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Supreme Judicial Court Decides Forced Withdrawals From ATM Satisfy Criminal Statute's Intent Requirement

An act of theft committed by forcing the victim to withdraw money from an Automated Teller Machine ("ATM") is sufficient to trigger conviction under a Massachusetts statute prohibiting "confining to commit a felony" (see G.L. c. 265, § 21), the Supreme Judicial Court (the "SJC") decided last month.

In Commonwealth v. McGhee, 470 Mass. 638 (2015), the Defendant was convicted of "confin[ing] . . . or put[ting] any person in fear, for the purpose of stealing from a building, bank, safe, vault, or other depository of money" pursuant to G.L. c. 265, § 21.  The facts of the case involved the defendant and a coventurer who allegedly ordered their victims to withdraw money from an ATM and hand it over.

The defendant argued that the phrase "stealing from" as used in G.L. c. 265, § 21 means to take the "property of" - i.e., property owned by- and that the acts alleged did not satisfy the statutory requirements because the cash belonged to the alleged victims and not to the ATM.  

Justice Barbara Lenk, writing for the Court, explained that the statute applies not only to banks, but also to "buildings," and a "building" includes a dwelling.  Accordingly, the phrase "stealing from" does not mean "stealing the property of," since a building does not own property.  Instead, the Court held, "a purpose of stealing property 'from' a location, in this context, indicates that the property was situated in that location when it was to be stolen."

Additionally, the SJC noted that its reading of the Massachusetts statute is consistent with the view of Court of Appeals for the Seventh Circuit interpreting a federal bank robbery statute to hold that although a theft from a depositor who has just left a bank is not a robbery from the bank, a depositor who is forced to withdraw money becomes the "'unwilling agent of the robber.'"  See id., quoting United States v. McCarter, 406 F.3d 460, 463 (7th Cir. 2005).  In McGhee, the SJC wrote, "[i]n essence, the evidence indicated that the defendant's purpose was to steal money that was located in the ATM.  The fact that he planned to do so by forcing [a victim] to take the money out for him does not negate the existence of the purpose required by G.L. c. 265, § 21 . . . . "

Although the McGhee defendant's statutory interpretation argument was unavailing, his conviction was vacated with a remand for a new trial on the unrelated ground that the trial judge failed to take sufficient steps to investigate a report of a sleeping juror.

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