Opinion
Criminal No. 03-245 (JRT/FLN)
January 30, 2004
Lisa A. Biersay, Minneapolis, for plaintiff
Jordan S. Kushner, Minneapolis, MN, for defendant
MEMORANDUM OPINION AND ORDER
Defendant Eugene Carl Hathaway was indicted for bank robbery, forcible accompaniment to avoid apprehension for bank robbery, and intimidation of a witness to hinder communication with law enforcement. The defendant has moved in limine to exclude prior felony convictions, and has also requested that the Court grant him a trial without a jury. The Court held a status conference on January 29, 2004, and heard argument regarding, among other preliminary matters, the parties' positions with regard to Count II, forcible accompaniment to avoid apprehension for bank robbery.
The government has moved to quash a subpoena duces tecum and, in a related motion, has moved to exclude evidence regarding defendant's mental health. These motions were not discussed at the January 29th status conference and the Court reserves ruling on the motions.
I. Defendant's Motion in Limine
Defendant has prior felony convictions for robbery, possession of a firearm, and a narcotics offense. The government clarified at the status conference that it ¶ not intend to offer any of the prior convictions in its case-in-chief. To the extent defendant's motion sought the exclusion of such evidence in the case-in-chief, the motion is granted.
Defendant also argues in his moving papers that none of the prior convictions involve dishonesty or deceptive behavior, and therefore, the convictions lack impeachment value. In addition, defendant argues that the prior conviction for robbery has similarity to the bank robbery count in the current indictment, and therefore may lead the jury to use the evidence for an improper purpose. The Court will reserve ruling on this issue.
II. Defendant's Request for a Bench Trial
The Government does not consent to a waiver of a jury trial in this matter. Fed.R.Crim.P. 23(2). At the time Defendant submitted his request for a non-jury trial, his motion for the Court to dismiss Count III was pending. Defendant argued that because Count II is a sentencing enhancement, and Count III should be dismissed, there would be no need for a trial at all. The Court subsequently denied defendant's motion to dismiss Count III. Defendant also argued that the Court should grant his request for a bench trial because this is a case in which the defendant has presented compelling reasons to be tried by a judge alone. Specifically, defendant argues that his status, and his mental state would prevent a fair trial. Although the Court is sympathetic to defendant's argument, the Court does not find that this case presents the "compelling circumstances" hypothesized by the Court in Singer v. United States, 380 U.S. 24, 36 (1965). See also United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002) (noting that defendant "has failed to show the existence of any such compelling circumstances in this case" and not articulating what such compelling circumstances might be).
Defendant sought the services of a forensic psychologist. Although it appears that defendant was evaluated by a psychiatrist pursuant to this Court's order, defendant represents that sufficient funding was not approved by the Chief Judge of the Eighth Circuit to enable preparation of a written report and/or expert testimony at trial. Counsel for defendant represents that defendant has significant mental health issues that are likely to make it difficult for him to communicate with the jury. For the purposes of this motion, the Court accepts as true counsel's descriptions of defendant's health problems.
The Court in Singer rejected the defendant's request for a trial without a jury. The Court noted, `We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him." 380 U.S. at 36. The Court concluded that it "need not determine in this case whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial"
III. Count II
Count I of the superseding indictment alleges that defendant took, by force, violence, and intimidation, approximately $821 from the U.S. Bank in the city of Minnetonka, in violation of 18 U.S.C. § 2113(a). Count II alleges that defendant forced "R.A. (a minor) and Shakur Awale Hashi to move from one location to another without their consent in an attempt to avoid apprehension for committing bank robbery — whereby the defendant did, by force, violence, and intimidation, take from the person and presence of a victim teller approximately $821 . . ." in violation of 18 U.S.C. § 2113(a) and (e).
The parties dispute whether the "forcible accompaniment" discussed in 18 U.S.C. § 2113 (e) constitutes an element of the offense of Count II (the Government's position, see Government's Memorandum Regarding "Forcible Accompaniment" as an Element of the Offense Alleged by Count II ("Government's Memo")), or merely a sentencing enhancement (defendant's position, see Defendant's Memorandum Regarding Need for Jury Trial at 2). Defendant suggests that because he intends to plead guilty to Count I, and section (e) can be determined by the Court as a sentencing enhancement, there is no need for a jury trial on Count II.
Because the Court denied defendant's motion to dismiss Count III, and denied defendant's request for a jury trial due to compelling circumstances, defendant is free to reconsider his construction of the statute on whether "forcible accompaniment" is an element of the offense.
The Government reads section (e) as increasing the possible maximum penalty, and therefore, according to United States Supreme Court precedent, and the Due Process Clause of the Fifth Amendment, the "forcible accompaniment" must be submitted to a jury and proven beyond a reasonable doubt. See Government's Memo at 4 (citing Jones v. United States, 526 U.S. 227 (1999)). Defendant concurs that section (e) increases the statutory minimum, but argues that section (e) does not impact the statutory maximum unless the defendant is accused of killing another while committing any offense defined in this section.
In United States v. Peitras, 501 F.2d 182, 187-88 (8th Cir.), cert. denied, 419 U.S. 1071 (1974), the defendant was convicted of bank robbery in violation of 18 U.S.C. § 2113(a). He was also convicted of putting lives in jeopardy during the commission of the robbery in violation of 18 U.S.C. § 2113(d), and kidnapping in an attempt to avoid apprehension in violation of 18 U.S.C. § 2113(e)). He was sentenced separately for each offense, and challenged such "pyramid" sentencing on appeal.
The reviewing court held that "Count II [putting lives in jeopardy during the commission of robbery in violation of 18 U.S.C. § 2113(d)] must be considered merely an aggravated version of the same offense charged in Count I, and it cannot itself support a separate sentence." Id. The court also noted that 18 U.S.C. § 2113 prohibited the imposition of more than one sentence for violations of its several provisions, including subsection (e). Id. The court upheld the sentence of 25 years for the violation of § 2113(e).
At the time, section (e) read 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." Peitras, 501 F.2d at 186 n. 3. The Government also relies on a case interpreting this previous version of the statute. Clark v. United States, 281 F.2d 230, 233 (10th Cir. 1960).
Defendant argues that Peitras supports his argument that the "forcible accompaniment" is only a sentencing enhancement, and not an element of the offense. The government analogizes to Jones v. United States, 526 U.S. 227 (1999), a carjacking case, in which the Supreme Court interpreted a somewhat similar statute, and held that the statute established three separate offense. Id. (addressing 18 U.S.C. § 2119). The relevant sections of 18 U.S.C. § 2113 provide:
The Court's research reveals that the Peitras court was not unique among the circuits. See, e.g., United States v. Drake, 250 F.2d 216, 217 (7th Cir. 1957). (`We believe it to be now settled that Section 2113 of Title 18 U.S.C.A. creates a single offense with various degrees of aggravation permitting sentences of increasing severity").
(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;
Shall be fined under this title or imprisoned not more than twenty 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.
Given the plain language of the statute, to establish that defendant violated 18 U.S.C. § 2113(e), the government must prove beyond a reasonable doubt that defendant forced an individual to accompany him without that person's consent. However, a conviction under this subsection does not, given the facts alleged in this case, lead to a possible sentence of life imprisonment or death. The plain language of the statute precludes the government's suggested interpretation. A sentence of death or life imprisonment is authorized, or required, by the statute only if "death results." This case does not involve such an allegation. Therefore, if the government proves beyond a reasonable doubt that defendant forced either the minor, or the taxi driver, to accompany him, defendant "shall be imprisoned not less than ten years."
This is certainly not to say that this is the only element of the offense.
It is clear by the language of the statute that section (e), by its plain language, impacts the mandatory minimum. It does not, however, provide for a sentence of life imprisonment or death in this case. Instead, the statutory maximum of twenty years, announced in § 2113(a), applies.
A statutory maximum of twenty-five years applies in cases in which the government proves beyond a reasonable doubt the defendant assault[ed] any person, or put in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d). The indictment does not implicate section (d).
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that Defendant's motion in limine to exclude evidence of prior convictions [Docket No. 53] is GRANTED as to use of such evidence in the government's case-in-chief; and DENIED WITHOUT PREJUDICE as to the use of such evidence for impeachment purposes.IT IS FURTHER ORDERED that Defendant's request to be granted a trial without a jury [Docket No. 52] is DENIED.