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Click here for the full text of this decision FACTS:Hugh Douglas Dentler was indicted for federal bank robbery in violation of 18 U.S.C. �2113(a). That statute imposes a maximum sentence of 20 years on anyone who by force and violence, or by intimidation, takes or attempts to take, from the person or presence of another, or obtains or attempts 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; or . . . enters or attempts to enter any bank, credit union or any savings and loan association, or any building used in whole or in part as a bank, credit union or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union or such savings and loan association and in violation of any statute of the United States, or any larceny. The single count in Dentler’s indictment alleged that he attempted to enter Texstar Bank and the building used in whole or in part as a bank, with the intent to commit the felony offense of robbery. The indictment, however, left out at least one element of the offense. Dentler moved to dismiss the indictment, urging that it failed to state an offense under the statute, because it failed to charge either: 1. that the attempted taking involved force, violence, or intimidation; or 2. that his intended felony affected the bank. At the close of the jury trial, his counsel objected to the jury instructions on the ground that the indictment confused the two separate crimes defined under �2113(a), depriving him of notice as to which provision he was expected to defend against. The objection was overruled, and the jury found Dentler guilty. At sentencing, the district court held that Dentler’s conviction constituted a crime of violence and as a result labeled Dentler a career offender under U.S. Sentencing Guideline �4B1.1. As a result, Dentler’s offense level rose from 29 to 32 and his resulting advisory guideline sentence range rose from 140-175 months to 210-262 months. Dentler ultimately received a sentence of 240 months of imprisonment, the statutory maximum for the offense. He appealed, challenging both his conviction and his sentence. HOLDING:The court affirmed Dentler’s conviction but vacated his sentence and remanded the case for resentencing. A grand jury indictment, the court stated, must set forth each essential element of an offense. Moreover, a valid indictment must set forth the alleged offense with sufficient clarity and certainty to apprise the accused of the crime with which he is charged. The court restated its holding that as long as an indictment as a whole “fairly imports” an element, “an exact recitation of [that] element . . . is not required.” The court stated: “We generally . . . will not reverse for”minor deficiencies that cause no prejudice.’” The court noted that Dentler’s indictment failed to assert, on its face, a full set of elements for either crime: It lacked either the allegation that Dentler intended a taking “by force and violence or intimidation” or that the felony he intended to commit at the time he entered the bank affected the bank. Accordingly, in determining whether any error by the district court harmed Dentler, the court asked: 1. whether the indictment provided Dentler sufficient notice of the crime with which he had been charged; and 2. whether Dentler was harmed by “losing the right to have the public determine whether there existed probable cause to charge” the missing element. The indictment, the court noted, plainly stated that Dentler stands accused of an attempt to enter the bank to commit robbery by taking money belonging to that bank. Although the indictment could have been drafted with greater skill, the court did not read it to accuse Dentler of anything but attempting to enter with the intent to commit bank robbery, despite the absence of a specific reference to “bank robbery” or the inclusion of the missing element of bank robbery, i.e., the use of force or intimidation. Accordingly, the court found that the indictment gave Dentler sufficient notice. Next, the court noted that the jury instructions specifically asked the petit jury whether Dentler intended the use of force and violence or intimidation. The jury unanimously found that he did. In addition, the evidence before the jury also included the fact that the man wore a mask; that his attempts to open the doors were “forceful”; that he repeatedly reached for a bulge in his pocket; that at least one teller testified that he thought the man had a gun; that the gun was linked to ammunition found in Dentler’s truck; and that Dentler’s checkbook showed a sketch of the bank area. Given such evidence, the court held that a rational grand jury could have found probable cause to charge Dentler with the use of force and violence or intimidation. As a result, the court found no error in the indictment affecting Dentler’s substantial rights, and it held that “any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” The court also held that some additional language in the jury instruction was a variance rather than an amendment and that any error resulting from the variance was harmless. Finally, the court held that Dentler established “that the district court misapplied the Guidelines in calculating the sentencing range, the court imposed a sentence under the . . . Guidelines based on that miscalculation, and the sentence was higher than the correct range under the Guidelines.” The court noted in its previous holding that the second paragraph of �2113(a), under which Dentler was convicted, does not constitute a crime of violence under that definition. OPINION:Dennis, J.; Davis, Dennis and Prado, JJ.

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