Johnson and Johnson Not Only Makes Band-Aids But – Along with Leocal – Make a Good Argument that Even Bank Robbery Isn’t a Crime of Violence.

July 12, 2016
By Hanging Out with Carl Gunn


  • The Supreme Court’s two Johnson cases – combined with the Leocal case – mean (1) the residual clause can’t be used to categorize a prior conviction as a “violent felony” or “crime of violence” and (2) the force clause can be used only if (a) the force was “violent” force and (b) the force was intentional.
  • This opens up an argument that even federal bank robbery isn’t a “violent felony” or “crime of violence” because (a) the use or threat of force can be minimal and (b) the intimidation doesn’t need to be intentional.
  • Even armed bank robbery falls short because the additional element it requires – assaulting or “placing in jeopardy” another person – can be the product of just the victim’s or others’ reaction to the weapon.



I recently became aware of an argument coming out of recent litigation being spearheaded by Federal Public Defender offices around the country about the Supreme Court’s recent invalidation of the Armed Career Criminal Act residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015).  The argument is that even federal bank robbery isn’t a “violent felony” under the Armed Career Criminal Act – or, since the reasoning of Johnson extends to other residual clauses, see, e.g., Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), a “crime of violence” under the guidelines, 18 U.S.C. § 16, or 18 U.S.C. § 924(c).  Winning this argument in the § 924(c) context would have an especially great impact, since bank robbery is probably one of the most common § 924(c) predicates.

The argument follows from combining the recent Johnson opinion with two earlier opinions on the requirements for a “violent felony” or “crime of violence” – Johnson v. United States, 559 U.S. 133, 140 (2010) , which I’ll call Johnson I, and Leocal v. Ashcroft, 543 U.S. 1 (2004).  These two cases interpreted what I’ll call the “force clause” in the “violent felony” and “crime of violence” definitions, which includes offenses that “ha[ve] as an element the use, attempted use, or threatened use of physical force” against, in the case of some of the force clauses, “the person or property of another,” 18 U.S.C. § 16(a); 18 U.S.C. § 924(c)(3)(A), or, in the case of other force clauses, just “the person of another,” 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)); U.S.S.G. § 4B1.2(a)(1).  Johnson I held the “physical force” required by this clause is “violent force – that is, force capable of causing physical pain or injury to another person.”  Id., 559 U.S. at 140 (emphasis in original).  Leocal, as subsequently clarified by the Ninth Circuit sitting en banc in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), requires the offense to “involve the intentional use of force against the person or property of another.”  Fernandez-Ruiz, 466 F.3d at 1132 (emphasis added).

Prior to the more recent Johnson opinion, which I’ll call Johnson II, the government could always fall back on the residual clause when an offense didn’t satisfy the force clause.  But after invalidation of the residual clause in Johnson II, the government doesn’t have that fallback; the offense has to satisfy the requirements of the force clause.  And it has to satisfy those requirements under the strict categorical approach, which the Supreme Court reaffirmed just last month in Mathis v. United States, No. 15-6092, 2016 WL 3434400 (U.S. June 23, 2016).  See id. at *6-7.  It doesn’t matter what your client actually did; rather, “even the least egregious conduct the statute covers must qualify.”  United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006).  See as an example the case of United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015), and the discussion of that case in the “More on Those Great New Categorical Approach Cases” post in the February 2016 link at the right.  Under the categorical approach, the offense always has to involve the intentional use of force and the force always has to be “violent” force capable of causing physical pain or injury.

So how does this support a challenge to the categorization of bank robbery as a “violent felony” or “crime of violence”?  Think back to those cases rejecting all the creative defenses you wanted to raise in bank robbery cases.  As one example, consider cases from the Ninth Circuit, as well as other circuits, saying that whether the defendant actually intended to intimidate the victim teller (remember the “force” element in the bank robbery statute is to take the money or property “by force and violence, or by intimidation”) “is irrelevant.”  United States v. Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993).  See also United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (holding that “a defendant can be convicted under section 2113(a) even if he did not intend for an act to be intimidating”); United States v. Yockel, 320 F.3d 818, 823-24 (8th Cir. 2003) (holding that statute requires only that the defendant “knew he was physically taking money,” and that whether he intentionally used force, violence, or intimidation is “irrelevant”); United States v. Woodrup, 86 F.3d 359, 363 (4th Cir. 1996) (holding that “[t]he intimidation element of § 2113(a) is satisfied if ‘an ordinary person in the [victim’s] position reasonably could infer a threat of bodily harm from the defendant’s acts,’ whether or not the defendant actually intended the intimidation”).  This directly conflicts with the Leocal requirement that the use of force be intentional.  As another example, consider cases like United States v. Hopkins, 703 F.2d 1102 (9th Cir. 1983), and United States v. Bingham, 628 F.2d 548 (9th Cir.1980), which found sufficient intimidation even where the defendant “spoke calmly, made no threats, and was clearly unarmed,” Hopkins, 703 F.2d at 1103, and which stated that “express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon[s]” aren’t required for a conviction for bank robbery by intimidation,” id. (quoting Bingham, 628 F.2d at 549).  This falls short of the sort of “violent” force required by Johnson I.  For a couple of sample briefs laying out the argument in more depth, see the briefing from the Hawaii Federal Public Defender and the Central District of California Federal Public Defender attached here and here.

These sample briefs also illustrate how the argument extends even to armed bank robbery, with the potential of preventing those multiple  § 924(c) convictions.  Armed bank robbery does have the additional element that the defendant “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” 18 U.S.C. § 2113(d).  This element also has been broadly construed, however, to require neither a specific intent nor any violent force by the defendant himself.  The element may be satisfied by unloaded or inoperable guns, or even a toy gun.  See McLaughlin v. United States, 476 U.S. 16 (1986); United States v. Martinez-Jimenez, 864 F.2d 664, 666-67 (9th Cir. 1989), and cases cited therein.  The defendant does not need to brandish the firearm or display it in some threatening manner.  Id. at 667.  The defendant does not even need personally to place the victim in the “jeopardy.”  The “jeopardy” may lie solely in the potential reaction of victims or law enforcement, such as “[t]he increased chance of an armed response,” id.; see also McLaughlin, 476 U.S. at 18 (citing “ immediate danger that a violent response will ensue”), or even “heart attacks and other untoward medical consequences” which seeing a gun may create, United States v. Medved, 905 F.2d 935, 940 (6th Cir. 1990) (citing and following Martinez-Jimenez).

There is a recent Fourth Circuit case – United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) – rejecting the foregoing arguments, and an older Ninth Circuit case – United States v. Wright, 215 F.3d 1020 (9th Cir. 2000) – which held in a one-sentence statement that “[a]rmed bank robbery qualifies as a crime of violence [under § 924(c)] because one of the elements of the offense is a taking ‘by force and violence, or by intimidation.’” Id. at 1028 (quoting 18 U.S.C. § 2113(a)).  Neither of these cases is an insurmountable obstacle, however.  McNeal is unpersuasive, at least outside its own circuit, because it relies on a view that Leocal requires only general intent, see McNeal, 818 F.3d at 155-56, which conflicts with the interpretation of Leocal in the Ninth Circuit – and most other circuits – as requiring specific intent, see Fernandez-Ruiz v. Gonzales, 466 F.3d at 1127 n.8, 1130 (citing cases from other circuits requiring “specific intent,” quoting Black’s Law Dictionary 16 (8th ed. 2004) definition of “purposeful” as “[d]one with a specific purpose in mind,” and interpreting Leocal as requiring “intentional” use of force).  And Wright is not controlling for two reasons.  First, it fails to address the broad sweep of the “force and violence, or by intimidation” element, and “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”  United States v. Rivera-Guerrero, 377 F.3d 1064, 1071 (9th Cir. 2004) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)).  Second, Wright was decided before the Supreme Court’s decisions in Leocal and Johnson I which narrowly construed the force clause.  Wright’s conclusion that the force clause is satisfied by the far broader “force and violence, or by intimidation” element in the bank robbery statute is clearly irreconcilable with these intervening Supreme Court cases and their Ninth Circuit progeny, which makes Wright no longer controlling precedent under the standards of Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), see Miller, 335 F.3d at 899-900.

Finally, lest you think this is all just a Federal Public Defender pipe dream, there’s evidence the courts consider the issue a serious one.  The Hawaii district court which rejected the challenge in the Hawaii Federal Public Defender case – which was a 2255 challenge to a § 924(c) conviction – did grant a certificate of appealability, acknowledging that “the legal landscape is hastily shifting in this specific terrain.”  United States v. Watson, CR NO. 14-00751 DKW, 2016 WL 866298, at *8 (D. Hawaii March 2, 2016).  And in part based on this, the Ninth Circuit recently granted a certificate of appealability in a Western District of Washington 2255 appeal – Park v. United States, No. 16-35238; see the order linked here.  So even the courts recognize this as a legitimate issue.