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Most armed robberies are state crimes, with some exceptions—for example, it is a federal crime to rob any bank. Under 18 U.S.C. § 2113(a), anyone who "by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . money . . . belonging to, or in the care, custody, control, management, or possession of, any bank" is committing a federal crime. The offense is punishable by up to 25 years in prison.
While the statute is clear enough, it raises an interesting legal question: what if you force a person to withdraw money from an ATM at gunpoint or under the threat of violence? Does that constitute robbing a bank under § 2113? The question is not a mere hypothetical—it has arisen in three separate federal courts of appeal. And the consequences aren't insignificant; if robbing someone at an ATM is deemed to be a federal crime, perpetrators could face both federal and state charges for the same offense.
For now, the answer isn't clear. But after a recent 10th Circuit opinion, United States v. Chavez, there is a 2-1 split among federal circuit courts on the issue.
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In 2005, the Seventh Circuit held in United States v. McCarter that forcing someone to take out money from an ATM to rob them fell under the purview of § 2113. The defendant in that case accosted a woman in a parking garage, forced her into her car, and ordered her to drive to an ATM. Before they left the garage, the woman screamed for help and the defendant fled; he was thus charged with attempted robbery under the federal statute.
Judge Richard Posner, writing for the Seventh Circuit, upheld the defendant's attempted bank robbery conviction. He noted that there were two questions involved:
Judge Posner held that the answer to the first question was "obviously" yes. As for the second, he wrote that "if, as the defendant intended here, the robber forces the bank's customer to withdraw the money, the customer becomes the unwilling agent of the robber, and the bank is robbed." The McCarter court thus upheld the conviction of attempted robbery under § 2113.
But in the same year, the Fifth Circuit held differently, in United States v. Burton. The defendant in that case grabbed the victim from behind and demanded money. When the victim told the defendant that she only had a few dollars and gave him her wallet and ATM card, the defendant forced her into his car and drove to a drive-through ATM. The victim withdrew $150 and gave it to the defendant.
The Burton court reasoned that the defendant knew that the woman he had kidnapped at gunpoint had funds in her bank account. Following that logic, the defendant was not seeking the bank's money, but the victim's. Nor was the bank in control of the funds, as it was a valid, albeit coerced, transfer of the money—and it was only in the victim's possession for a brief time when she withdrew the cash. The 5th Circuit thus vacated the conviction of federal robbery.
In 2019, Charles Chavez ran up to the window of a car at a Wells Fargo ATM, armed with a rifle. He demanded money from the people in the vehicle. The ATM was not located on the premises of a Wells Fargo bank branch. The victims did not have any cash, at which point Chavez demanded they take money out of the ATM. They said they did not have any money in their account, as they had just deposited a check. Before things could progress, a police officer arrived on scene. Chavez was later charged with several felonies, including for attempted bank robbery under § 2113. The district court dismissed the federal charges, and the government appealed.
The Tenth Circuit followed the Seventh Circuit's rationale. Judge Emilio Garza, writing for a unanimous panel, wrote that "[w]e reject the Fifth Circuit's position that the ownership of the money is not measured until the defendant physically places his hands on it, without regard to how the defendant acquired it. Not only would this produce absurd results, but the statute's text plainly calls for evaluating the money's status at the time of its [taking]." In other words, because Chavez was attempted to take money from the ATM, and simply using the victim as a proxy to access the money, he was essentially robbing the bank.
The Tenth Circuit thus reverse the dismissal of the federal charges.
Armed robbery, whether prosecuted at the state or federal level, always carries significant penalties. But at least in the 10th and 7th Circuits, defendants may face both state and federal charges if they attempt to rob someone at an ATM.
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