With the exception of 18 U.S.C. § 2113(c) (receiving or
the proceeds of a bank robbery), and the second and third provisions of 18
§ 2113(e) (killing or kidnapping in avoiding apprehension for bank
the various subsections of the Federal bank robbery statute simply state
different degrees of the crime of bank theft/robbery. Ultimately, a
is guilty of and may be sentenced on only one such offense. See
v. United States, 352 U.S. 322 (1957). See also United States
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
U.S.C. § 2112, (2) in avoiding or attempting to avoid apprehension for
commission of such offense, and (3) in freeing or attempting to free oneself
arrest or confinement for such offense.
A killing or kidnapping during the actual commission of a bank
offense is not a separate offense. The less aggravated forms of bank
robbery/theft merge into the killing or kidnapping offense. See
States v. Whitley, 759 F.2d 327 (4th Cir. 1985), cert. denied,
U.S. 873 (1985): United States v. Atkins, 558 F.2d 133 (3d Cir.),
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
apprehension or arrest/confinement is a separate and distinct criminal
If clearly removed in time and place from the underlying robbery, it
a separate offense. See Miller v. United States, 793 F.2d 786
Cir.), cert. denied, 479 U.S. 934 (1986); United States v.
Etheridge, 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S.
(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
bank robbery. The weight of authority seems to be that where the bank
and the killing/kidnapping are part of a continuous transaction, only a
offense occurs. See United States v. Moore, 688 F.2d 433 (6th
1982); United States v. Rossi, 552 F.2d 381 (1st Cir. 1977);
States v. Pietras, 501 F.2d 182 (8th Cir.), cert denied, 419 U.S.
(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.
442 U.S. 931 (1979). In United States v. Crawford, 519 F.2d 347 (4th
1975), cert. denied, 423 U.S. 1057 (1976), the court recognized
offenses. However, in Whitley, supra, the Fourth Circuit
purportedly overruled Crawford. Despite the fact that in
the defendant was charged with kidnapping in the commission of a bank
whereas in Crawford, the defendant was charged with kidnapping to
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
a single offense. See United States v. Vasquez, 504 F.2d 555
Cir. 1974). Moreover, a defendant, charged under 18 U.S.C. § 2112(a)
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
using or carrying a firearm during and in relation to a Federal crime of
[cited in USAM 9-61.600]