United States v. Chavez.
No. 20-2083. 3/29/2022. D.N.M. Judge Eid. Attempted Federal Bank Robbery—Forced Withdrawal of Money from ATM—Legal Impossibility Defense.
March 28, 2022
Armed with a rifle, defendant ran up to the passenger side of an occupied vehicle parked at an ATM. The ATM was not located on the premises of a bank branch. Defendant demanded money from the two vehicle occupants, but they did not have any cash. Defendant then demanded that they put a bank card into the ATM and make a withdrawal. The occupants claimed they could not make a withdrawal due to insufficient funds. A law enforcement officer then arrived on scene, and defendant was later arrested.
A six-count indictment issued, two of which were at issue in this appeal. Count 5 charged defendant with attempted robbery of US currency belonging to and in the care, custody, control, management, and possession of a bank, and putting the life of another person in jeopardy by use of a dangerous weapon under 18 USC § 2113(a). Count 6 charged defendant with knowingly using a firearm in relation to an attempted bank robbery. Following the indictment, defendant moved to dismiss both counts and the district court granted the motion.
The government appealed the district court’s determination that defendant’s conduct did not amount to attempted bank robbery in violation of 18 USC § 2113(a). Defendant maintained a legal impossibility defense, arguing that had he successfully coerced the accountholders into withdrawing money from the ATM, his conduct would nonetheless fall outside the federal bank robbery statute because the money would have belonged to the accountholders rather than the bank at the time he would have taken it. Accordingly, the Tenth Circuit addressed whether the money in the ATM would have belonged to defendant or would have been in the care, custody, control, management, or possession of the bank when defendant would have taken it from the accountholder. The Tenth Circuit determined that the money in an ATM is bank money under 18 USC § 2113(a), and when a robber forces a bank’s customer to withdraw money, the customer becomes the robber’s unwilling agent, and the bank is robbed. Here, had defendant completed the course of conduct, he would have committed federal bank robbery. Accordingly, the government stated an offense and the district court erred by dismissing counts 5 and 6.
The dismissal of counts 5 and 6 of the indictment was reversed and the case was remanded for further proceedings.