concurring.
I agree with Judge Cook that Parks’s conviction must be affirmed under this court’s decision in United States v. Poindexter, 44 F.3d 406 (6th Cir.1995). Whatever the shortcomings of the Poindexter opinion, and notwithstanding the statutory changes in the penalty provision, Poindexter controls on the mens rea issue.
I join in Judge Merritt’s discussion of the sentencing issue, and agree that Parks’s sentence must be vacated and the matter remanded for resentencing in light of our opinions and any further arguments made on remand.
18 U.S.C. § 2113(e), as amended in 1994, is ambiguous on its face:
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.
It is capable of multiple interpretations, none of which is without problems, and none of which is clearly consistent with Congressional intent.
One construction, argued by the Government, is that Congress intended to provide that if a robber forces a person to accompany him, and death does not result, the minimum punishment is ten years; if a robber kills someone, whether the person was forced to accompany the robber or not, the robber must be sentenced to either life imprisonment or the death penalty. Under this construction, the amendment had two purposes — to bring the section into compliance with Constitutional requirements for imposing the death penalty and to increase the minimum sentence *929for a killing in the course of attempting, committing or escaping from a robbery. This construction, however, ignores the clear inclusion in the amended statute of the former provision that “[wjhoever, in committing ..., avoiding, ... or in freeing himself ... from arrest or confinement ..., kills any person ... shall be imprisoned not less than ten years ...” Further, while the legislative history supports an intent to meet Constitutional requirements for imposing the death penalty, no history is cited that sheds light on the question whether the “if death results” language was intended to increase the mandatory minimum penalty for a killing, or, alternatively, to limit the applicability of the death penalty in a forced accompaniment case to situations where the forced accompaniment results in death.
A second possible construction, advanced by Parks in his letter brief filed after argument, is that Congress intended the amended provision to state that if a robber kills someone, or forces someone to accompany him, in the course of committing, attempting or escaping from a robbery, he is subject to a minimum term of ten years; if the robber abducts someone and death results, the robber must be sentenced to life imprisonment or death. This construction, rather than ignoring Congress’s preservation of the “kills any person” language preceding the ten-year provision, inserts the clause “from the forced accompaniment” after “if death results,” where Congress did not. This construction is, however, consistent with the circumstances of the amendment, i.e., to bring § 2113(e) into compliance with the Supreme Court’s death-penalty jurisprudence, and recognizes that Congress chose to preserve certain pre-amendment language. It also gives meaning to all the statute’s provisions, in accordance with United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 (1955), and logically argues that “if death results” refers only to the preceding language that entails the possibility that death might not result, i.e., the forcible accompaniment language.
Another possible construction reads the amended statute as continuing to provide for a ten-year minimum sentence for a killing in the course of a robbery or a forced accompaniment, but further providing that where there is either a killing or a death resulting from a forced accompaniment, if the facts bring the case within the ambit of the death penalty provisions, the sentence must be either the death penalty or life imprisonment, as determined in accordance with the provisions of the Federal Death Penalty Act, 18 U.S.C. §§ 3591, 3592 and 3593. Under this construction, a robber who kills someone, but who would not be subject to the death penalty (in this case because the person killed was a participant in the offense, § 3591(a)(2)(C) and (D)), is not subject to mandatory life imprisonment, and can be sentenced to any term between ten years and life. This construction endeavors to attach meaning to all statutory terms and construe the amended statute in light of the purpose of the amendment.
All of these constructions are plausible and none is more consistent with the ambiguous statutory language than the others. Thus, as respects the sentencing issue, I agree with Judge Merritt that the rule of lenity must enter into the equation on remand.