UNITED STATES OF AMERICA, Plaintiff - Appellant, v. CHARLES CHAVEZ, Defendant - Appellee.
No. 20-2083
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
March 29, 2022
EID, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CR-01818-MV-1)
Emil J. Kiehne, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the briefs), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant.
Aric G. Elsenheimer, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.
Before BACHARACH, EBEL, and EID, Circuit Judges.
Defendant-Appellee Charlеs Chavez is accused of attempting to force two individuals to withdraw their money from a bank automated teller machine (“ATM“) at gunpoint, in violation of
I.
The following facts are undisputed at this stage, with one exception. On January 8, 2019, Charles Chavez, armed with a rifle, ran up to the passenger side of an occupied vehicle parked at a Wells Fargo ATM in Albuquerque, New Mexico. The ATM was not located on the premises of a Wells Fargo bank branch. Chavez demanded money from the vehicle‘s two occupants (“the accountholders“). The accountholders, however, did not have any cash. Chavez demanded that they put a bank card into the ATM and make a withdrawal. They claimed that they could not make a withdrawаl because they had just deposited a check (which had not yet cleared) and did not have other funds in their account. At that point, according to the government, a law enforcement officer arrived on the scene, causing Chavez to change course. Chavez maintains that he changed course of his own accord, but this minor dispute of fact is not relevant. Either way, Chavez asked the accountholders for cigarettes аnd left. He was later arrested.
On June 27, 2019, a six-count indictment was returned against Chavez. Two of those counts—count 5 and count 6—are the subject of this appeal. Count 5 charged Chavez with, “by force, violence, and intimidation, . . . attempt[ing] to take from the person and presence of another a sum of U.S. currency belonging to and in the care, custody, control, management and possession of Wells Fargo Bank, . . . and in committing such offense, . . . assault[ing] and put[ting] in jeopardy the life of another person by use of a dangerous weapon,” in violation of
The district court granted Chavez‘s motion. Deeming Chavez‘s case to “fall[] within the limited scenario in which the operаtive facts are undisputed and a purely legal issue is presented,” the district court assessed “whether, as a matter of law, the conduct alleged by the government constitutes a submissible case.” Id. at 42. The key question, it determined, was “whether an individual violates
The government appeals. See
II.
A court may dismiss an indictment before trial, in whole or in part, for “failure to state an offense.”
“[A] pretrial dismissal” of this sort “is essentially a determination that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” Hall, 20 F.3d at 1088. Such a dismissal is appropriate “only when and ‘because undisputed evidence shows that . . . the [d]efendant could not have committed the offense for which he was indicted.‘” Pope, 613 F.3d at 1261 (quoting United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006)). “If contested facts surrounding the commission of the offense would be of any assistance in determining the validity of the motion,” the prosecution
III.
Chavez was charged with attempted bank robbery under
Although the government appeals the dismissal of Chavez‘s attempted bank robbery charge, we agree with the parties and the district court that the legal question we must ultimаtely decide to resolve this appeal is whether the federal bank robbery statute covers successfully coercing an ATM withdrawal. We answer that question in the affirmative. First, however, we explain why the question on appeal concerns the completed offense, even though Chavez has not been charged with it.
a.
This case concerns the scope of the completed offense of federal bank robbery becаuse Chavez‘s arguments for dismissal necessarily raise the legal impossibility defense. That defense turns on whether Chavez‘s conduct, as he understood and intended it, would fall within the statute. “Under federal law, ‘attempt generally requires both (1) an intent to commit the substantive offense, and (2) the commission of an act which constitutes a substantial step towards commission of the substantive offense.‘” United States v. Faulkner, 950 F.3d 670, 676 (10th Cir. 2019) (brackets omitted) (quoting United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013)). Chavez did not argue before the district court, nor does he argue nоw, that he lacked the intent to steal money from the ATM or that holding the accountholders at gunpoint was not a “substantial step” toward doing so. Instead, Chavez‘s narrow argument remains that, had he successfully coerced the accountholders into withdrawing money from the ATM, his conduct would nonetheless fall outside the federal bank robbery statute‘s scope because the money would have belonged to the accountholders, and not the bank, at the time he would have taken it. That argument clearly sounds in legal impossibility, although the parties have not used that term in their briefing. See United States v. Aigbevbolle, 827 F.2d 664, 666 n.2 (10th Cir. 1987) (referencing legal impossibility defense).
The legal impossibility defense to an attempt crime generally applies to “a situation ‘when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime.‘” United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001) (quoting United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)). Legal impossibility is distinct from factual impossibility, which is typically not a valid defense to attempt. Factual impossibility is where a defendant argues that the course of conduct that he attempted to carry out would not, in fact, be criminal—usually for a
We have endorsed the general view that factual impossibility is not a defense to attempt crimes. See United States v. Hankins, 127 F.3d 932, 934–35 (10th Cir. 1997). We have also acknowledged the legal impossibility defense. See Aigbevbolle, 827 F.2d at 666 n.2. However, we have not previously decided the extent to which federal law prоvides for a legal impossibility defense to attempt, either as a general matter or in the context of the federal bank robbery statute. Cf. United States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006) (“[I]t is well established in [the Third Circuit] that the availability of legal impossibility as a defense to a crime is a matter of legislative intent.“). For purposes of this appeal, we will assume without deciding that legal impossibility is a defense to attempt in this circuit, meaning that it would be a permissible basis for affirming the dismissal of Chavеz‘s attempted bank robbery charge. This appeal thus turns on whether, had the accountholders withdrawn money, Chavez would have committed federal bank robbery under
b.
In United States v. McCarter, 406 F.3d 460 (7th Cir. 2005) (Posner, J.), overruled on other grounds by United States v. Parker, 508 F.3d 434, 440–41 (7th Cir. 2007), the Seventh Circuit held that a man who accosted a woman in a parking garage and, at gunpoint, attempted to force her to drive to an ATM to withdraw funds was guilty of attempted federal bank robbery. Id. at 461–63. In reaching that conclusion, the Seventh Circuit determined that applying
A few months after McCarter, the Fifth Circuit issued a conflicting ruling in a case involving the completed offense. In United States v. Burton, 425 F.3d 1008 (5th Cir. 2005), a man grabbed a woman as she left a post office, took her to a drive-through ATM, and forced her to withdraw money from her account. Id. at 1009. Observing that
The Fifth Circuit‘s holding in Burton followed largely from its earlier decision in United States v. Van, 814 F.2d 1004 (5th Cir. 1987). In Van, two men abducted a woman‘s two-year-old daughter and held her for ransom, directing the woman to withdraw money from her bank account and deliver it to them at a convenience store several miles away from the bank. Id. at 1005 & n.1. The next day, accompanied by a friend and a hidden FBI agent, the woman made the withdrawal and followed the kidnappers’ instructions to recover her daughter. The men were charged with federal bank robbery. Id. at 1004. The Fifth Circuit determined that the men had not taken money belonging to or in the care, custody, control, management, or possession of a bank. Id. at 1006–07. It reasoned that “when [the money] was turned over to” the men, it “was [the woman‘s] private funds and in her care, custody and control.” Id. at 1007.
The Fifth Circuit relied on Van in Burton when it stated that the relevant time for evaluating whether money taken by a defendant belonged to a bank was the moment of transfer to the defendant. Burton, 425 F.3d at 1010. Observing that Van was “directly on point and controlling,” it emphasized that the victim “inserted her ATM card, entered her PIN, and withdrew money from her account,” which had sufficient funds, before the defendant stole it from her. Id. For its part, the Seventh Circuit cited Van in McCarter to support the proposition that “[i]f the depositor is robbed of the money he has just withdrawn
c.
The issue is whether the money in the ATM would have “belong[ed] to” or been “in the care, custody, control, management, or possession of” Wells Fargo at the time that Chavez would have taken it “from thе person or presence of another.” See
First, we agree with the Seventh Circuit that money in an ATM is “obviously” bank money under
We also agree with the Seventh Circuit—as well as the Fourth Circuit and the Massachusetts Supreme Judicial Cоurt, which have followed the Seventh Circuit‘s lead—that when “[a] robber forces [a] bank‘s customer to withdraw . . . money, the customer becomes the unwilling agent of the robber, and the bank is robbed.” McCarter, 406 F.3d at 463; see also United States v. Johnson, 915 F.3d 223, 232 (4th Cir. 2019) (“Federal law . . . covers robbery by conscription.“); Commonwealth v. McGhee, 25 N.E.3d 251, 255 (Mass. 2015). It is no different than “if the defendant had planned to have a confederate remove the money from the ATM.” McGhee, 25 N.E.3d at 255. That means that if Chavez had succeeded in compelling the accountholders to withdraw money from the ATM, he would have stolen money from the bank thrоugh the accountholders, who were his “unwilling agent[s].” See McCarter, 406 F.3d at 463. We 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 “tak[ing].”
We disagree with the Fifth Circuit‘s contrary approach. That court held that a forсed withdrawal from an ATM can be “valid” even though “coerced.” Burton, 425 F.3d at 1010. That aspect of its holding largely followed from Van. In the first place, we are not obligated to follow the Fifth Circuit‘s line of cases and, for the reasons above, we think McCarter was correct. A directly coerced withdrawal is not somehow “valid” enough to move these facts outside
more immediate than the control exercised in Van. See McCarter, 406 F.3d at 463 (citing Van for proposition that where a “depositоr is robbed of . . . money he has just withdrawn after he leaves the bank, that is not a bank robbery“). The men in Van told the woman to withdraw money from her bank account to get her daughter back. See Van, 814 F.2d at 1005. But the men were not with the woman when she withdrew the funds. Although it was unlikely that she could have obtained $4,000 without accessing her bank account, the men did not ultimately know where the money she handed over had come from. After all, she started working with the authorities immediately, and had an FBI agent in her car when she withdrew the funds and made the handoff. Here, by contrast, Chavez would have been present when the withdrawal occurred. With a gun pointed at the accountholders, he was positioned to direct every aspect of the withdrawal. Whereas the men in Van used the woman‘s kidnapped daughter as a means to obtain her money, which happened to be housed in a bank, Chavez used the accountholders as a tool to take from the bank by exploiting their access to funds in the ATM. Cf. Burton, 425 F.3d at 1010 (“This is not a case in which the defendant sought the bank‘s money.“). The control exercised by the men in Van may not have sufficed to render the woman their agent during the bank withdrawal for purposes of
In sum, we adopt the Seventh Circuit‘s approach to
IV.
We REVERSE the district court‘s dismissal of counts 5 and 6 of the indictment and REMAND for further proceedings consistent with this opinion.
United States v. Chavez, No. 20-2083
EBEL, J., concurring
I concur in the majority opinion. However, I write separately simply to point out that there is still an open question as to whether the facts can satisfy that the taking occurred “from the person or presence of another” under