three. On Count Four, it found him not?guilty of killing Mrs. Parnell but guilty of ?forced?accompaniment result[ing] in [her] death.? JA 119a.
At trial Whitfield repeatedly, and unsuccessfully,?moved under Rule 29 of the Federal Rules of Criminal
Procedure for a judgment of acquittal on Count Four.?CAJA 1084-87 (close of government?s evidence); CAJA?1165 (close of defense evidence); CAJA 1274-75?(following jury verdict). He argued, among other?things, that there was insufficient evidence ?that Mr.?Whitfield forced Ms. Parnell to accompany him?anywhere.? CAJA 1087.
The district court sentenced Whitfield to life?imprisonment, which was the mandatory minimum?under ? 2113(e) based on the ?death results? conviction.?JA 43a-44a. As required by U.S. Sentencing Comm?n,
Guidelines Manual (?U.S.S.G.?) ? 5G1.2 (Nov. 2013), the?district court also imposed concurrent, statutorymaximum?sentences of 240 months on Counts One and?Two, as well as a consecutive 60-month sentence on?Count Three. JA 43a.
On appeal Whitfield advanced several arguments?challenging his conviction. As relevant here, Whitfield?identified the circuit conflict regarding the scope of?? 2113(e)?s forced-accompaniment offense and argued?both that the government failed to prove facts?sufficient to show a forced accompaniment and that the?jury instructions defined forced accompaniment too?broadly. Brief of Appellant, No. 10-5217 (4th Cir. July?27, 2011), at 39-40, 50-52. The Fourth Circuit?disagreed. It acknowledged that ?Whitfield required?Mrs. Parnell to accompany him for only a short distance?within her own home, and for a brief period.? JA 65a.
But, citing its prior decision in United States v. Turner,389 F.3d 111 (4th Cir. 2004), the court held that ?no?more is required? under ? 2113(e). JA 65a.?Although the court of appeals affirmed the basic?forced-accompaniment conviction, it vacated Whitfield?s?conviction for the additional death-results offense. It
reasoned that the ?death results? terminology in ??2113(e) prescribes an element of a separate offense?rather than a sentencing factor. JA 56a-58a. Because?Count Four of the indictment charged a killing offense?and a forced-accompaniment offense, but not a deathresults?offense, the court held that the district court?violated the Grand Jury Clause by instructing the jury?on the uncharged death-results offense. JA 55a-64a.
The court thus vacated the death-results conviction,?along with the mandatory life sentence that it required,?and remanded for resentencing. JA 63a-64a.?On remand, the district court concluded that the
advisory guideline range for Count Four?s forced accompaniment?offense was life imprisonment based on
a cross-reference to the first-degree murder guideline.?Supp. CAJA 70.4 The court then granted a five-level?departure, which the murder guideline recommends in?cases where the defendant did not intentionally cause?4 ?Supp. CAJA? refers to the Supplemental Joint Appendix filed in?the court of appeals.?the death. JA 123a-124a; U.S.S.G. ? 2A1.1 cmt. 2(B).
Based on an adjusted advisory range of 235 to 293?months, the court imposed a 264-month sentence on
Count Four, to be followed by a mandatory consecutive?term of 60 months on Count Three. JA 70a.
If Whitfield had been sentenced for the basic bank?robbery offense, rather than the aggravated forced accompaniment?offense, his advisory range would have?been 70 to 87 months on Counts One and Two, plus the?consecutive, 60-month term on Count Three. CAJA?1670-71 (presentence report calculations for Counts?One and Two); U.S.S.G. ? 5A (sentencing table).
On December 10, 2013, the Fourth Circuit affirmed?Whitfield?s sentence. JA 18a-22a. Whitfield timely
filed a petition for certiorari, which this Court granted?on June 23, 2014.
SUMMARY OF ARGUMENT
The court of appeals affirmed Whitfield?s conviction?on the premise that ? 2113(e)?s forced accompaniment?provision reaches any forced movement, no matter how?insubstantial. That premise is erroneous, and reversal?is warranted.
When first enacted, ? 2113(e) was one of only a?handful of federal crimes punishable by death, and the
provision today still carries the highest penalties for?any bank robbery that does not result in death. In
setting out these heightened penalties, Congress?required correspondingly culpable conduct. Pointedly,
Congress did not expose defendants to ? 2113(e)?s?enhanced penalties for forcibly confining a victim?against his will, conduct that is typical of most bank?robberies. Instead, the provision?s text, structure, and?purpose all establish that ? 2113(e) was intended for the?relatively rare situation in which a defendant forces a?victim to travel with him for a substantial distance,?such as when a robber takes a hostage out of the bank?to facilitate his escape. Here, by contrast, Whitfield?required Mrs. Parnell to move only a few feet within?her own home while he waited for a friend to pick him?up. This Court should hold that ? 2113(e), with its?mandatory minimum sentence of ten years, does not?reach that type of de minimis movement.
1. Beginning with the text, ? 2113(e) applies when?a robber forces a ?person to accompany him? in
committing the robbery or while in flight. The word??accompany? itself suggests substantial movement: one?does not typically ?accompany? another over a distance?of a few feet. Section 2113(e) was originally enacted in?1934 and authorities from that time, including?dictionary definitions and the contemporary U.S. Code,?confirm that the word ?accompany? was most typicallyused to denote travel together over a substantial?distance.
2. Even if the plain text left some doubt, the?broader structure of ? 2113 demonstrates that ? 2113(e)
requires more than de minimis forced movement. As?explained above, ? 2113 sets forth a series of graduated?crimes, with ? 2113(e) addressing the most serious?conduct and imposing the most serious penalties.?Reading ? 2113(e) as broadly as the government and?the court of appeals?so that it covers even de minimis?movement in the context of a brief confinement?would?gut the logic of ? 2113?s penalty structure. Because?conduct of that nature is present in most bank?robberies, the government?s interpretation would all?but erase the statutory distinction between a basic?offense under ? 2113(a) and an aggravated offense?under ? 2113(e).
Moreover, when ? 2113(e) was enacted, Congress
made it one of the handful of capital crimes in the U.S.
Code, on par with murder, treason, and rape. It is
inconceivable that Congress considered de minimis
forced movement of a victim during a robbery?
conduct that would be present in most robberies?to
warrant capital punishment.
3. The statute?s historical background and
legislative history confirm that Congress intended
? 2113(e) to cover a narrow set of especially egregious
conduct, not the type of de minimis forced movement
at issue here. Just weeks before the Senate passed the
bank robbery statute in 1934, John Dillinger committed
the latest in a string of highly publicized bank robberies
in which he used hostages as human shields while
fleeing from the bank. Congress surely had conduct of
that sort in mind when it made forced accompaniment a
capital offense.
Indeed, the House Report and other articles of
legislative history repeatedly refer to ? 2113(e) as the
?kidnapping? provision. While Congress clearly did not
import the elements of the federal kidnapping statute
into ? 2113(e), it is instructive that the contemporary
understanding of kidnapping?as shown by the federal
statute, the common law, and dictionary definitions?
14
required substantial movement of the victim, not just
confinement for a brief period.
4. The government?s broad interpretation should
also be rejected because it produces at least two absurd
results. First, under the government?s interpretation,
an unarmed robber who follows a few steps behind a
teller retrieving money from the vault would face
significantly higher statutory penalties than one who
shoots and (non-fatally) wounds the teller. Second, the
applicability of ? 2113(e)?s severely enhanced penalties
would turn on a trivial distinction irrelevant to
culpability: whether the robber who directs a bank
employee?s movement stands still while the employee
complies or instead takes a few steps in the same
direction. These absurd results cannot be what
Congress intended.
5. At the very least, the statute?s text, structure,
history, and purpose do not permit the Court to
conclude that ? 2113(e) unambiguously covers de
minimis victim movement of the type present here.
Accordingly, the rule of lenity requires interpreting the
provision narrowly to require substantial victim
movement, such as where a robber flees with a hostage.
6. If ? 2113(e) requires anything more than de
minimis movement, Whitfield is entitled to acquittal.
It is undisputed that Whitfield required Mrs. Parnell to
move only a few feet within her own home. Movement
of only a few feet within a building, which occurs in
virtually every bank robbery, is too insubstantial to
qualify as forced accompaniment. Accordingly, no
reasonable jury could conclude that Whitfield violated
? 2113(e).
15
For these reasons, this Court should reverse the
judgment of the Fourth Circuit and remand this matter
for resentencing.
ARGUMENT
I. The Statutory Text, Structure, History, And
Purpose Demonstrate That ? 2113(e)
Requires Substantial Movement Of The
Forced-Accompaniment Victim
The Fourth Circuit affirmed Whitfield?s conviction
on the premise that ? 2113(e)?s forced-accompaniment
provision covers any forced victim movement, no
matter how insubstantial. That broad, nearly limitless,
reading of ? 2113(e) is flawed. A proper interpretation
requires substantial victim movement, meaning that
Whitfield?s conviction cannot stand.
A. Text
Statutory construction begins with the ?language of
the statute itself.? United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 241 (1989). Absent a prescribed
definition, this Court gives statutory language its
?ordinary, contemporary, common meaning.? Perrin v.
United States, 444 U.S. 37, 42 (1979). In determining
meaning, statutory ?terms must be read in their
statutory context.? United States v. Tinklenberg, 131
S. Ct. 2007, 2012 (2011).
The plain text of the statute provides that
? 2113(e)?s enhanced penalties apply only if the
defendant forced another person ?to accompany him? in
committing the robbery or while in flight. In everyday
16
American English, the word ?accompany? is used most
often in the context of substantial movement, to denote
travel to someplace else. For example: ?Will you
accompany me to the theater?? or ?They accompanied
their parents on a cruise.? It would be awkward, at
best, to use the word in situations where little or no
movement is required: ?Please accompany me to the far
side of the room? or ?Will you accompany me as we stay
home tonight?? Even if that usage is grammatically
permissible, it is decidedly uncommon.
As demonstrated below, dictionary definitions and
the contemporary U.S. Code confirm that the word
?accompany? typically means movement over a
substantial distance.
1. Dictionaries
Dictionaries from the time of the statute?s passage
(in 1934) indicate that the primary use of the word
?accompany? was in the context of a companion or
escort. For example, the New Standard Dictionary of
the English Language (1st ed. 1931) defined
?accompany? as ?[t]o go with, or be associated with, as
a companion, an attendant, or a retinue; escort or
convoy; also, to go or be sent with as an incidental or
concomitant.? Id. at 20; see also Webster?s New
International Dictionary of the English Language 16
(2d ed. 1934) (third definition: ?To go with or attend as
a companion or associate; to go along with; to consort
with?). These contexts suggest more than de minimis
movement: a person typically does not act as an
17
?escort,? ?companion,? or ?attendant? for just a few
feet.5
Likewise, the 1933 version of Black?s Law
Dictionary defines ?accompany? as ?to go along with.?
Black?s Law Dictionary 25 (3d ed. 1933). ?Go along
with? is usually used in connection with significant
movement. While you might ?go along with? someone
on a road trip, you typically do not ?go along with?
someone to the living room.6 The typical use of
?accompany? is inconsistent with the de minimis
movement that occurred in this case. See, e.g., Mallard
v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296,
301 (1989) (the court must give a word its ?most
common meaning,? according to how it is ?ordinarily
used? in ?everyday speech?).
5 These definitions are consistent with etymology of the word
?accompany,? which is derived from the French word
?accompagner,? which itself is a modification of the French word
for ?companion.? See Webster?s, supra p. 16, at 16. Thus,
?accompany? means ?to be someone?s companion.? One would not
say that someone is a ?companion? when travelling together for a
few feet. See, e.g., Muscarello v. United States, 524 U.S. 125, 128
(1998) (using etymology of the word ?carries? to determine its
modern meaning).
6 Modern dictionaries provide similar definitions that suggest
substantial movement. New Oxford American Dictionary 10 (3d
ed. 2010) (?to go somewhere with (someone) as a companion or
escort: the two sisters were to accompany us to New York / he was
at the banquet accompanied by his daughter?); Black?s Law
Dictionary 18 (9th ed. 2009) (?[t]o go along with another; to
attend?); Webster?s Third New International Dictionary (2000)
(?To go with or attend as an associate or companion: go along
with?).
18
2. Statutory Language
The contemporary U.S. Code confirms that the
word ?accompany? requires substantial movement. Cf.
Perrin, 444 U.S. at 37 (considering statutory usages of
the word ?bribery? from the period in which the statute
in question was enacted). We have canvassed the 1934
version of the U.S. Code for the word ?accompany?
used in the sense of one person accompanying another.
In every instance, it is plain from context that
?accompany? is used solely to refer to substantial
movement.
For instance, Congress frequently used the word
?accompany? to mean ?go with someone into the United
States,? such as where Congress imposed a tax on
aliens entering the United States, but provided that the
tax would not apply to ?children under sixteen years of
age who accompany their father or mother? to this
country. 8 U.S.C. ? 132 (1934); see also, e.g., id. ? 145
(increasing fine for bringing aliens with certain
disabilities or diseases to the United States ?if such
alien is accompanied by another alien who is excluded
from admission? under another provision of the Code);
id. ?? 154, 156, 203, 204(c), 204(d), 206(a)(1)(A), 212(a),
213(a), 213(c), 243. In other contexts, Congress used
the word ?accompany? to refer to movement from one
location to another, completely different location. For
example, the 1934 Code provided for immigration
inspectors to ?accompan[y]? ?aliens in transit from
ports of landing to . . . interior [immigrant] stations.?
See id. ? 161.
The Code is replete with examples from outside the
immigration context as well. See 28 U.S.C. ? 302 (1934)
19
(providing that ?[a]ny judge who . . . attend[ed] a
session of [a patent] court at any place other than the
city of Washington? was entitled to reimbursement for
?his actual and necessary expenses incurred for travel
and attendance, and the actual and necessary expenses
of one stenographic clerk who may accompany him? to
such other place); 49 U.S.C. ? 22(1) (1934) (?nothing in
this chapter shall be construed to prohibit any common
carrier from carrying any totally blind person
accompanied by a guide at the usual and ordinary fare
charged to one person?); 10 U.S.C. ? 1473(d) (1934)
(describing individuals ?accompanying? military troops
in their movements both outside the United States and
into ?the field?).
These authorities confirm what an everyday
English speaker already knows: the word ?accompany?
is typically used to denote travel together for a
substantial distance, not merely movement for a few
feet.
B. Context and Structure
Even if the word ?accompany? could be read in
isolation to encompass offenses that involve only de
minimis movement, the broader statutory context
forecloses that result. See Abuelhawa v. United States,
556 U.S. 816, 819-20 (2009) (?[B]ecause statutes are not
read as a collection of isolated phrases, a word in a
statute may or may not extend to the outer limits of its
definitional possibilities?) (internal quotation marks,
alteration, and citation omitted); Utility Air
Regulatory Group v. EPA, 134 S. Ct. 2427, 2441 (2014)
(noting the ?fundamental canon of statutory
20
construction that the words of a statute must be read in
their context and with a view to their place in the
overall statutory scheme? (quotation marks omitted)).
Indeed, this Court has routinely (and recently)
emphasized that statutory phrases must be interpreted
in light of the broader statutory context. Compare
United States v. Castleman, 134 S. Ct. 1405 (2014)
(relying on statutory context to conclude that ?physical
force? as used in 18 U.S.C. ? 921(a)(33)(A) requires only
?offensive touching?) with Johnson v. United States,
559 U.S. 133 (2010) (relying on statutory context to
conclude that ?physical force? as used in 18 U.S.C.
? 924(e)(2)(B)(i) requires ?violent force,? not just
?offensive touching?). That principle carries added
weight where the provision at issue constitutes an
aggravated offense and imposes a mandatory-minimum
sentence that restricts the authority of district court
judges to fashion sentences in light of the case-specific
factors they must consider under 18 U.S.C. ? 3553(a).
Here, the statutory context?especially the
structure of ? 2113?s graduated penalty scheme and the
fact that Congress treated forced accompaniment as a
capital crime for 60 years?demonstrates that a
? 2113(e) offense requires substantial victim movement.
Cases involving highly aggravated conduct, such as
robbers abducting and fleeing with bank customers,
qualify for the ? 2113(e) enhancement; cases involving
de minimis movement do not.
21
1. Section 2113(e) must be interpreted in
light of the statute?s graduated penalty
structure.
Most important, construing ? 2113(e) to cover de
minimis movement is inconsistent with ? 2113?s
graduated penalty structure.
Section 2113(a), which criminalizes bank robbery
?by force and violence, or by intimidation,? imposes a
statutory maximum sentence of 20 years. Section
2113(d) increases the maximum to 25 years for a bank
robber who ?assaults any person, or puts in jeopardy
the life of any person by the use of a dangerous weapon
or device.? Finally, ? 2113(e), the provision at issue
here, imposes the most serious penalties. For a robber
who ?forces any person to accompany him without the
consent of such person? in committing the robbery or
while in flight, ? 2113(e) provides for a mandatoryminimum
sentence of 10 years and an implied maximum
sentence of life in prison.7 See Jones v. United States,
526 U.S. 227, 236 (1999) (characterizing ? 2113(d) and
(e) as ?defining an aggravated form of [bank] robbery?).
The graduated penalty structure demonstrates that
Congress viewed a forced-accompaniment offense as
significantly more serious than an offense in which the
robber ?uses a dangerous weapon or device? to commit
an assault or put a person?s life in jeopardy. Indeed,
7 See United States v. Turner, 389 F.3d 111, 120-21 (4th Cir. 2004)
(collecting cases holding that the implied maximum under ? 2113(e)
is life in prison); see also JA 21a-22a (applying Turner to conclude
that the statutory maximum for Whitfield?s ? 2113(e) conviction is
life).
22
the large differential in statutory ranges?0 to 25 years
under ? 2113(d) versus 10 years to life under
? 2113(e)?suggests that Congress viewed forced
accompaniment as a much more serious offense.
Yet under the government?s interpretation, adopted
by the Fourth Circuit, forced accompaniment would
include conduct that occurs routinely in, and is merely
incidental to, ordinary bank robberies. For instance, if
the government were correct, a bank robber who
directs a teller toward the bank safe and follows her in
that direction would be guilty of forced accompaniment.
The same would be true for the robber who directs a
customer to move from the window to the back wall
and then takes a few steps in that direction himself.
That result makes little sense. Because bank
robbers almost invariably exert some control over the
movement of the bank?s employees (and any customers
present), the government?s interpretation would
largely collapse the distinction between ordinary
offenses under ? 2113(a) and aggravated offenses under
? 2113(e). Surely Congress did not intend for
? 2113(e)?s severely enhanced penalties to apply so
broadly. See Reed, 26 F.3d at 527-28 (?Within the
context of a bank robbery, there will often be
movement within the bank by a bank employee?
movement orchestrated by the robber. This
orchestration will no doubt sometimes occur in concert
with the movement of the robber himself. To conclude
such circumstances are an aggravating accompaniment
would likely convert numerous ordinary . . . bank
robberies to aggravated bank robberies with only the
faintest of distinctions.?).
23
This Court has previously relied on a similar
observation?that Congress could not have intended to
collapse ? 2113?s basic and aggravated offenses?when
interpreting the scope of ? 2113(d). In Simpson v.
United States, the Court resolved a circuit split by
holding that ?use of a dangerous weapon or device? in
? 2113(d) modifies both ?puts in jeopardy the life of any
person? and ?assaults any person.? 435 U.S. 6, 11 n.6
(1978), superseded by statute on other grounds, as
recognized in United States v. Gonzales, 520 U.S. 1, 10
(1997). Although the presence of a comma in ? 2113(d)
would normally suggest that ?assaults any person? is a
stand-alone phrase, the Court rejected that
construction. Id. It reasoned that virtually every
offense under ? 2113(a)?which requires a taking of
bank property ?from the person or presence of another
. . . by force and violence, or by intimidation??would
include an ?assault.? Thus, if ? 2113(d) applied to every
robbery that involved assault, the statutory distinction
between a basic offense under ? 2113(a) and an
aggravated offense under ? 2113(d) would largely
collapse. To avoid that result and ?give lawful meaning
to Congress? enactment of the aggravating elements in
18 U.S.C. ? 2113(d),? the Court interpreted the
dangerous-weapon modifier to apply to both the assault
provision and the putting-in-jeopardy provision. Id. So
too here: ? 2113(e) ought not be interpreted to reach
almost every instance in which ? 2113(a) is satisfied.
2. Section 2113(e) does not punish mere
confinement.
Relatedly, the government?s interpretation all but
negates Congress?s choice in ? 2113(e) to require
24
accompaniment rather than merely confinement or
restraint. Nearly every bank robbery involves the
restraint of victims (generally customers or tellers)
who would otherwise leave and alert the authorities,
but the penalty structure of ? 2113 suggests that
Congress chose accompaniment because it wanted to
reserve ? 2113(e)?s severe penalties for a particularly
serious subset of robberies. Yet, under the
government?s view, just about every form of bank
robbery restraint would also qualify as accompaniment,
since the robber will typically move some de minimis
distance with the restrained person (say, a few feet
toward the vault with the teller or toward the wall with
the customer). If Congress had wanted those scenarios
to trigger ? 2113(e)?s enhanced penalties, it could have
accomplished that result much more naturally by
replacing ?forces any person to accompany him? with
?confines any person? or ?restrains any person.? But
Congress did not adopt those broader formulations, and
this Court must give meaning to the words that
Congress did use. See Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2529 (2013) (?Congress? choice
of words is presumed to be deliberate.?).8
Indeed, despite its repeated assertions to the jury in
this case, the government has previously acknowledged
that ? 2113(e) does not cover cases of confinement or
restraint. The United States Attorney Manual states
that ?subsection (e) provides penalties for anyone who
8 The Sentencing Guidelines draw a similar distinction between
robberies that involve abduction and those that involve only
physical restraint. See U.S.S.G. ? 2B3.1(b)(4).
25
? forcibly abducts another during the commission of
any offense previously described in ? 2113, or while
avoiding or attempting to avoid apprehension.? U.S.
Dep?t of Justice, United States Attorneys? Manual, tit.
9, Criminal Resource Manual ? 1349 (2012) (emphasis
added). Abduction, by its plain and common meaning,
requires substantial movement of a person, not just
confinement or restraint. See, e.g., American Heritage
Dictionary 3 (4th ed. 2000) (defining ?abduct? as ?to
carry off by force.?). Accordingly, the manual?s
characterization of ? 2113(e)?while not binding on the
Court?provides yet another reason to reject the
government?s position in this case.
3. Section 2113(e) originally treated
forced accompaniment as a capital
crime.
The history of the federal bank robbery statute
further confirms that the government?s expansive
interpretation cannot be correct. When the statute was
enacted, a robber who committed forced
accompaniment was subject to the same penalty as one
who committed homicide: a mandatory minimum of 10
years, with the possibility of the death penalty. At the
time of its enactment, the statute stated:
Whoever, in committing any offense defined in
this Act, or in avoiding or attempting to avoid
apprehension for the commission of such offense,
or in freeing himself or attempting to free
himself from arrest or confinement for such
offense, kills any person, or forces any person to
accompany him without the consent of such
person, shall be punished by imprisonment for
26
not less than 10 years, or by death if the verdict
of the jury shall so direct.
Act of May 18, 1934, ? 3, 48 Stat. 783.
Congress?s decision to authorize identical
punishments for a bank robbery that involves either a
forced accompaniment or a homicide suggests that it
viewed the two acts as similarly serious. See United
States v. Williams, 553 U.S. 285, 294 (2008) (noting the
?commonsense canon of noscitur a sociis ? which
counsels that a word is given more precise content by
the neighboring words with which it is associated?). It
is implausible that Congress would have equated de
minimis forced movement, such as walking with a
person for a few feet, with killing someone.
Moreover, the government?s broad interpretation of
? 2113 is further undermined by Congress?s decision to
treat a non-fatal forced accompaniment as a capital
crime. In 1934, Congress had authorized the death
penalty for only six crimes: (1) treason, 18 U.S.C. ? 2;
(2) insurrection against certain foreign allies, 22 U.S.C.
? 156; (3) espionage in wartime, 50 U.S.C. ? 32; (4) firstdegree
murder, 18 U.S.C. ? 454; (5) rape, 18 U.S.C. ?
457; and (6) kidnapping, but only when the victim was
transported across state lines, held for ?an appreciable
period against the person?s will,? Chatwin v. United
States, 326 U.S. 455, 460 (1946); and was not ?liberated
unharmed,? 18 U.S.C. ? 408a (all statutes 1934).
Although a bank robbery that includes substantial
movement of a victim, such as where the robber takes a
hostage out the bank door while fleeing, might be on
par with those six offenses, a bank robbery with de
minimis victim movement is not. Directing a person to
27
move a few feet during a robbery is a serious offense,
but not comparable in seriousness to the other federal
capital crimes in 1934. The Court should not adopt a
construction of the federal bank robbery statute that
imputes to Congress an intent to punish such behavior
by death.
To be sure, the penalties for forced accompaniment
today differ from those enacted in 1934. In the Federal
Death Penalty Act of 1994, Congress eliminated the
death penalty for a non-fatal forced accompaniment,
but provided that an offense in which ?death results
shall be punished by death or life imprisonment.? Pub.
L. No. 103-322, tit. VI, ? 60003(a)(9), 108 Stat. 1959,
1969 (1994). Despite changing the applicable penalties,
Congress did not change the phrase ?forces any person
to accompany him without the consent of such person.?
The meaning of that phrase therefore remains
unchanged. See Hui v. Castaneda, 559 U.S. 799, 810
(2010) (?[R]epeals by implication are not favored and
will not be presumed unless the intention of the
legislature to repeal is clear and manifest? (quotation
marks omitted)). Accordingly, the noscitur a sociis
inference?that Congress viewed forced
accompaniment as similarly culpable to homicide?is
still valid today.
C. History and Purpose
The relevant historical background and legislative
history also support the conclusion that forced
accompaniment requires substantial movement.
To begin, ? 2113(e)?s predecessor statute was
enacted against the backdrop of a series of bank
28
robberies in which notorious figures such as John
Dillinger and Baby Face Nelson used hostages as
human shields as they escaped a bank. For example,
less than two weeks before the Senate passed
? 2113(e)?s predecessor statute in March 1934, see S.
Rep. No. 73-537 (1934), Dillinger?s gang robbed a bank
in Mason City, Iowa, forced as many as 25 hostages to
form a human shield outside the bank, and then made
nine of them cling to the sides of the getaway car to
keep the police from shooting. Bryan Burrough, Public
Enemies: America?s Greatest Crime Wave and the
Birth of the FBI, 1933-34, at 253-57 (2004). Several
hostages were still on the car?s running boards when
the police finally gave up their pursuit outside of town.
Id. at 256-57. Dillinger had employed this tactic
repeatedly in the previous year,9 and other robbers
were following suit. See, e.g., id. at 108 (in 1933
Michigan robbery, Baby Face Nelson forced hostages
to walk in front of him down the sidewalk as he tried to
escape); St. Paul Mob or Dillinger Gang Blamed in
Raid, Mason City Globe-Gazette (Iowa), Mar. 14, 1934,
at 1 (comparing the Mason City robbery to several
other recent bank robberies: ?In each instance, they
took hostages with them as shields?). It was surely this
type of extreme conduct, and not the prospect of a bank
9 In November 1933, Dillinger?s gang forced employees and
customers to form a human shield as they exited a bank in
Wisconsin, made two of them ride out of town on the car?s running
boards, and then tied them to a tree in the countryside. Burrough,
supra, at 164-65. In January 1934, the gang used hostages as a
shield to escape a bank in Indiana, id. at 187, and in March 1934,
Dillinger robbed a bank in South Dakota and forced five bank
employees to ride on the running boards of his Packard during the
escape, id. at 245-46.
29
robber forcing someone to move a few feet inside a
building, that motivated Congress?s decision to
authorize the death penalty for a robber who forces
someone to ?accompany? him in committing a robbery
or while in flight.
Moreover, the legislative history consistently
indicates that Congress understood the provision to
penalize ?kidnapping? in the course of a bank robbery.
Both the House and Senate reports referred to ?
2113(e) as a kidnapping provision. See, e.g., H.R. Rep.
No. 73-1461, at 1 (1934)(?kidnapping?); S. Rep. No. 73-
537, at 1 (same).10 And for that matter, this Court has
done the same. United States v. Tateo, 377 U.S. 463,
464 (1964) (characterizing ? 2113(e) as covering
?kidnapping in connection with the robbery?).
To the extent Congress wanted ? 2113(e) to be
triggered by conduct on par with kidnapping, that view
10 In addition, the note in the margin of the Statutes at Large
appearing next to the forced-accompaniment statute is ?Homicide
or Kidnapping.? 48 Stat. 783 (1934). Similarly, the title of the
statute that appeared in the 1934 United States Code was
?[K]illing or kidnapping as incident to robbery.? 12 U.S.C. ? 588c
(1934). To be sure, Congress did not enact either of those phrases.
Rather, the marginal note in the Statutes at Large appears to
have been added by the Government Printing Office in the State
Department, see 64 Stat. 1272 (1950) (noting that before 1950,
Secretary of State had been responsible for compiling Statutes at
Large), and the title in the United States Code was added by the
West Publishing Company and Edward Thompson Company
under the direction of the Committee on Revision of the Laws of
the House of Representatives. See Preface to 1934 United States
Code. But these references to kidnapping are evidence of a
contemporary understanding that forced accompaniment was
analogous to kidnapping.
30
is irreconcilable with the government?s de minimis
movement interpretation. The federal kidnapping
statute, which was enacted only two years before the
federal bank robbery statute, clearly required far more
than de minimis movement, as it applied only where
the kidnapper crossed state lines with the victim. See
Act of June 22, 1932, 47 Stat. 326. Similarly, at common
law kidnapping required the victim to be transported
out of the country. See 4 W. Blackstone, Commentaries
*219 (?[K]idnapping, being the forcible abduction or
stealing away of a man, woman, or child from their own
country and sending them into another ? .?); see also 3
Wayne R. LaFave, Substantive Criminal Law
? 18.1(b), at 7 (2d ed. 2003). Dictionaries further
confirm that ?kidnapping? requires removal of the
victim. Black?s Law Dictionary (3d ed. 1933)
(?kidnapping? includes ?false imprisonment plus the
removal of the person to some other place.?); Webster?s
New International Dictionary (2d ed. 1934) (defining
?kidnap? as ?to carry (anyone) away by unlawful force
or by fraud, and against his will, or to seize and detain
him for the purpose of so carrying him away?).
In sum, the contemporary understanding of
kidnapping, along with Congress?s repeated references
to that term in describing the provision, provides
additional evidence that the forced-accompaniment
provision is intended to cover conduct that involves a
substantial movement of the victim. See Marx, 485
F.2d at 1186 (relying on legislative history?s references
to ?kidnapping? to conclude that de minimis movement
into or inside of a person?s own home is not forced
accompaniment).
31
D. Avoiding Absurd Results
Finally, this Court should reject the government?s
interpretation because it produces ?absurd results? in
at least two different ways. See, e.g., Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982)
(?[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose
are available.?); Haggar Co. v. Helvering, 308 U.S. 389,
394 (1940) (?A literal reading of [statutes] which would
lead to absurd results is to be avoided when they can be
given a reasonable application consistent with their
words and with the legislative purpose.?).
First, the government?s interpretation untethers
? 2113?s graduated penalty scheme from its purpose of
providing an increased punishment for increasingly
culpable conduct. Although a forced accompaniment
carries the most serious penalties (outside of a ?killing?
offense), much of the conduct covered by the
government?s broad interpretation?such as walking
with a teller toward the vault or with a customer
toward an inconspicuous area of the bank?does not
increase the offender?s culpability in any significant
way. It would be absurd, for example, to treat an
unarmed robber who orders a teller to walk with him
into the vault as more culpable than one who shoots and
wounds the teller to prevent her from going anywhere.
Yet the government?s interpretation would subject the
former to ? 2113(e)?s severe (and mandatory) penalties
while the latter would face only ? 2113(d)?s lesser
penalties for use of a dangerous weapon.
The Court should reject an interpretation that so
clearly divorces the statutory penalties from the
32
defendant?s actual level of culpability. See Abuelhawa,
556 U.S. at 821-23 (rejecting interpretation of criminal
statute that would ?for practical purposes skew the
congressional calibration? of penalties by causing
?twelve-fold quantum leap in punishment? for offenders
who were similarly situated to simple drug possessors);
United States v. Granderson, 511 U.S. 39, 48 (1994)
(adopting interpretation of federal sentencing statute
that would ?avoid[] the startling disparities in
sentencing that would attend the Government?s
interpretation?); cf. Carter v. United States, 530 U.S.
255, 273 (2000) (interpreting provision of ? 2113 based
on its ??steeply higher penalties? ? an enhancement
from a 1-year to a 10-year maximum penalty?).
Second, the government?s interpretation makes the
applicability of ? 2113(e) turn on a factual distinction
largely irrelevant to culpability: whether the victim?s
movement occurs roughly in concert with the robber?s
own movement. For example, imagine a robber who
commands a bank customer to walk to the back of the
bank where she will not be seen. If the robber stands
still while the customer follows his command, there is
no forced accompaniment. But if the robber takes a few
steps in the same direction, then a forced
accompaniment has occurred. The same would be true
for a robber who orders the teller to retrieve money
from the vault: if he stands still, there is no forced
accompaniment; but if he follows for a few steps, it
becomes a forced accompaniment. Congress could not
have intended for ? 2113(e)?s severe penalties to turn on
that distinction.
The drafters of the Model Penal Code (1980)
(?M.P.C.?) notably recognized a similar ?absurdity?
33
problem in defining the asportation element of
kidnapping. The Code?s drafters observed that the
definition needed to ?eliminate[] the absurdity of
liability for kidnapping where a robber forces his victim
into his own home or into the back of a store in order to
retrieve valuables located there.? M.P.C. ? 212.1, cmt.
3, at 223 (emphasis added). To do so, the Code defines
kidnapping to apply when a person ?unlawfully
removes another from his place of residence or
business, or a substantial distance from the vicinity
where he is found.? M.P.C. ? 212.1.11
The absurdities of the government?s expansive
interpretation are illustrated well by the facts of this
case. First, if Whitfield had carried a gun into Mrs.
Parnell?s home and fired a non-fatal shot when he first
encountered her, he would have been guilty of a ?
2113(d) offense?with no mandatory minimum and a
maximum of 25 years. Whitfield in fact did not carry or
use a weapon at all inside the house, but because he
asked Mrs. Parnell to hide in the computer room, and
then joined her there, the government says he is guilty
of a ? 2113(e) offense?with a 10-year mandatory
minimum and a maximum of life. Second, if Whitfield
had ordered Mrs. Parnell to go into the computer room
11 The Code alternatively defines kidnapping as ?unlawfully
confining another for a substantial period in a place of isolation.?
That alternative definition is not relevant to ? 2113(e) because, as
explained above, the text and structure of that provision show that
it is not violated by mere confinement. In any event, the point
here is not that Congress intended to adopt the Code?s definition:
it surely did not, as the Code post-dates the statute?s enactment by
several decades. Rather, the point is that like the Code, ? 2113(e)
should be interpreted to avoid the absurd results that flow from
the government?s broad interpretation.
34
but had himself remained in the hallway, there would
have been no forced accompaniment. But, because
Whitfield acknowledged that he took ?a couple steps?
into the room before going back out to get a phone, the
government says he committed a forced
accompaniment that subjects him to ? 2113(e)?s
severely enhanced penalties.
Construing ? 2113(e) to require substantial
movement properly avoids these absurd results. The
provision?s enhanced penalties should not turn on the
vagaries of whether a defendant takes a few steps with
his victim in the process of committing a crime.
Rather, they should be reserved for cases where
substantial movement is at issue, such as where the
robber takes a hostage with him as he flees from the
bank.
II. The Rule Of Lenity Requires This Court To
Adopt The Narrower Construction Of
? 2113(e)
After applying the tools of statutory construction,
this Court should conclude that a forcedaccompaniment
offense under ? 2113(e) requires
substantial movement of the victim. See supra Section
I. Alternatively, the Court should conclude at the very
least that the provision does not unambiguously cover
offenses that involve only de minimis victim
movement. See DePierre v. United States, 131 S. Ct.
2225, 2237 (2011) (noting that rule of lenity is reserved
for cases where ambiguity remains even ?after seizing
everything from which aid can be derived? (quotation
marks omitted)); Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997) (?The plainness or ambiguity of
35
statutory language is determined by reference to the
language itself, the specific context in which that
language is used, and the broader context of the statute
as a whole.?).
If the Court determines that the statute is
ambiguous as to whether substantial movement or
merely de minimis movement is required, then the rule
of lenity dictates that the Court adopt the narrower
construction. See Granderson, 511 U.S. at 54 (?In these
circumstances?where text, structure, and history fail
to establish that the Government?s position is
unambiguously correct?we apply the rule of lenity and
resolve the ambiguity in [the defendant?s] favor.?).
Stated another way, ?when there are two rational
readings of a criminal statute, one harsher than the
other, [the Court may] choose the harsher only when
Congress has spoken in clear and definitive language.?
Scheidler v. Nat?l Org. for Women, Inc., 537 U.S. 393,
409 (2003) (quoting McNally v. United States, 483 U.S.
350, 359-60 (1987)). As shown above in Section I, it is
certainly (more than) rational to read ? 2113(e) as
requiring substantial movement. And there is no doubt
that the government?s broad interpretation is the
?harsher? alternative.
III. Whitfield?s Conviction Must Be Reversed
Under A Substantial Movement Standard
Under the correct legal standard, Whitfield?s
? 2113(e) conviction must be reversed because no
reasonable jury could have found that the forced
movement at issue here was substantial. Even viewed
in the light most favorable to the government, the
evidence showed that Mrs. Parnell was forced to move
only a few feet from one room to another inside of her
36
own home. JA 65a (court of appeals acknowledgement
that ?Whitfield required Mrs. Parnell to accompany
him for only a short distance within her own home, and
for a brief period?).
That forced movement was a far cry from cases in
which robbers abduct bank customers and force them
into their getaway cars. It was, instead, equivalent to
the de minimis forced movement that routinely occurs
when a robber temporarily confines bank employees
and customers during a robbery. That type of
insubstantial movement over a few feet?movement
that is essentially unavoidable whenever a victim is
confined during a robbery?is not forced
accompaniment. Accordingly, the Court should hold
that there was insufficient evidence to convict
Whitfield of forced accompaniment under ? 2113(e).
CONCLUSION
For the foregoing reasons, the Court should reverse
Whitfield?s ? 2113(e) conviction and remand for
resentencing on the remaining counts.
37
August 22, 2014
Respectfully Submitted,
MATTHEW S. HELLMAN
ADAM G. UNIKOWSKY
ERICA L. ROSS
R. TRENT MCCOTTER
JENNER & BLOCK LLP
1099 New York Ave., N.W.
Washington, DC 20001
(202) 639-6000
ROSS RICHARDSON
Executive Director
JOSHUA B. CARPENTER*
FEDERAL DEFENDERS OF
WESTERN N.C., INC.
1 Page Ave., Suite 210
Asheville, NC 28801
(828) 232-9992
Joshua_Carpenter@fd.org
*Counsel of Record
MATTHEW R. SEGAL
211 Congress Street
Third Floor
Boston, MA 02110
(617) 482-3170
Counsel for Petitioner
STATUTORY ADDENDUM
1a
18 U.S.C. ? 2113
? 2113. Bank robbery and incidental crimes
(a) Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence
of another, or obtains or attempts to obtain by
extortion any property or money or any other thing of
value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union,
or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit
union, or any savings and loan association, or any
building used in whole or in part as a bank, credit union,
or as a savings and loan association, with intent to
commit in such bank, credit union, or in such savings
and loan association, or building, or part thereof, so
used, any felony affecting such bank, credit union, or
such savings and loan association and in violation of any
statute of the United States, or any larceny–
Shall be fined under this title or imprisoned not more
than twenty years, or both.
(b) Whoever takes and carries away, with intent to
steal or purloin, any property or money or any other
thing of value exceeding $1,000 belonging to, or in the
care, custody, control, management, or possession of
any bank, credit union, or any savings and loan
association, shall be fined under this title or imprisoned
not more than ten years, or both; or
2a
Whoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of
value not exceeding $1,000 belonging to, or in the care,
custody, control, management, or possession of any
bank, credit union, or any savings and loan association,
shall be fined under this title or imprisoned not more
than one year, or both.
(c) Whoever receives, possesses, conceals, stores,
barters, sells, or disposes of, any property or money or
other thing of value which has been taken or stolen
from a bank, credit union, or savings and loan
association in violation of subsection (b), knowing the
same to be property which has been stolen shall be
subject to the punishment provided in subsection (b)
for the taker.
(d) Whoever, in committing, or in attempting to
commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy
the life of any person by the use of a dangerous weapon
or device, shall be fined under this title or imprisoned
not more than twenty-five years, or both.
(e) Whoever, in committing any offense defined in this
section, or in avoiding or attempting to avoid
apprehension for the commission of such offense, or in
freeing himself or attempting to free himself from
arrest or confinement for such offense, kills any person,
or forces any person to accompany him without the
consent of such person, shall be imprisoned not less
than ten years, or if death results shall be punished by
death or life imprisonment.
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(f) As used in this section the term ?bank? means any
member bank of the Federal Reserve System, and any
bank, banking association, trust company, savings
bank, or other banking institution organized or
operating under the laws of the United States,
including a branch or agency of a foreign bank (as such
terms are defined in paragraphs (1) and (3) of section
1(b) of the International Banking Act of 1978), and any
institution the deposits of which are insured by the
Federal Deposit Insurance Corporation.
(g) As used in this section the term ?credit union?
means any Federal credit union and any Statechartered
credit union the accounts of which are
insured by the National Credit Union Administration
Board, and any ?Federal Credit Union? as defined in
section 2 of the Federal Credit Union Act. The term
?State-chartered credit union? includes a credit union
chartered under the laws of a State of the United
States, the District of Columbia, or any commonwealth,
territory, or possession of the United States.
(h) As used in this section, the term ?savings and loan
association? means–
(1) a Federal savings association or State savings
association (as defined in section 3(b) of the Federal
Deposit Insurance Act (12 U.S.C. 1813(b))) having
accounts insured by the Federal Deposit Insurance
Corporation; and
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(2) a corporation described in section 3(b)(1)(C) of
the Federal Deposit Insurance Act (12 U.S.C.
1813(b)(1)(C)) that is operating under the laws of the
United States.