29 F.4th 1223
10th Cir.2022Background:
- On Jan. 8, 2019, Charles Chavez, armed, approached an occupied vehicle at a Wells Fargo ATM (not on bank premises) and demanded money, insisting the occupants insert a card and withdraw cash from the ATM; the plan was aborted when police arrived and Chavez later was arrested.
- Chavez was indicted on attempted bank robbery (18 U.S.C. § 2113(a),(d)) and a § 924(c) firearm charge premised on that attempted robbery; he moved to dismiss counts 5 and 6, arguing the facts fall outside § 2113(a).
- The district court granted dismissal, reasoning that a coerced ATM withdrawal results in the customer—not the bank—possessing the money at the moment of transfer, so federal bank robbery was not committed.
- The government appealed; the Tenth Circuit reviewed de novo because the operative facts were undisputed and the dismissal raised a pure legal question that implicated the legal-impossibility defense to attempt.
- The Tenth Circuit reversed, holding that a coerced ATM withdrawal is federal bank robbery: money in an ATM is bank money and a customer compelled to withdraw cash acts as the robber’s unwilling agent; the court adopted the Seventh Circuit’s approach and rejected the Fifth Circuit’s contrary line of cases.
- Counts 5 and 6 were reversed and remanded for further proceedings; a concurrence noted the panel did not resolve whether the taking occurred "from the person or presence of another," an element that the government must still prove on remand.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forcing a customer to withdraw cash from an ATM constitutes bank robbery under 18 U.S.C. § 2113(a) | Government: Yes — money in ATM is bank property; a coerced customer is the robber’s unwilling agent, so the bank is robbed | Chavez: No — the coerced withdrawal vests possession/ownership in the customer before the robber takes it, so § 2113(a) does not apply (legal impossibility) | Held: Yes — Tenth Circuit adopts Seventh Circuit (McCarter), finds ATM funds are bank funds at withdrawal and coercion makes the customer the robber’s agent; reverses dismissal |
| Whether legal-impossibility precludes attempt liability here | Government: Attempt valid because completed offense would be bank robbery | Chavez: Legal impossibility bars attempt because, as he believed, the completed act would not be a bank robbery | Held: Court assumed arguendo that legal impossibility is available but rejected Chavez’s invocation because, as alleged, completion would have violated § 2113(a) |
Key Cases Cited
- United States v. McCarter, 406 F.3d 460 (7th Cir. 2005) (held forcing a customer to withdraw ATM cash can be attempted federal bank robbery)
- United States v. Burton, 425 F.3d 1008 (5th Cir. 2005) (held coerced ATM withdrawal was not bank robbery because money belonged to customer at transfer)
- United States v. Van, 814 F.2d 1004 (5th Cir. 1987) (ransom-withdrawal decision used to support Fifth Circuit line distinguishing coerced withdrawals)
- Shaw v. United States, 137 S. Ct. 462 (2016) (noting that deposited funds ordinarily become the bank’s property)