United States v. Patrick Thomas Strobehn, Jr.

authority of the executive within America, See, Treaty art. UNITED STATES of e.g., Extradition

branch. that, in which the Plaintiff-Appellee, a case (stating “[i]n Requested is the of America United States State, Authority shall have the Executive if, in its nationals to extradite power STROBEHN, Patrick Thomas discretion, proper to do it is deemed its Jr., Defendant-Appellant. (when so”); requests for extra- id. art. 13 states, “the made several

dition are No. 04-50167. ... be made the Execu- decision shall States of Authority the United Appeals, tive States Court of America”). with the This is accordance Ninth Circuit. principle

“generally established Argued and Submitted June 2005. State, exercising execu- Secretary of ‘[t]he through delegation tive discretion Aug. Filed 2005. President, may refuse to authority by the judicial despite a relator deter- extradite compat- would be

mination extradition applicable trea-

ible with the terms ” Blaxland, (quoting F.3d at 1208 ty.’ 1326) (alteration F.3d

Lopez-Smith, magistrate original). The extradition authority to con-

simply does not have the concerns and other foreign policy

sider may affect the executive

issues to extradite.

branch’s decision whether (stating id. “the executive on extradition ultimate decision

branch’s variety

may grounds, based on a circumstances,

ranging individual concerns, political exigen-

foreign policy

cies”). reasons, agree For these we judge magistrate district court that the authority to refuse to

did not have the of extradition on human-

issue certificate grounds.6

itarian deny- court judgment of the district accordingly

ing Prasoprat’s petition habeas

AFFIRMED. Quinn, 783 States.” Prasoprat emphasizes dition the United that he is United stated, however, that We have citizen. at 782. citizenship bar extra- “United States does not Bednarski,

Marilyn Kaye E. McLane & Bednarski, Pasadena, CA, for the defen- dant-appellant. Raphael,

Antoine Assistant United CA, Attorney, Angeles, Los for the plaintiff-appellee. FLETCHER, RYMER, B.

Before: FISHER, Judges. Circuit RYMER, Judge. Circuit Strobehn, After Patrick Jr. arrived Washington Dimas branch of Mu- San shotgun, approached tual Bank with a he Le, Victory security guard, from the guard patrolling rear. The was in front of parking the bank near the lot. Strobehn around, turn ordered Le to walk toward bank, door, inside, open go and lie seconds, face down on the floor. Within 45 $8,144. Strobehn had robbed the bank of (former) friend, tip Thanks to a from a eventually apprehended Strobehn was charged robbery with armed bank accompaniment violation (d) 2113(a), (e), §§ U.S.C. and with use of a firearm connection with a crime of 924(c). violence in violation of 18 U.S.C. He was convicted and now contends prove insufficient to the evidence was accompaniment charge contem- description in- because asportation because moving someone force some- plates that Strobehn We conclude substantial. consent, go, he doesn’t want to the statute place without only, requires accompaniment plainly, and requires. As we is what and without consent. that is forced in the evidentia- abuse of discretion see no also com- rulings about which Strobehn ry urges us to embrace a sub- Strobehn affirm. plains, we stantiality measured the requirement asportation duration and distance changes whether it the environment to bank rob applies Section robbery. routine for a beyond what is bank punish for enhanced provides beries lan- qualifying has no such The statute conduct, as follows: aggravated ment for Nevertheless, Strobehn relies on guage. Whoever, de- committing any in offense adopt substantiality a two cases that did section, in or avoiding or fined in this Marx, 485 F.2d analysis: United States v. for the apprehension attempting to avoid (10th Cir.1973), court felt 1179 where the offense, freeing such commission of required forcing than a bank that more is himself attempting to free himself or forcing own home or manager to enter his of- confinement for such from arrest or from one room to an- family his move fense, any person, or forces kills Sanchez, other, v. 782 and United States him the accompany without person (C.D.Cal.1992) (Tashima, J.), in F.Supp. 94 impris- person, shall be consent of such a acquitted court in a bench trial which the or if death years, than ten oned not less hos- employee who took a bank defendant or life punished death results shall be to walk knifepoint and forced her tage at imprisonment. the bank for 15 feet with him inside then, a num- than 10 seconds. Since less accompani- maintains that forced Strobehn have re- appeals circuit courts of ber of submitted to not have been ment should 2113(e) convictions, they viewed that the secu- light of evidence jury the convictions where uniformly upheld have only a few sec- moved for rity guard was una- met the statute’s asportation the feet, onds, and without over a matter requirements. dorned already inherent danger the increasing proves a robbery. What an armed bank 239, Bauer, F.2d v. In United States is an issue on which (11th Cir.1992), upheld the court directly yet spoken. we have not forced two of a bank robber who conviction (e) him from accompany gunpoint people a have dubbed subsection We and one enhancement, to the front of the bank the back “kidnaping” “killing” and gun, Jones, with his to exit the bank see, of them v. e.g., United States to that argument similar (9th Cir.1982); rejecting an United States Cir.1974) (9th here —that advances which Strobehn Faleafine, a “hostages traverse requires that (en statute banc), course the statute does but of feet, hos- number of particular of a the elements literally incorporate par- will for a face, against their tages en be held its kidnaping offense. On (1) hostages be that the period, time ticular are that a defendant hancing elements danger.” quantum in a certain committing placed rob bank in the course Reed, F.3d 523 (3) (2) In accompany person bery forces Cir.1994), the conviction (4) upheld the court person’s consent. him without a bank accosted robber who of a bank works as a shorthand “kidnaping” While employee open as she was about to pillowcase into a sufficient to uphold day, at gunpoint bank for the forced her conviction. door, bank,

unlock the enter the turn off align We weight ourselves with the alarm, vault, go put money into authority circuit uphold Strobehn’s bag, his and lie face down where he bound conviction. He gunpoint forced Le at rejected her hands and feet. Reed also a go bank, from post his open outside the “substantiality” argument, holding that it door, and lie face down on the floor was sufficient that the defendant forced inside the bank got money while Strobehn employee to enter the from escaped. the tellers and This evi- Davis, In outside. United States v. jury dence suffices for a beyond to find (7th Cir.1995), F.3d 277 the robber also reasonable doubt that Strobehn forced Le an employee accosted unlocking as she was to him accompany without Le’s consent the credit in morning, union the and forced while Strobehn was committing a bank gunpoint her at to facility, enter the deac- robbery.1 Faleafine, at 21 alarm, tivate the turn on lights, get the her (noting example of conduct running vault, keys to get money. the The afoul of an armed bank robber court refused to accept challenge accosting similar a bank manager on the street Strobehn’s, to explaining: when the bank was closed forcing the bank). manager accompany to him to the ignores

Davis the critical supporting fact his conviction on this count: that he II forced Woodman [the credit union em- day On the robbery, the Strobehn left ployee], gunpoint, at go from the pages seven (consisting of five sheets of parking lot into the credit union. Clear- paper, two of which writing had on both ly, phrase any the ‘forces persons [sic] sides) on the kitchen table of apart- accompany him without ... consent’ en- wife, ment that he shared with his Kimber- compasses forcing someone outside a ly, and their children. page On the first building to enter the building. There is Strobehn “Kimberly, honey, wrote hope nothing in the text of the statute that you get letter,” God never to read this requires that the elements of a federal and there followed note that continued kidnapping other crime be satis- over opposite to the paper, side of the fied. simply The statute requires what where about a way third of the down a line it says: without was drawn across the page. His last consent. It apt description is an for words before the “just line were a sec- what Davis compelled Woodman to do. ond—” and after the line he wrote: “To Id. at 279. recently, Debbie, Most Naomi,” United Larry, & followed Turner, States v. 389 F.3d 111 Cir. few lines addressed to taking up them 2004), the court found evidence that another third of page, ending with bank robber manager forced the bank ya,” “Love then another line across the accompany him to put money the vault and page, Marc, after which he wrote: “To 1. We do not lot, decide whether gunpoint less substantial parking forcing in the bank movement would suffice in a different case. Le to walk a non-trivial distance from the Contrary understanding, to the dissent's we bank, parking lot to the interior " do not 'plainly' applies hold that forcing then him to lie face down inside the no matter how bank, satisfy requirements application Dissent, slight.” Rather, at 11966. we hold of the enhancement. only that accosting Strobehn's actions in Le Nicole, narrowly con- Krystal” eating privilege followed & Christy, & spilled impedes over strued in criminal cases message to them because truth). ya.” concluded with “Love common page next the search for Federal message, private about two-thirds Following assumes communications law way page, down the third Strobehn spouses are to be confi- between intended line across the after paper dential, drew another and thus privileged. Wolfle (Noella mom, dad, “To & States, which he wrote: 7, 14, 291 U.S. 54 S.Ct. message (1934). This concluded with family).” reason, & L.Ed. 617 For this oppo- the top “I all.” On you love government showing bears burden “To page site of this Strobehn wrote: side that the communication was not intended Mike, Sasha, Lisa,” way half & and about confidential. Blau v. United down, after he wrote: drew a line 332, 333, 95 L.Ed. U.S. S.Ct. Lots of love 4 U. Your Peggy, “Grandma Marashi, (1951); 913 F.2d at 730. sweet,” line, too drew after then another Here, Strobehn’s note was disconti “Okay, honey (Kimberly) which he wrote: nuous, twenty- sequentially addressed next page I’m starts back....” opening four with his one-and-one- people, Mikie, Sean, Joanne, hi, & to say “And I message to immediate third-page his wife Annette, Marc, Sally, Big of course & ly way on the to two giving page same Eric, And Kerri.” The sixth & Manuel. of messages separate groups addressed to love, family “To the I page starts with —” if that his people. other Even he assumed seventh, “It’s to be great and been pass have no wife would reason husband,” your signed “Your husband for- survived, if messages on he as written the ever, Patrick.” was intended to be compilation manifestly moved exclude this evidence Strobehn to all individu twenty-four communicated found but the district court privileged, as Therefore, als to whom was addressed. that the note was intended to be concluding court did in the district not err be- marital communication confidential privilege marital that the communications 1 and portions (page limited cause v. Du apply. does not United States 5) 4, part part page page of and page ran, 539, 540-41, F.Supp. and the are addressed to Strobehn’s wife (D.D.C.1995). expressly parties. rest directed to third argues the district court’s Strobehn Ill heavily formatting too on the ruling relied the rob photographs Bank showed note, addressing ignored of the and gun. wife said carrying Strobehn’s ber in- other facts that showed that Strobehn owned shotgun it looked like Strobehn the note be confidential. We tended in had of times couple that she fired a disagree. Kansas, they to live. Over where used FBI the district allowed objection, marital communications court that, testify Agent James Elliott to protects Special statements or actions privilege gun by pictures, as a on the surveillance are intended communication based other, the robber an NEF SB-1021 one that are made used spouse gun shotgun, type marriage, gauge the same during the existence a valid owned. contends intended confidential that Strobehn Strobehn that are as jury was error makes that this was because spouse who the communication. Marashi, the rifle determining whether capable 913 F.2d United States Cir.1990) (so same fea- indi- the robber had the holding, but carried 729-30 type all, tures as the of rifle that Strobehn As we see no error at we need not correct, If owned. Strobehn sub- argument reach Strobehn’s that reversal is LaPierre, mits, United States required for cumulative error. (9th Cir.1993), 1460, 1465 indicates that AFFIRMED.

allowing expert opinion on the issue is impermissible under Federal Rule of Evi- FLETCHER, BETTY B. Judge, Circuit dence 702. dissenting. distinguishable. LaPierre is It involved lay testimony compare person respectfully used to dissent from the denial of in photographs bank surveillance with the Strobehn’s insufficient evidence claim. explained, defendant. As we jury is Section increases the minimum able to look at photo surveillance penalty for robbery mini- no graphs of the robber and at the mum years to ten imprisonment for certain defendant independent and make an determination of aggravating killing or forced ac- conduct— whether the individual in the photographs companiment without ques- consent. The inis fact the defendant. 998 F.2d at 1465. tion here is qualifies what conduct gun The characteristics of a quite are dif compared ferent. Elliott specific features thereby subjects the defendant to the gun the surveillance photographs significantly minimum harsher with the same gun features of the provision mandates. lit- There is hammer, Strobehn owned—the external tle direct authority the Ninth Circuit. trigger guard, round narrowing the for- However, the first circuit to address this egrip, thickness of the barrel in relation to question, Circuit, the Tenth held that Con- the foregrip, and the Monte Carlo stock 2113(e)’s gress § intended for significant comb—and based on his knowledge and sentence enhancement to apply only to experience sort, guns with of this conclud bank robbers engaged who in significantly ed that these of gun characteristics the in aggravating opposed conduct—as to the photographs surveillance gun and the accompaniment forced regardless of sub- owned Strobehn were the same. He stantiality or culpability. United States v. also although testified that some of these Marx, (10th Cir.1973). 1179, 485 F.2d 1186 features are guns, also similar to other the addition, In Judge Tashima, while a dis- questioned gun was not similar in all these trict court judge, decided United States v. respects to gun other but Strobehn’s. Sanchez, (C.D.Cal.1992) 782 F.Supp. 94 It unlikely anyone experienced not J.). (Tashima, He “kidnap- concluded that in handling using firearms would know 2113(e) ping § requires asportation at, what features to look or how to com of the victim that is not insubstantial” and pare them. Accordingly, the district court held that forcibly moving a bank teller was well within its in finding discretion from behind her desk toward the bank’s testimony that Elliot’s would assist the exit not did suffice. at Similarly, Id. jury in understanding the evidence. See moving conclude that a guard place to a Brown, 146, United States v. 501 F.2d 150 where he can be watched while one robs a (9th Cir.1974), rev’d grounds on other sub integral bank is so part of underlying the Nobles, nom. United States v. 422 U.S. crime that it should not be used for en- 225, 2160, (1975) 95 S.Ct. 45 L.Ed.2d 141 hancement. (noting jurors may “utterly lack expe to distinguish rience or recognize 2113(e) certain A § review of cases discussing firearms”). objects such as suggests that long courts understood the

1023 2113(e) 12 robbery.” § as to napping clause of incident accompaniment (1940); § also conduct 588c see Barkdoll v. only aggravating U.S.C. encompass to (9th States, Cir.1945) See, 617 147 F.2d hostage-taking. or United kidnapping akin 588c); 230, § 12 (quoting S.Rep.No.537, 281 F.2d U.S.C. v. United e.g., Clark (“The (1934) Cir.1960) (10th Cong.2d (using terms kidnapping 73d Sess. the 232-33 2113(e) un- statute, kidnaping” ... “homicide describe Subsection statute). a more se- doubtedly provide designed who for the bank robber

vere 2113(e) Moreover, meaning of com- for the kidnaps apprehension avoid majority “plain” would have not as as robbery....”); of offense mission noted, Judge statute is it: as Tashima Marx, (concluding 1186 485 F.2d at actually regarding requisite silent de 2113(e) kidnap- elements of incorporates Sanchez, accompaniment. of forced gree under the common “similar to those ping (“ 2113(e) not F.Supp. 96-97 does statute”); kidnapping the federal law and us, face, its asportation tell on its what McGhee, 781, States v. United is.”); also United States requirement see (5th Cir.1974) (noting that the neces- (5th Cir.1994) Reed, F.3d are offense sary elements of (“Section 2113(e) expressly set does (2) “(1) hostage in the of a taking accompaniment how forth extensive § 2113 committing some other course prove aggravated must be to form of Jones, offense”); F.2d robbery.”). Although may seem (9th Cir.1982) (“The ele- ‘essential simpler “any” to read the word into the (e) are the commis- ments’ subsection §of and assume that the language kidnap- robbery killing and the sion for the enhancement Legislature intended it.”). ping connection apply “any” assumptions make on majority numerous is incorrect to “[i]t dismisses these si “killing congressional Congress’s as the intent references ” statute, Bay v. lence on the issue.... CHW West kidnapping” asserting Thompson, as Cir. simply have used terms such courts 2001). 2113(e) does not state that “taking hostage” of a Section “kidnapping” and “any” accompaniment and it applies hand for forced short 2113(e) applies § it states that it “plainly” applies plainly that more than implying accompaniment. forced no matter how to “substantial” forced States, 1, However, “killing Holloway v. 526 U.S. kidnap- United slight.1 Cf. (1999) 7, 966, 1 judicial 119 143 L.Ed.2d label is not mere shorthand: S.Ct. ping” (e) statutory phrase, “with (explaining as 12 originally was codified subsection entitled, bodily or serious “killing § or kid- the intent cause death 588c and U.S.C. accompaniment” just as it majority forced realize that the now notes minimus say accompaniment” or "any does not forced response my that it decide dissent does not accompaniment.” In oth- forced "substantial less movement would "whether substantial by acknowledging scope of that the er words— Maj. Op. at 1020 suffice in different case.” determined, 2113(e) majority § must be then, Perhaps, would be accurate n. 1. more 2113(e) my point: scope §of proves The say majority suggests for me ambiguous, whether and we must determine " 2113(e) applies 'plainly' § forced "any,” Congress reach "more intended to accompaniment, or at least that which is more minimus," or "substantial” forced than de However, "plain slight." language” than here- accompaniment. For the reasons stated 2113(e) say slight in, Congress § than of does not "more persuaded that intended I am accompaniment. only accompaniment” or than de reach substantial "more 1024

harm,” intent, First, § could describe conditional imposes the same mini- intent, both).; unconditional see also punishment mum for accompani- U.S.A., Chevron Inc. Natural Resources ment without consent it imposes for Council, Inc., 837, 467 U.S. 842- homicide, suggests Defense that “forced ac- (1984) 43, 2778, 104 S.Ct. 81 L.Ed.2d 694 companiment” must refer to conduct that (contrasting clearly statutes that indicate comparable in degree of culpability to Congressional intent with statutes that are homicide. ambiguous” “silent or respect to a Second, § 2113 creates a in- scale of issue). specific creasingly serious correspond- crimes and majority creating errs ing increasingly penalties. severe gen- silence, “plain meaning” out it also errs erally, (2005), 18 U.S.C. see also by failing consider context. Faleafine, 18, United States v. 492 F.2d single “Just as a word cannot be read in (9th Cir.1974) (“We opinion are of the isolation, single provision nor can a of a (d) (e) subsection ... and subsection inso- States, statute.” Smith v. United 508 U.S. far as it deals with homicide or kidnaping 223, 233, 2050, 113 S.Ct. 124 L.Ed.2d 138 occurring in committing robbery] [bank (1993); 7, see also Holloway, 526 U.S. each prescribes a punishment more severe (“As 119 S.Ct. 966 we repeatedly have for the substantive offense defined else- stated, meaning statutory language, ....”); Clark, where in section 2113 not, (internal plain depends on context.” F.2d at 233 (finding that was quotation omitted)); marks and citations intended “to separate, create a distinct and 849, United States v. Thompson, 82 F.3d (9th Cir.1996) (same). more serious offense for which an addition- 852-53 “Context in al and more regard penalty relates to severe design ‘the author- ized”). (a) (b) object statute as a whole poli Specifically, and its subsections ” cy.’ States, Gozlon-Peretz v. United 2113 establish the crime of bank rob- 395, 407, U.S. S.Ct. bery; 2113(a), L.Ed.2d (1991) (quoting Crandon robbery by “force and violence” or 152, 158, 494 U.S. 110 S.Ct. “intimidation” is a imprison- fine and/or (1990)); 108 L.Ed.2d 132 see also United up (d) ment twenty years.2 Subsection Bahe, States v. enhances the sentence for bank robbery Cir.2000). aggravated assault, endangerment of a life, or dangerous use of a weapon,

Here, increas- consideration of “not only the ing prison the maximum sentence to twen- bare meaning of the critical word or (but ty-five years leaving the minimum phrase placement but also its purpose zero). prison (e) sentence at scheme,” statutory Subsection Holloway, 526 (internal further at enhances the U.S. sentence for bank quotation S.Ct. robbery omitted), aggravated by marks killing and citation or supports the forced accompaniment, conclusion Congress that increasing intended the minimum 2113(e) § prison to enhance the only sentence in sentence from years, zero to ten cases involving substantial forced accom- and authorizing the death penalty if death paniment. (2005). § results. 18 U.S.C. 2113 (a) 2. Subsection robbery "by "receives, addresses bank liability any person for pos- who violence, sesses, conceals,” force and or intimidation” while any thing etc. of value ob- (b) robbery subsection addresses bank with- tained robbery. in the course of a bank (c) out force. Subsection § establishes criminal U.S.C. 2113. (e) kidnaping who commits a homicide or prescribes fact that subsection The in the course such act. for punishment more substantially severe unlawful of (d) is evi robbery than subsection No.1461, H.R.Rep. Cong.2d 73d Sess. for Congress intended subsec that (1934) dence Attorney of (quoting statement Gen- (e) substantially reach conduct to tion Judiciary) to on eral the Committee is than reached egregious more added); (emphasis S.Rep.No.537, see also (d). Thompson, F.3d (1934) subsection Cong.2d (quoting 73d similar Sess. Cf. of (concluding using offense at 853 Department language from a of Justice during and equipped memorandum). with silencer firearm trafficking crime re drug in relation any If had Congress doubt remains such a fire employment active of quired in only accompaniment substantial forced in “Congress could have arm because “killing mind when and kid- it created impose five-year penalty only tended napping” examination of the provision, actively employed a drug if trafficker original language statute’s should elimi- firearm, if 20-year mandate a sentence but 2113(e) § originally nate it: authorized happened defendant own that same robbery involving penalty death for bank no in played silencer that role compatible accompaniment without consent— crime”). predicate in accompani- where the forced even cases death a victim. ment did not cause the of history purpose legislative The (1940) (“Whoever, in See 588c U.S.C. is evident from confirms what sec- committing any offense defined in context. provision reading any person, or forces tion kills — U.S.-, Small v. United him accompany without the con- person 1752, 1756-58, 161 L.Ed.2d 651 S.Ct. shall person, punished sent of such be (2005) (construing based on lan- statute years, for not less than ten imprisonment context, history, purpose). As guage, jury by death if the verdict shall or concluded, “the legisla- Circuit the Tenth No.1461, direct.”); H.R.Rep. see also so 2113(e) suggests history [of ] tive (“If (1934) murder or Cong.2d 73d Sess. multitude of mur- to combat the enacted in connection kidnaping committed occurring during at- kidnappings ders imprison- shall be penalty therewith the by bank to flee scene tempts robbers life, or death if the years ment from 10 Marx, of the crime.” (empha- in the jury shall so direct verdict.” adopted the example, the House For added)).3 original fact that sis description robbery of the bank following the most authorized version statute: involving penalty robbery for bank severe essentially eq- provides punishment those This bill accompaniment killing, rob, burglarize, steal uated forced or who [banks], Congress A confirms that intended or do so. heavier attempt to to reach imposed, attempt is if an penalty culpability increases the any person significantly such

commit offense i.e., crime, assaulted, conduct akin underlying his put jeopardy life is hostage-taking. A Converse- dangerous weapon. kidnapping of a maxi- by use Congress not have intended anyone ly, on could imposed mum 2113(e) punished by be death Congress by § in death results shall amended 3. 103-322, imprisonment”. punished Pub.L. No. striking by if the verdict life "or death inserting Stat jury shall so and "or if 1796. direct” per “accompaniment” penalty authorize a severe enhance- threshold is se such asportation 2113(e). insubstantial ment to underly- inherent the forced movement such a line Drawing bright between ing crime.4 within a movement bank movement that It is other circuits have con true only across a is not bank’s threshold arbi 2113(e) broadly encompass strued to trary, also but risks both underbreadth accompaniment. Maj. Op. at hand, and overbreadth. On the one Bauer, (citing v. 1020- 1021 United States threshold-crossing test reaches Strobehn’s (11th Cir.1992); 956 F.2d 239 United conduct, despite the fact that there is little (7th Davis, Cir.1995); States v. 48 F.3d 277 meaningful forcing distinction between Turner, and United States v. 389 F.3d 111 security guard move inside a bank and (4th Cir.2004)). However, courts, these forcing security guard move 15 feet 2113(e) majority, like interpreted hand, within a bank. On the other the test acontextually requisite and without the in conduct, truly aggravating excludes some quiry Congressional into intent. such as that issue in United v. majority also cites States v. United case, Bauer: in that the bank robber actu Reed, however, Cir.1994); ally hostages escape took in an attempt, noting it is worth that the Reed court but he left with never the bank them be §of meaning neither found the police cause presence held outside was plain applies be nor accompaniment. Rather, overwhelming. 956 F.2d at 241-42. explained Fifth Circuit reasons, For Judge these ap- Tashima’s [wjithin the context of bank robbery, distance, proach, duration, weighs which often be there will movement within the victim, in danger increase aby employee bank —movement Sanchez, makes more sense. 782 F.Supp. by orchestrated the robber. This orch- (“The at 97 substantiality asporta- estration nowill doubt sometimes occur tion, line, although there can no bright in concert the movement of the duration, should be measured distance robber himself. To conclude such cir- any change tending environment are aggravating accompa- cumstances an victim danger increase the likely niment would convert numerous exposed, any danger other than inherent ordinary ... aggra- bank robberies to offense.”). underlying This approach vated bank robberies with the faint- captures truly est accompanied, aggravating of distinctions between accom- i.e., aggravated, non-accompanied, paniment the robber crosses the —-whether non-aggravated bank robbers. bank’s threshold or not—but avoids the danger turning nearly every bank rob- 26 F.3d at I agree. part ways 527-28. bery with the Fifth Circuit that involves some movement only where it orches- holds forced movement across bank’s trated the robber egre- into most completely persuaded guess Even if one based on no more than a as to what Congress States, evidence intended for Congress intended.” Bifulco apply only to substantial forced 381, 387, 447 U.S. 100 S.Ct. 65 L.Ed.2d lenity weighs the rule of (1980) (quoting Ladner United favor of the narrower construction: we must 169, 178, 358 U.S. 79 S.Ct. 3 L.Ed.2d interpret "not a federal criminal statute so as Ramirez, (1958)); see also United States v. places increase that it on an (9th Cir.2003). interpretation individual when such an can be integral (and part floor was an form of bank harshly punished) most gious This underlying crime. forced movement robbery. aggravated bank significantly aggravate not the under- did the forced approach, the Sanchez Under robbery. crime of armed bank Stro- lying by committed Strobehn subject have been behn should not a support sufficiently substantial not by more severe mandated 2113(e). Strobehn conviction on the basis of that conduct to move inside the bank guard forced the alone. is, floor, to move lie on down he position a from which could into not Strobehn did easily

more watched. a use him as guard hostage,

take the

shield, life in guard’s or threaten order Thus, asportation coerce others. dis- relatively short in duration and

was tance, and, importantly, more did FOWLER, Petitioner-Appellant, Jeff to which the danger to increase tend beyond that exposed inherent guard was Here, as in underlying offense. San- SACRAMENTO COUNTY SHERIFF’S chez, danger to the significant “there was DEPARTMENT; Attorney California [weap- by presence of the

victim General, Respondents-Appellees. on], danger present by was virtue but that No. 04-15885. 2113(d) offense, [underlying] as- by dangerous weapon, the use a sault Appeals, United States Court and not reason of trivial movement Ninth Circuit. 96; of 15 feet.” Id. at see over distance Marx, 2005. (finding Argued F.2d at 1186 insuf- and Submitted June also the defendants asportation ficient where Aug. Filed caught manager victim outside the bank go home forced him to inside his family his as forced the victim and

well room).

move room construction of intent, as Congressional

is consistent with context, language,

evinced the statute’s requires

history, purpose, is one accompaniment. Be-

substantial convicted under

cause Strobehn also 2113(d) endangering the life of an- dangerous weapon use of

other robbery, the district

the course of bank by Congress already

court was authorized give enhanced significantly Strobehn forcing a

prison sentence. Like teller

move to another station or a bank custom- floor, forcing the to lie down on the

er inside and lie down on the

guard move

Case Details

Case Name: United States v. Patrick Thomas Strobehn, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 31, 2005

Citation: 421 F.3d 1017

Docket Number: 04-50167

Court Abbreviation: 9th Cir.