Re: Confidential Attorney Client Communication
Evidence supporting use of a dangerous weapon during a bank robbery
United States v. Canter, Criminal Action 18-0702
Dear Mr. Canter:
This letter is a confidential attorney client communication. It is solely for your use and benefit. The contents of this letter should not be discussed with any third party. On September 1, 2018, we met in an interview room at the Metropolitan Correctional Center to discuss whether there was sufficient evidence to support a charge that you used a dangerous weapon during the commission of a bank robbery at the First State Bank, in violation of U.S.C. § 2113(d). The intent of this letter is to provide a legal opinion on whether there is sufficient evidence to support the dangerous weapon charge. This opinion is based on the facts outlined in the facts section below as they relate to the applicable laws which existed at the time the robbery occurred. Please contact me if you find any of these facts to be misstated, or if you have additional facts for me to consider.
FACTS
On January 5, 2018, you entered and robbed the First State Bank. During the robbery, you approached a bank teller and produced a darkly colored, carved wooden replica of a nine millimeter (9mm) Beretta handgun. The bank teller believed you possessed a real gun and was frightened. Another bank teller at the next window who saw the replica stated that she was certain the gun was not real. No one else recognized whether the replica was real.
ANSWER
Based upon the above facts, there is enough evidence to support a charge of using a dangerous weapon during the commission of a bank robbery. The applicable Federal Statute governing the use of a dangerous weapon during the commission of a bank robbery is U.S.C. § 2113(d). Under this statute, “during the commission of a bank robbery, a person is subjected to an enhanced penalty for the use of a dangerous weapon when the person assaults any person, or places any person’s life in jeopardy by use of a dangerous weapon or device.”
Eldon Canter
September 23, 2018
Page Two
EXPLANATION
To be liable under this statute, the court must determine that the replica gun you used during the robbery satisfies the definition of a “dangerous weapon or device.” The court must also determine that either you committed an assault by use of the dangerous weapon or device, or that a person’s life was placed in jeopardy by use of the dangerous weapon or device.
In determining whether an instrument meets the legal definition of a dangerous weapon, courts do not only consider the obvious or inherent dangerous nature of the instrument itself. Importantly, in deciding whether an instrument is a dangerous weapon, courts also find that it is relevant to consider the effect the use of the instrument had on influencing the events, actions and or behaviors of people during the commission of the bank robbery.
When use of the instrument results in an apprehension of imminent bodily harm, or if use of the instrument is the cause of resulting actions or behaviors which places people’s lives in jeopardy, courts will agree that the instrument is indeed a dangerous weapon. Your use of the replica during the commission of the robbery is consistent with the legal definition of what a dangerous weapon is because your use of the replica did cause an apprehension of imminent bodily harm. It also resulted in people’s lives being placed in jeopardy. This conclusion is based on the fact that the court will usually follow the decisions of other cases whose facts are similar to the facts in this case. One such case that presents similar facts to the court is McLaughlin v. United States.
In the McLaughlin case, an unloaded gun was used during the commission of a bank robbery. The court ruled that even though the gun was unloaded, the gun fell under the U.S.C. § 2113(d) definition of a dangerous weapon or device. The court made this determination due to the fact that use of the unloaded gun did not diminish the response of law enforcement in that law enforcement could only determine that the gun was unloaded after they employed the reasonable means to subdue or neutralize the possible threat posed by the bank robber. Part of that threat was the possibility that the gun was indeed loaded. This fact meant that law enforcement was required to be prepared to use deadly force to end the robbery. This resulted in lives being placed at risk due to the use of the unloaded gun. Additionally, the victims could not have known whether the gun was loaded or not. As such, they were subjected to the apprehension of imminent physical or bodily harm by use of the weapon. Looking at the totality of the circumstances, the McLaughlin court, as well as other court cases with facts similar to this case determined that the “creation of an appearance of dangerousness” of a device by the bank robber was enough to provide sufficient evidence under U.S.C. § 2113(d) and cause him to be found liable for the use of a dangerous weapon during the commission of a bank robbery.
Another case with similar facts which caused the court to determine that there was enough evidence to support a dangerous weapon charge under U.S.C. § 2113(d) was United States v. Martinez-Jimenez. In the Martinez-Jimenez case, a toy gun was used during the commission of a bank robbery. The Court in this case also held that the toy gun was indeed a dangerous weapon due to the “appearance of dangerousness” standard that the court followed in the McLaughlin
Eldon Canter
September 23, 2018
Page Three
case. These two cases give evidence that should the court be presented with the facts surrounding your case, the court is highly likely to determine that you did violate U.S.C. § 2113(d) when you used the replica gun to rob the First State Bank.
I hope the explanations provided in this opinion answers your question. If you have any other questions, or have additional information to provide, please contact me.
Sincerely,