United States v. Chippy Jones

678 F.2d 102 UNITED STATES of America, Plaintiff-Appellee, v. Chippy JONES, Defendant-Appellant. No. 80-1840. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 5, 1982. Decided May 26, 1982. Baird A. Brown, Los Angeles, Cal., for defendant-appellant. Kathleen P. March, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before KENNEDY and SCHROEDER, Circuit Judges, and SOLOMON, * District Judge. SCHROEDER, Circuit Judge: 1 Appellant, Chippy Jones, was one of four participants in a bank robbery that resulted in the killing of a bank security guard. Jones, who was present at the scene of the crime but who did not fire the fatal shot, was convicted after a jury trial of aiding and abetting the violation of both 18 U.S.C. § 2113 (a), the general bank robbery statute, and 18 U.S.C. § 2113 (e), which provides greater punishment for commission of a robbery in which a killing or kidnapping occurs. He was sentenced to life imprisonment in accordance with the enhancement provisions of § 2113(e). 2 Jones's principal argument on appeal is that 18 U.S.C. §…

Appellant, Chippy Jones, was one of four participants in a bank robbery that resulted in the killing of a bank security guard. Jones, who was present at the scene of the crime but who did not fire the fatal shot, was convicted after a jury trial of aiding and abetting the violation of both 18 U.S.C. § 2113 (a), the general bank robbery statute, and 18 U.S.C. § 2113 (e), which provides greater punishment for commission of a robbery in which a killing or kidnapping occurs. He was sentenced to life imprisonment in accordance with the enhancement provisions of § 2113(e).

Jones’s principal argument on appeal is that 18 U.S.C. § 2113 (e) is applicable only to the perpetrator of a killing or kidnapping and cannot provide a foundation for accomplice liability. Although we cannot agree with such a restrictive reading, we agree that the jury was improperly instructed on the elements on the § 2113(e) offense. Accordingly, we reverse the § 2113(e) conviction. We remand to the district court for resentencing under § 2113(a), or, if the government so elects, for retrial of the entire case. United States v. Short, 500 F.2d 676, 677 (9th Cir.), modifying 493 F.2d 1170 , cert, denied, 419 U.S.…

concurring:

Though we might have done so, the opinion does not address the precise question of what intent is required to sustain a conviction of an aider and abettor, or a principal, under 18 U.S.C. § 2113 (e) (1976). I do interpret the opinion to hold that there must be more than an intent to commit a bank robbery. In this posture of the case, if there is a retrial, the district court must devise an appropriate instruction. I am somewhat uncomfortable about our failure to give further guidance, but I suppose there is ample justification in the failure of counsel for either party thoroughly to brief the issue.