Argument preview: Parsing “accompany” in the federal bank robbery statute
One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum. Tomorrow the Court will hear oral arguments on how broadly this provision should apply – and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another. Tomorrow’s hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead – like last month’s Yates v. United States and last Term’s Bond v. United States – as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority.
Six years ago, Larry Whitfield and Quanterrious McCoy decided to rob a credit union. They didn’t get very far. A metal detector at the entrance of the credit union triggered an automatic lock on the inner doors to the building, and the two men fled – first in a car and then, after the car crashed, on foot. After abandoning his guns in the woods, Whitfield entered the home of Mary Parnell, a seventy-nine-year-old woman with a history of heart disease and high blood pressure. After reassuring Parnell that he was unarmed and didn’t intend to hurt her, Whitfield asked her to move with him from the hallway into the home’s computer room – a distance of between four and nine feet – so that the police wouldn’t see him.
Whitfield then telephoned a friend, asking her to give him a ride. While he was on the phone, Parnell began to have difficulty breathing; she suffered a heart attack and died. Whitfield ran from the house and hid in the woods, where police eventually found him.
Whitfield was indicted on four different counts related to the attempted robbery of the credit union. The charge now at issue before the Court alleged that, in violation of Section 2213(e), Whitfield forced Parnell to accompany him – from the hallway to the computer room – without her consent. The trial court instructed the jury that the requirements of the statute could be met if Whitfield forced Parnell “to move from one part of a building to another against her will”; the government did not have to show that Whitfield “crossed a property line, moved [Parnell] a particular number of feet, held [her] for a particular period of time, or placed [her] at a certain level of danger.”
The jury found Whitfield guilty on (among others) the “forced accompaniment” count, and he was eventually sentenced to twenty-two years in prison for that conviction. On appeal, the U.S. Court of Appeals for the Fourth Circuit rejected his argument that he could not be convicted of “forced accompaniment” because he had only required Parnell to move a few feet within her own home, and only for a short period of time: the lower court concluded that “no more is required to prove that a forced accompaniment occurred.” The Supreme Court then granted review, presumably to resolve a split among the courts of appeals on the scope of the “forced accompaniment” provision.
In the Supreme Court, Whitfield argues that the text, history, and purpose of the “forced accompaniment” provision all point in the same direction: it was intended to apply only to the “relatively rare situation in which a defendant forces a victim to travel with him for a substantial distance.” Starting with the text, he argues that Congress’s use of the word “accompany” shows that the statute was only intended to apply when there was “substantial movement.” After all, he suggests, we don’t normally think of “accompanying” someone for a few feet. Moreover, dictionaries from the 1930s, when the statute was passed, reveal that the word “accompany” was normally used in the context of a companion or escort – again, something you wouldn’t have when you are only moving a few feet.
Turning to the structure of the bank robbery statute, Whitfield contends that Congress created a tiered system in which the penalties for various forms of bank robbery increase based on the seriousness of the offense. The “forced accompaniment” charge carries the stiffest penalties, he points out, suggesting that Congress regarded it as the most egregious offense. But, Whitfield continues, as the government and lower court interpret the “forced accompaniment” provision, it would apply to most bank robberies – such as when a bank robber instructs a bank teller to go to the vault and then follows her in – leaving little difference between an ordinary offense and an aggravated one.
Finally, Whitfield asserts, Congress only intended the statute “to cover a narrow set of especially egregious conduct” that would not include the very limited movement at issue in this case. He emphasizes that the bank robbery statute was enacted just a few weeks after the notorious bank robber John Dillinger “committed the latest in a string of highly publicized bank robberies in which he used hostages as human shields while fleeing from the bank.” It was that kind of conduct, he concludes, that Congress was targeting when it imposed such stringent penalties for forced accompaniment.
The federal government counters that the “forced accompaniment” provision clearly applies to Whitfield’s conduct. Both in 1934 and now, it argues, “accompany” meant “to go along with.” Although the word “typically connotes joint movement,” there is no minimum amount of travel required, and it is often used to describe going with someone from one room to the next. Indeed, the government notes, the Supreme Court itself has used the word in that context – describing, for example, a scenario in which police officers asked a suspect “to get dressed and to accompany them into the living room” – as have authors like Charles Dickens, Jane Austen, and Henry James. By contrast, the government declares, Whitfield’s interpretation would “effectively . . . insert words into the statute” by interpreting the “forced accompaniment” provision to apply “only when a bank robber ‘forces any other person to accompany him for a substantial distance.’”
The government insists that its interpretation is also more consistent with the structure of the statute. Whether a bank robber forces someone to leave the bank with him as a hostage or instead just requires that person to accompany him within the bank, such conduct still involves greater physical risks and increased fear and is thus “more culpable than” other forms of bank robberies subject to shorter sentences. The government also stresses that the provision at issue only applies to “forced accompaniment”; it does not apply to “forced movement.” Contrary to Whitfield’s argument, then, it would not apply to a bank robber “who directs employees and customers to move around the bank without accompanying them.” And, significantly, because most bank robberies simply involve the bank robber giving a teller a note demanding money, there is often not even any “forced movement” involved.
In the federal government’s view, it does not matter that the “forced accompaniment” provision may have originally been enacted in response to stories about bank robbers like John Dillinger using bank tellers and customers as human shields. The Supreme Court, the government says, has never limited the language of a statute “to the particular evil that Congress was trying to remedy.” But even if it did matter, Whitfield’s interpretation is still flawed because it would be under-inclusive: it would not apply to the use of “human shields within the bank and its immediate vicinity.”
Finally, the government dismisses Whitfield’s interpretation of the “forced accompaniment” provision as requiring the victim to be transported for a “substantial distance” as “vague and unworkable.” Defining “substantial” in terms of a specific distance measured in feet or yards would be arbitrary; determining whether the provision applies based on whether the robber forced the victim to accompany him across the threshold of a building would be equally problematic.
At last month’s argument in Yates, Justice Samuel Alito – who is normally the government’s most reliable ally in criminal cases – suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence. Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case. On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm Parnell, she did die. And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.