860 F. 2d 1090 - United States v. Friedman

MEMORANDUM**

Friedman asserts that the district court erred in finding that there was a factual basis for his guilty plea. Specifically, Friedman contends that merely demanding money from a teller, without more, does not constitute "intimidation," an element of bank robbery. Appellant's Brief at 6-9. Friedman's contention lacks merit.

To support Friedman's guilty plea to bank robbery under 18 U.S.C. Sec. 2113(a), there must be sufficient evidence: (1) that Friedman took money from the custody of the bank teller; (2) that he used force and violence or intimidation;1 and (3) that the deposits of Pima Savings were insured by the Federal Savings and Loan Insurance Corporation. See 18 U.S.C. Secs. 2113(a) and (g). The only dispute in this case is whether Friedman's admitted conduct supports the conclusion that he took the money by intimidation.2

For purposes of 18 U.S.C. Sec. 2113(a), a taking by intimidation is "the willful taking in such a way as would place an ordinary person in fear of bodily harm." United States v. Bingham, 628 F.2d 548-549 (9th Cir.1980) (citing United States v. Alsop, 479 F.2d 65, 66 (9th Cir.1973)), cert. denied, 449 U.S. 1092 (1981). Relying primarily on out-of-circuit authority, Friedman asserts that "[u]sually the courts have required a demand plus other factors supporting intimidation." Appellant's Brief at 6. This assertion is erroneous. In this circuit, an unequivocal written or verbal demand for money may qualify as intimidation; there is no requirement of more overt evidence such as " 'express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon[s].' " United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir.) (quoting Bingham, 628 F.2d at 549), cert. denied, 464 U.S. 963 (1983).

In Hopkins, this court found sufficient evidence of intimidation based on a mere demand for money. The defendant had entered the bank and presented a teller with a demand note stating: "Give me all your hundreds, fifties and twenties. This is a robbery." When the teller replied that she had no hundreds or fifties, Hopkins stated: "Okay, then give me what you've got." 703 F.2d at 1103.3 The court held: "Although the evidence showed that Hopkins spoke calmly, made no threats, and was clearly unarmed ... the threats implicit in Hopkins' written and verbal demands for money provide sufficient evidence of intimidation to support the jury's verdict." Id.

In Bingham, the defendant told the bank teller that she had "three seconds" to give him the money in the top drawer; he repeated this demand while she was removing the money from the drawer. 628 F.2d at 549. The court found that a reasonable person could interpret these statements as implicitly threatening harm if the person failed to meet the unequivocal demand to act promptly. Id. Friedman attempts to distinguish Bingham because the victimized teller in that case testified at trial as to her subjective fear.4 Appellant's Brief at 7. The lack of evidence of subjective fear is irrelevant because intimidation is determined by an objective evaluation of the defendant's conduct; subjective fear need not be proven. See Alsop, 479 F.2d at 67. "The courageousness or timidity of the victim is irrelevant; it is the acts of the accused which constitute an intimidation." Id.

Here, as in Hopkins and Bingham, a reasonable person could interpret Friedman's unequivocal written demand "to be quick, be quiet and no bait money" as implicitly threatening to harm the bank teller if she failed to comply. See Bingham, 628 F.2d at 549. Thus, the tendering of the demand note constituted sufficient evidence of intimidation. See Hopkins, 703 F.2d at 1103. The district court did not err in finding that a sufficient factual basis supported Friedman's guilty plea to bank robbery, in violation of 18 U.S.C. Sec. 2113(a). See Rivera-Ramirez, 715 F.2d at 457.

AFFIRMED.