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UNITED STATES v. MCKENZIE

November 25, 1977

UNITED STATES OF AMERICA
v.
JAMES McKENZIE, III a/k/a "Bubby"



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 James McKenzie, III, was scheduled for trial October 3, 1977, on Counts V and VI of a six count indictment, No. 77-276, charging him with involvement in a bank robbery of the Newtown Savings Association in Bucks County, Pa., on June 7, 1977. On the date the trial was scheduled to begin, defendant waived his right to a jury trial. The issue of his guilt or innocence as to Count V of the indictment, charging a violation of 18 U.S.C. § 2113(c), was submitted to us on the following stipulated set of facts:

 1. On June 7, 1977, one Rory McCafferty, (who previously had entered a guilty plea to Counts I through IV of the same indictment and was sentenced by the Court on September 9, 1977), robbed the Newtown Savings Association, Route 532, Washington Crossing, Pa., of $8,407.00.

 2. The Newtown Savings Association was and is insured by the Federal Deposit Insurance Corporation, Certificate No. 4548.

 3. After robbing the Newtown Savings Association, McCafferty went to a car driven by defendant McKenzie, and gave him fifty dollars.

 4. McKenzie knew that the fifty dollars he received had been taken from the bank; he also knew that a sum in excess of one hundred dollars had been taken from the bank, although he did not know the precise figure.

 5. McCafferty retained the rest of the proceeds of the robbery.

 6. McKenzie was thereafter arrested by Newtown Township Policemen. At the time of arrest he had in his possession the sum of fifty dollars, which was later determined to be the "bait" money surrendered during the bank robbery. *fn1"

 After consideration of these stipulated facts, we found defendant guilty as charged in Count V of the indictment. *fn2"

 The legal issue raised by defendant is whether under 18 U.S.C. § 2113(b) he is to be sentenced as a felon or a misdemeanant in light of the fact that the amount of stolen bank funds he received did not exceed one hundred dollars. There is a split among the three Circuit Courts (4th, 8th and 9th), which have decided this issue; we are not aware of any decision by any court in this circuit. We hold under the circumstances of this case, however, that defendant should be sentenced under the felony provisions of 18 U.S.C. § 2113(b). Our reasons follow.

 Subsection (c) of 18 U.S.C. § 2113 provides that:

 
"Whoever receives, possesses, . . . or disposes of, any property or money . . . knowing the same to have been taken from a bank . . . in violation of subsection (b) . . . shall be subject to the same punishment provided by said subsection (b) for the taker."

 Subsection (b) prescribes (with respect to the value of the thing, or the amount of money taken from the bank) whether a guilty defendant is to be sentenced as a felon, (more than one hundred dollars taken) or as a misdemeanant (one hundred dollars or less taken). It was stipulated (a) that more than one hundred dollars was taken from the bank, (b) that defendant knew more than one hundred dollars was taken from the bank, (although not the exact amount), and (c) that the defendant received fifty dollars, which he knew was taken from the bank. Thus, the question we must resolve is ...


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