Lumbard, Chief Judge, Hays, Circuit Judge, and Blumenfeld, District Judge.*fn*
Samuel Marshall and William Peterkin appeal from their convictions by a jury in the Eastern District of New York of bank robbery and aggravated bank robbery, 18 U.S.C. § 2113(a) and (d), and from their respective concurrent sentences under the same subsections.*fn1 We find no error in the convictions under section 2113(a) and affirm. However, we vacate the convictions under section 2113(d), since it was improper to sentence Marshall and Peterkin under both subsections*fn2 and because there was plain error in the trial judge's charge as to that count.
The indictment contained two counts. The first charged a robbery of the Nassau Trust Company branch in Glen Cove, Long Island, on July 31, 1968. This count carried a maximum penalty of a $5,000 fine and 20 years in prison under section 2113(a). The second count charged that the lives of bank employees and others present at the scene were put in jeopardy during the robbery, a charge which was based on testimony that Marshall brandished a silver revolver and Peterkin a sawed-off shotgun while robbing the bank. This additional element of the crime permits penalties up to a $10,000 fine and 25 years' imprisonment under section 2113(d).*fn3
The government's proof showed that on July 31, 1968, the appellants walked into the bank at 10 a.m. Marshall asked to open an account and was referred to Mrs. Elva Hoops, a bank employee. While Mrs. Hoops interviewed Marshall and gave him signature cards to fill out, Peterkin remained in the background. Marshall signed the signature cards with an assumed name, pulled his revolver, and announced that he was going to rob the bank. Mrs. Hoops led Marshall to a teller's window, and simultaneously Peterkin produced his sawed-off shotgun and came forward with a canvas bag.
Marshall and Peterkin took $8,200 in cash from the teller's drawer, left the bank, and sped off in a getaway car which had been stolen the night before. They drove to an intersection in Glen Cove (where they had planned a rendezvous), abandoned the stolen car, and were picked up by a second car which had been waiting for them.
Appellants concede that the government's case, which included eyewitness identifications, testimony by a coconspirator, Peterkin's incriminating admissions, and expert testimony concerning fingerprints and handwriting, contained abundant evidence for conviction on the charge of simple bank robbery under section 2113(a). However, they attack their convictions for aggravated robbery under section 2113(d) on two grounds. First, they argue that the absence of any proof that the guns used during the robbery were loaded precluded submitting any charge of a violation of section 2113(d) to the jury. Second, they contend that the trial judge's section 2113(d) charge that a person is put "in jeopardy" when he is exposed to the "risk or fear of injury" was plain error.
I. The Necessity of Proof That the Guns Were Loaded
The government concedes that there was "no direct or circumstantial evidence that either the revolver or the shotgun was loaded during the actual robbery." Thus, we are faced with the question, of first impression in this circuit, whether the government can satisfy the "in jeopardy" element of section 2113(d), and thereby possibly subject a defendant to the additional penalties of that subsection, without showing that the guns used during the robbery were loaded.
In a number of recent opinions, other circuits have affirmed convictions under section 2113(d) without proof that the weapons used were loaded, but the bases for the affirmances have varied.
One circuit has held that the highly charged atmosphere of a robbery and the possibility of some physical action by employees or bystanders to interrupt the weapon-bearing robbers creates a situation in which lives are "in jeopardy" as a matter of law. Baker v. United States, 412 F.2d 1069, 1072 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S. Ct. 583, 24 L. Ed. 2d 509 (1970). This rationale eliminates the need for finding that a bank robber's gun was loaded, since proof that a gun was used is sufficient proof that the highly charged atmosphere existed, and this in turn is held legally sufficient to satisfy section 2113(d).
A more common approach, particularly in cases where there is no proof to indicate that the guns carried during a robbery were unloaded, is to allow the jury to infer that the guns were in fact loaded. The courts invoking this rationale reason that when "a robber displays a gun to back up his demands, he wants the victim to believe that it is loaded, and the fact-finder may fairly infer that it was." Wagner v. United States, 264 F.2d 524, at 530 (9th Cir.), cert. denied, 360 U.S. 936, 79 S. Ct. 1459, 3 L. Ed. 2d 1548 (1959). See also Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969); Lewis v. United States, 365 F.2d 672 (10th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 978, 17 L. Ed. 2d 875 (1967).
We adopt the latter approach and hold that the jury may infer that a gun used during a robbery was loaded in the absence of direct proof that the chambers contained bullets. The act of threatening others with a gun is tantamount to saying that the gun is loaded and that the gun wielder will shoot unless his commands are obeyed. Furthermore, the use of an unloaded gun to rob a bank would be a very hazardous venture for the robber. He would be at a total disadvantage should armed bank guards or police interrupt him. In our opinion, it is so unlikely that a bank robber who purports to be armed would undertake this risk that an inference that the gun was loaded is justified. In Baker v. United States, supra, the Fifth Circuit adopted the per se rule previously described so that the government's heavy burden of proof would not render subsection (d) of section 2113 ineffectual. We believe ...