1354

Bank Robbery—Merger

With the exception of 18 U.S.C. § 2113(c) (receiving or possessing the proceeds of a bank robbery), and the second and third provisions of 18 U.S.C. § 2113(e) (killing or kidnapping in avoiding apprehension for bank robbery), the various subsections of the Federal bank robbery statute simply state different degrees of the crime of bank theft/robbery. Ultimately, a defendant is guilty of and may be sentenced on only one such offense. See Prince v. United States, 352 U.S. 322 (1957). See also United States v. Gaddis, 424 U.S. 544 (1976). Subsection 2113(e) prohibits killing and kidnapping in three bank robbery related situations: (1) in the commission of any offense defined in 18 U.S.C. § 2112, (2) in avoiding or attempting to avoid apprehension for the commission of such offense, and (3) in freeing or attempting to free oneself from arrest or confinement for such offense. A killing or kidnapping during the actual commission of a bank robbery offense is not a separate offense. The less aggravated forms of bank robbery/theft merge into the killing or kidnapping offense. See United States v. Whitley, 759 F.2d 327 (4th Cir. 1985), cert. denied, 474 U.S. 873 (1985): United States v. Atkins, 558 F.2d 133 (3d Cir.), cert. denied, 434 U.S. 929 (1977), and cases cited therein. With regard to situations involving categories (2) and (3), above, there is conflict in the circuits as to whether a killing or kidnapping to avoid apprehension or arrest/confinement is a separate and distinct criminal episode. If clearly removed in time and place from the underlying robbery, it constitutes a separate offense. See Miller v. United States, 793 F.2d 786 (6th Cir.), cert. denied, 479 U.S. 934 (1986); United States v. Etheridge, 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993 (1971); Gilmore v. United States, 124 F.2d 537 (10th Cir.), cert. denied, 316 U.S. 661 (1942). Uncertainty arises, however, when a killing or kidnapping to avoid apprehension occurred as a continuation of or in the immediate aftermath of the bank robbery. The weight of authority seems to be that where the bank robbery and the killing/kidnapping are part of a continuous transaction, only a single offense occurs. See United States v. Moore, 688 F.2d 433 (6th Cir. 1982); United States v. Rossi, 552 F.2d 381 (1st Cir. 1977); United States v. Pietras, 501 F.2d 182 (8th Cir.), cert denied, 419 U.S. 1071 (1974); Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973). For the proposition that a separate offense occurs, see United States v. Fleming, 594 F.2d 598 (7th Cir.), cert. denied, 442 U.S. 931 (1979). In United States v. Crawford, 519 F.2d 347 (4th Cir. 1975), cert. denied, 423 U.S. 1057 (1976), the court recognized separate offenses. However, in Whitley, supra, the Fourth Circuit purportedly overruled Crawford. Despite the fact that in Whitley the defendant was charged with kidnapping in the commission of a bank robbery, whereas in Crawford, the defendant was charged with kidnapping to avoid apprehension for bank robbery. It should be noted that the offense of conspiracy to rob a bank (18 U.S.C. § 371) and the offense of robbing the same bank are not merged into a single offense. See United States v. Vasquez, 504 F.2d 555 (5th Cir. 1974). Moreover, a defendant, charged under 18 U.S.C. § 2112(a) and (d) with an armed bank robbery involving a firearm, may also be prosecuted and subjected to enhanced punishment under 18 U.S.C. § 924(c), which prohibits using or carrying a firearm during and in relation to a Federal crime of violence. [cited in USAM 9-61.600]