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The Fourth Circuit Reverses A Life Sentence Based On A Death From A Bank Robbery Gone Bad

It’s exceptionally rare for the Fourth Circuit to reverse a life sentence for someone who caused another person to die in the course of a botched bank robbery. And when the panel that heard the appeal has both Judges Wilkinson, and Niemeyer – whoa nelly – that’s one whopper of a government error.

1097248_guard_with_machine_gun.jpgA Bank Robbery Gone Bad

September 28, 2008 did not turn out the way Larry Whitfield had planned.

His hope was to start the day with a bank robbery. He went to a credit union in North Carolina with a friend, a .357 magnum, and an assault rifle.

As he walked into the credit union’s vestibule, a metal detector in the vestibule locked the inner doors of the credit union. Thwarted, Mr. Whitfield shook the doors of the financial institution.

They did not yield.

Mr. Whitfield and his companion sped away.

A Chase Gone Bad

Mr. Whitfield and his companion separated. Eventually, as the police pursued, he broke into the home of an elderly couple – Herman and Mary Parnell.

Ms. Parnell was home. Mr. Parnell was not.

Mr. Whitfield called a friend to come get him. Ms. Parnell was very upset – panicked and breathing oddly – to have Mr. Whitfield in his house.

Mr. Whitfield’s friend later testified that Mr. Whitfield told Ms. Parnell at one point – “[M]a’am, just calm down. I’m probably more scared than you are, and I’m actually just trying to leave.”

Ms. Parnell said she was short of breath and Mr. Whitfield tried to give her a glass of water and aspirin. His friend suggested that he call and ambulance. He didn’t.

Ms. Parnell died of a heart attack.

Mr. Whitfield fled out the back door, and was caught by the police and arrested.

Mr. Whitfield Is Indicted

Mr. Whitfield was charged in federal court with attempted bank robbery, an number of weapons counts, and violating 18 U.S.C. § 2113(e).

Section 2113(e) is a strange one. Here’s what it says:

Whoever, in committing [bank robbery or attempted bank robbery], 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.

As the Fourth Circuit explained in Mr. Whitfield’s case, United States v. Whitfield,

[Section] 2113(e) encompasses three alternative offenses pertinent to this case — penalizing a defendant who, in evading apprehension for an attempted bank robbery: (1) “kills any person” (the “killing offense”); or (2) “forces any person to accompany him without the consent of such person” (the “forced accompaniment offense”); or (3) “forces any person to accompany him without the consent of such person” and “death results” (the “death results offense”).

Oddly, Mr. Whitfield’s indictment did not charge him with each of these offenses – or even the third one. Instead, his indictment said,

LARRY WHITFIELD did knowingly enter and attempt to enter Fort Financial Credit Union . . . with intent to commit therein a felony affecting that credit union, in violation of 18 U.S.C. § 2113(a), . . . as set forth in COUNT ONE of this Indictment; and in avoiding or attempting to avoid apprehension for said offense, forced M.P. to accompany him without her consent, and killed M.P.

He was charged with violating the first and second offenses set out in section 2113(e), but not the third (the one that kind of obviously looks like it applies).

The Case Goes To The Jury

Mr. Whitfield’s case went to trial.

Mr. Whitfield’s counsel noted the error in how the indictment was written and how it did not include the third element. The district court was unmoved.

At the end of trial, the jury was instructed that there are two ways of violating section 2113(e) and,

[w]ith respect to the second way of violating this statute, if you find that the defendant forced Mary Parnell to accompany him, you must also decide whether that forced accompaniment resulted in Mary Parnell’s death.

The jury found Mr. Whitfield guilty of forcing Mary Parnell to accompany him, and also found that Mr. Whitfield’s forced accompaniment caused Mary Parnell’s death.

At sentencing, the district court determined that Mr. Whitfield was subject to a mandatory life term for his conviction on the forcible accompaniment charge.

Mr. Whitfield was sentenced to life on the forcible accompaniment when death results charge – indeed, the judgment described the offense as “[f]orced accompaniment while attempting to avoid apprehension for an attempted bank robbery resulting in death.”

He was sentenced to an additional 300 months on a number of other charges arising out of his attempted bank robbery and flight.

The Fourth Circuit Vacates Mr. Whitfield’s Conviction

He appealed.

The Fourth Circuit held that the three offenses in set out in section 2113(e) are indeed three separate offenses:

[W]e are content to adhere to the Supreme Court’s nomenclature and describe § 2113(e) as creating “separate offenses by the specification of distinct elements.” See Jones, 526 U.S. at 252.15 More specifically, the killing offense requires proof that a defendant “kill[ed] any person.” The forced accompaniment offense necessitates proof that a defendant “force[d a] person to accompany him without the consent of such person.” And the death results offense — although entailing the lesser-included forced accompaniment offense — requires further proof that “death result[ed].”

Because Mr. Whitfield wasn’t indicted for violating the separate “death results” charge, even though he was later convicted for it – and sentenced to life for it – his conviction and sentence violated his right to be indicted by a grand jury.

As the Fourth Circuit put it,

[B]y instructing on the uncharged death results offense, the district court constructively amended Count Four to broaden the possible bases for conviction beyond those presented to the grand jury. When such a constructive amendment is found, the error is fatal and reversible per se.

Though, Mr. Whitfield was convicted for a violation of section 2113(e) other than on the “death results” language.

And he’ll be resentenced for that on remand.

The range is between 10 years and life.