1358

Bank Robbery—Automated Teller Machines (ATMs)

From time to time, bank customers are robbed shortly after making withdrawals from ATMs. In such circumstances, the Federal bank robbery statute would be inapplicable because, at the time of the robbery, the money belongs to and is in the possession of the customer, and is no longer in the care, custody, control, management or possession of the bank. However, if a bank customer was forced at gun point to drive to the bank's ATM and withdraw funds from his account, a Federal bank robbery violation may occur. The customer never had possession or control of the funds taken from the bank. The perpetrators simply used the customer and his bank card as the instrumentalities for accomplishing a bank robbery. In addition, these facts would support an investigation and prosecution for the aggravated forms of bank robbery under 18 U.S.C. § 2113(d) and (e). With regard to ATMs actually located on bank premises, a break-in or attempted break-in of such a machine would seem to violate the second paragraph of 18 U.S.C. § 2113(a) (bank burglary) because the ATM, like a night depository, is part of "any building used in whole or in part as a bank...." See United States v. Lankford, 573 F.2d 1051 (8th Cir. 1970). Some banks operate ATMs at remote locations far removed from the bank itself. It is unclear whether a break-in or attempted break-in of an off-premises ATM would amount to a burglary of a building used in whole or in part as a bank. In this regard, we note that off-premises customer-bank communications terminals have been held to be branch banks for purposes of the National Bank Act. Independent Bankers Association of America v. Smith, 534 F.2d 921 (D.C. Cir.), cert. denied, 429 U.S. 862 (1976). In any event, if money or other thing of value is actually taken and carried away from an off-premises bank ATM with intent to steal or purloin, there would be a bank larceny violation, 18 U.S.C. § 2113(b). Some large grocery chains and other retail businesses provide ATMs on their premises for the convenience of their customers. These machines provide a shared electronic network which can access several financial institutions. Generally, these machines are owned/leased and operated by the retailer, not the banks. Such facilities are not branch banks for purposes of the National Bank Act. Independent Bankers Association v. Marine Midland Bank, 757 F.2d 453 (2d Cir. 1985), cert. denied, 476 U.S. 1186 (1986). Since retailers own/lease the machines and are responsible for loading the machines with currency, it would appear that a burglary and theft of the contents of such a machine would not be a bank burglary or bank larceny. The retailer, not the bank, would be the victim of such an offense. If however, money is obtained by the fraudulent use of a bank card, the transaction may be regarded as a bank larceny. [cited in USAM 9-61.600]