ATM Stickups Confuse Courts Over the Real Victim: You or Banks

Welcome back to Opening Argument, a reported column where I dig into tricky legal questions and unpack issues dividing appellate courts. On tap today: When a robbery is bank robbery.

If you’re held at gunpoint and forced to pull money from an ATM, are you being robbed or is the bank?

Federal appeals courts disagree on whether that’s federal bank robbery or not. It’s a distinction that’s important because federal bank robbery charges are often stacked on top other counts and carry up to 20 years in prison or 25 years if a dangerous weapon is used.

Last month, the U.S. Court of Appeals for the Tenth Circuit became the third appellate court to directly consider this question. Siding with the Seventh Circuit, the court said forcing someone to withdraw money from an ATM is federal bank robbery because the money belonged to the bank. The Fifth Circuit however, said the opposite in 2005, that the funds belong to the account holder.

It’s a split the U.S. Supreme Court could eventually be asked to settle and it might have to.

“This is not your grandfather’s bank robbery,” said Lenese Herbert, a professor of law at Howard University School of Law.

Thanks to modern technology, you can cough up a few extra bucks to have a machine spit out cash just about anywhere you are from restaurants and bars to hotel lobbies and hair salons. But what happens if an ATM is owned by a third party and not a bank?

Herbert said questions like this might require some clarification from the high court. Right now who’s in possession of the money when the heist happens seems to be the sticking point for courts.

In the case at the Tenth Circuit, Charles Chavez allegedly tried to force two people at gunpoint to withdraw money from a Wells Fargo ATM in Albuquerque, N.M. He wasn’t successful in part because a cop pulled into the parking lot and the couple said they had just deposited a check that hadn’t cleared yet. He then asked them for cigarettes instead.

But had he been successful, the Tenth Circuit said he would have committed federal bank robbery because he would have used the account holders as a tool to take money from the bank.

Dennis Joiner, a retired attorney in Mississippi who represented the criminal defendant in the Fifth Circuit case, said the Tenth and Seventh Circuits are defining the victims as “unwilling agents” in the robbery when these people are in fact willing but coerced.

“At gunpoint you’d be a willing agent,” he said.

Under the courts’ analysis, Joiner asked where you draw the line. At what point does the money become the victim’s and not the bank’s?

Kaveh Noorishad, a defense attorney and founder of Noorishad Law PC in Virginia, argues it’s when the money’s withdrawn.

It’s like asking “if you bought some jewelry and you walk out of the store, and I rob you whether I’ve robbed a jewelry store,” he said. “I think the answer is no.”

Even if he demanded you go in and buy something, Noorishad still doesn’t think he would be robbing the store.

Under the law, a bank robbery occurs when someone by force takes or attempts to take money that is “belonging to, or in the care, custody, control, management, or possession of any bank.”

Shon Hopwood, a criminal law professor at Georgetown Law who spent 11 years in prison for robbing five banks in the late 1990s, said the question the courts were answering was whether the money taken was in the custody and control of the bank and the answer is yes.

The statute though also says the money has to be taken from a “person or presence of another.”

That may be the winning issue for Chavez if he appeals, Hopwood said.

“When you’re taking money from an ATM, is that from a ‘person or presence of another’? I’d argue it’s not because you’re just getting it from a machine,” he said.

The Office of the U.S. Attorney for the District of New Mexico said it couldn’t comment on the court’s decision “as this is an ongoing matter.” Chavez’s public defender Aric Elsenheimer, didn’t respond to a request for comment.

Though a split among the circuit courts typically makes an issue more attractive to the U.S. Supreme Court, Hopwood doubts this is an issue that will come before the court anytime soon.

The fact that only three circuits have decided this issue and ATMs have now been in existence for over 30 years is probably a sign that it’s not going to impact that many people, he said.

If you know of a case or interesting legal dispute that’s worth writing about, email me at lwheeler@bloombergindustry.com. Want to read more Opening Argument? Sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and you’ll catch this column every time it runs.