The Hobbs Act and Bank Robbery; Paladino Remand

United States v. Terrance McCarter, Case No: 04-1684 (04/27/2005): Mr. McCarter was convicted of both attempted bank robbery and a violation of the Hobbs Act, based on his kidnaping a victim with the intention of taking her to an ATM machine to make a withdrawal from her account. Although conviction and punishment for both offenses might seem to pass the Blockburger test—the offenses have different elements—the Court, looking at legislative history, could find no evidence that Congress intended double punishment for what amounted to a single crime, and the district court, on proper motion, should have set aside the Hobbs Act conviction. McCarter had not argued this point below and received identical concurrent sentences on each count. True, he was ordered to pay an extra $100 as a special assessment, but this fee was not enough to persuade the Court that there was plain error on this point.

The Court did make a Paladino remand because the prison term was based on mandaory guidelines. If the district court wants to resentence, it should vacate the Hobbs Act conviction. If not, the Hobbs Act conviction may stand. (The Court relied on legislative history to conclude that the Hobbs Act conviction, not the bank robbery conviction, was redundant.) This last portion of the opinion seems to slight the structure of a Paladino remand. The district judge does not resentence; he or she merely indicates what they would have done had they known about Booker (or what they would like to do now that they know about Booker). And then the Seventh Circuit makes a full remand for resentencing, if the judge expresses an inclination to resentence. It is doubtful that the Court really intended to collapse the two-step process envisioned in Paladino. Probably, the Court, having unraveled the meaty double jeopardy issue involved in this case, was inattentive to the niceties of the Paladino procedure.

In resolving the main issue in the appeal, the Court decided that McCarter was indeed guilty of attempted bank robbery. It acknowledged that robbing a customer of money recently withdrawn from a bank does not make one guilty of bank robbery, but it asserted that forcing the customer to withdraw money makes the customer the unwilling agent of the robber. Can this be so? If the robber forces the customer to pull a gun on a teller, then the customer, although an unwilling agent, is intimidating bank personnel, and the robber is acting through an unwilling agent. But when a customer withdraws money from an ATM, no one at the bank is subjected to a threat or placed in fear, even though the customer is in fear of her own life.