This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

U.S. Supreme Court,
Constitutional Law

Sep. 11, 2014

Justices consider statutory text limits

Can a person be guilty of federal bank fraud even where his scheme contemplates no deception of a bank?

4th Appellate District, Division 2

Michael J. Raphael

Associate Justice, 4th District Court of Appeal

Yale Law School

Can a person be guilty of federal bank fraud even where his scheme contemplates no deception of a bank? Can a person be guilty of "forced accompaniment" during a bank robbery where, hiding from the police, he directs a person into a room of her own home?

These questions are raised in U.S. Supreme Court cases in the immediate past and upcoming terms, and they have something in common. In each, the plain meaning of a statute's text arguably compels a conviction. Yet in each the defendant argues that that text sweeps in some conduct that Congress never intended to criminalize.

Monday's column explored two Supreme Court cases in which the text of a criminal statute arguably has been applied in a wholly different context than Congress contemplated. Today's cases involve the crime's anticipated context yet facts that are (arguably) so remote or minimal that Congress did not intend to cover them.

First, consider bank fraud without deception of a bank. In its June opinion in Loughrin v. United States, the court dealt with one of the two prongs of the federal bank fraud statute, 18 U.S.C. Section 1344(2), which makes it a crime to obtain a bank's funds "by means of false or fraudulent pretenses, representations, or promises."

Kevin Loughrin was convicted by a jury under that statute after he executed a scheme wherein he stole checks from the mail, altered them, and then used them at Target. He thus did not directly make false representations to a bank, but, under the language of the statute, he appeared to commit federal bank fraud because Target cashed the checks.

Loughrin argued for an instruction requiring the jury find that he intended to defraud a bank, even though that requirement is nowhere in the statute. Without such an instruction, he claimed, all manner of run-of-the-mill fraud would constitute federal bank fraud if a check was involved.

For instance, if a seller represented to a check-paying buyer that she was purchasing a designer purse, yet the item was actually a knock-off, the seller would be committing bank fraud - even though the check was itself not fraudulent. Loughrin claimed that Congress could not possibly have meant for this remote conduct to be federal bank fraud.

The 10th U.S. Circuit Court of Appeal disagreed, holding that the breadth of the law was "dictated by the plain language of the statute." In the Supreme Court, the government likewise acknowledged the unsettling statutory breadth, yet argued that this was simply the statute Congress passed.

In an opinion for seven justices, Justice Elena Kagan upheld the conviction yet limited the statute. She found that the statute contained a textual limitation that avoided the cases that "Loughrin hopes will unnerve us."

Kagan wrote that the statutory requirement that the bank property be taken "by means of" the fraud excluded crimes where no false or fraudulent pretense was presented to the bank. In such a case, while the fraud might be a "but-for" cause of the defendant's ultimately obtaining the bank's funds, the false statements would not be the "means" of obtaining the funds. Thus, under Loughrin, the knock-off purse crime does not constitute federal bank fraud, whereas since Loughrin's bad checks were actually to be presented to the bank by Target, they were the "means" of obtaining bank funds.

Justice Antonin Scalia disagreed with the majority's approach, authoring a concurring opinion for himself and Justice Clarence Thomas. Scalia was skeptical of Kagan's construction of the "by means of" language. He would have affirmed Loughrin's conviction based on the plain text of the statute, leaving questions about whether the statutory text limits other prosecutions for the future.

In all, Loughrin took seriously a claim that the meaning of the text of the bank fraud statute swept in conduct that Congress did not intend to be included, yet the court rescued the statute by finding limiting language. That limitation was neither applied by lower courts nor proposed in the briefing.

In the upcoming term, the question of whether limitations should be placed upon a broad-sweeping provision will return in Whitfield v. United States.

Whitfield concerns the "forced accompaniment" offense in the federal bank robbery statute, 18 U.S.C. Section 2113(e). Generally, a bank robber faces a maximum sentence of 20 years, though most robbers receive well below that. If, however, a robber "forces any person to accompany him" in the course of the robbery or while in flight, he faces an additional 10-year mandatory sentence. An example of such a defendant is a robber who takes a hostage at gunpoint.

In September 2008, 20-year-old Larry Whitfield and an accomplice attempted to rob a credit union in North Carolina armed with guns. But they never made it past the lobby. A metal detector triggered an automatic lock on the inner door, barring their entry. They fled, discarding their firearms.

To hide, Whitfield entered the unlocked home of an infirm 79-year-old woman, Mary Parnell. He directed her to a room where they would be out of view of the police. He then fled the home. Parnell later was found dead of a heart attack in the room.

A jury convicted Whitfield of not just bank robbery and attempted bank robbery, but also forced accompaniment.

Whitfield argued that merely guiding an elderly woman to another room was not substantial enough conduct to support the forced accompaniment conviction. The 4th U.S. Circuit Court of Appeals disagreed: "Although Whitfield required Mrs. Parnell to accompany him for only a short distance ... and for a brief period ... no more is required to prove that a forced accompaniment occurred." Because the Supreme Court granted certiorari, however, it is likely that some justices think otherwise.

The only appellate case to have held that accompaniment was so minor as to be insufficient was decided over 40 years ago. United States v. Marx, 485 F.2d 1179 (10th Cir. 1973). Yet the most robust judicial defense of the concept came in a more recent dissent by the late Judge Betty Fletcher of the 9th U.S. Circuit Court of Appeals. In United States v. Strobehn, 421 F.3d 1017 (2005), the bank robber was convicted with evidence that he ordered a security guard to walk into the bank and lie down on the floor. The majority upheld the conviction, stating that the plain text of the statute contained no exception for accompaniment of short duration or distance.

Fletcher's dissent argued that the meaning of the statute was not in fact "plain" because it was silent as to the degree of forced accompaniment necessary, as it did not state that "any" forced accompaniment would do. In context of the entire statute, Fletcher reasoned, Congress intended to require "substantial" forced accompaniment. The statute enhanced the punishment for a basic bank robbery for a forced accompaniment by more than it did for an assault or use of a dangerous weapon, and it applied the same punishment for forced accompaniment as it did for homicide. Further, Fletcher argued that the legislative history showed that Congress was concerned with kidnapping or hostage-taking - and the initial draft of the legislation even imposed the death penalty for forced accompaniment.

Fletcher's dissent, of course, did not carry the day. Just last month the 9th Circuit relied on Strobehn in affirming a forced accompaniment conviction where the robber of a credit union trailer pushed a teller who opened the door for him back into the trailer while the robbery occurred. United States v. Carr, 2014 DJDAR 10259 (Aug. 4, 2014).

Whitfield will be argued Dec. 2. The justices may have one of three views toward the language in the statute. First, they may see a textual limitation in the term "forces any person to accompany him," so that Whitfield did not "force" Parnell to "accompany" him. This is the type of textual limitation Kagan found in interpreting the "means" requirement in Loughrin. Secondly, justices may apply a context-based limitation that requires substantial forced accompaniment, as Fletcher suggested. This is the type of limitation that the court applied this June in Bond v. United States, discussed Monday. Finally, justices may simply conclude that the plain text sweeps as broadly as the appellate courts have concluded.

In each of these four Supreme Court cases discussed in this series, the Court of Appeals saw the statutory issue as a simple one worthy of little discussion: The plain meaning of the statutory text criminalized the defendant's conduct, so he was guilty. In contrast, in each case, some Supreme Court justices appear to be finding gaps between the meaning of the unadorned text and what Congress actually intended. This dynamic brings to mind an observation by Justice Felix Frankfurter over 70 years ago: "the notion that because the words of a statute are plain the meaning is also plain, is merely pernicious over-simplification." United States v. Monia (dissenting opinion).

The construction of the plain text of criminal statutes currently is fertile ground in the Supreme Court, and lawyers and judges interested in statutory interpretation may wish to watch Larry Whitfield's fate.


Submit your own column for publication to Diana Bosetti

For reprint rights or to order a copy of your photo:

Email for prices.
Direct dial: 949-702-5390

Send a letter to the editor: