Do you have a client challenging a charge or conviction for attempted bank robbery in violation of 18 U.S.C. § 2113(a) and/or gun possession in relation to that crime in violation of § 924(c)? Well, there’s good news and bad news.
First, the bad news: a two-judge panel of the Second Circuit has ruled attempted bank robbery — specifically, attempted robbery “by force and violence, or by intimidation,” § 2113(a) — is a “crime of violence” under § 924(c). See Collier v. United States, No. 17-2402, ___ F.3d ___ (2d Cir. Mar. 1, 2021) (available here).
But now the good news: the panel based its ruling on “the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking — like the completed crime — be perpetrated ‘by force and violence, or by intimidation.'” Slip Op. at 4. Again: § 2113(a) “requires that both the completed crime and its attempt be effectuated ‘by force, violence, or by intimidation.'” Id. at 15 (emphasis added). And again: under § 2113(a), “attempt is defined as including an element of ‘force and violence,’ or ‘intimidation.'” Id. Once more: attempted bank robbery “expressly requires that the act have been committed by force, violence, or intimidation. 18 U.S.C. § 2113(a).” Id. at 16.
Why is that good news? At least two reasons:
1. Given that attempted bank robbery requires proof the defendant actually used force, violence or intimidation, it is nothing like attempted Hobbs Act robbery or any number of other attempt crimes, which require only intent to commit the crime plus a substantial step toward doing so– which “need not be violent.” United States v. Taylor, 979 F.3d 203, 208 (4th Cir. 2020). The panel acknowledged this: “It is unnecessary to determine whether ‘attempts’ to commit other crimes of violence are themselves ‘crimes of violence’ under § 924(c), particularly given the severe consequences for such a conviction. Given the fluidity of the concept of a ‘substantial step’ that could combine with guilty intent to support a conviction, that step might have little to do with the violent aspect of the crime of conviction.” Slip Op. at 16. As previously blogged about, the Fourth Circuit and multiple district judges in New York and elsewhere have held attempted Hobbs Act robbery is not a “crime of violence.” Contact the undersigned if you need briefing.
2. Besides Collier having no bearing on the question whether attempted Hobbs Act robbery or other crimes are “crimes of violence,” defendants charged with or convicted of attempted bank robbery under § 2113(a) now have a basis to challenge those charges or convictions if they did not actually use force, violence or intimidation in their attempts to rob a bank. As Collier holds, attempted bank robbery “requires that the attempted taking — like the completed crime — be perpetrated ‘by force and violence, or by intimidation.'” Slip Op. at 4.