Respondents Brief — Bell v. United States

hens Be sa es

FILED

No, 82-5119

‘oe

In the Supreme Court of the United States

OcTOBER TERM, 1982

NELSON BELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS tty ty a FIFTH CIRCUIT

U.

BRIEF FOR THE UNITED STATES

Rex E, LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ELLIOTT SCHULDER

Assistant to the Solicitor General

SARA CRISCITELLI

f Attorney

hog | Department of Justice

we Washington, D.C. 205380

eS (202) 633-2217

QUESTION PRESENTED

Whether a taking of money by false pretenses from

a federally insured bank violates 18 U.S.C. 2118(b).

(1)

TABLE OF CONTENTS

SID, TUREOIID: cxcscrsusiensircinstditenisnislindincidebeasminiieisdadupsonaianeiiiin

BE RE AOI ER EO NEY DNS

Statute involved .....................

Statement

Summary Of ATFUMOUE .......cccccccccccceccsecscocccccccsocces

Argument:

18 U.S.C. 2118(b) prohibits the taking of money

by false pretenses from a federally insured bank..

A. The literal language of Section 2113(b) in-

Conclusion

Cases:

cludes a taking by false pretenses ......................

The offense described in Section 2113(b) should

not be construed as limited by the common law

definition of larceny because by the time the

statute was enacted there was an emerging

trend to expand the concept of larceny beyond

the bounds of the common law offense ..............

The legislative history of Section 2118(b) is

inconclusive and does not compel rejection of

the literal language of the statute ....................

. Restricting the scope of Section 2118(b) to

common law larceny would yield anomalous

CIID sinscnsitbsoncsapielsdesipnincindenbiumiiieaiiandnitstbachccaiasidaie

. Because the literal language of Section 2113(b)

includes a taking by false pretenses, the rule of

lenity does not support a narrow construction

OEE Se ID: cxsinierciesntibstecsinsiaialiitiendpssibharnpiainesintiiimnmate

TABLE OF AUTHORITIES

Barrett v. United States, 428 U.S. 212 ..................

Brinkley v. United States, 560 F.2d 871 ................

(11)

14

42

46

IV

Cases—Continued Page

Callanan Vv. United States, 364 U.S. 587 .................. 42

Carrier’s Case, Y.B. 18 Edw. IV f. 9, pl. 5 ...... ane 15

Commonwealth v. King, 202 Mass. 379, 88 N.E.

GI cosets ninssaslentsnsteisintentininisecitincinitbeiicetidiliabainasaiataipicikaaddanss 21

Commonwealth v. Ryan, 155 Mass. 523, 30 N.E.

364 ssciniadibeslestaauacsiaicteaaletieliesliecaiandiasapsncciidasnied 16

Crabb v. Zerbst, 99 F.2d 662 .2...........02.:cccccceceeeeeeeees 21

Dunn Vv. United States, 442 U.S. 100 2.00000... 44

Factor v. Laubenheimer, 290 U.S. 276 .................... 12

Huddleston v. United States, 415 U.S. 814 .............. 42,44

Jerome V. United States, 318 U.S. 101 .........00......... passim

Jolly v. United States, 170 U.S. 402 ..000.0 00000. 20

LeMasters v. United States, 378 F.2d 262........ 8, 11, 12, 28

McElroy v. United States, No. 80-6680 (Mar. 23,

I sncatteceisawsenithinotuestaichonininisihienimattndnsipnbonicacs sisihanaheian 43

Morissette v. United States, 342 U.S. 246 .......... 12, 17, 21

Paine v. United States, 7 F.2d 268 2.000.000.0000... 38

Perrin v. United States, 444 U.S. 87 .....00...000002000..--. 10, 13

Prince Vv. United States, 352 U.S. 322 2.000000... 22, 30

Rez v. Pear, 2 East P.C. 686, 1 Leach 212, 168

BN, I TI vasiiniiciinttnsnnsntnsntnsererccntnamicensanncnnnenion 15

SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344.... 43-44

Scarborough v. United States, 431 U.S. 568 .......... 35

Skinner v. Oklahoma, 316 U.S. 685 .........00...000...... 17

Standard Oil Co. v. United States, 221 U.S. 1 ........ 12

Thaggard Vv. United States, 354 F.2d 735, cert. de-

nied, 383 U.S. 958 2.0.00... ccccccceccccceenceeeenceneeeeeenee 8,11, 44

United States v. Alessandreilo, 637 F.2d 131, cert.

HITE Wisi SNE cansitinsacnacadnnnncicacesicshecsetaceaniath 41

United States v. Armata, 193 F. Supp. 624 ............ 12, 36

United States v. Bass, 404 U.S. 336 ........0000............ 42

United States v. Batchelder, 442 U.S. 114 .............. 35

United States v. Bramblett, 348 U.S. 508 —.............. 43

United States v. Brown, 333 U.S. 18 -.................... 43

United States vy. Etchison, No. 81-5246 (4th Cir.

AIP ae ne er ee Oe 40

United States v. Feroni, 655 F.2d 707 -.................... 11

United States v. Fisher, 6 U.S. (2 Cranch) 358.... 42

United States v. Fistel, 460 F.2d 157 ...................... 11

United States v. Guiffre, 576 F.2d 126, cert. denied,

439 US. 833 1l

Vv

Cases—Continued Page

United States v. Gristeau, 611 F.2d 181 .................. 36

United States v. Hackett, 623 F.2d 348 .................. 41

United States v. Hartwell, 73 U.S. (6 Wall.) 385.. 44

United States v. Henry, 447 F.2d 288 0000000000000... 36

United States v. Johnson, 575 F.2d 678 .............. 11, 12, 39

United States v. Maloney, 607 F.2d 222 .................. 36

United States v. Marrale, 695 F.2d 658 .................. £7, 28

United States v. Marz, 485 F.2d 1179 .................... 41

United States v. Moore, 428 U.S. 122 .............2........ 43

United States v. Nardello, 393 U.S. 286 .................. 13

United States v. Northway, 120 U.S. 327 ................ 36

United States v. Patton, 120 F.2d 78 .................. 80, 31, 32

United States v. Pinto, 646 F.2d 833, cert. denied,

No. 81-2088 (Oct. 4, 1982) ................ccccccsscsssccenees 42

United States v. Rogers, 289 F.2d 488 ......00....00...... 11

United States v. Shoels, 685 F.2d 379, petition for

cert. pending, No. 82-5660 ..............sessccsssssssessseeee 11, 38

United States v. Simmons, 679 F.2d 1042, petition

for cert. pending sub nom. Brown v. United

NEI: Tels SII epcornciosichedodininunbedncdeetsceuns 11, 27, 31, 38

United States v. Turley, 352 U.S. 407 ........ 8, 12, 24, 28, 37

Van Vechten v. American Eagle Fire Insurance

Co., 289 N.Y. 808, 146 N.E. 482 .......................... 21, 38

Way v. United States, 268 F.2d 786 ........................ 28

Williams v. United States, No. 80-2116 (June 29,

SIG Dia sccnh a sctias 8k tans l abana ienieiliaatehpoenannebadl 8, 41, 44, 45

Statutes:

Act of Apr. 30, 1790, ch. 9, Section 16, 1 Stat. 116.. 35

Act of May 18, 1934, ch. 304, 48 Stat. 783 ............ 24, 27

Act of Aug. 23, 1935, ch. 614, Section 333, 49 Stat.

5 ARRAS TUS OI EO Hera ce 27

Act of Aug. 24, 1987, ch. 747, 51 Stat. 749 -............ 25

Act of Aug. 5, 1939, ch. 434, 53 Stat. 1205 ............. 85

Act of June 29, 1940, ch. 455, 54 Stat. 695 ........... 28

Act of Aug. 3, 1950, ch. 516, 64 Stat. 394 0000000... 28

Act of Apr. 8, 1952, ch. 164, 66 Stat. 46 000000000... 28

Act of Sept. 22, 1959, Pub. L. No. 86-354, Section

27(2), 73 Stat. 689 _..... 28

Act of Oct. 19, 1970, Pub. L. No. 91-468, Section 8,

Ee Re TA sic casccnnssossinnisonss 28

Statutes—Continued Page

ES AAS i ae 7,37

I Foe abiianisoeaansahioaily 41

RRR ERE aS eS 7, 35, 36

I a cebnahisheamandiand 41,44

Be NY II dacciceedisiniinsdncnedsiennstincigeeniosasdigjadessiblints 7, 8, 35, 37, 38

IN I is ditch cian hs dndiet chaineaadgubng baicwienibilaissecadiiel 13

oy SIS SS A eee 30, 31, 41

Se RM iii cnc ta ilcaicededehdeivakintiocenendionlenagehieh passim

De a saenslehcnaeiieetinot 28

Rev. Stat. 5209 (1878 ed.), 40 Stat. 972 ....0000000.... 22

Ark. Stat. ch. 42, § 8075 (1987) ...............0..cceeee 20

Cal. Penal Code § 484, as amended by Cal. Stat.

OO Bs: RUS RSS ee ee oC 20

Del. Rev. Code ch. 150, § 87 (19385) -.......000..00000... 20

Fla. Stat. Ann. § 812.021 (West 1976) -................... 44

Idaho Code Ann. ch. 39, § 17-3902 (1932) ............ 20, 21

Ill. Rev. Stat. ch. 38, § 258 (1985) .......................0000. 20

Kansas Stat. Ann. § 21-551 (1935) ~..........00........... 21

Mass. Gen. Laws ch. 266, § 30 (1982) .................... 20

Md. Ann. Code art. 27, § 189 (1924) ~........0000000000... 20

Minn. Stat. ch. 101, § 10858 (1927) —....0...0000000000.... 20

Mo. Rev. Stat. § 4006 (1929) ...............2.0....cccessccsesses 21

Mont. Rev. Code ch. 48, § 11868 (19385) —................ 20

N.C. Code Ann. ch. 82, art. 17, § 4277 (19381)........ 20

N.Y. Penal Law § 1290 (Gilbert 1987) —.................. 20

Pa. Stat. tit. 18, § 2681 (Purdon 1986) ~................ 20

R.I. Gen. Laws tit. 39, ch. 397, §§ 15, 16 (1923)... 20

TD eee ee 20

Tex. Stat. tit. 17, art. 1549 (Vernon 1936) ............ 21

Utah Rev. Stat. § 108-18-8 (1983) 2.0000. 21

Va. Code Ann. § 4440 (1924) ...2...222.0...22200:ccccceeeeeeeeee 20

W. Va. Code Ann. § 5965 (1982) —.....00.00.00000000... 20

Miscellaneous:

A Note on the Racketeering, Bank Robbery, and

“Kick-Back” Laws, 1 Law & Contemp. Probs.

445 (19384) URES RS EEE ee 23

4 W. Blackstone, Commentaries .......................0...--. 14

2 W. Burdick, The Law of Crime (1946) ............ 9, 14, 36

W. Clark & W. Marshall, A Treatise on the Law

of Crimes (5th ed. 1952) 14, 15, 41

Miscellaneous—Continued Page

re MP, BR, GREE CIID vncectcccencccccseccccscsensesctnies 24

81 Cong. Rec. 5876-5877 (1987) ...................0c0+. 25

Fletcher, The Metamorphosis of Larceny, 89 Harv.

Bes BOW. GED CRGTE) cnccnccncerccccccsessses 17

J. Hall, Theft, Law and Society (2d ed. 1952) ....14, 15, 26

O. Holmes, The Common Law (1881) ...................... 17

Holmes, The Path of the Law, 10 Harv. L. Rev.

I Oa niniaaiesiteltindl 19

H.R. Rep. No. 1461, 78d Cong., 2d Sess. (1934).... 23

H.R. Rep. No. 732, 75th Cong., 1st Sess. (1937) ..24, 25, 43

H.R. Rep. No. 304, 80th Cong., Ist Sess. (1947) .... 30

Kidd, Larceny By Trick: False Pretenses, 2 Calif.

Oe 7 OA 19

W. LaFave & A. Scott, Criminal Law (1972)....9, 14, 15,

J. Miller, Criminal Law (1984) ................................ 9,19

Model Penal Code (Tent. Draft No. 1, 1952)........ 16

Note, Criminal Law—Larceny—Cheating at Cards,

10 Minn. L. Rev. 258 (1926) ...................-.--0000-- 37

Note, Determining The Proper Scope of Section

2113(b) of the Federal Bank Robbery Act, 51

Fordham L. Rev. 586 (1982) .2...2.......2.2.....:cceee002 passim

Note, Larceny, Embezzlement and Obtaining Prop-

erty by False Pretenses, 20 Colum. L. Rev. 318

I ie ala FT asians 19

S. 2841, 73d Cong., 2d Sess. (1984) —.......0..0.00........ 23

ARSE EN aR asa a e+ 23, 26, 30

PER bes ni es 23

EEA SER ena ete CRSENE epee TSE ne Ares 23

S. Rep. No. 587, 78d Cong., 2d Sess. (1984)........ 23

Scurlock, The Element of Trespass in Larceny at

Common Law, 22 Temp. L. Q. 12 (1948) ............ 14

K. Sears & H. Weihofen, May’s Law of Crimes

I leet 36, 37, 41

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-5119

NELSON BELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNIT B

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the en banc court of appeals (J.A.

15-25) is reported at 678 F.2d 547. The panel’s opin-

ion (J.A. 6-13) is reported at 649 F.2d 281.

JURISDICTION

The judgment of the en banc court of appeals was

entered on June 1, 1982 (J.A. 26-27). The petition

for a writ of certiorari was filed on July 26, 1982,

and was granted on November 29, 1982 (J.A. 28).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

STATUTE INVOLVED

18 U.S.C. 2113(b) provides in pertinent part:

Whoever takes or carries away, with intent to

steal or purloin, any property or money or any

(1)

2

other thing of value exceeding $100 belonging to,

or in tle care, custody, control, management, or

possession of any bank, credit union, or any sav-

ings and loan association, shall be fined not more

than $5,000 or imprisoned not more than ten

years, or both[.]

* * * * *

STATEMENT

After a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of taking money from a federally in-

sured savings and loan association, in violation of 18

U.S.C. 2113(b). He was sentenced to imprisonment

for one year. A divided panel of the court of ap-

peals reversed (J.A. 6-13), but the en banc court of

appeals vacated the panel opinion and affirmed peti-

tioner’s conviction (J.A. 15-25).

1. The evidence at trial, which is set out in the

opinions below (J.A. 6-7, 16-17), established that on

or about October 13, 1978, Lawrence and Elaine Ro-

govin mailed a $10,000 check from Cincinnati, Ohio,

to their investment agent in Florida. The agent was

to deposit the check into the Rogovins’ savings account

at the Dade Federal Savings and Loan Association.

The agent never received the check.

A few days later, on October 17, 1978, petitioner

opened an account at a Dade Federal branch office,

using a false address, birth date, and social security

number. Later that day, at a different branch of the

bank, petitioner deposited the Rogovins’ $10,000

check into his new account, giving a second false ad-

dress. The Rogovins’ account number had been

scratched out and petitioner’s new account number

had been substituted in its place. After a 20-day hold-

ing period, but before the Rogovins discovered what

had happened to their check, petitioner withdrew the

$10,000 in cash, with accrued interest, from his ac-

count, giving a third false address.

2. A divided panel of the court of appeals reversed

petitioner’s conviction (J.A. 6-13). Although the

court did not question the application of 18 U.S.C.

2113(b) to theft by false pretenses (J.A. 8), it held

that the evidence was insufficient to prove that peti-

tioner had a specific intent to steal the $10,000 from

the bank when he withdrew the funds (J.A. 9-12).

The court of appeals granted rehearing en banc

(J.A. 14), vacated the panel opinion, and affirmed

petitioner’s conviction (J.A. 15-27). With respect to

the question on which this Court has granted review

—whether 18 U.S.C. 2113(b) prohibits the obtaining

of property from a bank by false pretenses—the ma-

jority of the en banc court edopted the earlier deci-

sion of the Fifth Circuit in Thaggard v. United

States, 354 F.2d 735 (1965), cert. denied, 383 U.S.

958 (1966). In Thaggard, the Fifth Circuit relied

upon this Court’s decision in United States v. Turley,

352 U.S. 407, 417 (1957), in holding that Section

2113(b) embraces “ ‘all felonious takings . . . with

intent to deprive the owner of the rights and benefits

of ownership, regardless of whether or not the theft

constitutes common-law larceny’” (J.A. 17, quoting

Thaggard, 354 F.2d at 737).

Four judges dissented from this aspect of the en

bane decision (J.A. 20-24). Relying principally on

the Ninth Circuit’s analysis of the statute and its

legislative history in LeMasters v. United States, 378

F.2d 262, 267-268 (1967), the dissenters concluded

that theft by false pretenses is beyond the reach of

Section 2113(b).

4

SUMMARY OF ARGUMENT

A. In 18 U.S.C. 2113(b), Congress provided that

“Tw]hoever takes or carries away, with intent to

steal or purloin,” any money or property of value ex-

ceeding $100 from a federally chartered or insured

bank or other financial institution, shall be guilty of a

felony. If, as is usually the case, the words of the

statute are to be given their common, ordinary mean-

ing, then it would seem beyond dispute that petition-

er’s conduct was in violation of the statutory pro-

hibition.

Petitioner argues, however, that because the phrase

“takes and carries away” in Section 2113(b) is cast

in terms similar to those used in the traditional

formulation of common law larceny, it necessarily

follows that Congress intended the statute to apply

only to those offenses that would constitute larceny at

common law. At common law, the offense of larceny

required a “trespass,” or nonconsensual acquisition of

property from another. In this respect, larceny was

distinct from false pretenses, in which the thief ob-

tained property and title thereto with the consent of

the owner, albeit a consent procured through false

representation. If Congress meant this common

law distinction to govern the construction of Section

2113(b), then petitioner’s conduct did not violate the

statute because he obtained the money with the con-

sent—albeit fraudulently induced—of the bank.

Thus, the proper interpretation of the statute turns

on whether Congress intended the words used to have

their common, contemporary meaning, or the meaning

attached to those words at common law. The use of

the phrase “with intent to steal or purloin” in de-

scribing the scienter element of the offense suggests

that Congress did not intend Section 2113(b) to be

limited to common law larceny, because the terms

“steal” and “purloin” had no accepted common law

meaning but instead were associated with a broader

range of theft offenses than was “larceny” at common

law.

B. Moreover, by the time Section 2113(b) was en-

acted in 1937 there was a growing trend, both in this

country and in England, to do away with the arti-

ficial distinctions among different theft-related of-

fenses (e.g., larceny, larceny by trick, embezzlement

and false pretenses) that had developed at common

law. Thus, while the term “larceny” (and its classic

“takes and carries away” formulation) had quite

strictly defined content in earlier years, by 1937 lar-

ceny had begun to be regarded as a generic term con-

noting a broad range of theft-related crimes. In light

of this background, it is difficult to believe that Con-

gress deliberately employed common law terminology

in Section 2113(b) for the spe¢fic purpose of resur-

recting the arcane and illogical distinctions of the

past.

C. 1. The sparse legislative history of Section

2113(b) is at best inconclusive and does not require

rejection of the literal language of the statute. In

1934, the Attorney General proposed legislation that

would have protected Federal Reserve System banks

and banks organized or operated under federal law

from robbery, burglary and theft. The theft provi-

sion would have included the “taking and carrying

away” of the bank’s property without the consent of

the bank, or with consent obtained, inter alia, by

means of any false or fraudulent representation, i.e.,

false pretenses. This provision and the burglary pro-

vision were struck without explanation, however, and

the legislation as enacted was limited to robbery.

In 1937, Congress expanded the coverage of the

bank robbery statute to include larceny and burglary

of federally organized and insured banks. The

larceny provision (now codified at 18 U.S.C.

2113(b)) does not expressly refer to false pretenses

(as did the 1934 bill), but the mere use of the

phrase “takes and carries away” in the text of

the statute (and of the word “larceny” in the title

of the bill and in the committee reports) does not

necessarily establish an intent to exclude theft by

false pretenses. In the Attorney General’s 1934 bill,

the theft provision included the formulation “takes

and carries away” to describe both consensual and

nonconsensual acquisitions of property. Thus, the in-

clusion of this formulation in Section 2113(b) may

likewise have been intended to incorporate takings

with or without the consent of the bank. This con-

clusion is buttressed by other evidence suggesting

that by 1987 Congress no longer was concerned with

the problems of gangsterism that had prompted pas-

sage of the limited bank robbery statute in 1934, but

instead was concerned generally with protecting fed-

erally insured banks from the depletion of their as-

sets as a result of nonforcible takings.

2. The decision of this Court in Jerome v. United

States, 318 U.S. 101 (1948), does not compel the

conclusion that the words used in Section 2113(b)

should be given their common law meaning. Indeed,

the Court’s actual holding in Jerome—rejecting the

argument that the burglary provision of the bank

robbery statute embodied the common law definition

of burglary—is not inconsistent with our position

that the larceny provision is not limited by the com-

mon law definition of that offense. While certain

language in Jerome and, to some extent, the Court’s

analysis of the legislative history of the statute sug-

gest that Congress intended Section 2113(b) to be

construed narrowly (i.e., as limited to common law

7

larceny), they are not dispositive on the question of

Congress’ intent. The decision in Jerome was sup-

ported by other considerations that are not implicated

in this case. Here, unlixe in Jerome, if the words of

the statute are given their ordinary meaning there

is no danger either of disparate application of the

statute in different jurisdictions, or of expansion of

federal jurisdiction to all state felonies committed in

banks.

3. Nor does the passage in 1939 of an entirely un-

related statute—18 U.S.C. 1025—shed light on Con-

gress’ intent in enacting Section 2113(b) two years

earlier. It is true that, in proposing the enactment

of Section 1025 to reach “card sharping” offenses on

United States waters, the Attorney General suggested

a narrow view of the general federal larceny statute

(now codified at 18 U.S.C. 661), which was virtually

identical in its language to Section 2113(b). How-

ever, Section 1025 was enacted hastily, without de-

bate, and its passage does not demonstrate Congress’

deliberate intent to maintain outmoded distinctions

between common law larceny and false pretenses. In-

deed, it is at least as reasonable to conclude that Con-

gress acted out of an abundance of caution to ensure

that, in the event the courts were to construe the

larceny statute (which was derived from a 1790

statute) as limited to common law larceny, card

sharps operating on United States waters would re-

main subject to federal prosecution. Furthermore,

shortly after Congress enacted Section 1025, it en-

acted a broad theft statute relating to investment

companies, which equated “larceny” with offenses out-

side the purview of the common law crime. See 15

U.S.C. 80a-36. The enactment of this statute casts

considerable doubt on any attempt to discern Con-

8

gress’ intent as to Section 2113(b) by reference to

18 U.S.C. 1025.

D. A construction. of Section 2113(b) that limits

its scope to common law larceny would perpetuate

the technical and illogical distinctions between var-

ious theft offenses that developed largely as a result

of historical accidents. Thus, under petitioner’s view,

the statute would cover larceny by trick, where the

thief fraudulently induces the owner to part with

possession of the property, but not false pretenses,

where the thief fraudulently induces the owner to

part with title to the property. Such incongruous re-

sults would be avoided if the words of the statute

are given their common, everyday meaning.

E. This case presents no occasion for applying the

“rule of lenity.” Because the meaning of Section

2113(b) can be ascertained with reasonable certainty,

there is no ambiguity requiring curtailment of its

literal coverage. Thus, this case is distinguishable

from Williams v. United States, No. 80-2116 (June

29, 1982), slip op. 7, where the Court applied the

rule of lenity to a statute that “does not explicitly

reach the conduct in question.”

ARGUMENT

18 U.S.C. 2113(b) PROHIBITS THE TAKING OF

MONEY BY FALSE PRETENSES FROM A FED-

ERALLY INSURED BANK

The sole question presented by this case is whether

18 U.S.C. 2113(b) is restricted in its coverage to

offenses that were embraced in the common law by

the term “larceny.” Petitioner would answer that

question in the affirmative; accordingly, he contends

that Section 2113(b) does not encompass theft of

property by “false pretenses.” Under common law,

9

the crime of false pretenses traditionally was distin-

guished from larceny by the fact that the latter re-

quired a trespassory or nonconsensual acquisition of

the property from another, while in false pretenses

the property and title thereto were acquired with the

consent of the other party, albeit a consent procured

by false or fraudulent representations. See, e.g., W.

LaFave & A. Scott, Criminal Law 618, 622, 655

(1972); 2 W. Burdick, The Law of Crime 286

(1946); J. Miller, Criminal Law 340-341, 348-382,

390 (1934). If the distinction were foilowed in this

case, petitioner’s conduct would constitute false pre-

tenses, not larceny, at least as larceny was defined at

common law, because petitioner’s withdrawal of the

money from his account was with the consent of the

bank, albeit a consent procured by his fraudulent con-

duct. It is our basic submission in this case that the

common law distinction between larceny and false

pretenses, while perhaps of interest to legal histo-

rians, is not determinative of the proper scope of the

offense defined by Congress in Section 2113 (b).

A. The Literal Language Of Section 2113(b) Includes A

Taking By False Pretenses

1. Section 2113(b) provides that “[w]hoever takes

and carries away, with intent to steal or purloin,”

any money or property of value exceeding $100, be-

longing to or in the possession of a federally chartered

or insured bank or other financial institution, shall

be fined not more than $5,000 or imprisoned not more

than 10 years, or both. Petitioner’s conduct in this

case certainly falls within the literal terms of this

language.’ When petitioner withdrew the $10,000

1 There is no dispute that the institution involved here, the

Dade Federal Savings and Loan Association, is a protected

institution under the statute.

10

plus interest from his account, he can be said to have

“taken” the money from the teller who paid the

money over to him; when petitioner left the bank,

he “carried away” the money; and it seems clear that

petitioner did these acts “with intent to steal or pur-

loin” the money, in the sense that he intended to de-

prive the bank or the true owner of the use or bene-

fit of the funds.’

It is “[a] fundamental canon of statutory construc-

tion that, unless otherwise defined, words will be in-

terpreted as taking their ordinary, contemporary,

common meaning.” Perrin v. United States, 444 U.S.

37, 42 (1979). Section 2113(b) does not include a

definition of the operative words used in the statute.

2 In accordance with the literal language of the statute, the

district court instructed the jury that, in order to find peti-

tioner guilty under Section 2113(b), it had to find (Tr. 188) :

First: The act or acts of taking from the person or

presence of another, any property or money belonging to,

or in the possession of a bank or savings and loan associ-

ation as charged;

Second: That [petitioner] do so willfully and with

specific intent to steal or purloin;

Third: That [petitioner] did take and carry away

money exceeding $100.

The court then instructed that (Tr. 189):

The word “purloin” as used in Section 2113(b) of the

United States Code and in this charge means simply to

commit larceny or theft.

Within the meaning of Section 2113(b) of Title 18 of

the United States Code, the terms “steal” and “purloin”

would include the conduct of an accused that was de-

signed and did result in his intentionally receiving from

a federal savings and loan association money that he

knew he was not entitled to receive.

Petitioner did not object to these instructions (Tr. 162-

168, 194).

11

In these circumstances, it is perfectly reasonable to

conclude—as did the court below and the majority of

other courts of appeals that have considered the ques-

tion—that Congress intended the words of Section

2113(b) to be given their ordinary meaning.* Under

this approach petitioner’s conduct clearly was pro-

hibited by the statute.

2. Petitioner contends, however, that because the

phrase “takes and carries away” in Section 2113(b)

is cast in terms “that are similar to those used in the

traditional formulation of common-law larceny” (Pet.

Br. 5-6), it necessarily follows that Congress did not

mean to extend the reach of the statute to conduct

that would constitute false pretenses at common law.

In support of this contention, petitioner relies (Br.

15) on the principle that “where a federal criminal

statute uses a common-law term of established mean-

ing without otherwise defining it, the general prac-

tice is to give that term its common-law meaning.”

®* The decision below, which follows the Fifth Circuit’s de-

cision in Thaggard v. United States, 354 F.2d 785 (1965),

cert. denied, 888 U.S. 958 (1966), is in accord with the de-

cisions of a majority of the courts of appeals that have con-

sidered the question. See United States v. Fistel, 460 F.2d

157, 162-168 (2d Cir. 1972); United States v. Guiffre, 576

F.2d 126, 127-128 (7th Cir.), cert. denied, 489 U.S. 883

(1978) ; United States v. Shoels, 685 F.2d 879, 381-388 (10th

Cir. 1982), petition for cert. pending, No. 82-5550; United

States v. Simmons, 679 F.2d 1042, 1045-1046 (8d Cir. 1981),

petition for cert. pending sub nom. Brown v. United States,

No. 82-5201. Cf. United States v. Johnson, 575 F.2d 678,

679-680 (8th Cir. 1978) (dictum). Several other courts have

reached a contrary result. See United States v. Feroni, 655

F.2d 707, 709-711 (6th Cir. 1981); LeMasters v. United

States, 878 F.2d 262, 268-268 (9th Cir. 1967). Cf. United

States v. Rogers, 289 F.2d 4388, 487-488 (4th Cir. 1961)

(dictum).

12

United States v. Turley, 352 U.S. 407, 411 (1957)

(footnote omitted). See also Morissette v. United

States, 342 U.S. 246, 263 (1952); Standard Oil Co.

v. United States, 221 U.S. 1, 59 (1911).

Petitioner’s argument rests on the proposition that

Section 21138(b), although literally applicable to his

conduct, employs terms of art with an established

common law meaning that is at odds with the con-

temporary meaning of the words in the statute. But

other language in the statute provides evidence that

Congress did not intend to limit the offense described

therein to common law larceny. The phrase follow-

ing the “takes and carries away” element of the of-

fense described in Section 2113(b)—‘“with intent to

steal or purloin’”—describes the wrongful intent with

which the criminal act must be performed in order

for the actor to be guilty of the offense. As this Court

observed in United States v. Turley, supra, 352 U.S.

at 411-412, the term “steal” had no accepted com-

mon law meaning and was never equated with lar-

ceny. See Factor v. Lauwbenheimer, 290 U.S. 276, 303

(1933) ; United States v. Armata, 193 F. Supp. 624,

626 (D. Mass. 1961) (Wyzanski, J.). Similarly, the

term “purloin,” which was not included in the com-

mon law definition of larceny (see LeMasters v.

United States, 378 F.2d 262, 264 (9th Cir. 1967) ),

is virtually synonymous with “steal” and encompasses

a broader range of theft offenses than common law

larceny. See United States v. Johnson, 575 F.2d 678,

679-680 (8th Cir. 1978). The use of terms without

an established common law meaning in describing the

scienter element of the offense thus suggests that the

remaining words used in Section 2118(b) should not

be limited to their common law meaning. See Note,

Determining The Proper Scope of Section 2113(b) of

13

the Federal Bank Robbery Act, 51 Fordham L. Rev.

536, 543-546 (1982).

Moreover, the Court has recently rejected the no-

tion that the common law meaning of the words used

is invariably controlling in construing a modern fed-

eral statute. In Perrin v. United States, supra, the

Court unanimously concluded that the term “bribery”

in the Travel Act, 18 U.S.C. 1952, included commer-

cial bribery and was not limited to bribery of public

officials, to which the term had been limited at com-

mon law. The Court observed (444 U.S, at 48) that

“by the time the Travel Act was enacted in 1961, fed-

eral and state statutes had extended the term bribery

well beyond its common-law meaning,” and it relied

on this background in construing the statutory lan-

guage in accordance with its common understanding

and meaning at the time of the statute’s enactment.

Similarly, in United States v. Nardello, 393 U.S. 286

(1969), this Court unanimously dismissed the claim

that the term “extortion” in the Travel Act should be

limited to its common law definition. Noting that

prior to 1961 the crime of extortion had been statu-

torily expanded in many states beyond its common

law meaning (id. at 289-290), the Court concluded

that Congress used the term in a generic and con-

temporary sense.‘ Here, too, by the time Section

2113(b) was enacted in 1937, the common law defini-

tion of larceny had been extended by statute as part

of a growing trend to eliminate the illogical distinc-

*In both Perrin (444 U.S. at 45-47) and Nardello (398 U.S.

at 290-298) the Court concluded that the legislative history

of the Travel Act also supported a contemporary construction

of the words of the statute. We discuss the legislative history

of Section 2118(b) at pages 22-29, infra.

14

tions that had developed at common law among vari-

ous theft-related offenses.

B. The Offense Described In Section 2113(b) Should Not

Be Construed As Limited By The Common Law Defi-

nition Of Larceny Because By The Time The Statute

Was Enacted There Was An Emerging Trend To Ex-

pand The Concept Of Larceny Beyond The Bounds

Of The Common Law Offense

1. At common law, larceny was generally defined

as the felonious taking and carrying away of the per-

sonal goods of another with intent to deprive the

owner permanently of his property. See, e.g., 4 W.

Blackstone, Commentaries *229, *232; 2 W. Burdick,

supra, at 258-263. The offense originally was fash-

ioned to prevent breaches of the peace triggered

by an owner’s discovery that a thief had carried

away his property. Accordingly, larceny was de-

fined in early times as the taking and carrying away

of movable property or livestock “against the peace.”

J. Hall, Theft, Law and Society 6 (2d ed. 1952).

A “trespass,” or nonconsensual taking from the

victim’s possession, was thus an essential element

of larceny. See W. LaFave & A. Scott, supra, at 618-

619; Scurlock, The Element of Trespass in Larceny

at Common Law, 22 Temp. L. Q. 12, 14-15 (1948).

In order to deter breaches of the peace, the common

law classified larceny as a capital offense. See W.

Clark & W. Marshall, A Treatise on the Law of

Crimes 8 (5th ed. 1952).

Over the centuries, the scope of the offense encom-

passed by the term “larceny” was subject to signifi-

cant modification, although the common law formula-

tion of larceny retained its classic language. For ex-

ample, under the earliest applications of the doctrine

of trespass, a bailee could not commit a larceny by

appropriating the owner’s goods that previously had

15

been entrusted to his possession. In the 15th Century,

however, the concept of larceny was expanded to em-

brace a bailee’s “breaking bulk”—.e., breaking open

a container and appropriating all or part of its con-

tents—even though the bailee had acquired the prop-

erty with the owner’s consent and his act of appropri-

ating the goods did not create an immediate threat to

the peace. Carrier’s Case, Y.B. 18 Edw. IV f. 9, pl. 5

(1473).° Approximately 300 years later, after more

enlightened penology had mandated less severe punish-

ment for larceny, the concept of “larceny by trick”

was fashioned as a legal fiction to enable prosecution

for larceny where the owner was deceived into giving

up possession (but not title) voluntarily. Rex v. Pear,

2 East P.C. 686, 1 Leach 212, 168 Eng. Rep. 208

(1779). See J. Hall, supra, at 40-45; W. LaFave &

A. Seott, supra, at 620.

At the same time, the acquisition of title to prop-

erty with the consent of the owner but on the basis

of a false representation—long viewed as merely a

private injury subject to redress by civil action only

—became subject to prosecution under false pretenses

statutes. See W. LaFave & A. Scott, supra, at 621 &

n.11; W. Clark & W. Marshall, supra, at 443-446, 504-

505, 508-509. Technically, however, theft by false

pretenses was regarded as distinct from common law

larceny because it involved a consensual transfer of

title to the thief, albeit a consent wrongfully obtained

through fraudulent representation of fact.

2. In more recent times, there was a growing re-

alization that the traditional distinctions between com-

mon law larceny and related offenses such as theft by

5See J. Hall, supra, at 3-39, for a thorough discussion of

Carrier’s Case and its impact on the development of the law

of larceny.

16

false pretenses was a product, not of reasoned legal

theory, but of “historical accidents in the development

of the criminal law, coupled, perhaps, with an unwill-

ingness on the part of the judges to enlarge the limits

of a capital offense.” Commonwealth v. Ryan, 155

Mass. 523, 527, 30 N.E. 364, 365 (1892) (Holmes, J.)

(discussing the distinction at common law between

embezzlement and larceny).* One legal historian has

noted in this connection that “[t]he thrust of the law

®*The “historical accidents” that shaped the development

of the law of theft-related offenses is described in W. LaFave

& A. Scott, supra, at 621 (footnote omitted), quoting from

Model Penal Code art. 206, App. A, at 102 (Tent. Draft No.

1, 1952):

It may be wondered why the English judges, who did

not hesitate, in the face of need, to invent murder and

manslaughter, burglary and arson, robbery and larceny

and other crimes, hesitated during the late 1700’s to ex-

pand larceny to include the areas of embezzlement and

false pretenses. The commentary to the Model Penal

Code explains the matter in a nutshell as follows: “At

this point in the chronology of the law of theft, about

the end of the 18th century, a combination of circum-

stances passed the initiative in the further development

of the criminal law from the courts to the legislature.

Among these circumstances were the general advance

in the prestige and power of the English Parliament; the

conversion of the idea of ‘natural law’ from an instru-

ment for judges’ defiance of monarchy to a restraint upon

the judges themselves, making them interpreters of im-

memorial custom rather than framers of policy; and,

perhaps most direct influence of all, a revulsion against

capital punishment which was the penalty for all except

petty larceny during much of the 18th century. The

savagery of this penalty not only would cause a judge to

hesitate to enlarge felonious larceny, but is sufficient to

account for the host of artificial limitations which they

engrafted on that crime * * *.”

17

for the last two centuries has been toward transcend-

ence of these historical ‘accidents’ and the creation of

a unified law of theft offenses.” Fletcher, The Meta-

morphosis of Larceny, 89 Harv. L. Rev. 469, 470

(1976) (footnote omitted). Thus, when 18 U.S.C.

2113(b) was enacted, the “highly technical [distinc-

tions] which shaped the common law as to ‘trespass’

or ‘taking’ ” (Skinner v. Oklahoma, 316 U.S. 535, 539

(1942)) hac been abandoned in England and in a

number of the states and had been replaced by stat-

utes creating generic theft offenses. See Morissette v.

United States, supra, 342 U.S. at 272-273 & nn. 32,

33. In light of this background, it is extremely un-

likely that Congress in 1937 deliberately employed

common law terminology for the specific purpose of

incorporating into the bank larceny statute arcane and

anachronistic distinctions that had long since lost their

vitality.

a. In the early years of the Republic, the criminal

laws of the states reflected the technical distinctions

of the common law; these distinctions resulted in the

creation of separate offenses for each of the different

common law forms of theft: larceny, false pretenses

and embezzlement. The existence of these separate

offenses, which were “ ‘very largely dependent upon

history for explanation’” (Skinner v. Oklahoma,

supra, 316 U.S. at 542, quoting O. Holmes, The Com-

mon Law 73 (1881) ), too often resulted in unneces-

sary acquittals solely because of defects in pleadings.

Several respected commentators were strongly crit-

ical of the perpetuation of the common law distinc-

tions between the various forms of theft-related of-

fenses. In an address delivered in 1897, Justice

Holmes pointed to the law of larceny as an example

of an unreasoned adherence to anachronistic rules of

the common law:

18

It is revolting to have no better reason for a rule

of law than that so it was laid down in the time

of Henry IV. It is still-more revolting if the

grounds upon which it was laid down have van-

ished long since, and the rule simply persists from

blind imitation of the past.

* * * * *

Let me take an illustration, which can be

stated in a few words, to show how the social end

which is aimed at by a rule of law is obscured

and only partially attained in consequence of the

fact that the rule owes its form to a gradual his-

torical development, instead of being reshaped as

a whole, with conscious articulate reference to the

end in view. We think it desirable to prevent one

man’s property being misappropriated by an-

other, and so we make larceny a crime. The evil

is the same whether the misappropriation is made

by a man into whose hands the owner has put the

property, or by one who wrongfully takes it away.

But primitive law in its weakness did not get

much beyond an effort to prevent violence, and

very naturally made a wrongful taking, a tres-

pass, part of its definition of the crime. In mod-

ern times the judges enlarged the definition a

little by holding that, if the wrongdoer gets pos-

session by a trick or device, the crime is com-

mitted. This really is giving up the requirement

of a trespass, and it would have been more logi-

cal, as well as truer to the present object of the

law, to abandon the requirement altogether.

That, however, would have seemed too bold, and

was left to statute. Statutes were passed making

embezzlement a crime. But the force of tradition

caused the crime of embezzlement to be regarded

as so far distinct from larceny that to this day,

in some jurisdictions at least, a slip corner is kept

open for thieves to contend, if indicted for lar-

19

ceny, that they should have been indicted for em-

bezzlement, and if indicted for embezzlement, that

they should have been indicted for larceny, and to

escape on that ground.

Holmes, The Path of the Law, 10 Harv. L. Rev. 457,

469-470 (1897).’

7 Other commentators expressed similar sentiments. One

author wrote:

The boundary line separating these three offenses [com-

mon law larceny, embezzlement, and false pretenses] is

often too difficult to ascertain in advance * * *. The

result is that when the District Attorney has charged

one of these crimes, the defendant often secures an

acquittal by proving his guilt of one of the others. There

may be some who believe the subtle distinctions in these

crimes inherent in the nature of things, but it is sub-

mitted that their existence is entirely due to accidental,

historical causes, and their perpetuation is a disgrace.

Kidd, Larceny By Trick: False Pretenses, 2 Calif. L. Rev.

834, 83385 (1914), quoted in J. Miller, supra, at 374.

Another writer expressed similar criticisms of the fine

distinctions that had developed at common law:

No more unseemly spectacle can exist in a court of justice

than that of a defendant admittedly guilty of some sort

of theft (in the broad sense of the term) who must,

nevertheless, either go free or receive a new trial, merely

because the particular character of his theft has not been

properly set forth in the indictment.

Note, Larceny, Embezzlement and Obtaining Property by

False Pretenses, 20 Colum. L. Rev. 318, 323 (1920) (foot-

note omitted). Noting that Massachusetts had sought to

remedy this problem by enacting legislation making common

law larceny, embezzlement, and obtaining property by false

pretenses a single crime under the generic label “larceny,”

this writer stated:

Nothing can be more admirable than the simplicity,

ingenuity and fairness of this masterly legislation which

20

b. In response to these concerns, prior to 1937

a number of states had enacted statutes that did

away with the common law distinctions. Indeed, as

early as 1898, this Court recognized that “the com-

mon law definition of larceny has been largely ex-

tended by statute in almost every State in the Union.”

Jolly v. United States, 170 U.S. 402, 407. By 1987,

several states had merged false pretenses, embezzle-

ment and larceny into a single generic larceny or

theft offense.* While still maintaining the common

law distinctions in their statutes, several other states

provided that a defendant charged with false pre-

tenses could not escape conviction on the ground that

the proof showed the commission of common law

larceny.”

fully protects the rights of the accused, while at the same

time it does away with wasting the time of the court in

deciding subtleties of law, which, far from being of any

practical use, are a positive impediment to justice.

Id. at 324.

5 See, e.g., Cal. Penal Code § 484, as amended by Cal. Stat.

ch. 619, § 1 (1927); Mass. Gen. Laws ch. 266, § 30 (1982) ;

Minn. Stat. ch. 101, § 10858 (1927) ; Mont. Rev. Code ch. 43,

§ 11868 (1985) ; N.Y. Penal Law § 1290 (Gilbert 1937) ; R.I.

Gen. Laws tit. 39, ch. 397, §§ 15, 16 (1923) ; Wash. Rev. Stat.

tit. 14, § 2601 (1982).

® See, e.g., Ark. Stat. ch. 42, § 8075 (1987) ; Del. Rev. Code

ch. 150, § 87 (1985) ; Ill. Rev. Stat. ch. 38, § 258 (1935) ; Md.

Ann. Code art. 27, § 189 (1924) ; N.C. Code Ann. ch. 82, art.

17, § 4277 (1931); Pa. Stat. tit. 18, § 2631 (Purdon 1936) ;

S.C. Code §1171 (1982); Va. Code Ann. § 4440 (1924);

W. Va. Code Ann. § 5965 (1932).

In addition, other states, while maintaining the common

law distinctions in pleading and proof, recognized that the

distinctions in punishment were no longer valid and provided

that the penalty for false pretenses would be equivalent to the

penalty for larceny. See Idaho Code Ann. ch. 89, § 17-3902

21

The clear purpose of these and like statutes was “to

avoid gaps and loopholes between offenses” (Moris-

sette v. United States, supra, 342 U.S. at 273) and

thus avert the spectacle of guilty individuals “escap-

[ing] through the breaches.” Jd. at 271. As the

Court explained in Morissette (ibid.) :

The books contain a surfeit of cases drawing fine

distinctions between slightly different circum-

stances under which one may obtain wrongful ad-

vantages from another’s property. The codifiers

[of generic larceny-type offenses] wanted to reach

all such instances.

See also Crabb v. Zerbst, 99 F.2d 562, 564 (5th Cir.

1938) (“the modern tendency is to broaden the offense

of larceny, by whatever name it may be called, to in-

clude such related offenses as would tend to complicate

prosecutions under strict pleading and practice” ).’°

(1982); Kan. Stat. Ann. § 21-551 (1985); Mo. Rev. Stat.

§ 4095 (1929); Tex. Stat. tit. 17, art. 1549 (Vernon 1936) ;

Utah Rev. Stat. § 108-18-8 (1933).

Today, the Model Penal Code and the penal laws of most

states have abrogated these distinctions by enacting generic

theft or larceny statutes. See Note, supra, 51 Fordham L.

Rev. at 558 & n.182.

1° The state courts recognized that the effect of these

modern theft statutes was to do away with the technical

distinctions that had developed at common law. See, e¢.g.,

Commonwealth v. King, 202 Mass. 379, 388, 88 N.E. 454,

458 (1909) (“the former crimes of larceny, embezzlement,

and the obtaining of property by false pretenses, are now

merged into the one crime of larceny as defined by * * *

statute[ ]”); Van Vechten v. American Eagle Fire Insur-

ance Co., 289 N.Y. 308, 806, 146 N.E. 482, 488 (1925) (Car-

dozo, J.) (“{lJarceny, in our law of crimes, includes the

offense of obtaining property by false pretenses”’).

22

Thus, while at one time the term “larceny” (and

its classic formulation) had quite limited connotations,

by 1937 larceny had begun to be regarded as a generic

term connotating a broad range of theft-related of-

fenses, Against this background of a growing move-

ment toward abandonment of the common law dis-

tinctions between larceny and related crimes, it is

difficult to believe that Congress, in enacting Section

2113(b), deliberately disregarded contemporary de-

velopments in order to resurrect the arcane and illog-

ical distinctions of the past. Indeed, in Prince v.

United States, 352 U.S. 322, 324 n.2 (1957), this

Court expressed its understanding that the offense

described in Section 2113(b) extends beyond the

bounds of common law larceny, when it noted that its

use of the terms “robbery” and “larceny” in connec-

tion with Section 2113 “refer not to the common-law

crime, but rather to the analogous offenses in the

Bank Robbery Act.”

Petitioner nonetheless contends (Br. 5-14) that

the legislative history of Section 2113(b) compels the

conclusion that Congress did intend to limit the cov-

erage of the statute to conduct that would have con-

stituted common law larceny. It is to this contention

that we now turn.

C. The Legislative History Of Section 2113(b) Is Incon-

clusive And Does Not Compel Rejection Of The

Literal Language Of The Statute

1. The sparse legisiative history of Section 2113

was reviewed by this Court in Jeryme v. United

States, 318 U.S. 101, 102-104 (19438).

a. Prior to 1934, banks organized under federal

law were protected against embezzlement (Rev.

Stat. 5209, 40 Stat. 972), but not robbery, burglary,

or larceny, which were punishable only under state

23

law. By 1934, concern was expressed about the

activities of gangsters who operated habitually

from one state to another in robbing banks, and

about the fact that state authorities frequently were

unable to cope with the problem. Jerome, 318 U.S. at

102, citing H.R. Rep. No. 1461, 73d Cong., 2d Sess.

2 (1934); see also S. Rep. No. 537, 73d Cong., 2d

Sess. 1 (1934).

The Attorney General responded to this problem by

proposing legislation (S. 2841, 73d Cong., 2d Sess.

(1934) ) that would have prohibited robbery (§ 4),

burglary (defined as the breaking into a bank with

intent to commit an offense defined by the bank-

robbery statute or to commit any felony under fed-

eral or state law) (§3), and theft (§ 2). The latter

section would have provided criminal sanctions for

whoever “takes and carries away” property belonging

to or in the possession of a bank “(1) without the con-

sent of such bank, or (2) with the consent of such

bank obtained by the offender by any trick, artifice,

fraud, or false or fraudulent representation.” This

latter clause plainly would have applied to petitioner’s

conduct in this case. The 1934 bill passed the Senate

in this form. However, the House Judiciary Commit-

tee struck Sections 2 and 3 without explanation,” and

_11 Both the petitioner and the government in Jerome sug-

gested that deletion of these provisions may have been at-

tributable to Representative Sumners, the Chairman of the

House Judiciary Committee, who, it was said, “sought

throughout the session to confine extensions of federal power

to those situations where the need to supplement state and

local law enforcing agencies had become imperative.” A Note

on the Racketeering, Bank Robbery, and “Kick-Back” Laws,

1 Law & Contemp. Probs. 445, 448-449 (1934), quoted in

Brief for the United States at 18 & n.16, Jerome v. United

States (No. 325, 1942 Term) and Brief for Petitioner at 19-

24

the bill was enacted without them, applying princi-

pally to robbery. Act of May 18, 1934, ch. 304, 48

Stat. 783. See Jerome, 318 U.S. at 103.

b. “The limitation of the 1934 Act to robbery per-

mitted individuals who stole money from federally in-

sured banks, other than by the use of force or violence,

to escape federal prosecution. The bank, the ultimate

beneficiary of the Act, was nonetheless injured as if it

had been robbed.” Note, supra, 51 Fordham L. Rev.

at 548-549 (footnotes omitted). The 1937 amend-

ments to the bank robbery statute were intended to

alleviate such anomalies.

In 1937, the Attorney General recommended amend-

ment of the bank robbery statute “to include larceny

and burglary” of banks. Jerome, 318 U.S. at 103,

quoting H.R. Rep. No. 732, 75th Cong., 1st Sess. 1

(1937). The Attorney General explained that the

limitation of the statute to robbery had produced

“some incongruous results”—a “striking instance” of

which was a situation in which a man had managed

to gain possession of a large sum of money in the

20, Jerome v. United States (No. 325, 1942 Term). When

asked whether the legislation should not also apply to gov-

ernmental institutions other than banks, Representative Sum-

ners stated: “[W]e are going rather far in this bill, since all

the property is owned, as a rule, by the citizens of the com-

munity where the bank is located. The committee was not

willing to go further, and the Attorney General did not ask

it to go further.” 78 Cong. Rec. 8133 (1934).

There is no suggestion in the legislative record or elsewhere,

however, that the House Committee deleted the larceny pro-

vision because of objections to creation of a broad larceny

or theft offense that would have disregarded the common

law distinctions. At all events, we submit that Congress’ fail-

ure to enact the 1934 bill in full as proposed “‘is entitled to no

significance. The proposed [legislation] * * * [was] never

voted down.” United States v. Turley, supra, 352 U.S. at

415 n.14.

25

momentary absence of a bank employee, without dis-

playing force or violence or putting anyone in fear,

as required for the offense of robbery. H.R, Rep. No.

732, supra, at 1-2. The example cited by the Attorney

General would have constituted larceny at common

law because the property was taken without the con-

sent of the bank, but there is nothing in the legisla-

tive history that suggests that the proposed amend-

ment was meant to be limited to larceny as that crime

was defined at common law.

The Attorney General’s 1987 bill was enacted in

essentially the same form as introduced. Act of

Aug. 24, 1937, ch. 747, 51 Stat. 749." True, the

larceny provision of that bill, which became what is

now 18 U.S.C. 2118(b), did not expressly refer to

false pretenses, as did the Attorney General’s 1934

proposal and the contemporary state statutes that had

expanded the definition of larceny beyond its common

law scope (see pages 20-21, supra) ; but the mere use

of the phrase “takes and carries away” in the text of

the legislation and of the word “larceny” both in the

title of the bill and in the committee reports does not

necessarily establish an intent to exclude theft by

false pretenses. The 1937 enactment, in addition to

omitting the specific reference to false pretenses that

had been in the 19384 bill proposed by the Attorney

General, also omitted the language “without the on-

sent of such bank” that described a trespassory taking,

which was an essential element of common law lar-

ceny. Moreover, in the Attorney General’s 1934 pro-

posal, the theft section provided that whoever “takes

and carries away” property with or without the con-

12 The provision relevant here was amended on the House

floor to provide misdemeanor sanctions for cases involving

theft of less than $50 and felony sanctions for cases involving

$50 or more. 81 Cong. Rec. 5876-5877 (1987).

26

sent of the bank was guilty of an offense. The use of

the identical phrase “takes and carries away” in what

was referred to as the “larceny” provision of the bill

proposed by the Attorney General and enacted by Con-

gress in 1937 therefore likewise could have been in-

tended to incorporate both consensual and noncon-

sensual takings and therefore to apply to the theft by

false pretenses involved here. In this regard, this

Court in Jerome referred to the theft provision of the

1934 bill as “dealing with larceny” (318 U.S, at 103),

despite the language covering the taking of property

with the fraudulently obtained consent of the bank,

and the opinion elsewhere referred to this provision

of the 1934 bill as having “defined larceny to include

larceny by trick or fraud” (318 U.S. at 105)."

c. During its consideration of the 1937 legislation,

Congress did not express any views one way or the

other on whether the bill was meant to be a codifica-

tion of common law larceny. The fact that there was

no reference in the reports or debates to the concern

about the problems of gangsterism that had prompted

passage of the 1934 bank robbery statute suggests,

however, that “Congress had expanded the scope of its

18 Moreover, to the extent that the 1934 bill can be viewed

as reflecting Congress’ understanding of the common law

distinctions between consensual and nonconsensual takings,

its structure reflects an unfamiliarity with the arcane dis-

tinctions of the common law. Thus, Section 2 distinguished

between a nonconsensual taking and a taking with consent

“obtained * * * by any trick, artifice, fraud, or false or

fraudulent representation” (emphasis added). At common

law, however, it was well established that larceny by trick was

classified as larceny, which required a nonconsensual taking.

See, e.g., J. Hall, supra, at 40-45; W. LaFave & A. Scott,

supra, at 620. This suggests the unlikelihood that Congress

deliberately set out to codify common law larceny when it

enacted Section 2113(b) three years later.

27

concern with respect to taking property or money

from banks.” United States v. Simmons, 679 F.2d

1042, 1048 (8d Cir. 1982), petition for cert. pending

sub nom. Brown v. United States, No. 82-5201. See

Note, supra, 51 Fordham L. Rev. at 553, 555, 558-

559, 562. It should be kept in mind, in this regard,

that the provisions of Section 2113(b) were enacted

during the Depression, following the establishment of

the Federal Deposit Insurance Corporation to guaran-

tee bank deposits, Indeed, at the same time it created

the FDIC in 1935, Congress amended the bank rob-

bery statute—which, as originally enacted in 1934,

covered only member banks of the Federal Reserve

System and banks organized or operating under fed-

eral law (48 Stat. 783)—to protect banks insured by

the FDIC. Act of Aug. 238, 1935, ch. 614, Section 333,

49 Stat. 720. In enacting Section 2113(b) two years

later, Congress may thus have sought to expand the

protection afforded to the federally insured assets of

the Nation’s banks. See United States v. Marvale,

695 F.2d 658, 663-664 (2d Cir. 1982).

Furthermore, as the court in Simmons explained

(679 F.2d at 1048), “although subsequent legislative

history must be used with caution in attempting to

derive the intent of an earlier Congress, * * * the

subsequent amendments to § 2113(b) manifest a con-

sistent attempt by Congress to expand rather than

restrict the scope of that provision.” These amend-

ments clearly reflect Congress’ intent to protect banks

from depletion of their federally insured assets. In

1940, Congress amended the bank robbery statute to

make it a federal crime to “receive, possess, conceal,

store, barter, sell, or dispose of any property or money

or other thing of value knowing the same to have been

taken from a bank in violation of [the other provi-

28

sions of the statute].” Act of June 29, 1940, ch. 455,

54 Stat. 695."* Congress subsequently enacted a series

of amendments to Section 21138, expanding the cover-

age of the statute to financial institutions that previ-

ously were not within its provisions.” “This legisla-

tive history demonstrates that Congress’ concern had

expanded beyond the ‘gangsterism’ referred to in the

legislative history of the original 1934 Act and that

thereafter Congress’ concern was directed at least in

part to the federal government’s potential obligation

as an insurer to reimburse various financial institu-

tions if they were to become victims of offenses cov-

ered by § 2113.” United States v. Simmons, supra,

679 F.2d at 1048."*

™ This provision, as subsequently modified, is currently

codified at 18 U.S.C. 2118(c).

% Act of Aug. 3, 1950, ch. 516, 64 Stat. 394 (federally

insured savings and loan associations) ; Act of Apr. 8, 1952,

ch. 164, 66 Stat. 46 (building and loan associations, home-

stead associations and federally insured state cooperative

banks) ; Act of Sept. 22, 1959, Pub. L. No. 86-354, Section

27(2), 78 Stat. 689 (federal credit unions) ; Act. of Oct. 19,

1970, Pub. L. No. 91-468, Section 8, 84 Stat. 1017 (federally

insured credit unions).

46 The Ninth Circuit’s analysis of the legislative history in

LeMasters Vv. United States, supra, on which petitioner relies

(Br. 11-12), is based on the erroneous view that, in enacting

Section 2118(b) in 1987, Congress was concerned solely with

the problem of gangsterism that had led to the passage of

the 1984 statute. The fact that Section 2113(b) applies to

nonforcible takings strongly suggests, however, that the bank

larceny provision was meant to deal with a broader range of

concerns than those addressed in 1934. See also United States

v. Marrale, supra (principal goal of bank robbery statute

is to protect financial institutions in which the federal gov-

ernment has an interest); Way v. United States, 268 F.2d

785, 786 (10th Cir. 1959) (purpose of Section 2113(b) is

to safeguard the stability and integrity of federal banks).

29

In short, the legislative history of Section 2113(b)

is at most inconclusive. That history provides no firm

basis for concluding that when Congress used the

phrase “takes and carries away” in Section 2113(b)

and attached the label “larceny” to that provision, it

thereby intended to confine the statute to larceny as

understood at common law.

2. Petitioner contends, however, that this Court’s

decision in Jerome v. United States, swpra, supports

the view that the language of Section 2113(b) should

be given its common law meaning. Although peti-

tioner concedes that “the actual holding in Jerome

concerns the scope of the bank burglary provision in

§ 2113(a),” he asserts that the Court in that case

“took a view of the Bank Robbery Act and its legisla-

tive history that is consistent with a narrow interpre-

tation of § 2113(b)” (Pet. Br. 12-13).

The issue directly involved in Jerome was whether

the prohibition in the bank burglary provision, which

as originally enacted prohibited entering a bank with

the intent to commit “any felony or larceny,” applied

to an entry to commit a felony as defined under state

law. See 318 U.S. at 101-102. Jerome, a captain in

the Army, had forged the signature of another officer

as a co-signer of a note in order to obtain a $400

loan, on which he subsequently defaulted. The utter-

ing of a forged promissory note was a felony under

state law, and Jerome was charged with the federal

offense of entering the bank to commit that state

felony.

This Court held that the term “any felony” in the

bank burglary provision did not include state felonies

but instead included only federal felonies affecting

banks. 318 U.S. at 107-108." In reaching this con-

17 This holding was incorporated by Congress in the 1948

revision of Title 18, when Congress changed the relevant

30

clusion, the Court observed that the bill proposed by

the Attorney General in 1934 would have expressly

prohibited entering a bank to commit a felony under

federal or state law and also “defined larceny to in-

clude larceny by trick or fraud” (318 U.S. at 105)—

a reference to the theft offense described in Section 2

of the Attorney General’s 1934 proposal (see page

23, supra). But, the Court noted, these proposals

were not in the end incorporated in the 1934 Act, and

the 1937 bill “did not renew the earlier proposals to

include them” (318 U.S. at 105) but instead took a

“selective” approach (id. at 107)."* The Court found

it “difficult to conclude” that Congress, having re-

jected express language in the bank burglary provi-

sion in 1934 covering entries to commit state felonies,

“reversed itself in 1937, and, through the phrase ‘any

felony or larceny’ adopted the penal provisions of

forty-eight states with respect to acts committed in

national or insured banks” (id. at 105-106). The

Court then continued: “It is likewise difficult to be-

lieve that Congress, through the same clause, adopted

by indirection in 1937 much of the fraud provision

which it rejected in 1934. Cf. United States v. Patton,

120 F.2d 73” (318 U.S. at 106).”

language in what is now Section 2113(a) from “any felony

or larceny” to read “any felony affecting such bank * * * and

in violation of any statute of the United States, or any larceny

***” See H.R. Rep. No. 304, 80th Cong., Ist Sess. A-135

(1947).

18 See also Prince v. United States, supra, 352 U.S. at 327

(“The only factor stressed by the Attorney General in his

letter to Congress [in 1987] was the possibility that a thief

might not commit all the elements of the crime of robbery’’).

19In United States v. Patton, 120 F.2d 73 (3d Cir. 1941),

cited by the Court in the passage quoted, the defendant was

employed as a clerk for a company that had a petty cash

$1

The last-quoted passage indicates that the Court did

not understand the phrase “any felony or larceny”

account at a bank, and he was authorized to make deposits

and (with a co-signature of a fellow employee) to make with-

drawals. The company drew a check on another bank payable

to the petty cash account, and the defendant altered the

amount from $1100 to $11,000 and deposited it in the com-

pany’s petty cash account. He then drew a check on that

account for approximately $11,000, forged the co-signature,

and entered the bank and cashed the check therein. The de-

fendant was indicted for (1) entering a national bank with

intent to commit larceny, in violation of what is now 18

U.S.C. 2118(a), and (2) taking and carrying away with in-

tent to steal or purloin money in excess of $50, in violation of

what is now 18 U.S.C. 2118(b). 120 F.2d at 74. The govern-

ment conceded that the taking and carrying away charged

as offense (2) was the equivalent of the larceny mentioned

in the unlawful entry charged in offense (1). Jd. at 75. The

Third Circuit reversed both convictions, concluding that there

was no trespassory taking as required for the offense of

larceny, but rather a turning over of the money with the

fraudulently obtained consent of the bank (id. at 75-76)—

i.e., false pretenses—an offense that the Third Circuit held

was not covered by the statute.

In reaching this result, the court in Patton did not examine

Congress’ intent in enacting the statute, but merely assumed

that the statute proscribed only common law larceny. Ac-

cordingly, since the defendant’s conduct amounted to a theft

by false pretenses and not a larceny at common law, the court

felt bound to reverse despite its observation that “[i]t may

well be that the distinction [drawn by the common law] is

artificial and illogical and was evolved by judges in a humane

search for legal methods for saving defendants from the con-

sequences following conviction upon a charge of larceny

which at the time many of the cases were decided was a

capital offense.” 120 F.2d at 76. Subsequently, in United

States v. Simmons, supra, the Third Circuit concluded that

Section 2118(b) does apply to the offense of false pretenses.

Thus, Simmons while not citing Patton, effectively overruled

that decision.

82

in the burglary provision of the statute to encompass

entry to commit the fraud or false pretenses offenses

proposed in 1934 but not described explicitly in the

1937 Act. The Court twice stated in Jerome that the

term “larceny” as used in the phrase “any felony or

larceny” was defined elsewhere in the statute (318

U.S. at 105, 106)—a reference to the “takes and car-

ries away, with intent to steal or purloin” language

now contained in Section 2113(b).” If, as the Court

indicated, fraud or false pretenses was not covered by

the phrase “any felony or larceny” in the burglary

provision, then, under the Court’s reasoning, fraud or

false pretenses likewise could be thought not to be

covered by what the Court regarded as the relevant

definition of the term “larceny”—the present Section

2113(b), under which petitioner was convicted.

While the language and to some extent the analysis

of the decision in Jerome thus suggest an interpreta-

tion of the statute contrary to the one subsequently

adopted by a majority of the courts of appeals to con-

sider the issue and urged by us here, we believe that

they are not dispositive on the question of Congress’

intent. The issue under consideration here was never

briefed or argued in Jerome, and the Court’s ref-

erences to the scope of the larceny provision of the

statute essentially followed the position taken by the

government, which it has since repudiated.” In its

20 In its brief in Jerome, the government took the position

that the “larceny” mentioned in the burglary prohibition was

defined by what is now Section 2113(b). Brief for the United

States at 27, Jerome v. United States (No. 325, 1942 Term).

See also United States v. Patton, supra, 120 F.2d at 75.

21 The fact that the government long ago took the position

that the statute was limited to common law larceny (in a case

in which that point was not directly in issue) does not prevent

33

brief in Jerome (at 27), the government contended

that the burglary and larceny provisions codified the

common law versions of those offenses. Accordingly,

the government argued that because burglary at com-

mon law prohibited entries with intent to commit any

felony, the burglary portion of the statute barred en-

tries into a bank for the purpose of committing any

state, as well as any federal, felony. The actual hold-

ing in Jerome—rejecting the government’s argument

that the burglary provision of the bank robbery stat-

ute embodied the common law definition of burglary—

thus is not inconsistent with the position we urge

here.

Moreover, the decision in Jerome was supported by

other considerations that are not implicated in this

case. The Court’s analysis in Jerome started from the

premise that Congress generally does not make the

application of a federal statute dependent on state

law. 318 U.S. at 104. The Court thought it sig-

nificant that Congress omitted from the burglary pro-

vision of the statute any reference to state laws,

whereas it had incorporated state laws in other fed-

eral penal statutes by specific reference. Jd. at 106.

This led the Court to conclude that Congress had no

intention of incorporating all state felonies into the

bank burglary statute simply because the offense may

have been committed in a federally insured bank,

which would federalize many offenses connected only

fortuitously to the bank.” In addition, the Court was

the government from urging a different interpretation of the

statute in this case. See Barrett v. United States, 423 US.

212, 222 (1976).

22 The Court stated (318 U.S. at 106):

The Act extends protection to hundreds of banks located

in every state. If state laws are incorporated in § 2(a),

34

concerned that if the interpretation of the phrase

“any felony” were made dependent upon state crim-

inal laws, it would result in disparate application of

the statute in different jurisdictions. An offense

punishable as a felony under the laws of one state

might be classified as a misdemeanor in another state.

Id. at 106-107.”

These concerns are not present in the instant case.

The position we espouse would, if accepted, result in

a uniform application of Section 2113(b) throughout

the United States. Moreover, our interpretation of

the statute would not expand federal authority to all

state felonies committed in banks but rather would

permit prosecution only for those theft offenses that

directly implicate the government’s interest in pro-

tecting against depletion of funds of federally insured

financial institutions.

In sum, while it certainly was reasonable for the

Court in Jerome to assume that Congress would not

have expanded federal criminal jurisdiction over all

state felonies committed in federal banks without ex-

plicitly expressing such an intent, there is no com-

parable reason to assume that Congress, without ex-

planation, incorporated into the statute obsolete com-

Congress has gone far toward putting these banks on a

basis somewhat equivalent to “lands reserved or acquired

for the use of the United States” as described in § 272 of

the Criminal Code, 18 U.S.C. § 451. In such a case, all

violations of penal laws of the state within which. the

lands are located become federal offenses. Criminal Code

§ 289, 18 U.S.C. § 468. Such an expansion of federal

criminal jurisdiction should hardly be left to implication

and conjecture.

*°The Court noted that while the offense in question—

uttering a forged check—was classified as a felony in Ver-

mont, it was labelled a “high misdemeanor” in New Jersey.

818 U.S. at 107.

35

mon law distinctions that increasingly had been re-

pudiated both in this country and in England, thereby

creating an anomalous gap in the protections afforded

federally insured banking institutions.

8. Petitioner also argues (Br. 13-14) that his view

of the scope of Section 2113(b) is supported by the

enactment in 1939 of what is now 18 U.S.C. 1025.

Act of Aug. 5, 1939, ch. 434, 53 Stat. 1205. Section

1025 prohibits the obtaining of property by false pre-

tenses upon any waters or vessel within the special

maritime and territorial jurisdiction of the United

States. This statute was enacted at the request of

the Attorney General to reach “card sharping” of-

fenses on the high seas. It is true that the Attorney

General’s letter proposing the legislation reflects a

narrow view of the existing federal enclave larceny

statute,“ which was derived from a 1790 statute”

and was written in language virtually identical to

Section 2113(b). But petitioner’s reliance on 18

U.S.C. 1025 is unavailing for a number of reasons.

To begin with, the dangers of relying on post-

enactment events are compounded when those events

concern an entirely unrelated statute. Section 1025

was a hastily enacted measure, dealing with a matter

of little practical import, which went through Con-

gress without debate or hearings. Cf. United States

v. Batchelder, 442 U.S. 114, 120 (1979) ; Scarborough

v. United States, 431 U.S. 563, 569 (1977). Thus,

the statute was not considered in depth by Congress,

and its passage does not demonstrate Congress’ de-

liberate intent to maintain the ancient distinctions

between common law larceny and false pretenses.

4 That statute is currently codified at 18 U.S.C. 661.

25 Act of Apr. 30, 1790, ch. 9, Section 16, 1 Stat. 116.

Moreover, to the extent that Congress may have

focused on the need for the legislation, it is just as

reasonable (if not more so) to conclude that Con-

gress was acting out of an abundance of caution, to

ensure that there would be no question that federal

authorities could prosecute card sharps who operated

on vessels in United States waters. Congress may

have feared that, because the existing larceny statute

derived from a statute enacted in 1790, courts con-

struing that statute would refuse to attribute to the

1790 Congress an intent to embody in the statute an

expansive view of larceny that went beyond the com-

mon law definition.”

26 As it happens, the courts in recent years have refused to

construe the offense described in 18 U.S.C. 661, the current

descendant of the 1790 larceny statute, as being confined to

the contours of common law larceny. Under the common law,

in order to convict for larceny it was necessary to prove that

the thief intended permanently to deprive the owner of his

property. See United States v. Northway, 120 U.S. 327, 385

(1887) ; K. Sears & H. Weihofen, May’s Law of Crimes, 346

(4th ed. 1988) ; 2 W. Burdick, supra, at 263; W. LaFave & A.

Scott, supra, at 687. That requirement, however, has uni-

formly been rejected by federal courts in their recent inter-

pretations of 18 U.S.C. 661. See United States v. Gristeau, 611

F.2d 181, 188 (7th Cir. 1979), cert. denied, 447 U.S. 907

(1980) ; United States v. Maloney, 607 F.2d 222, 225-226

(9th Cir. 1979) ; United States v. Henry, 447 F.2d 283, 285

(8d Cir. 1971). Similarly, the statute has been held to pro-

scribe conduct that would constitute embezzlement, but not

larceny, under common law. See United States v. Armata,

193 F. Supp. 624 (D. Mass. 1961). Accordingly, although the

statute—like Section 2113(b)—may be written in terminol-

ogy borrowed from the common law, the courts generally

have refused to read into it the common law’s archaic and

arbitrary limitations. The fact that the courts have read the

language of 18 U.S.C. 661, which is virtually identical to that

of Section 2118(b), as reflecting an intent to codify an offense

87

Furthermore, shortly after Congress enacted Sec-

tion 1025 it enacted a theft statute relating to invest-

ment companies, which, although entitled “Larceny and

embezzlement,” applied broadly to whoever “steals,

unlawfully abstracts, unlawfully and willfully con-

verts * * * or embezzles” money or property. 15

U.S.C. 80a-36. Congress in that enactment equated

the term “larceny” with offenses clearly outside the

purview of the common law crime. Thus, there is

no basis for concluding that Congress deliberately set

out in 1937 to codify and preserve outmoded common

law distinctions.”

broader in scope than common law larceny strongly supports

a similar construction of Section 2113(b). See Note, supra,

51 Fordham L. Rev. at 545 n.48, 550 n.79.

7 Accordingly, Section 1025 is relevant, if at all, only inso-

far as its enactment reflects the contemporaneous interpre-

tation by the Department of Justice of the scope of the federal

larceny statute. That interpretation, however, while ordi-

narily entitled to some deference (but see United States v.

Turley, supra, 852 U.S. at 415 n.14), was in this instance

plainly incorrect as a matter of law. It was recognized at the

time that

where the victim [of a card sharp] is fraudulently in-

duced to believe he has lost, when in fact the game is a

cheat and he had no chance to win, the obtaining of his

money by this means would seem not to be larceny, but

obtaining by false pretenses, since he consents to the

passing of title to the money. Nevertheless, it has been

held that obtaining money by cheating at cards is larceny

by trick, because the victim did not intend to give up title

to the money unless fairly won.

K. Sears & H. Weihofen, supra, at 38381-3382 (footnotes

omitted). See also Note, Criminal Law-Larceny-Cheating at

Cards, 10 Minn. L. Rev. 258-254 (1926) (“* * * it seems that

cheating at cards was larceny at common law as well as by

D. Restricting The Scope Of Section 2113(b) To Common

Law Larceny Would Yield Anomalous Results

A construction of Section 2113(b) that limits its

scope to larceny as generally understood at common

law would perpetuate in this setting the technical

and long-discredited distinctions between various types

of theft offenses as they existed in years past. See

United States v. Shoels, 685 F.2d 379, 383 (10th Cir.

1982), petition for cert. pending, No. 82-5550; United

States v. Simmons, supra, 679 F.2d at 1051 (Adams,

J., concurring). See also Note, supra, 51 Fordham

L. Rev. at 555-559. These distinctions “did not ever

correspond to any essential difference in the character

of the acts or in their effect upon the victim.” Van

Vechten v. American Eagle Fire Insurance Co., 239

N.Y. 308, 306, 146 N.E. 482, 483 (1925) (Cardozo,

J.) (discussing distinction between common law lar-

ceny and embezzlement).

One such distinction that may be especially anoma-

lous in the context of bank theft is that between lar-

ceny by trick, in which the thief fraudulently induces

the owner to part with possession of the property, and

false pretenses, in which the thief fraudulently in-

duces the owner to part with title to the property. The

former was regarded as larceny at common law, but

the latter was not. If Section 2113(b) were inter-

preted to embody the offense of larceny as defined at

common law, larceny by trick of more than $100 from

a federally chartered or insured bank would be a fed-

statute both in this country and in England’’); Paine v.

United States, 7 F.2d 268 (9th Cir. 1925). Thus, the enact-

ment of Section 1025 may support the view that in the late

1930s neither Congress nor the Attorney General was well

versed in the technicalities of common law larceny. See note

18, supra.

39

eral felony, yet the obtaining of title to the same

amount of money by false pretenses—petitioner’s

conduct here—would not even be an offense under that

section.”

28 See Note, supra, 51 Fordham L. Rev. at 557-558 (foot-

notes omitted), discussing United States v. Johnson, 575 F.2d

678 (8th Cir. 1978) :

That such technical distinctions based upon title versus

possession no longer prove helpful, and would produce

anomalous results, especially when the thefts involve

money, is illustrated by the following example. In a re-

cent case, the defendant requested a bank teller to pro-

vide a $100 bill in exchange for four twenty-dollar bills

and two ten-dollar bills. The defendant then “palmed”

the $100 bill for a ten-dollar bill, asserted that the teller

had erred, and thereby received another $100 bill. This

action apparently fits within the definition of taking by

false pretenses; the defendant induced the teller to part

with possession and title by means of his false represen-

tation. Had the court found that the defendant’s actions

constituted taking by false pretenses, the defendant could

not have been convicted under a narrow definition of

section 2118(b). The court, however, labeled his action

larceny by trick, which was part of common-law larceny,

and therefore included it under a strict interpretation of

section 2113(b).

In larceny by trick, the artificial legal device of

“constructive possession” is used to find the necessary

trespassory element. Although the teller voluntarily re-

linquished actual possession, the bank retained “construc-

tive possession” because the defendant’s lie negated the

bank’s true intent to part with possession. Arguably, the

court was in error because the teller intended to pass

both title and possession, in which case the theft could

not have been larceny by trick, but rather it would have

been taking by false pretenses. An assertion that the

bank intended to retain title in such a transaction is im-

plausible; the bank hardly expected the same coins or

bills to be returned.

40

Another anomalous distinction is that between false

pretenses and larceny by unilateral mistake, where the

thief obtains the owner’s consent to pass title and pos-

session, not through fraud or misrepresentation, but

solely by virtue of the owner’s mistake. See, e.g., W.

LaFave & A. Scott, supra, at 629; Note, supra, 51

Fordham L. Rev. at 538 n.8. In a recent case, United

States v. Etchison, No. 81-5246 (4th Cir. Feb. 3,

1983), a bank mistakenly credited to the defendant’s

account approximately $10,000 deposited by another

customer. After realizing the bank’s error, the de-

fendant withdrew the money by executing two with-

drawal slips. On appeal, the defendant argued that

her conduct amounted to false pretenses, not larceny,

and therefore that she was wrongfully convicted of vio-

lating Section 2113(b), because her execution of the

withdrawal slips constituted a misrepresentation on

her part that induced the bank to transfer title and

possession of the money. In other words, the defendant

sought to escape liability by arguing that her actions

were more, rather than less, culpable in that she ac-

tively induced the transfer of title to and possession of

the funds instead of “silently accepting the windfall.”

Id. at 5. Although the court of appeals ultimately

rejected the defendant’s argument, this case is illustra-

tive of our point that a narrow construction of Sec-

tion 2113(b) as covering only common law larceny

produces absurd resulis.

Of course, “[t]he end result of a theft, whether or

not it constitutes common-law larceny, is the same:

The defendant has wrongfully obtained money to the

bank’s detriment.” Note, supra, 51 Fordham L. Rev.

at 559 (footnote omitted). As this case well illus-

trates, applying Section 2113(b) only to those non-

forcible takings that happen to fit within the maze

of arbitrary distinctions that served to define lar-

41

ceny at common law would thus produce anomalous

results that bear no relationship to the culpability of

the wrongdoer or to the interstate character of the

offense. Indeed, nontrespassory, or consensual, tak-

ings from banks are likely to involve large interstate

schemes, which pose much more difficult enforcement

problems for local prosecutors than does simple lar-

ceny. See Note, supra, 51 Fordham L. Rev. at 563

& n.159.” Furthermore, limiting Section 2113(b) to

common law larceny also would leave a gap of un-

certain dimensions in federal protection for federally

chartered or insured financial institutions.”

2° The lower courts uniformly have refused to countenance

a similar anomaly in construing the bank robbery provision

of 18 U.S.C. 2113(a). At common law, a conviction for rob-

bery required proof of, inter alia, a taking “from the person

or personal presence” of another. K. Sears & H. Weihofen,

supra, at 296; W. Clark & W. Marshall, supra, at 530. Despite

the fact that Section 2113(a) tracks the common law formula-

tion by prohibiting the taking of property “from the person or

presence of another,” three courts of appeals have held that

a robber may violate the statute by “constructively” taking

from the person or presence of another. Consequently, these

courts have rejected arguments that a conviction under Sec-

tion 2118(a) will not lie where the robbers kidnapped indi-

viduals or otherwise threatened harm from a distance, avoid-

ing a direct and confrontational “taking from the presence”

of the bank. See United States v. Alessandrello, 637 F.2d 131,

144-145 (3d Cir. 1980), cert. denied, 451 U.S. 949 (1981);

United States v. Hackett, 623 F.2d 348, 345 (4th Cir. 1980) ;

Brinkley v. United States, 560 F.2d 871, 873 (8th Cir. 1977).

Cf. United States v. Marz, 485 F.2d 1179, 1182 (10th Cir.

1973).

*% Embezzlement and misapplication of funds by officers

and employees of banks are separately prohibited by 18

U.S.C. 656, and the acquisition of property by fraudulent

means would be barred in at least some circumstances by 18

U.S.C. 1014, considered recently by this Court in Williams v.

United States, No. 80-2116 (June 29, 1982). See, ¢.g., United

42

E. Because The Literal Language Of Section 2113(b)

Includes A Taking By False Pretenses, The Rule Of

Lenity Does Not Support A Narrow Construction Of

The Statute

Petitioner’s final contention (Br. 14-16) is that his

conviction should be reversed pursuant to the “rule

of lenity.” He asserts that the coverage of Section

2113(b) is ambiguous and that the statute must

therefore be construed strictly in his favor.

As a “guide to statutory construction” (Callanan

v. United States, 364 U.S. 587, 596 (1961) ), the rule

of lenity is not applicable unless there is a “grievous

ambiguity or uncertainty in the language and struc-

ture of the Act” (Huddleston v. United States, 415 U.S.

814, 831 (1974)) such that even “[a]fter [a court

has] ‘seize[d] everything from which aid can be de-

rived * * *’ [it is still] left with an ambiguous stat-

ute.” United States v. Bass, 404 U.S. 336, 347

(1971), quoting United States v. Fisher, 6 U.S. (2

Cranch) 358, 386 (1805). Lenity “only serves as an

aid for resolving an ambiguity; it is not to be used

to beget one. * * * The rule comes into operation at

the end of the process of construing what Congress

has expressed, not at the beginning as an overriding

consideration of being lenient to wrongdoers.” Cal-

lanan v. United States, supra, 364 U.S. at 596 (foot-

note omitted )

Because the ambit of Section 2113(b) can be as-

certained with reasonable certainty, the rule of lenity

does not support petitioner’s claim. As we have dem-

onstrated above, the literal language of the statute

applies to petitioner’s offense. The conduct for which

he was convicted clearly involved the “tak[ing] and

States v. Pinto, 646 F.2d 838, 888 (3d Cir. 1981), cert. denied,

No. 81-2088 (Oct. 4, 1982). See also Note, supra, 51 Fordham

L. Rev. at 559 n.187.

43

carr[ying] away, with intent to steal or purloin,” of

more than $10,000 from a federally insured financial

institution. The clear words of the statute are not

rendered ambiguous by virtue of the fact that in ear-

lier times the phrase “takes and carries away” re-

ferred to common law larceny. By the time Section

2118(b) was enacted, larceny had begun to be re-

garded as a generic term that included all forms of

theft. Moreover, the legislative history is at most

inconclusive and does not compel a narrow reading

of the statute, which would restore the illogical dis-

tinctions of the past and lead to the sort of “incon-

gruous results’ (H.R. Rep. No. 732, supra, at 1)

that Congress sought to avoid in enacting the statute.

The narrow interpretation proffered by petitioner

would thus thwart the statute’s purpose of “protect-

[ing] federally insured banks by expanding the cate-

gory of proscribed takings beyond robbery to include

those committed without the use of force or violence.”

Note, supra, 51 Fordham L. Rev. at 555 (footnote

omitted).

In these circumstances, the rule of lenity does not

require a narrow interpretation. As the Court ob-

served in United States v. Moore, 423 U.S. 122, 145

(1975), quoting United States v. Brown, 333 U.S. 18,

25-26 (1948):

The canon in favor of strict construction [of

criminal statutes] is not an inexorable command

to override common sense and evident statutory

purpose * * *. Nor does it demand that a stat-

ute be given the “narrowest meaning”; it is sat-

isfied if the words are given their fair meaning

in accord with the manifest intent of the law-

makers.

See also, e.g., McElroy v. United States, No. 80-6680

(Mar. 23, 1982), slip op. 16-17, quoting United States

v. Bramblett, 348 U.S. 508, 509-510 (1955). Cf. SEC

44

v. C.M. Joiner Leasing Corp., 320 U.S. 344, 355

(1943), quoting United States v. Hartwell, 73 U.S.

(6 Wall.) 385, 396 (1867) (“ ‘The ruie of strict con-

struction is not violated by permitting the words of

the statute to have their full meaning, or the more

extended of two meanings, as the wider popular in-

stead of the more narrow technical one * * *’”’).

Considerations of fairness also do not weigh in

favor of petitioner’s assertion of the rule of lenity.

Petitioner unquestionably had “fair warning * * *

as to what conduct is criminal and punishable by

deprivation of liberty or property.” Huddleston v.

United States, supra, 415 U.S. at 831. Here, the

theft of money from the bank was clearly illegal un-

der state law regardless of the applicability of Sec-

tion 2113(b). See Fla. Stat. Ann. § 812.021 (West

1976). Moreover, prior to petitioner’s commission of

the offense, the United States Court of Appeals for

the Fifth Circuit had held that Section 2113(b) cov-

ered theft by false pretenses. Thaggard v. United

States, 354 F.2d 735 (1965), cert. denied, 383 U.S.

958 (1966). Hence, petitioner was not “forced to

speculate, at peril of indictment, whether his conduct

[was] prohibited.” Dunn v. United States, 442 U.S.

100, 112 (1979).

Petitioner’s reliance (Br. 15) on Williams v. United

States, No. 80-2116 (June 29, 1982), is misplaced.

In Williams, the Court concluded that the act of de-

positing several checks that are not supported by suf-

ficient funds is not within the literal terms of 18

U.S.C. 1014 because that course of conduct does not

involve the making of a “false statement” that “over-

values” property, as required by the statute. Slip op.

5-6. Because Section 1014 “does not explicitly reach

the conduct in question” the Court was “reluctant to

base an expansive reading on inferences drawn from

45

subjective and variable ‘understandings.’ ” Slip op. 7

(footnote omitted). In contrast to the situation in

Williams, the literal language of Section 2113(b)

does reach petitioner’s conduct and it is petitioner’s

narrow interpretation of the statute that would pro-

duce anomalous results.”

31 Petitioner also relies (Br. 15-16) on a statement in

Jerome, 318 U.S. 104-105, to the effect that federal statutes

that duplicate or build upon state law should be narrowly

construed. This statement is of little, if any, assistance to

petitioner. As already noted (see pages 33-34, supra), the

Court in Jerome was concerned with the problem of lack of

uniformity that would obtain under the government’s con-

struction of the burglary provision of the bank robbery stat-

ute, and with the additional anomaly that, under the govern-

ment’s view, an individual could be haled into federal court

for entering a federally insured bank with the intent to com-

mit any state felony, including offenses (such as rape or

adultery) that had no relationship to the federal interest of

protecting banks. Such concerns are not present here.

Moreover, as one commentator has noted (Note, supra, 51

Fordham L. Rev. at 560-561 (footnotes omitted) ):

A narrow construction [of Section 2113(b)] * * *

assumes that state law regarding nontrespassory offenses

is both adequate and enforced. Under this interpretation

of the statute, only burglary and common-law larceny

were made federal crimes by the 1937 amendment. Yet

these two crimes already were covered by state law.

Thus, Congress duplicated state laws, presumably be-

cause it deemed them inadequate to deal with burglary

and larceny from federal banks. When interstate schemes

are involved, state laws regarding non-trespassory thefts

may also be inadequate. Arguably, Congress intended to

include both types of theft in section 2113(b). Further-

more, the danger of diluting state responsibility for local

crimes is not present when the financial institutions

involved are federally insured; trespassory or non-

trespassory thefts committed against them may no longer

be purely local in nature.

46

In short, the rule of lenity does not require a court

to disregard the literal language of a statute and

adopt instead an interpretation that defies common

sense and revives archaic and arbitrary distinctions.

The rule of lenity thus provides no basis for revers-

ing petitioner’s conviction.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

REx E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ELLIOTT SCHULDER

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

MARCH 1983

ov. 8. cOvERNMENT paintine orrice; 1983 400408 1295