Unpublished Disposition, 859 F.2d 155 (9th Cir. 1988)

MEMORANDUM^** 

Johnny Lee King appeals his conviction under 18 U.S.C. § 2113(a) for robbery of a federal savings and loan association, contending that the evidence was insufficient on the question of his specific intent to commit the crime charged. We affirm.

It has long been the law of this Circuit that robbery under section 2113(a) is a general, rather than specific, intent crime, regardless whether committed while armed or unarmed. See, e.g., United States v. Smith, 638 F.2d 131, 132 (CA9 1981) (armed robbery); and United States v. Burnim, 576 F.2d 236, 237 (CA9 1978) (unarmed robbery). While it may be true that the first case to state the above rule did so in dictum, such does not alter the fact that subsequent cases have consistently and expressly held section 2113(a) to be a general intent statute. See, e.g., Smith, 638 F.2d at 132 and cases collected thereat.

The first paragraph of section 2113(a) makes it an offense for anyone "by intimidation, [to] take [ ] ... money ... in the ... possession of ... any savings and loan association [.]" 18 U.S.C. § 2113(a) (in relevant part). The evidence presented at trial was that King handed a note to a teller demanding money, then declared "This is a stick-up. Give me your money!" Upon being handed the cash, King told the teller to call the police. He then carried the money over to a desk in the association's lobby to await the arrival of the police.

Viewing this evidence in the light most favorable to the prosecution, we conclude that sufficient evidence was presented for any rational trier of fact to have found the essential elements of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

The decision of the district court is AFFIRMED.

KOELSCH, Circuit Judge concurring specially:

I am obliged to concur.

Were we writing on the proverbial "clean slate" I would disagree with my brothers and take the position held by other circuits that specific intent is a necessary element of the offense of bank robbery, 18 U.S.C. § 2113(a). See, e.g., United States v. Howard, 506 F.2d 1131 (2nd Cir. 1974); Hamilton v. United States, 475 F.2d 512 (6th Cir. 1973); Caples v. United States, 391 F.2d 1018 (5th Cir. 1968).

However, as noted in the Memorandum, this circuit has consistently held bank robbery not to be a crime requiring mens rea but only a general intent.

Although unable to square the latter decisions with those declaring specific intent to be an essential element of "plain" robbery under a virtually identical statute--18 U.S.C. § 2111, see United States v. Lilly, 512 F.2d 1259 (9th Cir. 1975), I am compelled by the principle of stare decisis to concur in the Memorandum.¹