UNITED STATES v. MCDUFFY AKA (2018)

MEMORANDUM ***

Van McDuffy appeals his convictions for armed bank robbery resulting in death under 18 U.S.C. § 2113 and murder with a firearm in the course of a crime of violence under 18 U.S.C. § 924(j)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

1. The district court did not err in instructing the jury that “malice aforethought” includes knowingly and wilfully committing a felony. “[I]n modern criminal law, malice aforethought covers four different kinds of mental states: (1) intent to kill; (2) intent to do serious bodily injury; (3) depraved heart (i.e., reckless indifference); and (4) intent to commit a felony.” United States v. Pineda-Doval, 614 F.3d 1019, 1038 (9th Cir. 2010) (emphasis added). Consequently, in regard to felony murder in 18 U.S.C § 1111, “the Government need only prove the intent to commit the felony, not the intent to inflict the injury.” United States v. Miguel, 338 F.3d 995, 1006 (9th Cir. 2003); see Dean v. United States, 556 U.S. 568, 575, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (“The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U.S.C. § 1111.”). “General intent ․ [is] knowledge with respect to the actus reus of the crime.” Carter v. United States, 530 U.S. 255, 269–70, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). Thus, the district court did not err in instructing the jury that “malice aforethought” includes wilfully and knowingly committing bank robbery.

2. The district court did not err in determining that McDuffy’s bank robbery qualified as a crime of violence for purposes of 18 U.S.C. § 924(c)(3). The district court instructed the jury to find McDuffy guilty of violating § 2113(a) only if he “took money belonging to ․ Bank of America, using force and violence, or intimidation.” As we recently held, “bank robbery ‘by force and violence, or by intimidation’ is a crime of violence” as that term is used in 18 U.S.C. § 924(c)(3). United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018).

AFFIRMED.