United States of America, Plaintiff-appellee, v. Terrill Douglas Hopkins, Defendant-appellant, 703 F.2d 1102 (9th Cir. 1983)

A jury convicted Hopkins of attempted bank robbery by intimidation in violation of 18 U.S.C. § 2113(a). He appeals.

On March 31, 1982, Hopkins entered a Crocker National Bank and presented a demand note to teller Oliaz. The note stated: "Give me all your hundreds, fifties and twenties. This is a robbery." When Oliaz replied that she had no hundreds or fifties, Hopkins stated: "Okay, then give me what you've got." Oliaz left the teller window, ostensibly to obtain money, and informed several bank employees that she was being robbed. After Oliaz entered the bank vault, Hopkins left the bank in a nonchalant manner. Oliaz testified that during the course of Hopkins' attempt she felt intimidated, frightened, and concerned for her unborn child.

Hopkins first argues that his conduct and demeanor were not sufficiently intimidating to support a conviction for robbery. Although the evidence showed that Hopkins spoke calmly, made no threats, and was clearly unarmed, we have previously held that "express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon [s]" are not required for a conviction for bank robbery by intimidation. United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980). We believe that the threats implicit in Hopkins' written and verbal demands for money provide sufficient evidence of intimidation to support the jury's verdict.

Hopkins next argues that the district court abused its discretion in refusing to modify the Devitt & Blackmar Sec. 44.05 jury instruction on intimidation to conform to this court's suggestion in United States v. Alsop, 479 F.2d 65, 67 n. 4 (9th Cir. 1973). The modified jury instruction set forth in Alsop states, in relevant part, "To take, or attempt to take, 'by intimidation' means wilfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm." Id. (emphasis added). The Devitt & Blackmar instruction adds that "A taking 'by intimidation' must be established by proof of one or more acts or statements, ... under such circumstances, as would produce in the ordinary person fear of bodily harm." Devitt & Blackmar Sec. 44.05 (emphasis added). We believe that the instruction as modified in Alsop more accurately states the law. As in Alsop, however, we cannot conclude that the district court abused its discretion in giving instruction Sec. 44.05 from Devitt & Blackmar. To avoid needless appeals, district courts should, in place of Devitt & Blackmar Sec. 44.05, give the modified version found in Alsop.

Finally, Hopkins argues that he was materially prejudiced by the trial court's refusal to instruct the jury on the lesser offense of attempted bank larceny. There is no general federal "attempt" statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt. United States v. Joe, 452 F.2d 653, 654 (10th Cir.), cert. denied, 406 U.S. 931, 92 S. Ct. 1797, 32 L. Ed. 2d 134 (1972). The bank larceny statute, 18 U.S.C. § 2113(b), does not mention attempts. The district court therefore properly refused to give appellant's proposed instruction.

The judgment of conviction is AFFIRMED.