United States Court of Appeals

Fifth Circuit



## FILED

September 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-60692

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD KEITH BURTON,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

Before DAVIS, JONES, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Donald Keith Burton appeals the denial of his motion for acquittal and for a new trial. He

claims that the evidence is insufficient to support his convictions for bank robbery under 18 U.S.C.

§ 2113(a) and (d), brandishing a firearm during and in relation to a crime of violence under 18 U.S.C.

§ 924(c)(1), obstruction of commerce by robbery under 18 U.S.C. § 1951(b)(3), and brandishing a

firearm in furtherance of the obstruction of commerce by robbery under 18 U.S.C. § 924(c)(1). In the

alternative, Burton seeks to have his sentence vacated and remanded under United States v. Booker

,2

125 S. Ct. 738 (2005).

Burton’s convictions arose from a rape and robbery in September of 2000. The victim,

Chelsey Childs, checked her mail at a post office. As she left the post office, Burton grabbed her from

behind and demanded money. Childs told Burton that she only had a few dollars and gave him her

wallet and ATM card. Burton then ordered Childs to get into her car and he drove them to a Union

Planters Bank. Burton backed the car into the drive-through ATM in such a way that Childs ) ) in the

passenger seat )) was able to access the ATM. Childs withdrew $150 and gave it to Burton. Burton

then drove Childs to a secluded location and sexually assaulted her. The jury returned a guilty verdict

on four counts, including bank robbery under § 2113(a).

Section 2113(a) states in part

Whoever, by force and violence, or by intimidation, takes, or attem pts to take, from

the person or presence of another, or obtains or attem pts to obtain by extortion any

property or money or any other thing of value belonging to, or in the care, custody,

control, management, or possession of, any bank

, credit union, or any savings and

loan association . . .

Shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 2113(a) (emphasis added). Burton claims that there is insufficient evidence t hat the

money “belong[ed] to” or was in “the care, custody, control, management or possession” of Union

Planters Bank. He argues that the evidence only supports a finding that he robbed Childs.

“When interpreting the sufficiency of the evidence, thi s co urt views all evidence, whether

circumstantial or direct, in the light most favorable to the Government with all reasonable inferences

to be made in support of the jury’s verdict.” U nited States v. Mos er , 123 F.3d 813, 819 (5th Cir.

1997). The standard for reviewing a claim of insufficient evidence is whether a rational jury could

have foun d t hat the evidence established the essential elements of the offense beyond a reasonable3

doubt. United States v. El-Zoubi , 993 F.2d 442, 445 (5th Cir. 1993).

This court addressed a similar appeal in United States v. Van

, 814 F.2d 1004 (5th Cir. 1987).

In Van

, the defendants broke into the victim’s house and threatened to kill her if she did not give them

t he money she had received from the settlement of a Social Security claim. I d

. at 1005. After she

convinced them that she had spent some of it and deposited some of it in the bank, the defendants left

her home, taking her two year old daughter with them. Id

. The following day she received a telephone

call instructing her to withdraw the money from her account and to drive to a 7-Eleven st o re fo r

further instructions. I

d

. At the 7-Eleven, the victim received a call on a pay-phone instructing her to

drive to a different 7-Eleven. I d

. At the second 7-Eleven, the victim gave one of the defendants the

money. Id

.

The defendants appealed their bank robbery convictions, claiming tha t t he mo ney neither

“belong[ed] to” the bank nor was in “the care, custody, control, management, or possession” of the

bank. I d

. at 1006. The court agreed on the grounds that (1) the victim withdrew her own money and

(2) traveled nine miles before giving the funds to the defendants. Id . at 1006-07.

Even though Childs immediately gave Burton the money, Van is still directly on point and

controlling. The funds did not “belong[] to” the bank. Burton sought and received a limited amount

of Childs’ money for which he knew her account had sufficient funds. Childs inserted her ATM card,

entered her PIN, and withdrew money from her account. This is not a case in which the defendant

sought the bank’s mone y. Cf. United States v. Carpenter , 611 F.2d 113, 114 (5th Cir. 1980)

(upholding a bank robbery conviction of a defendant who abducted and held the so n of two bank

officials until ransom was paid, finding that “[t]he abduction and extorti onate telephone calls in this

case were certainly likely to cause the bank’s assets to be drawn upon”); United States v. Beck

, 5111 Van notes three categories of § 2113(a) cases, including those cases “in which items are

taken from the premises of a bank.” 814 F.2d at 1006. We do not read V an ’s descriptive grouping

as equating or supplanting the statutory requirement of “care, custody, control, management, or

possession” of a bank.

4 F.2d 997 (6th Cir. 1975) (same). Childs made a valid ) ) albeit coerced )) withdrawal of her own funds,

which Burton then stole. See Van , 814 F.2d at 1007 (finding on similar facts that “[t]he evidence in

this case clearly shows that no funds belonging to the bank were transferred to appellants”).

The $150 was not in the “the care, custody, control, management, or possession”of the bank.

We only consider “the care, custody, control, management, or possession” at the time of the transfer

to Burton. See Van , 814 F.2d at 1007 (“The $4,000 did not ‘belong to’ a bank and it was not in the

‘care, custody, control, management, or possession of a bank’ at the time that Bradley transferred the

money to Titus .”) (emphasis added). 1 Childs had the money and gave it to Burton in her vehicle ) ) not

in the bank. Regardless of how brief her possession, the bank did not have “care, custody , control,

management, or possession” of property in Childs’ vehicle.

Cases finding that property was within the “care, custody, control, management or possession”

of a bank have done so when the property was inside the bank. S ee United State v. Dix

, 491 F.2d 225

(9th Cir. 1974) (finding that contents of a safety deposit box “ were wit hin t he care of the bank”);

United States v. Clark

, 398 F.Supp. 341 (E.D.Pa. 1975) (same); Chapman v. United States

, 346 F.2d

383 (9th Cir. 1965) (finding that property of th e bank and bank employee stolen from the bank

employee’s desk were “within the care, custody, or control of the bank”). Clearly, banks have “care,

custody, control, ma nagement o r possession” of many of the goings-on inside their own buildings.

Ba nk emplo yees assist customers accessing their safety deposit boxes, manage where and how the

safety deposit boxes are stored, and where and how customers access their boxes. Customers’5

vehicles )) even those vehicles on bank property )) are different than safety deposit boxes located in

bank vaults. It is absurd to think that a bank teller could enter a cust o mer’s vehicle to assert

“management” of the property within the vehicle.

We decline the Government’s invitation to follow United States v. McCarter

, 406 F.3d 460

(7th Cir. 2005). In M

cCarter

, the defendant accosted a woman in a parking garage. Id . at 461. He

then forced her into her car and ordered her to drive to an ATM. I d

. Before they left the garage, the

wo man screamed for help and the defendant fled. I d

. The Seventh Circuit upheld the defendant ’s

attempted bank

ro bbery co nviction. Judge Posner wrote, “if, as the defendant intended here, the

robber forces the bank’s customer to withdraw the money, the customer becomes the unwilling agent

of the robber, and the bank is robbed.” I d

. at 463. In support of thi s propositi on, the court ci ted

Embrey v. Hershberger , 131 F.3d 739 (8th Cir. 1997) (en banc). Id

.

In Embrey , the victim was not a bank customer but a bank employee forced to withdraw the

bank’s money. I

d

. at 739. E

mbrey is thus more similar to Carpenter than the instant case. 611 F.2d

113. As noted supra

, in Carpenter

, this court upheld a bank robbery conviction of a defendant who

abducted and held the son of two bank officials until ransom was paid, finding that “[t]he abduction

and extorti onate telephone calls in this case were certainly likely to cause the bank’s assets to be drawn

upon.” I d

. at 114. S ee also Van , 814 F.2d at 1007-08 (finding that “bank assets belong to the bank

and prosecution may be under Section 2113 even though such assets actually are in the possession of

a bank employee or agent”) (citing United States v. Jakalski

, 237 F.2d 503 (7th Cir. 1956); White v.

United States

, 85 F.2d 268 (D.C. Cir. 1936)). In E mbrey and Carpenter

, the robber sought property

actually “belonging to” the bank and the ba nk emplo yees’ handling of the property evidenced the

banks’ “care, custody, control, management or possession” of the property

. We are thus unpersuaded6

by McCarter

and follow the controlling precedent of this circuit.

A rational jury could not have found that the evidence established the essential elements of the

offense beyond a reasonable doubt. There is no evidence that the $150 “belong[ed] to” or was in the

“care, custody, control, managem ent o r possession” of Union Planters Bank. Childs withdrew her

money from her account and gave the money to Burton in her car. Thus, the district court erred by

denying Burton’s motion for acquittal.

Burton correctly argues )) and the Government conceded at oral argument )) that Burton’s

convictions for 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 1951(b)(3) fail without his 18 U.S.C. § 2113(a)

and (d) conviction. Thus, we do not address Burton’s Booker claims.

Accordingly, we REVERSE the district court’s order denying Burton’s motion for judgment

of acquittal and VACATE Burt on’s convictions for 18 U.S.C. § 2113(a) and (d), 18 U.S.C. §

924(c)(1), and 18 U.S.C. § 1951(b)(3).