Whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.
Lower court opinion: United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012)
This case will be of interest to federal practitioners, as the Court will resolve some disagreement among federal circuits about whether there is some distance and duration that is too short to satisfy the forced accompaniment requirement of § 2113(e). Two circuits have interpreted the statute narrowly, holding it requires more than insubstantial asportation or mere confinement, e.g., United States v. Reed, 26 F.3d 523 (5th Cir. 1994), while two others (including the Fourth Circuit in this case) hold it is satisfied by even slight movement of the victim. The Seventh has not directly weighed in on the abstract proposition, but has upheld application of the statute in cases where the facts arguably show more than de minimis movement, e.g., United States v. Davis, 48 F.3d 277, 278-279 (7th Cir. 1995) (forced bank supervisor to unlock credit union and to accompany defendant inside building and vault during robbery).
The decision in this case will have no discernible impact on state practice. Wisconsin has no similar penalty enhancing provision for robbery, and the only similar forced accompaniment language in the criminal code is in § 940.31(1)(a) and (c), the kidnapping statute, which prohibits carrying or inducing a person to go from one place to another. That does not require movement of any particular minimum distance because “the critical aspect of the asportation element is ‘not the distance the victim is transported but the unlawful compulsion against the will to go somewhere.’” State v. Wagner, 191 Wis. 2d 322, 328-29, 528 N.W.2d 85 (Ct. App. 1995) (forced movement of a person from one room to another in the same building satisfies the “carries another from one place to another” element of § 940.31(1)(a)) (quoted source omitted).
