United States v. Chippy Jones

678 F.2d 102, 1982 U.S. App. LEXIS 18940
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 26, 1982
Docket80-1840
StatusPublished
Cited by37 cases

This text of 678 F.2d 102 (United States v. Chippy Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chippy Jones, 678 F.2d 102, 1982 U.S. App. LEXIS 18940 (9th Cir. 1982).

Opinions

SCHROEDER, Circuit Judge:

Appellant, Chippy Jones, was one of four participants in a bank robbery that resulted in the killing of a bank security guard. Jones, who was present at the scene of the crime but who did not fire the fatal shot, was convicted after a jury trial of aiding and abetting the violation of both 18 U.S.C. § 2113(a), the general bank robbery statute, and 18 U.S.C. § 2113(e), which provides greater punishment for commission of a robbery in which a killing or kidnapping occurs. He was sentenced to life imprisonment in accordance with the enhancement provisions of § 2113(e).

Jones’s principal argument on appeal is that 18 U.S.C. § 2113(e) is applicable only to the perpetrator of a killing or kidnapping and cannot provide a foundation for accomplice liability. Although we cannot agree with such a restrictive reading, we agree that the jury was improperly instructed on the elements on the § 2113(e) offense. Accordingly, we reverse the § 2113(e) conviction. We remand to the district court for resentencing under § 2113(a), or, if the government so elects, for retrial of the entire case. United States v. Short, 500 F.2d 676, 677 (9th Cir.), modifying 493 F.2d 1170, cert, denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974).

Section 2113,1 entitled “Bank robbery and incidental crimes,” defines the federal offense of bank robbery and speci[104]*104fies the applicable criminal sanctions. Because § 2113 defines a crime against the United States, any person who aids or abets such an offense is punishable as a principal under 18 U.S.C. § 2(a).2

The interaction of the subsections of § 2113 is critical to this appeal. Subsection (a) proscribes the taking of anything of value by “force, violence, or intimidation” from a covered banking institution. Violations carry a fine of $5,000, imprisonment of not more than twenty years, or both. Subsection (d) proscribes the same conduct prohibited under (a), but provides a fine of $10,000, imprisonment of not more than twenty-five years, or both, when, during the course of the robbery, the perpetrator “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device . .. . ” Finally, subsection (e) relates to robberies in which a killing or kidnapping occurs. It provides:

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 punished by death if the verdict of the jury shall so direct.

Subsection (e), like subsection (d), provides enhanced punishment for bank robberies in which there is “aggravating” conduct in addition to the basic § 2113(a) of[105]*105fense. United States v. Faleafine, 492 F.2d 18, 25 (9th Cir. 1974) (en banc). The applicability of enhanced punishment depends, of course, on whether the actor’s conduct fits within the precise language of the enhancement subsections.

In this case, Jones was charged with aiding and abetting the violation of § 2113. He argues that the aiding and abetting provision of 18 U.S.C. § 2 cannot apply to § 2113(e). The aiding and abetting provision of 18 U.S.C. § 2, however, is applicable to the entire criminal code. United States v. May, 625 F.2d 186,194 (8th Cir. 1980); Breeze v. United States, 398 F.2d 178, 192 (10th Cir. 1968). Jones points to no suggestion in the legislative histories of either § 2 or § 2113 that Congress intended to carve out an exception in § 2113 cases. We therefore reject the argument that § 2113(e) is applicable only to the perpetrator of a killing or kidnapping in the course of a robbery.

We also reject Jones’s argument that the evidence in this case could not support a finding by the jury that he aided and abetted the principal in the killing. Witnesses testified that Jones was near the guard when he was shot, and that Jones may have struggled with the guard immediately before.

Jones’s challenge to the instructions given to the jury, however, has merit. Cases arising under § 2113(d) hold that the government must show that the defendant aided and abetted the principal in every “essential element” of the offense. Under a § 2113(d) charge the government must therefore show that the defendant aided and abetted the principal both in the act of bank robbery and in the principal’s use of “a dangerous weapon or device” during the act. United States v. Short, 493 F.2d 1170, 1172 (9th Cir.), modified, 500 F.2d 676, cert, denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974).

In Short the defendant acted as the principal’s “get-away” driver. The trial court instructed the jury that Short could be convicted under § 2113(d) if the evidence showed that he knew the principal was going to attempt a bank robbery and that he “did some affirmative act to attempt to help.” This court reversed because the trial court failed to instruct the jury on aiding and abetting the use of the weapon, an “essential element” of the crime of armed bank robbery. The court summarized: “An essential element of armed bank robbery as charged here is that the principal was armed and used the weapon to jeopardize the life of the teller. It is this conduct that Short must be shown to have aided and abetted.” Id. at 1172.

Similarly, in United States v. Jones, 592 F.2d 1038 (9th Cir.), cert, denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979), the defendant, a “get-away” driver, was convicted of aiding and abetting under §§ 2113(a) and (d). This court, following the analysis of Short, found the evidence insufficient to sustain the charge that the defendant had aided and abetted the principal in conduct proscribed by subsection (d).

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Cite This Page — Counsel Stack

Bluebook (online)
678 F.2d 102, 1982 U.S. App. LEXIS 18940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chippy-jones-ca9-1982.