4.18.2113(a),(d) Armed or Aggravated Bank Robbery,
18 U.S.C. § 2113(a) & (d) See Statute
[Defendant] is accused of robbing the [bank; savings and loan association; credit union]. It is against federal law to rob a federally insured [bank; savings and loan association; credit union]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:
First, that [defendant] intentionally took money belonging to the [bank; savings and loan association; credit union] from a [bank; savings and loan association; credit union] employee or from the [bank; savings and loan association; credit union] while a [bank; savings and loan association; credit union] employee was present;
Second, that [defendant] used intimidation or force and violence when [he/she] did so;
Third, that at that time, the deposits of the [bank; savings and loan association; credit union] were insured by the [_______]. [The parties have so stipulated]; and
Fourth, that [defendant], by using a dangerous weapon or device, assaulted someone or put someone’s life in jeopardy.
“Intimidation” is actions or words used for the purpose of making someone else fear bodily harm if he or she resists. The actual courage or timidity of the victim is irrelevant. The actions or words must be such as to intimidate an ordinary, reasonable person.
“Assault” means to threaten bodily harm with an apparent present ability to succeed, where the threat is intended to and does generate a reasonable apprehension of such harm in a victim. The threat does not have to be carried out.
Lesser Offense, 18 U.S.C. § 2113(a)
If you find [defendant] not guilty of this charge, you must proceed to consider whether the defendant is guilty of the lesser offense of robbing a [bank; savings and loan association; credit union] without either an assault or jeopardizing someone’s life with a dangerous weapon. The lesser offense requires the government to prove beyond a reasonable doubt the first, second and third, but not the fourth, things I have described. In other words, the government must prove everything except using a dangerous weapon to assault someone or jeopardize someone’s life.
(1) Subjective intent to steal (i.e., knowledge by the defendant that he or she has no claim to the money) is not a required element under 18 U.S.C. § 2113(a) & (d). United States v. DeLeo, 422 F.2d 487, 490-91 (1st Cir. 1970).
(2) In some cases it may be appropriate to charge that possession of recently stolen property may support an inference of participation in the theft of the property. See United States v. Rose, 104 F.3d 1408, 1413 (1st Cir. 1997). The inference is permissible, not mandatory or a presumption. Id.
(3) “[B]y using a dangerous weapon or device” modifies both the “assaulted” and “put someone’s life in jeopardy” language of § 2113(d). Simpson v. United States, 435 U.S. 6, 13 n.6 (1978). This part of Simpson is not affected by the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 924(c)(1).
(4) An unloaded gun is a dangerous weapon. McLaughlin v. United States, 476 U.S. 16, 17-18 (1986). Whether some other weapon or device is dangerous is generally a question of fact for the jury. See Federal Judicial Center Instruction 105, commentary at 146; Eighth Circuit Instruction 6.18.2113B, commentary at 375 n.4; United States v. Benson, 918 F.2d 1, 2-4 (1st Cir. 1990) (upholding bench trial decision that movement of hand inside a pocket, revealing a metallic object that a teller could reasonably believe to be a gun (actually a knife) and telling the teller that it was a gun, amounts to use of a dangerous weapon or device); United States v. Cannon, 903 F.2d 849, 854 (1st Cir. 1990) (approving instruction that toy gun “may be dangerous if it instills fear in the average citizen, creating an immediate danger that a violent response will follow”).
(5) The instruction on the lesser offense of unarmed bank robbery should be given if there is a factual dispute over use of a weapon and a jury finding of the lesser-included offense would not be irrational. United States v. Ferreira, 625 F.2d 1030, 1031-33 (1st Cir. 1980). The defendant, however, can waive the right to a lesser-included offense charge. United States v. Lopez Andino, 831 F.2d 1164, 1171 (1st Cir. 1987) (criminal civil rights charges).
(6) If an aiding and abetting charge is given for armed bank robbery, the jury should be instructed that the shared knowledge requirement, see Instruction 4.18.02 (Aid and Abet), extends to both the robbery and the understanding that a weapon would be used. Knowledge includes notice of the “likelihood” of a weapon’s use—apparently something more than simple constructive knowledge, but less than actual knowledge. United States v. Spinney, 65 F.3d 231, 236-37 (1st Cir. 1995). “[A]n enhanced showing of constructive knowledge will suffice.” Id. at 237.
(7) “Proof of federal insurance at the time of the robbery is an essential element for conviction under 18 U.S.C. § 2113,” and the First Circuit has admonished the government to pay more attention to the temporal requirement in meeting the evidentiary burden. United States v. Judkins, 267 F.3d 22, 23 & n.1 (1st Cir. 2001).