• Mary Frances Richardson

A Call for Congress to Amend the Federal Bank Robbery Act


18 U.S.C. § 2113(a) (the Federal Bank Robbery Act) provides, in part:

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 [is guilty of an offense].

Currently, federal circuits are split as to whether actual force and violence or intimidation is required for an attempted bank robbery charge under the Act. According to the circuit majority, a charge under the Act only requires an attempt to use force and violence or intimidation. The circuit minority, on the other hand, calls for an actual use of force and violence or intimidation. Congress should amend the statute to make it clear that actual force and violence or intimidation are not required for an attempted robbery charge. If not, then some courts will continue to interpret the statute in a manner that relieves defendants of an attempted bank robbery conviction just because the police arrested them before they actually entered the bank and began using force and violence or intimidation.

Congress passed the Federal Bank Robbery Act in 1934 as a response to an increase of bank robberies during the Depression Era. Originally, the statute only covered “robbery, robbery accompanied by an aggravated assault, and homicide during a robbery or when escaping afterward.” In response to a case in which a defendant could not be prosecuted under the Federal Bank Robbery Act because he robbed a bank when the teller was absent, the Attorney General urged Congress to amend the statute. Accordingly, Congress amended the statute to incorporate a broader scope of crimes less serious than robbery, such as larceny. In 1948, Congress amended the statute again to separate robbery and larceny into two paragraphs. Finally, Congress amended the text of the statute in 1986 in order to add the phrase “obtains or attempts to obtain” to the first paragraph. Congress should amend the statute yet again in order to make clear that an individual does not have to use actual force and violence or intimidation in order to be able to be charged with bank robbery.

The circuit majority does not require actual force and violence or intimidation for an attempted bank robbery charge. The circuit majority’s interpretation of the Federal Bank Robbery Act is founded in the Second Circuit case United States v. Stallworth. In Stallworth, a witness cooperating with the FBI had recorded conversations with the defendants as they planned to rob a bank. Prior to their arrest, the defendants acquired ski masks, surgical gloves, a sawed-off shotgun, and a revolver in order to prepare for the robbery. The defendants had also surveyed the bank in order to understand its layout and security. The defendants arrived in a car at the bank prepared to commit the robbery, but were arrested after only one of them had gotten out of the car and before any of them had entered the bank. The Second Circuit applied a two-tier inquiry to determine that the defendants’ actions established an attempted bank robbery. First, the court examined whether the defendants acted with enough culpability for the commission of the crime. Second, the court considered whether the defendants committed a “substantial step” that signified their intent for the crime to be carried out. The Second Circuit reasoned that intent to commit a crime combined with a substantial step are enough to establish attempted bank robbery, thus producing the circuit majority’s interpretation of the Federal Bank Robbery Act.

The circuit minority, on the other hand, does require actual force and violence or intimidation for an attempted bank robbery charge. The circuit minority’s interpretation of the Federal Bank Robbery Act is founded in the Fifth Circuit case United States v. Bellew. In Bellew, the defendant walked into a bank wearing a wig and carrying a briefcase that held a firearm, instructions on how to rob the bank, and a demand note. The manager called the police after witnessing Bellew behaving suspiciously. When the police arrived, Bellew fled to his vehicle, and after a standoff that lasted nearly three hours, Bellew admitted that he intended to rob the bank. The Fifth Circuit first looked to the text of the Federal Bank Robbery Act to determine whether actual force and violence or intimidation is needed for attempted bank robbery and determined that the more natural reading of the text is that the attempt language relates to the taking of property but not to the use of force and violence or intimidation. The Fifth Circuit also noted that Congress had amended the Act by adding a second paragraph, which provides that a person is guilty of an offense if she “enters or attempts to enter any bank … with intent to commit … any felony affecting such bank … or any larceny,” and reasoned that this provision was intended to cover defendants who only attempted to use force and violence or intimidation to commit a robbery but did not actually do so. Therefore, the Fifth Circuit established the circuit minority’s interpretation of the Federal Bank Robbery Act, which requires actual force and violence or intimidation in order to charge a defendant with attempted bank robbery.

The Federal Bank Robbery Act should be amended in accordance with the circuit majority’s interpretation. By following this interpretation, all defendants who intended to rob a bank and who had committed a substantial step toward robbing that bank but were stopped by the police before using force and violence or intimidation would be subject to a federal bank robbery charge. This would avoid outcomes in cases such as the District of Massachusetts case United States v. Patterson. In Patterson, the defendant was tried by a jury on an indictment charging five counts of bank robbery and one count of attempted bank robbery under the Federal Bank Robbery Act. The jury convicted the defendant of all five completed robberies, but the district court granted the defendant’s motion for a judgment of acquittal as to the attempted robbery count. The evidence showed that, based on surveillance video and witness statements from the five robberies, investigators had identified the car being used in the robberies and obtained a warrant to place a GPS tracking device on it. Realizing Patterson appeared to be on his way to rob a sixth bank, investigators followed him and arrested him before he got into the bank in order to avoid actual force and violence or intimidation. When arrested Patterson was wearing long pants over shorts, a long-sleeved shirt, clear plastic gloves, a hat covering his face, sunglasses, something covering his mouth, and was carrying a BB gun. At the point of his arrest, the First Circuit had yet to address the issue of whether actual force and violence or intimidation is required for a conviction of attempted bank robbery. The district court decided that force and violence or intimidation is necessary for an attempted bank robbery conviction, and thus determined that Patterson could not be convicted of attempted bank robbery.

Congress should amend the Federal Bank Robbery Act to ensure that defendants such as Patterson can still be charged and convicted of attempted bank robbery even when the police arrest them before they use actual force and violence or intimidation. By amending the first paragraph to unambiguously signal that only attempted force and violence or intimidation is necessary for an attempted bank robbery charge, Congress would allow defendants to be charged with attempted bank robbery even when the police arrest them before they have an opportunity to risk the safety of innocent bystanders. Not only would this prioritize the safety of the public, but it would also assure a more consistent application of the Federal Bank Robbery Act.


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