                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0365p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 07-3944
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 LAVELLE PARKS,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Southern District of Ohio at Columbus.
                No. 03-00213—John D. Holschuh, District Judge.
                                  Submitted: April 29, 2009
                          Decided and Filed: October 16, 2009
                Before: MERRITT, COOK, and WHITE, Circuit Judges.

                                    _________________

                                        COUNSEL
ON BRIEF: Richard A. Cline, RICHARD A. CLINE & CO., LLC, Columbus, Ohio, for
Appellant. David M. DeVillers, J. Michael Marous, ASSISTANT UNITED STATES
ATTORNEYS, Columbus, Ohio, for Appellee.
         MERRITT, J., delivered the opinion of the court. WHITE, J. (pp. 9-11), delivered
a separate concurring opinion. COOK, J. (p. 12), delivered a separate opinion concurring
in part and dissenting.
                                    _________________

                                         OPINION
                                    _________________

        MERRITT, Circuit Judge. On December 2, 2003, three men robbed a bank in
Pataskala, Ohio, while their getaway driver, Lavelle Parks, waited outside. The men made
off with $5,347, and a high-speed chase ensued. While trying to evade police, Parks crashed
the getaway car into another vehicle, resulting in the death of Daryl Williams, one of Parks’s
passengers and co-participants.


                                              1
No. 07-3944           United States v. Parks                                                     Page 2


         This case raises two questions of statutory construction with regard to a provision
of the federal bank robbery statute, 18 U.S.C. § 2113(e). First, what mens rea, if any, does
the government need to prove to establish a violation of § 2113(e), which punishes anyone
who, in “attempting to avoid apprehension for [a bank robbery], . . . kills any person”?
Second, what is the minimum penalty for such a killing? Though distinct, these questions
are intertwined in at least one important respect: if, as the prosecution asserts, the minimum
penalty for violating the statute is life imprisonment, a court should be less inclined to
conclude that the statute itself dispenses with any mens rea requirement, since “the penalty
imposed under a statute has been a significant consideration in determining whether the
statute should be construed as dispensing with mens rea.” Staples v. United States, 511 U.S.
600, 616 (1994). The District Court, while expressing reluctance to impose a life sentence,
believed that United States v. Poindexter, 44 F.3d 406 (6th Cir. 1995), controlled the
                                                                                                       1
outcome of this case and required a mandatory life sentence for even an accidental killing.
The parties did not point out to the District Court that the language of the statute
interpreted in Poindexter is different from the language of the statute we interpret here.
Because Poindexter interpreted an earlier version of the statute, which said nothing
about life imprisonment, we vacate Parks’s sentence and remand the case to the District
Court for reconsideration. Because Judges Cook and White agree that the conviction
under § 2113(e) must be upheld and Judge White and I agree that the sentence must be
reversed, our judgment in this case is that the conviction is affirmed but the sentence is
vacated and the case remanded for reconsideration.




         1
           See United States v. Parks, 411 F. Supp. 2d 846, 848-49 (S.D. Ohio 2005) (“Although I . . . am
required to follow the appellate court’s opinion in the Poindexter case, an argument could be made that
Congress intended the enhanced penalty provisions of 18 U.S.C. § 2113(e) to apply to those cases in which
a defendant murders or kidnaps an innocent person in connection with a bank robbery, and not to a
situation in which an accomplice is accidentally killed in a car accident during the attempted getaway.
Such argument would be based, in part, on the legislative history of the statute which shows that it was
intended to apply to cases in which ‘murder or kidnapping [is] committed’ in connection with a bank
robbery.”) (quoting H.R. No. 1461, 73rd Cong., 2d Sess. (1934)).
No. 07-3944           United States v. Parks                                                     Page 3


         When 18 U.S.C. § 2113 was passed in 1934, subsection (e) read:

         Whoever, in committing any offense defined in this section, or in
         avoiding or attempting to avoid apprehension for the commission of such
         offense, or in freeing himself or attempting to free himself from arrest or
         confinement for such offense, kills any person, or forces any person to
         accompany him without the consent of such person, shall be imprisoned
         not less than ten years, or punished by death if the verdict of the jury
         shall so direct.
Thus, whoever, while engaged in any one of three bank-robbery-related activities, killed
any person or forced any person to accompany him, would be imprisoned for at least ten
years, with no statutory maximum imposed.                   Notably, this statute permitted the
imposition of the death penalty on a defendant who forced a person to accompany him,
even if that forced accompaniment did not result in the loss of life.

         In Poindexter, a panel of this Court held that Congress “did not intend to add an
additional scienter requirement to the killing component of” § 2113(e). Poindexter,
44 F.3d at 409. In other words, the mens rea for killing a person while fleeing a bank
robbery was, according to Poindexter, strict liability. Under this reading, a person would
seemingly violate § 2113(e) if he jovially slapped his accomplice on the back to
congratulate him on a job well done and thereby inadvertently caused food to lodge in
his windpipe, resulting in his death.2 The Poindexter Court reached this holding by first
stating that a court should follow the plain meaning of a statute, except in rare and
exceptional circumstances. It then consulted the Black’s Law Dictionary definition of
“kill” and noted that it, unlike the definition of “murder,” did not include an element of
scienter. It concluded that “[b]ecause the plain language of the statute says simply
‘kills,’ and not ‘intentionally kills’ or ‘murders,’ the settled principles of construction
direct us to conclude that the legislature did not intend to add an additional scienter
requirement to the killing component of the crime.” Id. at 409.




         2
          Under the prosecution’s reading of Poindexter, even the backseat passengers in the getaway
vehicle would receive mandatory life sentences for “kill[ing]” Williams. This reading was rejected by the
District Court.
No. 07-3944        United States v. Parks                                           Page 4


       This interpretive methodology appears to be in significant tension with a long
line of Supreme Court cases, the twentieth-century progenitor of which is Morissette v.
United States, 342 U.S. 246 (1952). In Morissette, the Court explained that

       [t]he contention that an injury can amount to a crime only when inflicted
       by intention is no provincial or transient notion. It is as universal and
       persistent in mature systems of law as belief in freedom of the human
       will and a consequent ability and duty of the normal individual to choose
       between good and evil. A relation between some mental element and
       punishment for a harmful act is almost as instinctive as the child’s
       familiar exculpatory “But I didn’t mean to,” and has afforded the rational
       basis for a tardy and unfinished substitution of deterrence and
       reformation in place of retaliation and vengeance as the motivation for
       public prosecution. Unqualified acceptance of this doctrine by English
       common law in the Eighteenth Century was indicated by Blackstone’s
       sweeping statement that to constitute any crime there must first be a
       “vicious will.”
Id. at 250-51 (footnotes omitted).

       Because of this unqualified acceptance, “[a]s the states codified the common law
of crimes, even if their enactments were silent on the subject [of intent], their courts
assumed that the omission did not signify disapproval of the principle but merely
recognized that intent was so inherent in the idea of the offense that it required no
statutory affirmation. Courts, with little hesitation or division, found an implication of
the requirement as to offenses that were taken over from the common law.” Id. at 252.
Applying these background principles of interpretation, the Court concluded that
“[c]ongressional silence as to mental elements in an Act merely adopting into federal
statutory law a concept of crime already so well defined in common law and statutory
interpretation by the states may warrant quite contrary inferences than the same silence
in creating an offense new to general law, for whose definition the courts have no
guidance except in the Act.” Id. at 262. Put more concretely, if Congress wants to
eliminate a mental element from its codification of a common law crime, it must state
its intention to do so clearly. See id. at 263; United States v. Hill, 55 F.3d 1197, 1203
(6th Cir. 1995) (“[T]he Supreme Court has required evidence of Congressional intent to
dispense with mens rea as an element of a crime before the Court will do so itself.”).
No. 07-3944            United States v. Parks                                                      Page 5


This principle has been reaffirmed many times since Morissette. See, e.g., United States
v. X-Citement Video, Inc., 513 U.S. 64 (1994); Staples, 511 U.S. at 600; Evans v. United
States, 504 U.S. 225 (1992). Poindexter’s statement that, because Congress did not say
“intentionally kills,” the statute must be read to reach unintentional killings, seems
irreconcilable with Morissette’s interpretive methodology.3

         But even if Poindexter and Morrissette could theoretically be harmonized,4 the
precedential value of Poindexter for the sentence in this case has been vitiated by the
1994 amendment of § 2113(e), which struck out the final 13 words and replaced them
as follows:

         Whoever, in committing any offense defined in this section, or in
         avoiding or attempting to avoid apprehension for the commission of such
         offense, or in freeing himself or attempting to free himself from arrest or
         confinement for such offense, kills any person, or forces any person to
         accompany him without the consent of such person, shall be imprisoned
         not less than ten years, or punished by death if the verdict of the jury
         shall so direct, or if death results shall be punished by death or life
         imprisonment.
This amended version now states, in relevant part, that “[w]hoever, in . . . attempting to
avoid apprehension for the commission of [a bank robbery], . . . kills any person . . . shall
be imprisoned not less than ten years, or if death results shall be punished by death or


         3
           The Poindexter court also seemed to believe that the choice was binary: the law must require
either that the defendant specifically intended to kill, or must require no mens rea at all. But an
intermediate mens rea, such as reckless indifference to human life, could also be inferred. This means that
Parks would not necessarily be able to escape conviction under § 2113(e) just because he (apparently) did
not intend to kill Williams.
         4
            It may be, for example, that § 2113(e) contains no mens rea requirement because it presupposes
some criminal intent related to the underlying bank robbery. See Dean v. United States, 129 S.Ct. 1849,
1855 (2009) (“It is unusual to impose criminal punishment for the consequences of purely accidental
conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful
acts.”). It does not follow from Dean, however, as the dissent asserts, that § 2113(e) necessarily lacks any
mens rea element simply because “the underlying felony (here robbery) supplies the mens rea required
for the killing. Courts have often found a mens rea element satisfied whenever the illegal act is committed
in the course of a felony. But see Guyora Binder, The Origins of American Felony Murder Rules, 57
STAN. L. REV. 59, 63 (2004) (explaining that the received wisdom about the felony murder rule is “a
myth,” and that “Americans did not receive any felony murder rules from England, for the simple reason
that there was no common law felony murder rule at the time of the American Revolution”). But that is
not to say that any harm that occurs during the course of a felony automatically lacks an independent mens
rea requirement. Were that so, Dean itself would have been a much easier case. At any rate, the point is
that even if § 2113(e) can ultimately be read to impose strict liability, the case should be remanded to
reevaluate the statute in light of its amendment.
No. 07-3944        United States v. Parks                                           Page 6


life imprisonment.” Read literally, this suggests that a killing carries a mandatory
minimum sentence of ten years, but a killing in which death results carries a mandatory
minimum sentence of life imprisonment. Needless to say, this purports to set out a
nonsensical distinction, since every killing, by definition, results in death.

       The history of this amendment sheds some light on the introduction of this
ambiguity. When the District Court reconsiders this case, we would point out for its
consideration the fact that § 2113(e) was amended as part of the Federal Death Penalty
Act, which appeared as Title VI of the Violent Crime Control and Law Enforcement Act
of 1994. The Federal Death Penalty Act creates a structured system of mitigators and
aggravators — including provisions concerning the intention of the defendant and the
nature of the crime — to be used in determining “whether the defendant should be
sentenced to death, to life imprisonment without possibility of release or some other
lesser sentence.” 18 U.S.C. § 3593(e). In addition to introducing this structured system,
the Violent Crime Control and Law Enforcement Act amended fourteen sections of title
18 of the U.S. Code to bring them into conformity with the new law:

       (a) CONFORMING CHANGES IN TITLE 18 — Title 18, United States
       Code, is amended as follows:
       ....
       (9) BANK ROBBERY — Section 2113(e) of title 18, United States
       Code, is amended by striking “or punished by death if the verdict of the
       jury shall so direct” and inserting “or if death results shall be punished
       by death or life imprisonment”.

Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355, 103d Cong.,
§ 60003 (1994). This suggests that the amendment to § 2113(e) was primarily intended
to bring it into compliance with the criteria for death-eligibility set out in § 3591,
principally by altering the rule that a death sentence could be imposed whenever “the
verdict of the jury shall so direct,” including for a non-fatal forced accompaniment. The
House Report accompanying the bill corroborates this interpretation, noting that
“Section 2(a)(7) conforms section 2113(e) of title 18, United State Code, bank robbery
where death results, by eliminating an obsolete and unconstitutional procedure, thereby
incorporating the new comprehensive death penalty procedures.” H.R. REP. NO. 103-
No. 07-3944         United States v. Parks                                           Page 7


466, at 21 (1994). These sources suggest that the amendment was intended to harmonize
§ 2113(e) with the constitutional limits the Supreme Court has placed on the death
penalty (e.g., the unavailability of the death penalty for the crime of forced
accompaniment that does not result in death) and with Congress’s overarching death
penalty legislation, codified at 18 U.S.C. §§ 3591-3599, so that the two statutes should
be considered in pari materia.

        Even if we leave aside the pari materia requirement that the bank robbery and
death penalty provisions be construed with reference to each other, the Poindexter case
is clearly distinguishable from this case as to the sentence. In Poindexter, the court was
dealing with a ten-year sentence for an unintended car-crash death during the getaway
from a robbery. The robbery itself without the death would have carried an offense level
of 26, which corresponds to a recommended sentence between five and twelve years,
depending on criminal history. See U.S. Sentencing Guidelines Manual § 2B3.1 and
Sentencing Table. In Poindexter, the additional imprisonment needed to get to the ten-
year minimum would have probably been zero to three years, so that reading mens rea
out of the statute apparently had little effect on the ultimate sentence. But eliminating
mens rea when the sentence is life instead of ten years makes no sense whatever and is
contrary to the principle quoted from the Staples case in the second paragraph of this
opinion.

        It is perhaps understandable that the parties, both in the court below and in this
court, could have completely missed the relationship between the amendment to
§ 2113(e) in 1994 and the Federal Death Penalty Act, since the separate codification of
the two in different parts of the United States Code does not make the relationships clear.
But they should have caught the fact that the 1994 Amendment changed the language
of the statute interpreted in Poindexter, and the recognition of that fact should have led
to legal research showing that the two provisions of the same statute must be read
together and that Poindexter and this case are not the same. We return the case to the
District Court so that counsel can more fully assist the District Court in deciding the
case. In so doing, the parties should also consider the applicability of the rule of lenity,
No. 07-3944       United States v. Parks                                        Page 8


which “requires ambiguous criminal laws to be interpreted in favor of the defendants
subjected to them.” United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (plurality
opinion); see also United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009).

       Accordingly, Parks’s conviction is affirmed and sentence is vacated and the case
is remanded for reconsideration.
No. 07-3944        United States v. Parks                                           Page 9


                               ____________________

                                 CONCURRENCE
                               ____________________

       WHITE, Circuit Judge, concurring. I agree with Judge Cook that Parks’s
conviction must be affirmed under this court’s decision in United States v. Poindexter,
44 F.3d 406 (6th Cir. 1995). Whatever the shortcomings of the Poindexter opinion, and
notwithstanding the statutory changes in the penalty provision, Poindexter controls on
the mens rea issue.

       I join in Judge Merritt’s discussion of the sentencing issue, and agree that Parks’s
sentence must be vacated and the matter remanded for resentencing in light of our
opinions and any further arguments made on remand.

       18 U.S.C. § 2113(e), as amended in 1994, is ambiguous on its face:

               Whoever, in committing any offense defined in this
               section, or in avoiding or attempting to avoid
               apprehension for the commission of such offense, or in
               freeing himself or attempting to free himself from arrest
               or confinement for such offense, kills any person, or
               forces any person to accompany him without the consent
               of such person, shall be imprisoned not less than ten
               years, or if death results shall be punished by death or life
               imprisonment.

It is capable of multiple interpretations, none of which is without problems, and none of
which is clearly consistent with Congressional intent.

       One construction, argued by the Government, is that Congress intended to
provide that if a robber forces a person to accompany him, and death does not result, the
minimum punishment is ten years; if a robber kills someone, whether the person was
forced to accompany the robber or not, the robber must be sentenced to either life
imprisonment or the death penalty. Under this construction, the amendment had two
purposes – to bring the section into compliance with Constitutional requirements for
imposing the death penalty and to increase the minimum sentence for a killing in the
No. 07-3944         United States v. Parks                                          Page 10


course of attempting, committing or escaping from a robbery. This construction,
however, ignores the clear inclusion in the amended statute of the former provision that
“[w]hoever, in committing . . ., avoiding, . . . or in freeing himself . . . from arrest or
confinement . . ., kills any person . . . shall be imprisoned not less than ten years...”
Further, while the legislative history supports an intent to meet Constitutional
requirements for imposing the death penalty, no history is cited that sheds light on the
question whether the “if death results” language was intended to increase the mandatory
minimum penalty for a killing, or, alternatively, to limit the applicability of the death
penalty in a forced accompaniment case to situations where the forced accompaniment
results in death.

        A second possible construction, advanced by Parks in his letter brief filed after
argument, is that Congress intended the amended provision to state that if a robber kills
someone, or forces someone to accompany him, in the course of committing, attempting
or escaping from a robbery, he is subject to a minimum term of ten years; if the robber
abducts someone and death results, the robber must be sentenced to life imprisonment
or death. This construction, rather than ignoring Congress’s preservation of the “kills
any person” language preceding the ten-year provision, inserts the clause “from the
forced accompaniment” after “if death results,” where Congress did not.                 This
construction is, however, consistent with the circumstances of the amendment, i.e., to
bring § 2113(e) into compliance with the Supreme Court’s death-penalty jurisprudence,
and recognizes that Congress chose to preserve certain pre-amendment language. It also
gives meaning to all the statute’s provisions, in accordance with United States v.
Menasche, 348 U.S. 528 (1995), and logically argues that “if death results” refers only
to the preceding language that entails the possibility that death might not result, i.e., the
forcible accompaniment language.

        Another possible construction reads the amended statute as continuing to provide
for a ten-year minimum sentence for a killing in the course of a robbery or a forced
accompaniment, but further providing that where there is either a killing or a death
resulting from a forced accompaniment, if the facts bring the case within the ambit of
No. 07-3944         United States v. Parks                                         Page 11


the death penalty provisions, the sentence must be either the death penalty or life
imprisonment, as determined in accordance with the provisions of the Federal Death
Penalty Act, 18 U.S.C. §§ 3591, 3592 and 3593. Under this construction, a robber who
kills someone, but who would not be subject to the death penalty (in this case because
the person killed was a participant in the offense, § 3591(a)(2)(C) and (D)), is not subject
to mandatory life imprisonment, and can be sentenced to any term between ten years and
life. This construction endeavors to attach meaning to all statutory terms and construe
the amended statute in light of the purpose of the amendment.

        All of these constructions are plausible and none is more consistent with the
ambiguous statutory language than the others. Thus, as respects the sentencing issue,
I agree with Judge Merritt that the rule of lenity must enter into the equation on remand.
No. 07-3944          United States v. Parks                                      Page 12


           ____________________________________________________

                 CONCURRING IN PART AND DISSENTING
           ____________________________________________________

       COOK, Circuit Judge, concurring in part and dissenting. Because United States
v. Poindexter continues to control our interpretation of the mens rea requirement in
18 U.S.C. § 2113(e), we affirm Parks’s conviction.

       Poindexter analyzed Section 2113(e) and held that the plain meaning of “kills”
in the phrase “kills any person” includes no scienter element. See Poindexter, 44 F.3d
at 409. Poindexter interpreted a version of Section 2113(e) that Congress has since
amended, but that amendment left undisturbed the portion of the statute relevant to
Poindexter’s mens rea holding. The amendment changed only Section 2113(e)’s
minimum punishment provisions—not the “kills any person” aspect. Thus, regardless
of whether the amendment rendered the statute’s penalty provisions ambiguous,
Poindexter’s interpretation of the mens rea element still holds. See, e.g., United States
v. Parrett, 530 F.3d 422, 430 n.5 (6th Cir. 2008) (despite amendments to 21 U.S.C.
§ 853, court’s prior interpretation controlled because the changes “did not affect the
statutory language on which the . . . court based its decision.”).

       And because Parks failed to challenge his sentence in the district court, I would
not consider sentencing on appeal, and would leave the district court’s sentencing
judgment in place.
