859 F2d 155 United States v. King

859 F.2d 155

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
Johnny Lee KING, Defendant-Appellant.

No. 87-5296.

United States Court of Appeals, Ninth Circuit.

Submitted July 25, 1988.*
Decided Sept. 16, 1988.

Before KOELSCH, KILKENNY and FARRIS, Circuit Judges.

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Johnny Lee King appeals his conviction under 18 U.S.C. Sec. 2113(a) for robbery of a federal savings and loan association, contending that the evidence was insufficient on the question of his specific intent to commit the crime charged. We affirm.


It has long been the law of this Circuit that robbery under section 2113(a) is a general, rather than specific, intent crime, regardless whether committed while armed or unarmed. See, e.g., United States v. Smith, 638 F.2d 131, 132 (CA9 1981) (armed robbery); and United States v. Burnim, 576 F.2d 236, 237 (CA9 1978) (unarmed robbery). While it may be true that the first case to state the above rule did so in dictum, such does not alter the fact that subsequent cases have consistently and expressly held section 2113(a) to be a general intent statute. See, e.g., Smith, 638 F.2d at 132 and cases collected thereat.


The first paragraph of section 2113(a) makes it an offense for anyone "by intimidation, [to] take[ ] ... money ... in the ... possession of ... any savings and loan association[.]" 18 U.S.C. Sec. 2113(a) (in relevant part). The evidence presented at trial was that King handed a note to a teller demanding money, then declared "This is a stick-up. Give me your money!" Upon being handed the cash, King told the teller to call the police. He then carried the money over to a desk in the association's lobby to await the arrival of the police.


Viewing this evidence in the light most favorable to the prosecution, we conclude that sufficient evidence was presented for any rational trier of fact to have found the essential elements of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).


The decision of the district court is AFFIRMED.

KOELSCH, Circuit Judge concurring specially:


I am obliged to concur.

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Were we writing on the proverbial "clean slate" I would disagree with my brothers and take the position held by other circuits that specific intent is a necessary element of the offense of bank robbery, 18 U.S.C. Sec. 2113(a). See, e.g., United States v. Howard, 506 F.2d 1131 (2nd Cir.1974); Hamilton v. United States, 475 F.2d 512 (6th Cir.1973); Caples v. United States, 391 F.2d 1018 (5th Cir.1968).


However, as noted in the Memorandum, this circuit has consistently held bank robbery not to be a crime requiring mens rea but only a general intent.


Although unable to square the latter decisions with those declaring specific intent to be an essential element of "plain" robbery under a virtually identical statute--18 U.S.C. Sec. 2111, see United States v. Lilly, 512 F.2d 1259 (9th Cir.1975), I am compelled by the principle of stare decisis to concur in the Memorandum.1


The panel unanimously finds this case suitable for submission on the briefs and record without oral argument per FRAP 34(a) and CA9 Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3


As the dissenter in Lilly points out, "in holding today that specific intent is an element of an offense under Sec. 2111, the majority thrusts upon the legal world an irreconcilable discrepancy. Two statutes with virtually identical language have been construed so that in one (Sec. 2111) specific intent is an element and in the other (Sec. 2113) it is not." 512 F.2d at 1263 n. 8