Opposition Brief — Rickie Foy, Petitioner v. United States

No. 22-849

In the Supreme Court of the United States

RICKIE FOY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

FINNUALA K. TESSIER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a conviction for “tak[ing] and carr[ying]

away, with intent to steal or purloin, any property or

money or any other thing of value exceeding $1,000 belonging to * * * any bank,” in violation of 18 U.S.C.

2113(b), requires proof of specific intent to steal more

than $1000 in value.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 3

Conclusion ................................................................................... 13

TABLE OF AUTHORITIES

Cases:

Carter v. United States, 530 U.S. 255 (2000) ................. 3-5, 8

Dean v. United States, 556 U.S. 568 (2009) .......................... 7

Elonis v. United States, 575 U.S. 723 (2015) ...................... 11

Flores-Figueroa v. United States,

556 U.S. 646 (2009).......................................................... 7, 11

Liparota v. United States, 471 U.S. 419 (1985) .................... 7

Morissette v. United States, 342 U.S. 246 (1952) ........... 6, 10

Rehaif v. United States, 139 S. Ct. 2191 (2019) ........... 6-8, 12

Ruan v. United States, 142 S. Ct. 2370 (2022) .................... 11

Staples v. United States, 511 U.S. 600 (1994) ....................... 6

United States v. Ahmad, 101 F.3d 386

(5th Cir. 1996)...................................................................... 11

United States v. Blackmon, 839 F.2d 900

(2d Cir. 1988) ....................................................................... 10

United States v. Bruguier, 735 F.3d 754

(8th Cir. 2013)...................................................................... 11

United States v. Bunn, 154 Fed. Appx. 227

(2d Cir. 2005) ......................................................................... 9

United States v. Burwell, 690 F.3d 500

(D.C. Cir. 2012), cert. denied, 568 U.S. 1196

(2013) .................................................................................. 8, 9

(III)

IV

Cases—Continued:

Page

United States v. Daniels, 685 F.3d 1237

(11th Cir. 2012), cert. denied, 563 U.S. 1164

(2013) .................................................................................... 10

United States v. Dominguez, 661 F.3d 1051

(11th Cir. 2011), cert. denied, 566 U.S. 1034

(2012) .................................................................................... 11

United States v. Escalera, 957 F.3d 121

(2d Cir.), cert. denied, 141 S. Ct. 399

(2020) .................................................................................... 10

United States v. Fleury, 20 F.4th 1353

(11th Cir. 2021) .................................................................... 12

United States v. Houston, 638 Fed. Appx. 434

(6th Cir.), cert. denied, 138 S. Ct. 286 (2017) ................... 10

United States v. Ivey, 60 F.4th 99 (4th Cir. 2023) .............. 12

United States v. Little, 961 F.3d 1035

(8th Cir. 2020)........................................................................ 9

United States v. Mitchell-Hunter, 663 F.3d 45

(1st Cir. 2011) ........................................................................ 9

United States v. Moreira-Bravo, 56 F.4th 568

(8th Cir. 2022)...................................................................... 12

United States v. Murillo, 826 F.3d 152

(4th Cir. 2016), cert. denied, 137 S. Ct. 812

(2017) .................................................................................... 10

United States v. Muza, 788 F.2d 1309

(8th Cir. 1986)...................................................................... 10

United States v. Pinckney, 85 F.3d 4

(2d Cir. 1996) ......................................................................... 9

United States v. Taylor, 942 F.3d 205

(4th Cir. 2019)...................................................................... 10

United States v. United States Gypsum Co.,

438 U.S. 422 (1978)................................................................ 6

V

Cases—Continued:

Page

United States v. Valencia, 394 F.3d 352

(5th Cir.), cert. denied, 394 F.3d 352

(5th Cir. 2004)...................................................................... 12

United States v. Washington, 743 F.3d 938

(4th Cir. 2014)...................................................................... 10

United States v. Wilson, 133 F.3d 251

(4th Cir. 1997)...................................................................... 11

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) ................................................................. 7

Statutes:

18 U.S.C. 371 .................................................................. 1, 2, 12

18 U.S.C. 924(c)(1)(B)(ii) ..................................................... 8, 9

18 U.S.C. 2113(a) ..................................................................... 4

18 U.S.C. 2113(b) ...................................................... 1-9, 11, 13

Miscellaneous:

4 William Blackstone, Commentaries on the Laws of

England (1769)...................................................................... 5

3 Wayne LaFave, Substantive Criminal Law

(3d ed. 2018)........................................................................... 5

In the Supreme Court of the United States

No. 22-849

RICKIE FOY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-18a)

is reported at 50 F.4th 616. The opinion of the district

court (Pet. App. 116a-119a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 3, 2022. On December 15, 2022, Justice Barrett

extended the time within which to file a petition for a

writ of certiorari to and including March 2, 2023, and

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a bench trial in the United States District

Court for the Northern District of Illinois, petitioner

was convicted of conspiring to commit felony bank theft,

in violation of 18 U.S.C. 371 and 2113(b). Pet. App. 4a;

(1)

2

Judgment 1. The district court sentenced petitioner to

37 months of imprisonment, to be followed by three

years of supervised release. Judgment 2-3. The court

of appeals affirmed. Pet. App. 1a-18a.

1. In June 2020, petitioner and his co-conspirators

surrounded a Bank of America ATM in Chicago, Illinois. Pet. App. 2a. Using a hammer, a crowbar, a rod,

and other tools, they tried to force open the ATM and

steal its contents. Ibid. Although they damaged the

outside of the ATM, they had failed to break it open by

the time the police arrived and arrested them. Ibid.

The ATM held over $190,000 in cash. Id. at 3a-4a.

A grand jury indicted petitioner for conspiring to

commit bank theft, in violation of 18 U.S.C. 371 and

2113(b). Pet. App. 4a. Section 2113(b) provides that a

person commits a felony if he “takes and carries away,

with intent to steal or purloin, any property or money

or any other thing of value exceeding $1,000 belonging

to * * * any bank.” 18 U.S.C. 2113(b). After a bench

trial, the district court found petitioner guilty. Pet.

App. 4a.

The district court orally denied petitioner’s motion

for a new trial, rejecting petitioner’s contention that

conviction under Section 2113(b) requires proof of specific intent to steal more than $1000 in value. Pet. App.

117a-120a. The court observed that the plain text of the

statute requires proof of “intent to steal,” not proof of

“intent to steal property or money exceeding $1,000.”

Id. at 117a-118a. The court also noted that, “as a practical matter,” petitioner’s reading “would lead to a

strange result where the government can only prosecute individuals who know how much money is in a bank

or an ATM at the time of the taking.” Id. at 119a.

2. The court of appeals affirmed. Pet. App. 1a-18a.

3

Like the district court, the court of appeals rejected

petitioner’s contention that conviction under Section

2113(b) requires proof of specific intent to steal more

than $1000 in value. Pet. App. 6a-10a. Looking to the

statute’s “plain language,” the court observed that the

“dollar valuation modifier is separated from the intent

language, which is offset by commas,” and it found no

basis for “read[ing] the dollar-amount modifier into the

intent clause.” Id. at 7a-8a. The court also noted that,

in Carter v. United States, 530 U.S. 255 (2000), this

Court had “stated that [Section 2113(b)] requires that

the defendant act with intent to steal or purloin, with no

mention of monetary constraints.” Pet. App. 8a (citation and internal quotation marks omitted). And the

court observed that petitioner’s reading “would lead to

impractical and illogical results,” such as “absolv[ing]

those who rob an ATM but did not have a specific intent

regarding the amount of money they intended to steal.”

Id. at 9a-10a. The court additionally noted that it “need

not separately analyze intent under” the conspiracy

statute, because the “mental state required for a conspiracy conviction is no greater than that necessary to

commit the underlying substantive offense.” Id. at 10a

(citation omitted).

ARGUMENT

Petitioner renews his contention (Pet. 9-28) that a

felony conviction under 18 U.S.C. 2113(b) requires

proof of specific intent to steal more than $1000 in value.

The court of appeals correctly rejected that contention,

and its decision does not conflict with any decision of

this Court or another court of appeals. The petition for

a writ of certiorari should be denied.

1. The first paragraph of Section 2113(b) states that

a person commits a felony, punishable by up to ten years

4

of imprisonment, if he “takes and carries away, with intent to steal or purloin, any property or money or any

other thing of value exceeding $1,000 belonging to * * *

any bank.” 18 U.S.C. 2113(b). The second paragraph

states that a person commits a misdemeanor, punishable by up to one year of imprisonment, if he “takes and

carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding

$1,000 belonging to * * * any bank.” Ibid.

The court of appeals correctly recognized that the

first paragraph of Section 2113(b) does not require

proof that the defendant intended to steal more than

$1000. The statute sets forth, in plain terms, the mental

state required for conviction: “intent to steal or purloin.” 18 U.S.C. 2113(b). The statute does not say “intent to steal or purloin more than $1000.” To the contrary, the phrase “intent to steal or purloin” is set off by

commas and separated from the phrase “exceeding

$1,000.” Ibid. Thus, as the court of appeals observed,

the grammatical structure of the provision precludes

reading “the dollar-amount modifier into the intent

clause.” Pet. App. 8a.

This Court’s decision in Carter v. United States, 530

U.S. 255 (2000), confirms that straightforward reading

of the statutory text. In Carter, the Court distinguished

Section 2113(b) from the separate bank-related crime in

Section 2113(a), agreeing with the government that

“three elements required by § 2113(b)’s first paragraph

are not required by § 2113(a): (1) specific intent to steal;

(2) asportation; and (3) valuation exceeding $1,000.” Id.

at 261 (emphasis omitted); see id. at 262. And, reinforcing the separateness of the first and third elements, the

Court continued throughout the opinion to describe the

statute’s mental-state element as requiring proof of

5

“intent to steal,” rather than proof of “intent to steal

more than $1000.” See, e.g., id. at 262 (“[Section

2113(b)] requires that the defendant act ‘with intent to

steal or purloin.’ ”); id. at 267 (“intent to steal or purloin”); ibid. (“the text of [Section 2113(b)] requires a

specific ‘intent to steal or purloin’ ”); id. at 269 (“intent

to steal or purloin”).

Section 2113(b)’s mental-state element tracks the

mental-state element of the traditional crime of larceny.

See Carter, 530 U.S. at 264 (noting the “close resemblance” between Section 2113(b) and the common-law

crime of “larceny”). English common law distinguished

between grand and petit larceny based on the value of

the property stolen. See 4 William Blackstone, Commentaries on the Laws of England 229 (1769). And

“practically all American jurisdictions by statute divide

larceny * * * into categories, depending upon the

amount stolen.” 3 Wayne LaFave, Substantive Criminal Law § 19.4(b) (3d ed. 2018) (footnote omitted). But

under both English common law and American law, a

larceny conviction requires proof of intent to steal (“animus furandi”)—not proof of intent to steal a specific

amount of money. See 4 Blackstone 232; 3 LaFave

§ 19.4(b).

Section 2113(b) carries forward that tradition by distinguishing a felony violation from a misdemeanor violation based on the amount stolen, with both violations

requiring the same mental state: the “intent to steal or

purloin.” 18 U.S.C. 2113(b). Indeed, as the court of appeals and district court both recognized, petitioner’s

atextual and ahistorical proposal to read the mentalstate requirement to include intent as to valuation

would render the statute ineffectual in a number of scenarios. See Pet. App. 9a-10a, 119a. Suppose, for example,

6

that a defendant steals property from a bank without

knowing its value—say, by quickly grabbing a fistful of

cash from an ATM’s coffers without pausing to count it.

On petitioner’s view, such a person could not be convicted under Section 2113(b)’s felony clause, because he

did not specifically intend to steal property of value “exceeding $1,000.” 18 U.S.C. 2113(b). The person also

could not be convicted under the misdemeanor clause,

because he did not specifically intend to steal property

of value “not exceeding $1,000.” Ibid. The person would

instead get off scot-free. Nothing in the text suggests

that Congress meant to leave that bizarre gap in the

statute’s coverage.

2. Petitioner relies (Pet. 17-24) on decisions applying the “presumption in favor of scienter”—that is, the

“longstanding presumption, traceable to the common

law, that Congress intends to require a defendant to

possess a culpable mental state regarding ‘each of the

statutory elements that criminalize otherwise innocent

conduct.’ ” Rehaif v. United States, 139 S. Ct. 2191, 2195

(2019) (citation omitted). But that presumption has no

bearing on this case.

This Court has applied the presumption in favor of

scienter in two categories of cases. First, it has applied

that presumption when the statute “does not specify

any scienter in the statutory text.” Rehaif, 139 S. Ct. at

2195; see, e.g., Staples v. United States, 511 U.S. 600,

618 (1994); United States v. United States Gypsum Co.,

438 U.S. 422, 437-438 (1978); Morissette v. United

States, 342 U.S. 246, 263 (1952). Second, it has applied

the presumption when the statute “includes a general

scienter provision,” but fails to specify “ ‘the material elements’ ” to which that requirement applies. Rehaif,

139 S. Ct. at 2195 (citation omitted); see, e.g., id. at 2195-

7

2196; United States v. X-Citement Video, Inc., 513 U.S.

64, 77-78 (1994); Liparota v. United States, 471 U.S.

419, 424-425 (1985).

This case falls within neither of those categories.

Section 2113(b) specifies both the mental state required

(“intent”) and the element to which that mental-state

requirement attaches (“to steal or purloin”). In such

circumstances, the best way to discern the scope of the

statute’s mental-state element is to apply the text that

Congress actually enacted, not to invoke a general presumption. “It is one thing to infer the common-law tradition of a mens rea requirement where Congress has

not addressed the mental element of a crime. * * * It

is something else to expand a mens rea requirement

that the statutory text has carefully limited.” FloresFigueroa v. United States, 556 U.S. 646, 658 (2009)

(Scalia, J., concurring in part and concurring in the

judgment).

Furthermore, even when the presumption of scienter applies, it extends only to the “elements that criminalize otherwise innocent conduct.” Rehaif, 139 S. Ct.

at 2195 (citation omitted). Section 2113(b)’s valuation

element does not criminalize otherwise innocent conduct. Stealing a bank’s property is a federal crime regardless of the amount of money, or other property,

that the thief takes. The valuation element instead affects only the punishment for the crime. See 18 U.S.C.

2113(b). And “it is not unusual to punish individuals for

the unintended consequences of their unlawful acts.”

Dean v. United States, 556 U.S. 568, 575 (2009); see

ibid. (listing examples of laws that increase a defendant’s punishment based on the unintended consequences of his acts).

8

Put another way, the “purpose of scienter” is “to separate wrongful from innocent acts.” Rehaif, 139 S. Ct.

at 2197. But the mental-state element in the statutory

text—“intent to steal or purloin”—already separates

wrongful from innocent acts. Taking and carrying away

someone else’s money or property with the intent to

steal it is wrongful, not innocent. Because “the concerns underlying the presumption in favor of scienter

are fully satisfied” by the intent requirement that Congress has already enacted, “the presumption in favor of

scienter does not justify reading a [further] intent requirement” into the statute. Carter, 530 U.S. at 269270.

In all events, the presumption in favor of scienter is

just that—a presumption. Like any other interpretive

presumption, it can be overcome by contrary indicators

of statutory meaning. See Rehaif, 139 S. Ct. at 2195.

Here, the plain language of the statute, the common-law

background against which Congress enacted it, and the

implausible consequences of petitioner’s reading overcome any presumption and establish that Congress required only proof of “intent to steal or purloin,” 18

U.S.C. 2113(b), not proof of “intent to steal or purloin

more than $1000.”*

* Petitioner’s repeated reliance (Pet. 14, 17-20, 23) on then-Judge

Kavanaugh’s dissent in United States v. Burwell, 690 F.3d 500 (D.C.

Cir. 2012) (en banc), cert. denied, 568 U.S. 1196 (2013), is misplaced.

Burwell involved a different statute: 18 U.S.C. 924(c)(1)(B)(ii),

which requires a 30-year sentence for carrying a machinegun during

and in relation to a crime of violence. After considering “relevant

textual and contextual considerations” as well as the presumption of

scienter, Judge Kavanaugh’s dissent concluded that a conviction under Section 924(c)(1)(B)(ii) requires proof that the defendant knew

that the weapon he was carrying was a machinegun. Burwell, 690

F.3d at 551 (Kavanaugh, J., dissenting). But the text of Section

9

3. Contrary to petitioner’s contention (Pet. 10-17),

the decision below does not conflict with the decisions

of other courts of appeals. None of the decisions that

petitioner cites involved Section 2113(b). Nor do those

decisions suggest that any other court of appeals would

have reached a different result in this case.

As an initial matter, many of the decisions cited by

petitioner (Pet. 13) involved issues unrelated to this

case and referred to the presumption of scienter, if at

all, only in dicta. See United States v. Mitchell-Hunter,

663 F.3d 45, 50-51 (1st Cir. 2011) (determining that, because a particular fact was not an element of the crime

at all, the defendant was not entitled to a jury trial on

it); United States v. Bunn, 154 Fed. Appx. 227, 229 (2d

Cir. 2005) (determining that the government had “provided insufficient evidence to prove [a] jurisdictional element”); United States v. Pinckney, 85 F.3d 4, 8 (2d Cir.

1996) (determining that, “[r]egardless of whether” the

statute should be read to contain “a mens rea element,”

the government “ha[d] failed to prove all of the elements of [the crime] beyond a reasonable doubt”);

United States v. Little, 961 F.3d 1035, 1038-1039 (8th

Cir. 2020) (determining that the evidence of the mentalstate element expressly required by the statute was insufficient). Those decisions shed no meaningful light on

how those courts of appeals would approach this case.

924(c)(1)(B)(ii) differs from the text of Section 2113(b). As discussed

in the text, the latter plainly establishes that Congress required

proof only of “intent to steal or purloin,” not proof of intent to steal

or purloin more than $1000. See id. at 547 (“Of course, the presumption of mens rea is a presumption; it thus may be overcome by a

plainly contrary congressional intent, as revealed in the statutory

text or context.”).

10

In several more decisions cited by petitioner (Pet.

12-14), courts of appeals rejected an effort to read a

mental-state requirement into a criminal statute. In

some of those cases, the court explained that the presumption of scienter does not apply to jurisdictional elements. See United States v. Escalera, 957 F.3d 122,

134 (2d Cir.) (“purely jurisdictional elements”), cert. denied, 141 S. Ct. 399 (2020); United States v. Blackmon,

839 F.2d 900, 907 (2d Cir. 1988) (“purely jurisdictional

element”); United States v. Murillo, 826 F.3d 152, 159

(4th Cir. 2016) (“jurisdictional elements”), cert. denied,

137 S. Ct. 812 (2017); United States v. Taylor, 942 F.3d

205, 214 (4th Cir. 2019) (“jurisdictional element”);

United States v. Houston, 683 Fed. Appx. 434, 438 (6th

Cir. 2017) (“facts giving rise to federal jurisdiction”),

cert. denied, 138 S. Ct. 286 (2017); United States v.

Muza, 788 F.2d 1309, 1311-1312 (8th Cir. 1986) (“interstate commerce” element). In other cases, courts of appeals relied on the exception to the presumption of scienter for “sex offenses, such as rape, in which the victim’s actual age [i]s determinative despite [the] defendant’s reasonable belief that the girl had reached age of

consent.” Morissette, 342 U.S. at 251 n.8; see United

States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014);

United States v. Daniels, 685 F.3d 1237, 1249 (11th Cir.

2012), cert. denied, 563 U.S. 1164 (2013). But those

courts, in determining that the presumption of scienter

was inapplicable in those cases, did not suggest that

they would find the presumption applicable in a case

such as this one.

As for the four cases cited by petitioner (Pet. 10-12)

in which courts of appeals read statutes to contain

mental-state elements: Each simply applied the principle of “ordinary English grammar” that, when a criminal

11

statute “introduces the elements of a crime with the

word ‘knowingly,’ ” that word usually applies “to each

element” that follows. Flores-Figueroa, 556 U.S. at 650,

652; see United States v. Wilson, 133 F.3d 251, 261 (4th

Cir. 1997) (concluding that “the ‘knowing’ mens rea

accompan[ies] each element of the offense”); United

States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996) (concluding that “the phrase ‘knowingly violates’ * * *

should uniformly require knowledge as to each of those

elements”); United States v. Bruguier, 735 F.3d 754,

758 (8th Cir. 2013) (en banc) (concluding that “the term

‘knowingly’ * * * appl[ies] to all elements that follow

it”); United States v. Dominguez, 661 F.3d 1051, 1068

(11th Cir. 2011) (concluding that “court may treat the

mens rea Congress provided in the statute as modifying

each element that follows it”), cert. denied, 566 U.S.

1034 (2012). Section 2113(b), in contrast, does not use a

term such as “knowingly” to introduce a series of elements. It instead specifies the precise mental state required for commission of the crime: “intent to steal or

purloin.” It would contradict, rather than comport with,

the rules of “ordinary English grammar,” FloresFigueroa, 556 U.S. at 650, to extend that intent requirement to Section 2113(b)’s valuation element.

More broadly, petitioner errs in asserting that the

Fourth, Fifth, Eighth, and Eleventh Circuits disagree

with other circuits about the scope of the presumption

of scienter. This Court has repeatedly stated that the

presumption entitles a court to read into a statute “only

that mens rea which is necessary to separate wrongful

conduct from ‘otherwise innocent conduct.’ ” Elonis v.

United States, 575 U.S. 723, 412 (2015) (emphasis

added; citation omitted); see, e.g., Ruan v. United

States, 142 S. Ct. 2370, 2377 (2022) (“statutory terms

12

that ‘separate wrongful from innocent acts’ ”) (citation

omitted); Rehaif, 139 S. Ct. at 2197 (“separate wrongful

from innocent acts”). Like every other circuit, the

Fourth, Fifth, Eighth, and Eleventh Circuits adhere to

that approach. See United States v. Ivey, 60 F.4th 99,

117 (4th Cir. 2023) (“only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’ ”) (citation omitted); United States v.

Valencia, 394 F.3d 352, 356 (5th Cir. 2004) (“only that

mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’ ”), cert. denied,

544 U.S. 1034 (2005); United States v. Moreira-Bravo,

56 F.4th 568, 575 (8th Cir. 2022) (“element separating

wrongful from innocent conduct”); United States v.

Fleury, 20 F.4th 1353, 1371 (11th Cir. 2021) (“separate

wrongful conduct from ‘otherwise innocent conduct’ ”)

(citation omitted).

4. Petitioner’s additional arguments for certiorari

likewise lack merit.

To the extent that petitioner urges review specifically because he was charged and convicted for conspiracy, rather than the substantive offense, see Pet. 23, his

focus is misplaced. He does not meaningfully contend

that his particular conviction required a heightened

mens rea, see Pet. 16-17, and any suggestion that “intent is all there is” to his crime, Pet. 23 (emphasis omitted), is mistaken. A conspiracy conviction under 18

U.S.C. 371 requires the government to prove not only

that the conspirators agreed to commit the substantive

offense, but also that at least one of them performed an

overt “act to effect the object of the conspiracy.” Ibid.

The government did so here by showing that petitioner

and his accomplices “used an assortment of tools, including a hammer, crowbar, and rod, to attempt to break open

13

the ATM and access its contents.” Pet. App. 2a; see

Gov’t C.A. Br. 6-7 (photographs of crime).

Petitioner also errs in arguing (Pet. 25) that the

question presented “will recur frequently.” Petitioner

has not cited any case (apart from this one) in which the

question presented—whether a felony conviction under

Section 2113(b) requires proof of intent to steal more

than $1000—has even come up. Nor has he provided

any reason to think that the question will often arise in

future cases.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

FINNUALA K. TESSIER

Attorney

MAY 2023