Assault/Use of Dangerous Weapon During Bank Robbery
Although 18 U.S.C. § 2113(d) commonly is characterized as armed
bank robbery there had been some question as to whether the words "use of a
dangerous weapon or device" modified the words "assaults any person," as
the words "puts in jeopardy the life of any person." The Supreme Court has
adopted the view that the phrase "by use of a dangerous weapon or device"
be read, regardless of punctuation, as modifying both the assault provision
the putting in jeopardy provision. Simpson v. United States, 435
11-12 n.6 (1976). In view of this language in Simpson, a bank
involving an assault and battery resulting in serious injury, but where no
dangerous weapon or device is used, apparently could not be successfully
prosecuted under 18 U.S.C. § 2113(d).|
In the past, there had been considerable uncertainty as to what
constitutes use of a dangerous weapon or device under 18 U.S.C. §
Clearly, a loaded, operable firearm is a "dangerous weapon." However,
uncertainty arose where, for example, the dangerous weapon or device turned
to be a toy gun, a hoax bomb device, unloaded or inoperable firearm, or
enforcement officers failed to recover the weapon.
This uncertainty was partially clarified by the Supreme Court's
decision in McLaughlin v. United States, 476 U.S. 16 (1986), which
that an unloaded handgun is a "dangerous weapon" within the meaning of
2113(d). The rationale of the McLaughlin decision can be extended to
situations involving simulated weapons such as authentic appearing toy guns
hoax bomb devices.
In situations in which the weapon used in a bank robbery is not
recovered, a prosecution under subsection 2113(d) still may be sustained
on credible eyewitness testimony that the defendant carried a gun during the
robbery. See Brewer v. United States, 36 F.3d 266 (2d Cir.
Robinson v. United States, 20 F.3d 270 (7th Cir. 1994); Kirvan v.
United States, 997 F.2d 963 (1st Cir. 1993); Parker v. United
801 F.2d 1382 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070
It is important to note that the "toy" weapon must actually be displayed to
satisfy the "use" requirement of § 2113(d). Possession of a toy gun
concealed throughout the robbery is not considered "use" within the meaning
the armed robbery statute. United States v. Perry, 991 F.2d 304 (6th
[cited in USAM 9-61.600]