Perry H. Piper (argued and briefed), Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, Tennessee, for Defendant-Appellant.

Gregg L. Sullivan (argued and briefed), Asst. U.S. Attorney, Office of the U.S. Attorney, Chattanooga, Tennessee, for Plaintiff-Appellee.

Before: BOGGS and MOORE, Circuit Judges; DOWD, District Judge.*OPINION

DOWD, District Judge.

The appellant stands convicted of one count of the November 15, 1996, robbery of a branch of the AmSouth Bank in Chattanooga, Tennessee (18 U.S.C. § 2113), two counts of kidnapping (18 U.S.C. § 1201), and two counts of using and carrying a firearm during and in relation to the bank robbery and kidnappings (18 U.S.C. §§ 924(c) and 2).

Burnette and his partner and co-defendant, James Travis White, entered the home of Sue Chambers, the branch manager of the bank, in the evening preceding the bank robbery. At gunpoint, they gained control of Mrs. Chambers' husband, David, her 26-year-old son, Christopher, and finally Mrs. Chambers herself as she returned home. Eventually, they separated Mrs. Chambers from her husband and son and held the two hostage to the demands of Burnette and White that, to insure the safe release of her husband and son, Mrs. Chambers must enter the bank the following morning and bring Burnette funds of the bank. Mrs. Chambers complied; with the assistance of a fellow employee, she entered the bank before it opened for business and thereafter delivered to Burnette over $183,000.00 recovered from the bank's vault.

On December 2, 1996, White confessed to the bank robbery and kidnappings. The next day, Burnette was arrested with incriminating items of evidence in his possession.

At trial, White testified as a government witness and implicated Burnette as the other robber. The alibi testimony presented on behalf of Burnette was rejected; he was convicted of all five counts and sentenced to a term of 468 months. He now appeals.1

The kidnapping convictions rest on the fact that White, while in control of David and Christopher Chambers during the time that followed their capture and while they were being held hostage to the demand that Mrs. Chambers loot the vault of the AmSouth Bank, drove his captives across state lines, thus creating the federal jurisdictional basis for the two kidnapping charges under 18 U.S.C. § 1201.

Burnette challenges his kidnapping convictions on two fronts. First, he argues that the provisions of 18 U.S.C. § 2113(e) foreclose the separate prosecution for kidnapping because the kidnapping of the Chambers men is covered by the provisions of subsection (e), which provides:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

(Emphasis added.)

At the close of the government's case, Burnette moved for a dismissal of the kidnapping counts on two grounds. First, he cited the now-vacated opinion of the Eighth Circuit in Embrey v. Hershberger, 106 F.3d 805 (8th Cir.1997) for the proposition that the kidnapping conduct was fully integrated into the bank robbery charge.2 Second, he contended that he was entitled to an acquittal because it was not "reasonably foreseeable" that his partner would transport the Chambers men across state lines. On appeal, Burnette continues to advance the proposition that the provisions of § 2113(e) negate the kidnapping convictions because the kidnappings were an integral part of the bank robbery. We disagree. Our analysis follows.

The defendant's argument that the kidnapping of the Chambers men, as hostages to the success of the bank robbery, is subsumed in § 2113 is rooted in the existing case law of this Circuit and anchored in the holding of Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), to the effect that only one sentence is permissible for federal bank robbery even though the defendant's conduct may violate more than one subsection of § 2113. See United States v. Hunter, 538 F.2d 1239 (6th Cir.1976);3 United States v. Moore, 688 F.2d 433 (6th Cir.1982).4 Building on that line of cases and the provisions of § 2113(e), the defendant argues that § 2113 with its various subsections constitutes the sole source of punishment for all conduct embraced by any of its subsections, including an act of kidnapping. Before a further exploration of the defendant's argument, we pause to note that the bank robbery statute ( § 2113) and the federal kidnapping statute ( § 1201) each contain an element of the offense that the other does not. The federal kidnapping statute requires that the victim be transported across state lines and the federal bank robbery statute requires the predicate offense of robbery of a federally-insured bank.

We also note that United States v. Dotson, 546 F.2d 1151 (5th Cir.1977) found that a conviction for a kidnapping violation of § 1201 involving transportation of a bank robbery victim across state lines was not subsumed in the federal bank robbery provisions of § 2113. After noting the decision of this Circuit in Hunter, supra, and the holding in Prince, supra, the Dotson court held:

The practice disapproved in Prince of pyramiding penalties under the Federal Bank Robbery Act is not at issue here. The kidnapping charge against appellant Dotson is not grounded in the Federal Bank Robbery Act at all but rather in an entirely separate statute which makes it a federal offense to transport a kidnapped person in interstate commerce. 18 U.S.C. § 1201. Intimating no opinion as to the correctness of the Sixth Circuit's result in Hunter, we hold simply that the rule of Prince against aggregating penalties under the Federal Bank Robbery Act does not preclude imposition of the sentence in the instant case for a kidnapping conviction obtained under a statutory provision outside the Bank Robbery Act.

Dotson, 546 F.2d at 1153.

Against that background, the defendant advances the opinion expressed by Judge Lay in a split decision in Embrey v. Hershberger, 106 F.3d 805 (8th Cir.1997). The Embrey action was brought under the provisions of 28 U.S.C. § 2255. Embrey forced a banker to withdraw monies from his bank and then fled across a state line, taking the banker as a hostage. As in this case, Embrey was successfully prosecuted for violation of both § 2113 and § 1201. Judge Lay's opinion held that the kidnapping conviction was subsumed in the bank robbery. The case was remanded with instructions to the district court to vacate the conviction and sentence under § 1201. The respondent-appellee petitioned for rehearing en banc, which was granted.5 The en banc court concluded, contrary to the position of the majority in the three-judge panel decision, that Embrey had failed to make a showing of actual innocence that would warrant consideration of the merits of Embrey's successive motion to vacate his sentence, and thus affirmed the judgment of the district court and dismissed the petition for habeas relief. 131 F.3d 739 (8th Cir.1997), cert. denied, --- U.S. ----, 119 S. Ct. 78, 142 L. Ed. 2d 61 (1998). In so ruling, the en banc court, with Judge Lay dissenting, declined to express a view on Embrey's underlying legal theory. Id. at 740.

In his lengthy analysis, set forth as the majority opinion for the three-judge panel and again in a dissent from the en banc majority opinion, Judge Lay contended that Congress intended for the Federal Bank Robbery Act to be the comprehensive and exclusive remedial provision for bank robbery prosecution. He cited United States v. Leek, 665 F.2d 383 (D.C.Cir.1981) as authority for that proposition. We decline to adopt Judge Lay's reasoning.

In Leek, the bank robber charged under § 2113 was also charged and convicted under the District of Columbia Code for assault with a dangerous weapon used during the bank robbery; he was given consecutive sentences. The Leek court followed its earlier precedent of United States v. Canty, 469 F.2d 114 (D.C.Cir.1972) in holding "that fragmentation of a single course of conduct to enable use of a local statute to multiply convictions and enhance punishment is impermissible. We reiterate that the Federal Bank Robbery Act is carefully designed, matching maximum penalties with specific offenses." Leek, 665 F.2d at 388.

The Leek court then discounted the Blockburger test for application to the case at hand, repeating as indicated in Canty, supra, that "congressional intent, as ultimately discerned, is controlling." Leek, 665 F.2d at 388.

To make its point based on Supreme Court precedent, the Leek court then referred to Simpson v. United States, 435 U.S. 6, 11-12, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), which nullified the sentencing application of an earlier version of 18 U.S.C. § 924 that had called for an enhancement of a sentence where a firearm was used in a federal bank robbery setting. The Simpson Court opined that the congressional intent demonstrated that the enhancement provisions of § 924 were not intended to apply to prosecutions under the Federal Bank Robbery Act.6 Simpson, 435 U.S. at 12-13, 98 S. Ct. 909.

In his initial opinion in Embrey, and after concluding that the decision in Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) directed that the Blockburger analysis is controlling only where there is no indication of contrary legislative intent, Judge Lay declared: "Here we deem it patent that Congress intended the FBRA to be the comprehensive and exclusive remedial provision for federal bank robbery prosecutions." Embrey, 106 F.3d at 810 (citing Leek, 665 F.2d at 387).

The Leek decision quotes Canty, which declared that

[t]he federal bank robbery statute establishes a comprehensive scheme ... a continuum running from entry with intent to rob, to robbery by force and violence, to robbery with the aid of a dangerous weapon, to robbery resulting in death or kidnapping ... increas[ing] the penalty as the offense becomes more aggravated.

Leek, 665 F.2d at 387 (quoting United States v. Canty, 469 F.2d 114, 127 (D.C.Cir.1972)).

In his subsequent dissent to the en banc decision in Embrey, Judge Lay opined further on his claim that congressional intent with respect to the Federal Bank Robbery Act overrides a Blockburger analysis as applied in Dotson, supra, as he declared:The legislative history of the 1986 amendment to the FBRA illustrates Congress' intent to make the FBRA comprehensive with respect to conduct proscribed in its provisions. The Committee Report accompanying the amendment states:

There is no gap in federal law. Extortionate conduct is prosecutable either under the bank robbery provision or the Hobbs Act, both of which carry the same maximum prison term (20 years). However, clarification as to which should be the applicable statute is desirable.

The Justice Department believes that the natural and appropriate vehicle for prosecuting extortionate activity involving the obtaining of bank monies is 18 U.S.C. 2113(a), rather than the Hobbs Act, which has the purpose of safeguarding the channels of interstate and foreign commerce from the adverse effects of robbery and extortion. The Committee concurs. Accordingly, section 51 amends 18 U.S.C. 2113(a) expressly to cover crimes of extortion directed at federally insured banks. The Committee intends to overrule those cases holding that only the Hobbs Act applies, and those cases holding that both the Hobbs Act and the [sic] 18 U.S.C. 2113(a) apply, in order to make 18 U.S.C. 2113(a) the exclusive provision for prosecuting bank extortion.

Criminal Law and Proc. Tech. Amends. Act of 1986, H.R.Rep. No. 99-797, at 32-33 (1986) reprinted in 1986 U.S.C.C.A.N. 6138, 6155-56.

Embrey v. Hershberger, 131 F.3d 739, 749 (8th Cir.1997) (en banc) (Lay, J., dissenting).