                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                                REVISED APRIL 29, 2004
                                                                                         April 28, 2004
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                   Charles R. Fulbruge III
                                   FOR THE FIFTH CIRCUIT                                   Clerk
                                       --------------------
                                         No. 03-40444
                                       --------------------

                                UNITED STATES OF AMERICA,
                                      Plaintiff-Appellee,

                                               versus

                                  BRYAN WORLEY BELLEW,
                                     Defendant-Appellant.

                                          --------------------
                            Appeal from the United States District Court
                             for the Eastern District of Texas, Sherman
                                          --------------------

Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

       In this direct criminal appeal, Bryan Worley Bellew, Appellant, challenges his conviction

of attempted bank robbery under 18 U.S.C. § 2113(a) and of carrying a firearm during the

attempted bank robbery under 18 U.S.C. § 924(c). For the reasons that follow, we reverse the

district court and remand the case with instructions for the district court to enter a judgment of

acquittal on both counts.

                                          I. Background

       On the morning of April 5, 2002, Bellew entered the lobby of the First Independent

National Bank (the “Bank”) in Plano, Texas. He was wearing what was described by Bank

employees as an “obvious wig” and he carried a briefcase. It was later determined that in the

briefcase Bellew was carrying a firearm, instructions he had written to himself on how to rob the
Bank, and a demand note. Upon entering the Bank, Bellew asked to speak with the manager. The

receptionist told Bellew that the manager was busy and asked him to sit and wait. After waiting

for a few minutes, Bellew left the Bank, advising a Bank employee that he would return. Upon

Bellew’s return, the manager was still unavailable. Bellew was told that he could meet with the

manager that afternoon.

       The Bank manager called the police after a Bank employee relayed an account of Bellow’s

suspicious activity. The police arrived and spoke with the manager at the rear of the bank. While

speaking with the police, the manager observed Bellew walking toward the Bank.

       Upon noticing the police, Bellew ran across the street to his vehicle. When confronted by

the police at his vehicle, Bellew reached into his briefcase and retrieved a firearm. He promptly

put the weapon to his own head.

       After an approximately three-hour standoff with police, Bellew dropped his gun and

kicked it away. Bellew was immediately taken into custody. While being interrogated by police,

Bellew admitted that he had intended to rob the Bank.

       Bellew was initially charged with attempted bank robbery in a one-count indictment. This

indictment was later superseded by a two-count indictment adding a second count of carrying a

firearm during an attempted bank robbery.

       A jury convicted Bellew on both counts. Bellew moved for a judgement of acquittal. The

district court denied the motion. Notice of appeal was timely filed.

       The issue we resolve here was presented by Bellew as a claim of insufficiency of the

evidence to support a conviction under the first count of the indictment, a violation of the first




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paragraph of 18 U.S.C. § 2113(a).1 The evidence supporting this count, however, is largely

undisputed. The question, properly framed, is whether the relevant statutory language upon

which the indictment is based requires an actual act of intimidation or only attempted intimidation

for conviction. Bellew also alleges additional points of error. Because we hold that attempted

intimidation is not sufficient for conviction under the segment of the statute relied upon in the

indictment, and we reverse Appellant’s conviction accordingly, we do not address any other

aspect of Appellant’s appeal.

                                              II. Analysis

                                         a. Standard of review

          The district court’s denial of a post-trial motion for a judgment of acquittal is reviewed de

novo. United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998). The standard of review for

sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case,

however, the lynchpin is the purely legal determination of whether a defendant must actually

commit an overt act of intimidation to be convicted or whether attempted intimidation is

sufficient. As such, a de novo standard applies. See, e.g., Elder v. Holloway, 510 U.S. 510, 516

(1994).

                                           b. The indictment

          The first count of the superceding indictment charges in relevant part that Bellew “did by
          1
              Bellew also argues that there is insufficient evidence to support his conviction on
the weapon possession count. Because the weapon possession count is linked to the attempted
bank robbery count, a judgment of acquittal as to the attempted bank robbery count necessitates a
judgment of acquittal on the weapon possession count.

                                                    3
force, violence and intimidation, intentionally attempt to take from the person and presence of

another, money belonging to and in the care, custody, control, management and possession of [the

Bank].” This language tracks the first paragraph of 18 U.S.C. § 2113(a). Bellew was not

indicted under the second paragraph of Section 2113(a), though it appears that the facts would

have supported such a charge. Regardless of whether appellant could have been convicted under

the second paragraph, unless it was proved that he violated the required elements of the first

paragraph as charged in the indictment, the conviction must be overturned. See, e.g., United

States v. McGhee, 488 F.2d 781, 784-85 (5th Cir. 1974).

       Title 18, United States Code Section 2113(a) reads:
   Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the
   person or presence of another, or obtains or attempts to obtain by extortion any property
   or money or any other thing of value belonging to, or in the care, custody, control,
   management, or possession of, any bank, credit union, or any savings and loan association;
   or

   Whoever enters or attempts to enter any bank, credit union, or any savings and loan
   association, or any building used in whole or in part as a bank, credit union, or as a
   savings and loan association, with intent to commit in such bank, credit union, or in such
   savings and loan association, or building, or part thereof, so used, any felony affecting
   such bank or such savings and loan association and in violation of any statute of the
   United States, or any larceny–

   Shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C.A. § 2113(a) (West 2003).

       The government’s theory of the case is that Bellew attempted2 to use intimidation to take


       2
                 In general, two things must be proved to convict a defendant of an “attempt.”
“[F]irst, that the defendant acted with the kind of culpability otherwise required for the
commission of the underlying substantive offense, and, second, that the defendant had engaged in
conduct which constitutes a substantial step toward commission of the crime. The substantial step
must be conduct which strongly corroborates the firmness of defendant's criminal attempt.”
United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001); see also United States v. Mandujano,
499 F.2d 370 (5th Cir. 1974). Bellew does not seriously contest that he attempted to steal money
and that, had his plan not been thwarted, he would have used intimidation to do so.

                                                 4
money from the Bank. “The requirement of a taking ‘by force and violence, or by intimidation’

under section 2113(a) is disjunctive. The government must prove only ‘force and violence’ or

‘intimidation’ to establish its case.” United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).

The use of force or violence was not alleged to have been attempted in this case, and the jury

instructions, therefore, related only to intimidation.

        “[I]ntimidation results when one individual acts in a manner that is reasonably calculated

to put another in fear. Thus, from the perspective of the victim, a taking ‘by intimidation’ under

section 2113(a) occurs when an ordinary person in the teller's position reasonably could infer a

threat of bodily harm from the defendant's acts.” Higdon, 832 F.2d at 315. In its brief, the

government did not point to any evidence that showed that Bellew committed any act of

intimidation. At oral argument, the government conceded as much relying instead on the

proposition that attempted intimidation is sufficient for conviction.

                         c. Parsing the elements of 18 U.S.C. § 2113(a)

        “In analyzing a statute, we begin by examining the text, not by psychoanalyzing those who

enacted it.” Carter v. United States, 530 U.S. 255, 271 (2000) (internal quotation and citations

omitted). We, therefore, focus on the relevant text itself, the first paragraph of Section 2113(a).

“Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person

or presence of another...” 18 U.S.C.A § 2113(a) (West 2003).

        One reading of the first paragraph of Section 2113(a) is that a defendant must actually

commit an act of intimidation while wrongfully taking or attempting to take money from the

presence of a person at a bank. That is, the attempt only relates to the taking, not the

intimidation. Another reading, urged by the government, is that all that is required to violate the


                                                   5
statute is for a defendant to attempt to intimidate while attempting to rob a bank. The issue has

been squarely addressed in published opinions in two circuits. Both circuits held that an attempt

to intimidate was sufficient for conviction.

        We find the “actual act of intimidation” reading to be the most natural reading of the text.

This reading is supported by relevant binding case law. We, therefore, reject the opposing

interpretation given this text by our sister circuits.

        Lending support to the position that an actual act of intimidation is required for conviction

is the way in which this Court has previously delineated the elements of a violation under

paragraph one of Section 2113(a). “In order to prove a violation of 18 U.S.C. § 2113(a), the

Government must prove: (1) an individual or individuals (2) used force and violence or

intimidation (3) to take or attempt to take (4) from the person or presence of another (5) money,

property, or anything of value (6) belonging to or in the care, custody, control, management, or

possession (7) of a bank, credit union, or savings and loan association.” United States v.

McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994); see also United States v. Burton, 126 F.3d 666,

670 (5th Cir. 1997); United States v. Baker, 17 F.3d 94, 96 (5th Cir. 1994); United States v. Van,

814 F.2d 1004, 1005-06 (5th Cir. 1987). The defendant in McCarty succeeded in actually

removing the money from the bank and was charged with bank robbery, not attempted bank

robbery. The distinction between attempted robbery and actual robbery, however, is irrelevant

because the elements listed in McCarty include those of attempted bank robbery. Furthermore, the

statute makes no such distinction.3
        3
                The government also correctly notes, in arguing in favor of affirming the district
court as to one of Bellew’s other claims, that the Supreme Court, in a case discussing whether
general or specific intent is required under the first paragraph of Section 2113(a), made no
distinction between an attempted bank robbery and a consummated bank robbery. See Carter,

                                                    6
       As the statute has been parsed in this circuit, we have no doubt that the government

proved all but the second element. The fact remains, however, that Bellew did not use “force and

violence or intimidation.” As such, the government failed to prove the second element.

       Supporting this parse of the elements, the Eighth Circuit approved of a district court’s use

of jury instructions including the following charge:

    “A taking, or an attempted taking, ‘by intimidation’ must be established by proof of one
   or more acts or statements of the accused which were done or made, in such a way or
   manner, and under such circumstances, as would produce in the ordinary person fear of
   bodily harm.”
United States v. Brown, 412 F.2d 381, 384 n.4 (8th Cir. 1969) (quoting the district court’s jury

instruction, in turn quoting Mathes and Devitt, FEDERAL JURY PRACTICE AND INSTRUCTIONS §

43.05 (1965)). Had the district court in this case instructed the jury in a similar fashion, requiring

proof of one or more acts or statements, but only requiring an attempt as to the taking itself,

Bellew would have been acquitted.4

       Also supporting to the “actual act of intimidation” argument is a widely-cited district court

opinion entered after a bench trial, United States v. Baker, 129 F. Supp. 684 (S.D. Cal. 1955).

This opinion was relied upon by the Eighth Circuit in Brown. Without any citation to authority

the district court noted that “[i]t is apparent that in [the first paragraph of 18 U.S.C. § 2113(a)]


530 U.S. at 269.
       4
                 We note that the district court’s instructions to the jury first went through the
elements of bank robbery, removing altogether the attempt language from the elements. The
district court then gave a separate general instruction on “attempts” indicating that an attempt to
commit bank robbery was sufficient for conviction. In either an attempted or successful bank
robbery, indicted under the first paragraph of Section 2113(a), we see no reason to deviate from
the elements enumerated in McCarthy. The attempt portion of the instruction can be given as a
definition much in the same way “knowingly” is defined in jury instructions in drug possession
cases. This would allow for the integration of our case law regarding attempts with the only
element of the crime to which attempt is relevant, the taking or attempted taking of money.

                                                  7
the ‘attempt’ relates to the taking and not to the intimidation” Baker, 129 F. Supp. at 686. The

court convicted the defendant even though the defendant apparently did not attempt to intimidate

anyone, but nonetheless actually did commit acts of intimidation against a teller, in a failed

attempt to steal money from a bank.

      d. Legislative history and the addition of the second paragraph of Section 2113(a)

       The second paragraph of Section 2113(a) was added by Congress in an effort to cover

precisely the sort of events that occured in this case. “It is a fair inference from the wording in the

Act, uncontradicted by anything in the meager legislative history, that the unlawful entry provision

was inserted [as the second paragraph of Section 2113(a)] to cover the situation where a person

enters a bank for the purpose of committing a crime, but is frustrated for some reason before

completing the crime.” Prince v. United States, 352 U.S. 322, 328 (1957).

       While not dispositive, the addition of this paragraph implies that Bellew properly should

have been charged under the second paragraph of Section 2113(a). This is all the more true in

light of the fact that Congress intended the same punishment for a conviction under either

paragraph. See Prince, 352 U.S. at 328; see also Brown, 412 F.2d at 383. In any case, the

troubling result our interpretation of the first paragraph of Section 2113 creates, prohibiting

conviction under the first paragraph of Section 2113 absent an actual act of intimidation, is

obviated by the availability of the second paragraph covering such acts.

            e. The opposing interpretation of the first paragraph of Section 2113(a)

       The only courts to have squarely addressed whether attempted intimidation is sufficient for

conviction in a published opinion are the Second and Fourth Circuits. In United States v. Jackson,

“relying on United States v. Baker, 129 F. Supp. 684 (S.D. Cal. 1955), [the defendant-appellant]


                                                  8
contend[ed] that since [Section 2113(a)] only mentions attempted taking and not attempted force,

violence, or intimidation, it clearly contemplates that actual use of force, violence, or intimidation

must precede an attempted taking in order to make out the offense of attempted bank robbery.”

United States v. Jackson, 560 F.2d 112, 116 (2d Cir. 1977).5 The court rejected this contention

based upon an earlier Second Circuit panel opinion, United States v. Stallworth, 543 F.2d 1038

(2d Cir. 1976).

       In Stallworth, the court called similar logic “wooden,” though that characterization was

apparently in the context of the second paragraph of Section 2113(a). See 543 F.2d at 1040. The

defendants in Stallworth claimed that they were guilty of conspiracy, but not of entering a bank

with intent to steal because they were foiled before they entered the bank. Whether the Second

Circuit panel in Jackson misapplied Stallworth, the Jackson panel did explicitly reject the idea that

attempted intimidation was insufficient. The panel did this, however, without analyzing the text

of Section 2113(a).

       Likewise without analyzing the relevant text of the statute, the Fourth Circuit followed the

Second Circuit’s Jackson opinion, and held that attempted use of force is sufficient for conviction

under Section 2113(a), and that actual use of force is not required. United States v. McFadden,

739 F.2d 149, 152 (4th Cir. 1984).6

       5
                The Jackson defendants apparently were indicted only under the first paragraph
of Section 2113(a).
       6
               It should also be noted that the Eighth Circuit, relying on McFadden, affirmed a
conviction where, pursuant to a tip, the police thwarted an attempted burglary while the
defendants were outside of the bank because the defendants had taken substantial steps toward
completing their crime. United States v. Crawford, 837 F.2d 339, 340 (8th Cir. 1988). The issue
of whether actual force or intimidation is required to convict under the first paragraph of Section
2113(a) was not raised by the defendants. This may be because they were probably charged under
the second paragraph of Section 2133(a). Therefore, while the Eighth Circuit did rely on the

                                                  9
       We note that the availability of the second paragraph of Section 2113(a) for use in cases

similar to that presented here likely explains why only two reported cases deal with the first

paragraph in similar circumstances, the most recent reported twenty years ago. While we

acknowledge creating a circuit split, and do so hesitatingly, we trust that the prospective impact

of the split will be minimal to non-existent because the availability of the second paragraph of

Section 2113(a) would allow for a conviction under the facts presented here. Unfortunately for

the government, the indictment did not charge an offense under the second paragraph.

                                          III. Conclusion

       The issue presented in this case has only been addressed directly in two published opinions

in our sister circuits, both of which held that attempted intimidation or attempted force is

sufficient for conviction. In those opinions, however, there is no analysis of the text of the statute

itself. A natural reading of the text of the statute, considered along with opinions of this and

other courts lending support to the reading, and the legislative history – as interpreted by the

Supreme Court – indicating that Congress added the second paragraph to the statute to cover this

type of circumstance, all serve to indicate that the statute requires more than attempted

intimidation for conviction.

       Accordingly, we must reverse Appellant’s conviction and remand this case to the district

court for entry of a judgment of acquittal on the first count of the superseding indictment.

Because Bellew’s conviction on the second count, carrying a weapon while committing the

attempted bank robbery, necessarily hinges on his conviction of attempted bank robbery, we also

must reverse and instruct the district court to enter a judgment of acquittal as to the second count.

substantial step analysis used in McFadden, the Eighth Circuit did not follow the holding that only
attempted intimidation needs to be proved for conviction of attempted bank robbery.

                                                 10
       REVERSED and REMANDED with instructions for entry a judgment of acquittal as to

both counts.




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