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 well 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" must be read, regardless of punctuation, as modifying both the assault provision and the putting in jeopardy provision. Simpson v. United States, 435 U.S. 6, 11-12 n.6 (1976). In view of this language in Simpson, a bank robbery 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. § 2113(d). Clearly, a loaded, operable firearm is a "dangerous weapon." However, uncertainty arose where, for example, the dangerous weapon or device turned out to be a toy gun, a hoax bomb device, unloaded or inoperable firearm, or where law 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 held 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 and 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 based on credible eyewitness testimony that the defendant carried a gun during the robbery. See Brewer v. United States, 36 F.3d 266 (2d Cir. 1994); 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 States, 801 F.2d 1382 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070 (1987). 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 that is concealed throughout the robbery is not considered "use" within the meaning of the armed robbery statute. United States v. Perry, 991 F.2d 304 (6th Cir. 1993).
[cited in USAM 9-61.600]