Opinion · Court of Appeals for the Ninth Circuit

United States v. Terrill Douglas Hopkins

703 F.2d 1102

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1983-04-12
Topic
litigation

How later courts describe this case

  • finding sufficient "intimidation" for robbery when defendant presented teller note stating " '[t]his is a robbery' " and demanding money
  • finding that the threats implicit in written demand of “Give me all your hundreds, fifties and twenties. This is a robbery,” and verbal demand of “give me what you got” provide sufficient evidence of intimidation to support jury’s verdict
  • finding sufficient evidence of “intimidation” for robbery when a man presented the teller a note stating it was a robbery and demanding money
  • noting that § 2113(b) does not criminalize attempt
  • affirming a conviction where the defendant “spoke calmly, made no threats, . . . was clearly unarmed,” and gave the teller a note reading, “Give me all your hundreds, fifties and twenties. This is a robbery.”
  • affirming a conviction though the robber “spoke calmly” and “was clearly unarmed”
  • “[T]he threats implicit in [defendant’s] written and verbal demands for money provide sufficient evidence of intimidation to support the jury’s verdict.”
  • “There is no general federal ‘attempt’ statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt.”

Citator

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Cited by
66 opinions
UNITED STATES v. HOPKINS,703 F.2d 1102(9th Cir. 1983)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. TERRILL DOUGLAS HOPKINS,
DEFENDANT-APPELLANT.
No. 82-1567.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 8, 1983.
Decided April 12, 1983.
Page 1103
John S. Moot, Federal Defender, San Diego, Cal., for defendant-appellant.

Hector E. Salitrero, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Hector E. Salitrero, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ELY, SCHROEDER, and PREGERSON, Circuit Judges.
PREGERSON, Circuit Judge:
[1] A jury convicted Hopkins of attempted bank robbery by intimidation in violation of18 U.S.C. § 2113(a). He appeals.

[2] On March 31, 1982, Hopkins entered a Crocker National Bank and presented a demand note to teller Oliaz. The note stated: "Give me all your hundreds, fifties and twenties. This is a robbery." When Oliaz replied that she had no hundreds or fifties, Hopkins stated: "Okay, then give me what you've got." Oliaz left the teller window, ostensibly to obtain money, and informed several bank employees that she was being robbed. After Oliaz entered the bank vault, Hopkins left the bank in a nonchalant manner. Oliaz testified that during the course of Hopkins' attempt she felt intimidated, frightened, and concerned for her unborn child.

[3] Hopkins first argues that his conduct and demeanor were not sufficiently intimidating to support a conviction for robbery. Although the evidence showed that Hopkins spoke calmly, made no threats, and was clearly unarmed, we have previously held that "express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon[s]" are not required for a conviction for bank robbery by intimidation.United States v.Bingham,628 F.2d 548, 549 (9th Cir. 1980). We believe that the threats implicit in Hopkins' written and verbal demands for money provide sufficient evidence of intimidation to support the jury's verdict.

[4] Hopkins next argues that the district court abused its discretion in refusing to modify theDevitt Blackmar§ 44.05 jury instruction on intimidation to conform to this court's suggestion inUnited States v. Alsop,479 F.2d 65, 67 n. 4 (9th Cir. 1973). The modified jury instruction set forth inAlsopstates, in relevant part, "To take, or attempt to take, `by intimidation' means wilfully to take, or attempt to take, in such a way that would put anordinary, reasonable personin fear of bodily harm."Id.(emphasis added). TheDevitt Blackmarinstruction adds that "A taking `by intimidation' must be established by proof of one or more acts or statements, . . . under such circumstances, as would produce in the ordinary person fear of bodily harm."Devitt Blackmar§ 44.05 (emphasis added). We believe that the instruction as modified inAlsopmore accurately states the law. As inAlsop,however, we cannot conclude that the district court abused its discretion in giving instruction § 44.05 fromDevitt Blackmar.To avoid needless appeals, district courts should, in place ofDevitt Blackmar§ 44.05, give the modified version found inAlsop.

[5] Finally, Hopkins argues that he was materially prejudiced by the trial court's refusal to instruct the jury on the lesserPage 1104offense of attempted bank larceny. There is no general federal "attempt" statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt.United Statesv. Joe,452 F.2d 653, 654 (10th Cir.),cert. denied,406 U.S. 931, 92 S.Ct. 1797, 32 L.Ed.2d 134 (1972). The bank larceny statute,18 U.S.C. § 2113(b), does not mention attempts. The district court therefore properly refused to give appellant's proposed instruction.

[6] The judgment of conviction is AFFIRMED.