United States v. Patrick Thomas Strobehn, Jr.

421 F.3d 1017 UNITED STATES of America, Plaintiff-Appellee, v. Patrick Thomas STROBEHN, Jr., Defendant-Appellant. No. 04-50167. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 2005. Filed August 31, 2005. Marilyn E. Bednarski, Kaye McLane & Bednarski, Pasadena, CA, for the defendant-appellant. Antoine Raphael, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. CR-03-00712-SJO. Before: B. FLETCHER, RYMER, and FISHER, Circuit Judges. RYMER, Circuit Judge. 1 After Patrick Strobehn, Jr. arrived at the San Dimas branch of Washington Mutual Bank with a shotgun, he approached Victory Le, a security guard, from the rear. The guard was patrolling in front of the bank near the parking lot. Strobehn ordered Le to turn around, walk toward the bank, open the door, go inside, and lie face down on the floor. Within 45 seconds, Strobehn had robbed the bank of $8,144. Thanks to a tip from a (former) friend, Strobehn was eventually apprehended and charged with armed bank robbery with forced accompaniment…

After Patrick Strobehn, Jr. arrived at the San Dimas branch of Washington Mutual Bank with a shotgun, he approached Victory Le, a security guard, from the rear. The guard was patrolling in front of the bank near the parking lot. Strobehn ordered Le to turn around, walk toward the bank, open the door, go inside, and lie face down on the floor. Within 45 seconds, Strobehn had robbed the bank of $8,144. Thanks to a tip from a (former) friend, Strobehn was eventually apprehended and charged with armed bank robbery with forced accompaniment in violation of 18 U.S.C. §§ 2113 (a), (d) and (e), and with use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924 (c). He was convicted and now contends that the evidence was insufficient to prove the forced accompaniment charge under *1019 § 2113(e) because the asportation was insubstantial. We conclude that Strobehn forced accompaniment without consent, which is what § 2113(e) requires. As we see no abuse of discretion in the evidentia-ry rulings about which Strobehn also complains, we affirm.

I

Section 2113(e) applies to bank robberies and provides for enhanced punishment for aggravated conduct, as…

dissenting.

I respectfully dissent from the denial of Strobehn’s insufficient evidence claim. Section 2113(e) increases the minimum penalty for bank robbery from no minimum to ten years imprisonment for certain aggravating conduct — killing or forced accompaniment without consent. The question here is what conduct qualifies as forced accompaniment under § 2113(e) and thereby subjects the defendant to the significantly harsher minimum penalty that the provision mandates. There is little direct authority in the Ninth Circuit. However, the first circuit to address this question, the Tenth Circuit, held that Congress intended for § 2113(e)’s significant sentence enhancement to apply only to bank robbers who engaged in significantly aggravating conduct — as opposed to any forced accompaniment regardless of sub-stantiality or culpability. United States v. Marx, 485 F.2d 1179, 1186 (10th Cir.1973). In addition, Judge Tashima, while a district court judge, decided United States v. Sanchez, 782 F.Supp. 94 (C.D.Cal.1992) (Tashima, J.). He concluded that “kidnapping under § 2113(e) requires asportation of the victim that is not insubstantial” and held that forcibly moving a bank teller from…