Respondents Brief — Carter v. United States
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Supreme Court, U.S.
Mar ) ood FILED
No. 99-5716 MAR 9 = 9000
In the Supreme Court of the Unite Stues
FLOYD J. CARTER, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAVID C. FREDERICK
Assistant to the Solicitor
General
THOMAS E. BOOTH
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether bank larceny, 18 U.S.C. 2113(b) (Supp. IV
1998), is a lesser included offense of bank robbery, 18
U.S. C. 2113(a).
TABLE OF CONTENTS
Opinion below
Jurisdiction
Statement
Summary of argument
Argument
I. Bank larceny is not a lesser included offense
of bank robbery
A. Bank larceny contains statutory elements
that bank robbery does not have 10
1. Bank larceny, unlike bank robbery,
requires proof of a specific intent to
steal
2. Bank larceny, unlike bank robbery,
requires proof that the defendant
“carries away” the property 23
3. Bank larceny, unlike bank robbery,
requires proof that the property has
a monetary value 25
B. The legislative history of Section 2113
does not show congressional intent to make
bank larceny a lesser included offense of
bank robbery 29
C. Precedent and canons of statutory
interpretation do not support petitioner’s
argument
II. Even if bank larceny is a lesser included
offense of bank robbery under the statutory
elements test, there was no error in the charge
to the jury 43
Conclusion 47
Appendix la
(IIT)
IV
TABLE OF AUTHORITIES
Albernaz v. United States, 450 U.S. 333 (1981) . 37, 41
Ayres v. Commonwealth, 161 S. E. 888 (Va. 1932) 19
Bates v. United States, 522 U.S. 23 (1997 6, 10, 24
Bell v. United States, 462 U.S. 356 (1983) ............ 7, 31, 38, 34
Berra v. United States, 351 U.S. 131 (1956) 44
Cartwright v. United States, 146 F.2d 133 (5th
Cir. 1944) 27
Chapman v. United States, 500 U.S. 453 (1991) .............. 41-42
Coker v. State, 396 So. 2d 1094 (Ala. Crim. App.
1981) 28
Coz v. Commonwealth, 240 S.E.2d 524 (Va. 1978) 19
Factor v. Laubenheimer, 290 U.S. 276 (1983) 33
Government of the V. I. v. Jarvis, 653 F.2d 762
(3d Cir. 1981) 30
Haley v. State, 315 So. 2d 525 (Fla. Dist. Ct. App.
1975) 28
Harrison v. United States, 163 U.S. 140 (1896) ............... 41
Heflin v. United States, 358 U.S. 415 (1959) 39
Holloway v. United States, 526 U.S. 1 (19999 10, 16
Hopkins v. Reeves, 524 U.S. 88 (1998) 9
Jerome v. United States, 318 U.S. 101 (1943) . 30, 31
Johnson v. State, 744 So. 2d 833 (Miss. Ct. App.
1999) 25
Jones v. United States, 526 U.S. 227 (1999) 26, 28
Keeble v. United States, 412 U.S. 205 (1973) 43
LeMasters v. United States, 378 F 2d 262 (9th
Cir. 1967) 33
Litteral v. State, 634 P.2d 1226 (Nev. 1981) 18
Missouri v. Hunter, 459 U.S. 359 (1983) 37
Morissette v. United States, 342 U.S. 246 (1952) — 7, 19-20,
39, 40, 41
—
*
Cases Continued: Page
Moskal v. United States, 498 U.S. 103 (1990) . 24, 29
Muscarello v. United States, 524 U.S. 125 (1998) . 224, 41, 42
Neder v. United States, 527 U.S. 1 (199999 7, 42, 43
Nell v. State, 642 P.2d 1361 (Alaska Ct. App.
1982) 18
Pennsylvania Dep't of Corrections v. Yeskey, 524
U.S. 206 (1998) 32
People v. Moseley, 566 P.2d 331 (Colo. 1977) 18
People v. Myers, 73 N.E.2d 288 (Ill. 1947) 28
People v. Ocasio, 697 N.Y.S.2d 368 (App. Div.
1999) 17
Prince v. United States, 352 U.S. 322 (1957) . 7, 36, 37, 38
Railroad Trainmen v. Baltimore & Ohio R.R., 331
US. 519 (1947) 32
Ratziaf v. United States, 510 U.S. 135 (1994) 24
Russello v. United States, 464 U.S. 16 (1983 10
Sansone v. United States, 380 U.S. 343 (1965) 9, 43
Schmuck v. United States, 489 U.S. 705 (1989). 5, 7, 9, 44
Simpson v. United States, 435 U.S. 6 (1978) 38
Staples v. United States, 511 U.S. 600 (1994) 10, 19, 41
State v. Ates, 377 S.E.2d 98 (S.C. 1989) 28
State v. Boucino, 506 A.2d 125 (Conn. 1986)
State v. Boyle, 970 S.W.2d 835 (Mo. Ct. App.
1998) 25
State v. Celaya, 660 P.2d 849 (Ariz. 1983) 17
State v. Combs, 316 N.W.2d 880 (Iowa 1982) 28
State v. Gore, 722 N.E.2d 125 (Ohio Ct. App.
1999) 25
State v. Johnson, 558 N.W.2d 376 (Wis. 1997) ................. 25
State v. McGarrett, 535 N.W.2d 765 (S.D. 1995) 28
State v. Nix, 922 S.W.2d 894 (Tenn. Crim. App.
1995) 17
State v. Payne, 540 So. 2d 520 (La. Ct. App.
1989) 18
State v. Redding, 331 N.W.2d 811 (Neb. 1983) ................. 28
VI vil
Cases—Continued: Page Cases—Continued: Page
State v. Thompson, 558 P.2d 1079 (Kan. 1978) 18 ‘ United States v. Lanier, 520 U.S. 259 (1997) 35
State v. Valdez, 977 P.2d 242 (Kan. 1999) 25 United States v. Lewis, 628 F.2d 1276 (10th Cir.
Stevens v. United States, 297 F. 2d 664 (10th Cir. 1980), cert. denied, 450 U.S. 924 (1981) 22
1961) 27 United States v. Mann, 119 F. Supp. 406 (D. D. C.
Stevenson v. United States, 162 U.S. 313 (1896) .............. 43 1954) 21
Traxler v. State, 251 P.2d 815 (Okla. Crim. App. United States v. Moore, 73 F.3d 666 (6th Cir.),
1953) 18 cert. denied, 517 U.S. 1228 (1996) 23
United States v. Arambasich, 597 F. 2d 609 (7th United States v. Mosley, 126 F.3d 200 (3d Cir.
Cir. 1979) 15 1997), cert. granted, 523 U.S. 1019, cert.
United States v. Bailey, 444 U.S. 394 (1980) 12, 19, 20 dismissed, 525 U.S. 120 (1998) 4
United States v. Baker, 985 F.2d 1248 (4th Cir. United States v. Payne, 805 F.2d 1062 (D.C. Cir.
1993), cert. denied, 510 U.S. 1040 (1994) 43-44 1986) 44
United States v. Belt, 516 F.2d 873 (8th Cir. 1975), United States v. Perry, 991 F.2d 304 (1993) 46
cert. denied, 423 U.S. 1056 (1976) 30 United States v. Pick, 724 F.2d 297 (2d Cir. 1983) .......... 14
United States v. Cornillie, 92 F.3d 1108 (11th United States v. Sandles, 80 F.3d 1145 (7th Cir.
Cir. 1996) 46 1996) 46
United States v. DeLeo, 422 F.2d 487 (1st Cir.), United States v. Shabani, 513 U.S. 10 (1994) 16
cert. denied, 397 U.S. 1087 (1970) 14, 20, 22, 41 United States v. Smith, 638 F.2d 131 (9th Cir.
United States v. DiGilio, 538 F. 2d 972 (3d. Cir. 1976), 1981) 20
cert. denied, 429 U.S. 1088 (1977) 27 United States v. Turkette, 452 U.S. 576 (1981) 10
United States v. Emery, 682 F 2d 493 (5th Cir.), United States v. Turley, 352 U.S. 407 (1957) 29, 33
cert. denied, 459 U.S. 1044 (1982) 20 United States v. United States Gypsum Co., 438
United States v. Fazzini, 871 F.2d 685 (7th Cir.), US. 422 (1978) 19, 20
cert. denied, 493 U.S. 982 (1989) 20 United States v. Walker, 75 F.3d 178 (4th Cir.),
United States v. Gaddis, 424 U.S. 544 (1976) 38 cert. denied, 517 U.S. 1250 (1996) 46
United States v. Gonyea, 140 F.3d 649 (6th Cir. United States v. Warledo, 557 F.2d 721 (10th
1998) 20 Cir. 1977) 15
United States v. Hoke, 610 F. 2d 678 (9th Cir. United States v. Wells, 519 U.S. 482 (1997) 10, 35
1980) 26 United States v. Wilson, 284 F.2d 407 (4th Cir.
United States v. Johnson, 575 F 2d 678 (8th Cir. 1960) 27
1978) 33 United States v. X-Citement Video, Inc., 513 U.S.
United States v. Johnston, 643 F 2d 55 (8th Cir. . 64 (1994) 19
1976) 20 Wilson, Ex parte, 114 U.S. 417 (1885) 27
United States v. Lajoie, 942 F.2d 699 (10th Cir.),
cert. denied, 502 U.S. 919 (1991) 46
VIII
Constitution, statutes, and rules: Page
U.S. Const. Amend. V 26
Act of Mar. 4, 1909, ch. 321, § 284, 35 Stat. 1144 35
Act of Sept. 26, 1918, ch. 177, § 5209, 40 Stat. 972 .............. 30
Act of May 18, 1934, ch. 304, § 2a, 48 Stat. 783 31
Act of Aug. 24, 1937, ch. 747, 50 Stat. 749 31
Act of July 3, 1946, ch. 537, § 1(b), 60 Stat. 420 15
Act of June 25, 1948, ch. 645, 62 Stat. 683 15, 32
Anti-Racketeering (Hobbs) Act, 18 U.S.C. 1951 6, 15
Department of the Interior and Related Agencies
Appropriation Act, Pub. L. No. 98-473, Tit. II,
§ 218(a)(1), 98 Stat. 2027 a 34
Rev. Stat. § 5209 (1875 ed.) 30
15 U.S.C. 1984 9
15 U.S.C. 19980) 9
18 U.S.C. 1 (1982) 34, 35
18 U.S.C. 550 35
18 U.S.C. 641 20, 27, 39
18 U.S.C. 751(a) 19, 35
18 U.S.C. 1014 10
18 U.S.C. 1341 9, 14, 42
18 U.S.C. 1343 42
18 U.S.C. 1344 42
18 U.S.C. 1661 16
18 U.S.C. 1951 6, 35
18 U.S.C. 2076 35
18 U.S.C. 2111 6, 15, 16, 24, 35
18 U.S.C. 2112 16
18 U.S.C. 2113 (1994 & Supp. IV 1998) passim
18 U.S.C. 2113(a) passim
18 U.S.C. 2113(b) (Supp. IV 1998) passim
18 U.S.C. 2113(c) 11, 14, 38, 39
18 U.S.C. 2113(d) 11, 22
18 U.S.C. 211%(e) 11
18 U.S.C. 2114 16
18 U.S.C. 2118 16, 24
IX
Statutes and rules—Continued: Page
18 U.S.C. 2118(a) 6, 15
18 U.S.C. 2119 (Supp. IV 1998) 6, 15, 16, 23
18 U.S.C. 355%a) 26
20 U.S.C. 1097(a) 10
21 U.S.C. 846 17
26 U.S.C. 5861(d) 19
26 U.S.C. 7201 9
26 U.S.C. 7207 9
Ala. Code § 13A-8-43 (1994) 17
Ark. Code Ann. § 5-12-102 (Michie 1997) 17
Conn. Gen. Stat. Ann. § 58a-133 (West 1994) 17
N.H. Rev. Stat. Ann. § 636:1 (1996) 17
Ohio Rev. Code Ann. § 2911.01(A)(1) (Anderson
1999) 25
Va. Code Ann. § 18.2-58 (Michie 1996) 19
Fed. R. Crim. P.
Rule 7(a) 27
Rule 20 2
Rule 29 3,5, 44
Rule 31(c) 8, 9, 43
Miscellaneous:
Black’s Law Dictionary 194 (6th ed. 1986) 24
4 W. Blackstone, Commentar iss 29
2 W. Burdick, The Law of Crime (1946) 29
143 Cong. Rec. $1661 (daily ed. Feb. 26, 1997) 16
H.R. Rep. No. 304, 80th Cong., Ist Sess. (1947) ..... 32, 33, 34, 35
H.R. Rep. No. 782, 75th Cong., Ist Sess. (1987) 31
H.R. Rep. No. 851, 102d Cong., 2d Sess. (1992) 16
W. LaFave & J. Israel, Criminal Procedure (1985) .......... 27
1 W. LaFave & A. Scott, Substantive Criminal Law
(1986 & Supp. 1999) 12, 13, 20
2 W. LaFave & A. Scott, Substantive Criminal Law
(1986 & Supp. 1999) 22, 25, 30, 33
R. Perkins & R. Boyce, Criminal Law (ad ed. 1982) ......... 22,
23, 24-25, 27, 30
X
Miscellaneous Continued: Page
8. 2841, 78d Cong., 2d Sess. (1984) 31
1 L. Sand et al., Modern Federal Jury Instructions
(1999) 43
3 L. Sand et al., Modern Federal Jury Instructions
(1999) 13
U.S. Sentencing Guidelines Manual (1998) 39
Webster’s Third New International Dictionary
(1986) 23, 24
In the Supreme Court of the Anited States
No. 99-5716
FLOYD J. CARTER, PETITIONER
V.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_ BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (J.A. 80-87) is
unpublished, but the judgment is noted at 185 F.3d 863
(Table).
JURISDICTION
The judgment of the court of appeals was entered on
June 16, 1999. The petition for a writ of certiorari was
filed on August 12, 1999, and granted on December 13,
1999. The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the District of New Jersey, petitioner was
convicted on one count of bank robbery, in violation of
| (1)
2
18 U.S.C. 2113(a). He was sentenced to 215 months’
imprisonment to be followed by three years’ supervised
release. The court of appeals affirmed. J. A. 80-87.
1. On September 9, 1997, at approximately 2:00 p.m.,
petitioner entered the Collective Federal Savings Bank
in Hamilton Township, New Jersey, through the door
adjacent to the parking lot. Despite the warm weather,
he was wearing several layers of clothing and a ski
mask that covered almost his entire face. Encountering
a customer who was leaving the bank, he pushed her
twice, and ordered her to “move over.” C.A. App. 31.
She “attempted to exit around [petitioner], but [he]
pushed her back inside.” J.A. 81. The customer “was so
terrified that she screamed, startling others within the
bank.” J.A. 82; see also C.A. App. 29-32.
Petitioner then ran toward the customer service
counter and vaulted over the counter and through one
of the teller windows to the area behind the counter.
One of the tellers ran to the branch manager’s office,
“yelling that a robber was after her.” J.A. 82. Peti-
tioner seized money from a teller drawer and stuffed it
into a brown paper bag. He then moved to within two
feet of where two tellers stood and emptied their teller
drawers. Ibid. According to one of the tellers, he said
he “wouldn’t hurt nobody.” C.A. App. 79. Neverthe-
less, two of the tellers testified that they were “scared
to death,” and one was crying and trembling. Gov't
! Petitioner previously had pleaded guilty to an indictment
charging three counts cf bank larceny, in violation of 28 U.S.C.
2113(b) (Supp. IV 1998), in the United States District Court for the
Eastern District of Pennsylvania. The case was transferred, pur-
suant to Federal Rule of Criminal Procedure 20, to the District of
New Jersey for sentencing. He was sentenced on those convic-
tions to a concurrent term of 120 months’ imprisonment. J.A. 64-
70.
C.A. Br. 3. The customer whom petitioner had pushed
inside the bank upon his arrival meanwhile had run out
of the bank, “got into her car, laid down on the floor and
prayed until the authorities arrived.” J.A. 82. After
removing almost $16,000 in currency, petitioner hurdled
back over the teller counter and warned the bank’s oc-
cupants not to follow him. Police arrested him shortly
thereafter. During a subsequent interview, petitioner
confessed that he had taken money from the bank. Ibid.
Petitioner’s defense was that he committed only bank
larceny, not bank robbery. He sought to show through
his own testimony and cross-examination of the govern-
ment’s witnesses that he did not use intimidation to
obtain the bank’s money. He challenged the customer’s
testimony that she had screamed upon encountering
petitioner and that he twice had pushed her. C.A. App.
157-158. According to his account, he wore the ski mask
to conceal his identity and was under the mistaken
belief that no customers were in the bank when he
entered it. Jd. at 155-156. He said that he specifically
avoided confronting the tellers and first approached a
vacant teller station because he did not want to scare
the tellers. Id. at 159-160. He reassured the tellers
that he was “not gonna hurt anybody” and just wanted
the money. /d. at 161. Finally, after stealing the
money, he told the occupants not to follow him because
run fast.” Id. at 164.
After the close of the government’s case, petitioner
moved for a judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure. J.A. 17-20.
That motion followed a written submission by defen-
dant requesting that the jury be instructed on a charge
of bank larceny as a lesser included offense of bank
robbery. J.A. 4-9. The gravamen of both motions was
the defense’s theory that the government had not
4
proved that petitioner had obtained the bank’s money
through “force, violence or intimidation,” as required by
18 U.S.C. 2113(a). J. A. 24. The court denied the
motion, finding sufficient evidence to establish the ele-
ments of bank robbery. J.A. at 23-32. The court also
discussed the Third Circuit’s decision in United States
v. Mosley, 126 F.3d 200 (1997), cert. granted, 523 U.S.
1019, cert. dismissed, 525 U.S. 120 (1998), which held, as
a matter of law, that bank larceny is not a lesser-
included offense of bank robbery. J.A. 29-32. Relying
on Mosley, the court denied petitioner’s request for a
jury instruction on bank larceny, concluding that the
government hid introduced sufficient evidence that
“the behavior of [petitioner] was such as could put a
reasonable person in fear of bodily harm and that that
could amount to force or intimidation such as to satisfy
the third element of the bank robbery offense.” J.A. 32.
The district court accordingly charged the jury that
the elements of the offense of hank robbery are (1) that
the defendant knowingly and willfully took money from
or in the presence of employees of the bank; (2) that the
money was in the “care, custody, control, management
or possession” of the bank; (3) that the defendant took
the money by means of “force, violence or intimidation”;
and (4) that the money was insured by the Federal
Deposit Insurance Corporation. J.A. 55. The court also
instructed the jury that “(tJhe defense theory of the
case” was that “no conduct of the defendant was rea-
onably calculated to instill fear of bodily harm.” J.A. 57.
2. The court of appeals affirmed. Following Mosley,
the court held that petitioner was not entitled to a bank
larceny instruction because bank larceny is not a lesser-
included offense of bank robbery. It emphasized that
its holding in Mosley was a legal one, resting “solely on
the legal interpretation of Sections 2113(a) and (b).”
5
J. A. 84. It declined to reconsider its decision in Mosley,
finding that specific intent, while an essential element
of a violation of Section 2113(b), is not a requisite ele-
ment of bank robbery. The court also rejected peti-
tioner’s claim that the evidence did not sufficiently
establish that petitioner used force, violence, or intimi-
dation to steal the money, which had been the basis of
petitioner’s motion for acquittal under Federal Rule of
Criminal Procedure 29. J.A. 86-87.
SUMMARY OF ARGUMENT
I. Bank larceny is not a lesser included offense of
bank robbery.
A. Under Schmuck v. United States, 489 U.S. 705
(1989), the resolution of the lesser included offense
issue turns on whether all of the statutory elements of
the putative lesser offense are necessarily established
by proving the charged offense. Bank larceny contains
elements not found in bank robbery. Section 2113(b)
bank larceny requires the government to prove that the
defendant (1) had the specific “intent to steal or pur-
loin” the bank’s property; (2) “carrie[d] away” that pro-
perty; and (3) took property that had a monetary value.
18 U.S.C. 2113(b) (Supp. IV 1998). Section 2113(a) bank
robbery contains none of those requirements. 18 U.S.C.
2113(a).
The omission of a specific intent requirement in the
first paragraph of Section 2113(a) is significant. Con-
gress provided specific intent elements in other sub-
sections of Section 2113. For example, the bank
burglary offense set forth in the second paragraph of
Section 2113(a) requires an “intent to commit in such
bank * * * any felony affecting such bank.” The
presumption is that the omission of a counterpart
specific intent element for bank robbery was deliberate.
6
See Bates v. United States, 522 U.S. 23, 29-30 (1997).
That conclusion is further supported by the absence of a
specific intent to steal requirement in other robbery
offenses defined in the criminal code, such as 18 U.S.C.
1951 (Hobbs Act), 18 (.S. C. 2111 (robbery in the special
maritime and territorial jurisdiction of the United
States), 18 U.S.C. 2118(a) (robbery of controlled sub-
stances), and 18 U.S.C. 2119 (Supp. IV 1998) (car-
jacking).
Although Section 2113(a) bank robbery does not
contain an express mental element, it is appropriate to
infer a general intent requirement. The courts of
appeals have consistently held that the defendant must
act “knowingly” with respect to each actus reus in
Section 2113(a). The conclusion that the knowing use of
“force and violence, or by intimidation” is a sufficient
mental element accords with the purposes behind Con-
gress’s enactment of the bank robbery offense. Be-
cause of the threat posed to innocent persons in finan-
cial institutions, bank robbery causes as much social
harm and is just as serious even if the perpetrator lacks
a specific intent to deprive the bank permanently of its
property.
For similar reasons, the omission of an asportation
element and a monetary valuation requirement in Sec-
tion 2113(a) bank robbery further supports the conclu-
sion that Congress did not intend bank larceny in
Section 2113(b) to be a lesser included offense of bank
robbery.
B. The legislative history does not support peti-
tioner’s submission. Although simple larceny was a
lesser included offense of robbery at common law, an
examination of the language and background of Section
2113 refutes the contention that Congress intended
merely to codify the common law robbery and larceny
7
offenses. Congress did not initially enact a bank lar-
ceny offense when it proscribed bank robbery in 1934.
When it later added a crime for bank larceny, it did so
to fill a gap in the statute—the failure to reach the theft
of bank property without the use of force, violence, or
intimidation. Congress did not indicate in 1937 that it
intended bank larceny to be a lesser included offense of
the bank robbery crime established in 1934. And as this
Court has already recognized, the language of Section
2113 creates a larceny offense that is broader than the
common law. See Bell v. United States, 462 U.S. 356,
360-361 (1983). The same is true of the robbery offense
defined in Section 2113.
C. Nor do this Court’s cases and canons of statutory
construction support petitioner’s contention. In Prince
v. United States, 352 U.S. 322 (1957), this Court held
that convictions under paragraphs one and two of
Section 2113(a) merge if the defendant actually com-
pleted the crime of bank robbery. That holding did not
entail an analysis of the statutory elements of the
offenses contained in Sections 2113(a) and (b), as is now
required by Schmuck, supra. The holding in Prince
may bar certain cumulative punishments under Section
2113 (a result achieved today by the Sentencing Guide-
lines), but it does not compel the giving of a lesser
included offense instruction when the government
charges only bank robbery (and not bank larceny) in the
indictment.
Similarly, petitioner’s reliance on Morissette v.
United States, 342 U.S. 246 (1952), is misplaced.
Morissette construed the theft offenses in 18 U.S.C. 641
to incorporate common law requirements. That con-
clusion does not carry over to Section 2113, which de-
parts from the common law. Nor is petitioner assisted
by Neder v. United States, 527 U.S. 1 (1999). That case
construed federal fraud statutes to incorporate the
common law requirement of materiality. In contrast to
Congress’s undefined references to a “scheme to
defraud” in those statutes, the bank robbery statute
specifies its elements and now omits from its text an
intent-to-steal element that was previously present (in
the form of the word “feloniously”). It is one thing to
hold that a simple reference to a common law crime
carries with it the common law’s elements; it is quite
another to hold that Congress cannot escape the
common law even when it enumerates the elements of a
crime and deliberately omits some aspects of that
crime’s common law antecedents.
II. Even if, contrary to our submission, this Court
were to hold that the statutory elements of Section
2113(b) create a lesser included offense of Section
2113(a) bank robbery, the district court correctly
declined to give a lesser included offense instruction in
this case. Federal Rule of Criminal Procedure 31(c)
requires such an instruction only if the evidence would
permit a rational jury to convict the defendant of the
lesser offense while acquitting him of the greater one.
The district court here properly concluded that the
evidence admitted of only one conclusion: that peti-
tioner obtained the bank’s money by the use of
intimidation. There is no evidence that petitioner
obtained the funds as a result of the tellers’ voluntary
actions. Because no rational juror could reach the
conclusion advanced by petitioner, a bank larceny
instruction was not required.
— —- —
I. BANK LARCENY IS NOT A LESSER INCLUDED
OFFENSE OF BANK ROBBERY
Federal Rule of Criminal Procedure 31(c) provides
that a “defendant may be found guilty of an offense
necessarily included in the offense charged.” In
Schmuck v. United States, 489 U.S. 705 (1989), the
Court held that, for purposes of instructing the jury,
the test for determining whether one offense is a
“necessarily included” offense of another under Rule
31(c) is the statutory “elements” test. Under that test:
[Ohe offense is not “necessarily included” in
another unless the elements of the lesser offense are
a subset of the elements of the charged offense.
Where the lesser offense requires an element not
required for the greater offense, no instruction is to
be given under Rule 31(c).
489 U.S. at 716. See Hopkins v. Reeves, 524 U.S. 88, 96
& n.6 (1998).
a subset of elements in 26 U.S.C. 7201).
10
A. Bank Larceny Contains Statutory Elements That Bank
Robbery Does Not Have
“(Tyhe language of the statutes that Congress enacts
provides ‘the most reliable evidence of its intent.’”
Holloway v. United States, 526 U.S. 1, 6 (1999) (quoting
United States v. Turkette, 452 U.S. 576, 593 (1981)).
Because Congress is solely responsible for defining
federal crimes, see Staples v. United States, 511 U.S.
600, 604-605 (1994), this Court will “ordinarily resist
reading words or elements into a statute that do not
appear on its face,” Bates v. United States, 522 U.S. 23,
29 (1997) (specific intent to defraud is not an element of
the offense of misapplication of funds, 20 U.S.C.
1097(a)); see United States v. Wells, 519 U.S. 482, 490-
493 (1997) (materiality is not an element of the offense
of making a false statement to a federal bank, 18 U.S.C.
1014). That principle is especially apt here because
bank robbery and bank larceny are defined in a single
provision, thus highlighting the significance of Con-
gress’s choice of contrasting terminology. I[Wihere
Congress includes particular language in one section of
a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or
exclusion.” Bates, 522 U.S. at 29-30 (quoting Russello
v. United States, 464 U.S. 16, 23 (1983)).
Section 2113 of Title 18 punishes crimes against
banks in five subsections, the first two of which are
bank robbery (18 U.S.C. 2113(a)) and bank larceny (18
U.S.C. 2113(b) (Supp. IV 1998)).’ Bank larceny is not a
Section 2113 punishes diverse crimes against banks. Section
2113(a) provides, in separate paragraphs, that bank robbery and
entry into a bank with the intent to commit a felony therein are
crimes punishable by up to 20 years’ imprisonment. Section
11
lesser included offense of bank robbery because Section
2113(b) contains elements not present in Section
2113(a). Nothing in either subsection expresses an in-
tent by Congress to create greater and lesser included
offenses between the first paragraph of subsection (a)
and subsection (b), as Congress explicitly did in sub-
sections (d) (18 U.S.C. 2113(d)) and (e) (18 U.S.C.
2113(e)) for other offenses established in Section 2113.
Section 2113(a) provides, in its first paragraph, that,
“[wJhoever, by force and violence, or by intimidation,
2113(b) provides that bank larceny of property exceeding $1000 is
a crime punishable by up to ten years’ imprisonment. In a separate
paragraph, Section 2113(b) states that bank larceny of property
not exceeding $1000 is a crime punishable by a fine of up to $1000,
imprisonment not to exceed one year, or both.
Section 2113(c) makes receipt of stolen bank property a crime
and provides for the punishment set forth in Section 2113(b). 18
U.S.C. 2113(c). Section 2113(d) states that aggravated assault
during a bank robbery or bank larceny is a crime and provides for
up to 25 years’ imprisonment. 18 U.S.C. 2113(d). Section 2113(e)
provides that a homicide or kidnapping committed during the com-
mission of a crime againrt a bank defined in this section is subject
to a minimum of ten years’ for the kidnapping and
life imprisonment for the homicide. 18 U.S.C. 2113(e).
* Section 2113(d), for example, is a greater offense of those
created in subsections (a) and (b), because it provides that “[wJho-
ever, in committing, or in to commit, any offense
21 —— 222 —
son, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be * * * imprisoned not more
than twenty-five years.” 18 U.S.C. 2113(d).
Similarly, Section 2113(e) expresses an unequivocal intent to
create a greater offense by providing that, “[wJhoever, in commit-
ting any offense defined in this section, * * * kills any person,
* * * shall be not less than ten years, or if death
results shall be punished by death or life imprisonment.” 18 U.S.C.
2113(e). _
12
takes, or attempts to take, * * * any property or
money or any other thing of value belonging to, or in
the care, custody, control, management, or possession
of, any bank, credit union, or any savings and loan
association,” is guilty of an offense that is punishable by
up to twenty years in prison. 18 U.S.C. 2113(a).
Section 2113(b), by contrast, provides that anyone who
“takes and carries away, with intent to steal or purloin,
any property or money or any other_thing of value
exceeding $1,000 belonging to, or in the care, custody,
control, management, or possession of any bank, credit
union, or any savings and loan association,” is guilty of
an offense punishable by up to ten years in prison. 18
U.S.C. 2113(b) (Supp. IV 1998) (emphasis added).
Section 2113(b) thus requires proof, as the italicized
terms indicate, of three elements not present in Section
2113(a): (1) a specific intent to steal or purloin; (2) a
requirement that the property be “carr[ied] away”; and
(3) a provision that the property taken have a monetary
value.
1. Bank larceny, unlike bank robbery, requires
proof of a specific intent to steal
a. While bank larceny contains an express “intent to
steal or purloin” element, bank robbery has no such
mental element in its text. The omission of that phrase
is significant. Although the phrases “general intent”
and “specific intent” have “been the source(s] of a good
deal of confusion,” United States v. Bailey, 444 U.S.
394, 403 (1980), “[t]he distinction between ‘general
intent’ and ‘specific intent’ is not without importance in
the criminal law,” 1 W. LaFave & A. Scott, Substantive
Criminal Law 315 (1986 & Supp. 1999).
[T]he most common usage of “specific intent” is to
‘designate a special mental element which is re-
13
quired above and beyond any mental state required
with respect to the actus reus of the crime. Common
law larceny, for example, requires the taking and
carrying away of the property of another, and the
defendant’s mental state as to this act must be
established, but in addition it must be shown that
there was an “intent to steal” the property.
1 W. LaFave & A. Scott, supra, at 315 (emphasis
added). By including a specific intent requirement in
Section 2113(b) but not in the first paragraph of Section
2113(a), Congress intended that a prosecution for bank
larceny establish a “special mental element * * *
above and beyond” the general mental state required
for the actus reus of the crime. Congress’s omission of
the specific “intent to steal” from the first paragraph of
Section 2113(a) also contrasts with its provision of a
different specific intent element—the “intent to commit
in such bank * any felony affecting such bank” in
the second paragraph of Section 2113(a).° That aspect
5 The second paragraph of Section 2113(a) is sometimes re-
ferred to au the bank burglary offense. The interrelationship
between the bank burgiary otfense, which is not at issue in this
case, and Section 2113(b) is not entirely clear. The second para-
graph of Section 2113(a) makes it an offense to enter a bank “with
intent to commit * * * any larceny.” 18 U.S.C. 2113(a). As one
commentator has noted:
Despite the fact that section 2113(b) carries a lesser maxi-
mum than section 2113(a), it does not seem that section
2113(b) is a lesser included offense of the second paragraph of
section 2113%(a) * * * . , when prosecutors are
presented with crimes that seem to be section 2113(b)
violations, it appears that they can attempt to prosecute the
defendant under the second paragraph of section 2113(a) with
no limitations.
3 L. Sand et al., Modern Federal Jury Instructions J 53.01, at 53-4
(1999).
14
of Section 2113(a) strongly suggests that if Congress
had intended to require proof of an “intent to steal” to
establish bank robbery, it would have said so expressly.
Indeed, one court of appeals has concluded that the
omission of a specific intent element in the first para-
graph of Section 2113(a) and the inclusion of specific
intent elements in the second paragraph of Section
2113(a) and in Section 2113(b) “shows careful drafts-
manship.” United States v. DeLeo, 422 F.2d 487, 490
(Ist Cir.), cert. denied, 397 U.S. 1087 (1970).°
b. The omission of a specific intent requirement in
the bank robbery offense in Section 2113(a) is consis-
tent with robbery offenses defined elsewhere in the
criminal code. Unlike larceny, which federal law has
consistently defined to require proof of a specific intent
permanently to deprive, robbery has not always been
$ Petitioner is not assisted by his contention (Br. 11-14) that
structural features of Section 2113 require deeming bank larceny
to be a lesser included offense of bank robbery. First, petitioner
notes (Br. 11-12) that Section 2113(c) creates a crime of receiving
stolen property that expressly applies only to bank larceny.
Petitioner argues that it would be unusual for Congress not to
punish receipt of property after a robbery as well. The answer,
however, is that in most cases receipt of the proceeds of bank
robbery will be covered by Section 2113(c). See note 25, infra. In
any event, nothing in Section 2113(c) purports to redefine the
elements required under Section 2113(a).
Second, petitioner observes (Br. 13-14) that Section 2113(a)
punishes, in its second paragraph, entering a bank with the intent
to commit a federal felony affecting the bank “or any larceny.”
That provision does not imply that larceny is a lesser offense of
robbery; rather, the unlawful-entry provision applies comprehen-
sively to all federal felonies affecting the bank. See, ¢.g., United
States v. Pick, 724 F.2d 297 (2d Cir. 1983) (mail fraud under 18
U.S.C. 1341 also a predicate offense for unlawful bank entry of-
fense of second paragraph 18 U.S.C. 2113(a)).
15
defined that way. In 1946, Congress amended the
Hobbs Anti-Racketeering Act (Hobbs Act), 18 U.S.C.
1951, to punish certain extortion and robbery offenses.
The 1946 amendment defined robbery as the “unlawful
taking * * * of personal property, from the person
* * * by means of actual or threatened force, or
violence, or fear of injury.” Act of July 3, 1946, ch. 537,
§ 1(b), 60 Stat. 420. No specific intent element was
provided. That definition was carried over to the pre-
sent version of 18 U.S.C. 1951 during the 1948 codifica-
tion. See Act of June 25, 1948, ch. 645, 62 Stat. 683.”
The absence of an express intent to steal element is
characteristic of other federal robbery statutes, many
of which merely define robbery as the forcible taking of
the victim’s property and omit any reference to a
specific mental requirement. For example, Section 2111
criminalizes robbery in the special maritime and
territorial jurisdiction of the United States, and does
not contain an express specific intent to steal require-
ment. 18 U.S.C. 2111. The same is true of Section
2118(a), which Congress enacted in 1984 to criminalize
robbery of controlled substances. 18 U.S.C. 2118(a).
And Section 2119, which Congress enacted in 1992 to
reach carjacking offenses, contains no explicit intent-to-
steal element; rather, it requires proof of an “intent to
cause death or serious bodily harm.” 18 U.S.C. 2119
7 Accordingly, courts have held that requests for specific intent
instructions in Hobbs Act cases are properly denied, with the
requisite intent being knowledge. See, ¢g., United States v.
Arambasich, 597 F.2d 609, 614 (7th Cir. 1979) (specific intent
instruction not required under Hobbs Act); United States v.
Warledo, 557 F.2d 721, 729 n.3 (10th Cir. 1977) (“Under the clauses
of Section 1951, proscribing the obstruction, delay, or attempt to
obstruct commerce by robbery or extortion, a general intent to
commit those crimes is required.”).
16
(Supp. IV 1998).“ In enacting Section 2119, Congress
specifically tracked the language of Sections 2111, 2113,
and 2118. See H.R. Rep. No. 851, 102d Cong., 2d Sess.
Pt. 1, at 17 (1992). In discussing the “with intent to
cause death or serious bodily harm” element of the car-
jacking statute, Senator Leahy noted in 1997 that
“knowingly” is the only mental element required for the
usual robbery offense. See 143 Cong. Rec. $1661 (daily
ed. Feb. 26, 1997) (“Robbery offenses typically require
only what the carjacking statute formerly required by
way of scienter, i.e., that property be knowingly taken
from the person or presence of another by force and
violence or by intimidation.”).
Like the omission of a specific intent element in
Section 2113(a), the omission of an intent to steal from
those other federal robbery statutes cannot be attrib-
uted to inadvertence.’ While common law robbery was
generally understood to contain a specific intent to steal
element, see pp. 29-30, infra, “Congress’ silence [in
Section 2113(a)] speaks volumes * * * [and] Congress
appears to have made the choice quite deliberately” in
omitting any such requirement from Section 2113(a).
United States v. Shabani, 513 U.S. 10, 14 (1994)
(holding that absence of an overt act requirement from
8 In Holloway v. United States, 526 U.S. 1 (1999), this Court
held that proof of a person’s conditional intent “to cause death or
serious bodily harm” under 18 U.S.C. 2119 (Supp. IV 1998) satis-
fied that mental element.
® Other—usually older—statutes use the term “rob” or “rob-
bery” without further elaboration. See, e. g., 18 U.S.C. 2112 (rob-
bery of personal property of United States); 18 U.S.C. 2114 (rob-
bery of mail matter); 18 U.S.C. 1661 (robbery ashore). Those
statutes, unlike Section 2113(a), retain the common law meaning of
robbery. See p. 41, infra.
17
21 U.S.C. 846 was dispositive, notwithstanding that
such proof was required for common law conspiracy).
c. State robbery statutes, like the various robbery
offenses in Title 18, vary widely as to whether the
specific intent to steal is an element of robbery. In
most States, robbery has been defined by the state
legislature as a greater offense of larceny (or theft) and
thus to require proof of a specific intent to steal. See,
e.g., Ala. Code § 13A-8-43 (1994) (defining robbery as
use of force “in the course of committing a theft,” which
under Section 13A-8-2 is defined as knowingly exerting
control over property “with intent to deprive the owner
of his property”); Ark. Code Ann. § 5-12-102 (Michie
1997) (“A person commits robbery if, with the purpose
of committing a felony or misdemeanor theft or
resisting apprehension immediately thereafter, he
employs or threatens to immediately employ physical
force upon another.”); Conn. Gen. Stat. Ann. § 53a-133
(West 1994) (“A person commits robbery when, in the
course of committing a larceny, he uses or threatens the
immediate use of physical force upon another person.”);
N.H. Rev. Stat. Ann. § 636:1 (1996) (defining robbery as
use or threat of physical force “in the course of com-
mitting a theft”). State courts construing such statutes
have held that the government must prove that the
defendant had a specific intent to deprive the victim of
his property. See, e. ., People v. Ocasio, 697 N.Y.S.2d
868, 369-370 (App. Div. 1999); State v. Celaya, 660 P.2d
849, 852-853 (Ariz. 1983) (in banc); State v. Nix, 922
S.W.2d 894. 901 (Tenn. Crim. App. 1995).
By contrast to those States that contain a specific
mental element requirement in the statutory definition
of robbery, a number of States do not provide for such a
mental element in the statutory crime of robbery. In
those States, the state courts uniformly have held that
18
the specific intent to steal should not be read into the
robbery offense. See, e. g., State v. Payne, 540 So. 2d
520, 523-524 (La. Ct. App. 1989) (holding that under
new Louisiana statute Jalrmed robbery is a general
intent crime” for which the “criminal intent necessary
to sustain a conviction is shown by the very doing of the
acts which have been declared criminal”); Nell v. State,
642 P.2d 1361, 1366 (Alaska Ct. App. 1982) (“We see no
reason to add to the statute an intent to permanently
deprive another of the property” because “the legisla-
ture, in passing this robbery statute, intended to
emphasize the fact that robbery is a crime against the
person and deemphasize the theft aspects of the
offense.”); Litteral v. State, 634 P.2d 1226, 1227 (Nev.
1981) (sustaining trial court’s refusal to “instruct the
jury that the defendant had to take the property with a
specific intent to deprive the victim permanently of his
property” because statutory definition of robbery did
not require that element); People v. Moseley, 566 P.2d
331, 335 (Colo. 1977) (en banc) (“The statutory language
contains no suggestion that robbery requires any spe-
cific intent to permanently deprive the owner of the use
or benefit of the thing taken.”); State v. Thompson, 558
P.2d 1079, 1086 (Kan. 1976) (noting that “the new stat-
utes broadened the statutory crime of robbery to cover
any taking of property from the person or presence of
another by threat of bodily harm or by force [and] [t]he
requirement of a specific intent to deprive the owner
permanently of his property was eliminated”); Trazler
v. State, 251 P.2d 815, 835 (Okla. Crim. App. 1953)
(holding that state statute had changed common law
definition of robbery by not including element that “the
taking be with the felonious intent to take and
19
permanently deprive the owner). Thus, although the
practice in the States does not directly shed light on
what Congress intended in the drafting history of bank
robbery in 18 U.S.C. 2113(a), Congress’s omission of a
specific intent element in the federal bank robbery
offense was not unusual in light of similar omissions
(and specific inclusions) by state legislatures that have
created robbery offenses in statutory law.
d. Although bank robbery has no specific intent to
steal element, that does not mean that it lacks a mental
element altogether. The “existence of a mens rea is the
rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.” Staples, 511
U.S. at 605 (quoting United States v. United States
Gypsum Co., 438 U.S. 422, 436 (1978)). There is a
presumption that any federal criminal offense requires
a mental element. United States v. X-Citement Video,
Inc., 513 U.S. 64, 72 (1994). Accordingly, this Court has
read a mental element into a criminal statute even
where the statute did not expressly provide for one.
See Staples, supra (possession of an unregistered fire-
arm, in violation of 26 U.S.C. 5861(d)); Bailey, swpra
(escape, in violation of 18 U.S.C. 751(a)); United States
Gypsum Co., supra (Sherman Act); Morissette v.
10 It appears to be quite rare for a State not to have codified the
robbery offense. Virginia, for example, has never codified the ele-
ments of robbery, relying instead on the common law definition.
See Cox v. Commonwealth, 240 S.E.2d 524 (Va. 1978); Ayres v.
Commonwealth, 161 S:E. 888, 897 (Va. 1932) (“At common law
robbery is defined as the taking, with intent to deprive the owner
permanently, of personal property, from his person or in his
presence, against his will, by violence or intimidation.“) see also
Va. Code Ann. § 18.2-58 (Michie 1996) (defining punishment for
person who commits robbery).
20
United States, 342 U.S. 246 (1952) (theft, in violation of
18 U.S.C. 641).
In like fashion, the courts of appeals that have ruled
that bank robbery is not a specific intent crime have
nevertheless construed the statute to contain a “gen-
eral intent” requirement. See, e.g., United States v.
Gonyea, 140 F.3d 649, 653-654 (6th Cir. 1998); United
States v. Fazzini, 871 F. 2d 635, 641 (7th Cir.), cert.
denied, 493 U.S. 982 (1989); United States v. Emery,
682 F. 2d 493, 497 (5th Cir.), cert. denied, 459 U.S. 1044
(1982); United States v. Smith, 638 F.2d 131, 132 (9th
Cir. 1981); United States v. Johnston, 543 F.2d 55, 58
(8th Cir. 1976); United States v. DeLeo, supra." Those
cases have held that a defendant must be shown to have
acted “knowingly” with respect to each actus reus, a
view that is consistent with the notion that, when a
person performs acts proscribed by Congress, criminal
liability should be imposed regardless of whether that
person desired or merely knew of the practical cer-
tainty of the results. See Bailey, 444 U.S. at 404;
United States Gypsum Co., 438 U.S. at 445; see
generally 1 W. LaFave & A. Scott, supra, § 3.5." Those
1 Those courts were considering whether diminished capacity
is a defense to bank robbery. Because “diminished capacity is a
defense only to specific intent crimes,” evidence of alcohol-induced
unconsciousness and other forms of diminished capacity is irrele-
vant in a Section 2113(a) case because “completed armed bank
robbery is a general intent crime.” Fazzini, 871 F.2d at 641; see
also Smith, 638 F. 2d at 132.
12 In this case, the indictment and the jury instructions estab-
lish that the jury found that petitioner committed his robberies
with the requisite intent. The indictment alleged that petitioner
acted “knowingly and willfully.” J.A. 2. The jury was instructed
that the intimidation element required proof that petitioner acted
“knowingly and deliberately.” J.A. 56. The jury was charged that
the “knowingly” element was to ensure that no person would be
21
cases are also consistent with the decisions of state
courts, which, in construing robbery statutes that lack a
specific mental element, have held that robbery is a
general intent crime requiring proof that the defendant
knew he was using force to take property from the
person of another. See pp. 18-19, supra.
e. Limiting the mental element of bank robbery to
“knowingly” taking by force, violence, or intimidation,
instead of an intent to steal, is appropriate in light of
the character of that crime. [The gist of [robbery] is a
crime against the person.” United States v. Mann, 119
F. Supp. 406, 407 (D.D.C. 1954). Without regard to the
robber’s intent to steal, the robbery offense warrants
sanction because of the fear it instills in the victims and
the risk that they will suffer harm, be it physical or
emotional. Bank robberies often occur when employees
and customers are in the bank, and robbers often carry
and use firearms to gain an advantage over the people
inside. After a robbery or attempted robbery, the bank
may have to interrupt its business to attend to the
needs of the victims, to cooperate with authorities, and
to reassure its customers. For those reasons, the bank
robbery offense defined in Section 2113(a) punishes the
attempt to rob as well as the completed act.
Because the use of force, violence, and intimidation
causes social harms regardless of whether the robber
has a specific intent to dispossess the bank of its
property permanently, it is logical to construe the first
paragraph of Section 2113(a) as not requiring a specific
convicted of an act done by mistake, accident, or other innocent
reason. J. A. 55. The district court’s ruling on petitioner's Rule 29
motion for acquittal further establishes that sufficient evidence
existed of defendant’s knowing use of intimidation io take the
money from the bank. J.A. 23-32.
intent to steal. The bank robbery statute “describe(s]
acts which, when performed, are so unambiguously
dangerous to others that the requisite mental element
is necessarily implicit in the description.” DeLeo, 422
F.2d at 491. “It therefore is immaterial for sections
2113(a) and (d) whether the subjective intent of a bank
robber is to steal that to which he has no claim or to
recover his own deposit; the crime is his resort to force
and violence, or intimidation, in the presence of another
person to accomplish his purposes.” Ibid.” ä
Larceny, on the other hand, is a crime principally
committed against property, see R. Perkins & R.
Boyce, Criminal Law 343-344 (3d ed. 1982), and the
specific intent .equirement has always been a critical
element of that offense: there is no larceny without an
intent to deprive the owner permanently of the
property taken. 2 W. LaFave & A. Scott, Substantive
Criminal Law § 8.5 (1986 & Supp. 1999). The same
cannot be said of bank robbery in violation of Section
8 Undoubtedly, most bank robbers will intend to deprive the
bank permanently of its property, but that will not invariably be
the case. One reported court of appeals’ dec uon records that a
man robbed a bank solely to be apprehenozd and returned to
prison so he could be treated for his alcohol problem. See United
States v. Lewis, 628 F.2d 1276 (10th Cir. 1980), cert. denied, 450
U.S. 924 (1981). We are informed by the FBI that indictments are
brought as often as every year against former incarcerees who
commit bank robbery with the intent not of taking the money but
of being returned to prison because of their inability to cope with
life in free society. Because those cases invariably result in guilty
pleas, they do not result in reported decisions. The same is true in
the !ess frequent instance of bank robbers who rob banks primarily
to disrupt the bank’s business with violence. Terrorists, for exam-
ple, may well be indifferent to the fate of the bank’s property.
Those sorts of robberies nevertheless come within the coverage of
Section 2113(a).
2113(a). Congress’s decision to distinguish the offenses
in Section 2113 thus is a reasonable basis for a judg-
ment that the two crimes are different in nature and
that the bank larceny offense is not simply a lesser
degree of bank robbery."
2. Bank larceny, unlike bank robbery, requires
proof that the defendant “carries away” the
property
The Section 2113(a) and (b) offenses also have differ-
ent actus reus requirements. Both offenses use the
word “take[]” to describe the actus reus of the crime.
That word is defined as t jo get into one’s hands or into
one’s possession, power, or control by force or strata-
= Webster’s Third New International Dictionary
2329 (1986); cf. United States v. Moore, 73 F.3d 666, 668-
669 (6th Cir.) (using that definition to define “take” in
the carjacking statute, 18 U.S.C. 2119 (Supp. IV 1998),
Petitioner suggests that the “intent to steal or purloin”
element from Section 2113(b) may be inferred in Section 2113(a)
from the words “takes . . . from the person of another” (emphasis
added) since the definition of steal is “to take the property of
another.” Pet. Br. 11 (emphasis added). That imprecise reading of
the statute, however, would lead to incongruous results. A robber
may forcefully take property from another person believing him-
self to be the rightful owner, intending to return it, or seeking to
have himself apprehended so that he can be re-incarcerated. Such
wrongful behavior would not be stealing, since there would be no
intent to deprive permanently the owner of the property. Ironi-
cally, although throughout his brief petitioner advocates incorpora-
tion of common-law elements in the bank robbery statute
notwithstanding their explicit omission, petitioner asks this Court
to expand the statutory definition of “takes”—one of the few
common-law words adopted by Congress in defining the Section
2113(a) offense—well beyond its common law meaning of obtaining
possession of property. See R. Perkins & R. Boyce, supra, at 302-
303.
24
and holding that lan intent to permanently deprive is
not an element of the federal offenses covering the
mere ‘taking’ from the ‘person or presence’ of another”)
(citing 18 U.S.C. 2111, 2113, 2118), cert. denied, 517 U.S.
1228 (1996). Section 2113(b), however, also requires
that the perpetrator “carries away” the property. The
term “carry” is defined as “to move while supporting.”
Webster's, supra, at 343; see Muscarello v. United
States, 524 U.S. 125, 128 (1998). The phrase, “carries
away” has common law antecedents, and means “[tJhe
act of removal or asportation, by which the crime of
larceny is completed, and which is essential to
constitute it.” Black’s Law Dictionary 194 (6th ed.
1986). That asportation element is not present in the
Section 2113(a) offense.
This Court has repeatedly noted that “a court should
‘give effect, if possible, to every clause and word of a
statute.” Moskal v. United States, 498 U.S. 103, 109-
110 (1990). That is particularly the case with elements
of criminal offenses. See Ratzlaf v. United States, 510
U.S. 135, 140-141 (1994). Thus, notwithstanding peti-
tioner’s assertion (Br. 40) that Congress “tacitly in-
cluded the asportation requirement as an element of the
offense,” this Court ordinarily presumes “that Congress
acts intentionally and purposely” when including lan-
guage in one part of a statute but omitting it from
another. Bates, 522 U.S. at 29-30. Given that Congress
specifically used the phrase “carries away” in Section
2113(b), it should not be lightly read into the text of
Section 2113(a). See ibid.
That conclusion is especially important here, where
the phrase in question had a distinctive common law
connotation. As commentators explain, Ia] movement
does not amount to asportation unless it is a carrying-
away movement.” R. Perkins & R. Boyce, supra, at
824. “The requirement of asportation may be elimi-
nated entirely by statute, * but so long as it is
retained, the common-law concept of a carrying-away
movement should be required.” Ibid. See also 2 W.
LaFave & A. Scott, supra, at 348. Courts in States that
have codified robbery offenses without a “carry away”
element have uniformly held that the prosecution need
not prove asportation. Likewise, robbery as defined
in Section 2113(a) should not be encumbered by com-
mon law limitations that Congress expressly elected to
retain only for the bank larceny offense.
3. Bank larceny, unlike bank robbery, requires
proof that the property has a monetary value
A third textual element found in bank larceny but not
in bank robbery is the requirement that the prosecution
See, e. g., State v. Boyle, 970 S.W.2d 835, 888 (Mo. Ct. App.
1998) (upholding robbery conviction where defendant had not
moved the property because under state statute “asportation is
not an element of robbery”); State v. Valdez, 977 P.2d 242, 253
(Kan. 1999) (“Commission of robbery is complete when the robber
takes possession of property; the element of asportation is not re-
quired to complete theft or robbery” under Kan. Stat. Ann. § 21-
3426 (1995).); Johnson v. State, 744 So. 2d 833, 837 (Miss. Ct. App.
1999) (noting that Iplroof of asportation, though an element of
larceny, is not necessarily an element of robbery” since the statute
includes as robbery “the mere attempt to take the property of
another from his person or presence”); State v. Gore, 722 N.E.2d
125, 129 (Ohio Ct. App. 1999) (noting that “a robbery does not
necessarily require on” under Ohio Rev. Code Ann.
§ 2911.01(AX(1) (Anderson 1999)). By contrast, in States where
asportation is an element of robbery, courts have overturned con-
victions for failure by the prosecution to prove that the defendant
carried away the property taken. See, e. g., State v. Johnson, 558
N.W.2d 375 (Wis. 1997) (rejecting State’s argument that asporta-
tion is not an element of robbery and holding that robbery of car
involved no asportation where it failed to start or move).
prove that the property taken is reducible to a mone-
tary value. Section 2113(b) permits a sentence of up to
ten years’ imprisonment if the stolen property exceeds
$1000 in value, but only a sentence of up to one year
imprisonment if the value is less than that amount.
Thus, in a Section 2113(b) prosecution, the jury must be
instructed to find that the property taken exceeded the
amount necessary to trigger the greater punishment.
See United States v. Hoke, 610 F.2d 678, 679 (9th Cir.
1980). Section 2113(a), on the other hand, contains no
such monetary requirement. Rather, it proscribes the
forceful taking of “any property or money or any other
thing of value belonging to” the financial institution at
issue, or the attempt to do so. Section 2113(a) thus
criminalizes the forceful taking of property without
requiring a jury finding as to the value of the property
taken.
Petitioner contends (Br. 42-43) that the $1000
monetary threshold in Section 2113(b) bank larceny is a
sentencing factor rather than an element of the offense.
That analysis is incorrect. The $1000 is not simply an
enhancement of the potential penalty a defendant faces.
Rather, Congress deliberately set out two grades of the
larceny offense in separate paragraphs, each of which
defines a complete offense.” In addition, the value of
the property taken differentiates a felony from a mis-
demeanor offense. See 18 U.S.C. 3559(a). The Fifth
Amendment provides for federal felony charges to be
made by a grand jury indictment; no such requirement
% Each paragraph begins with the word, “whoever”; it then
describes the prohibited conduct, the intent required, and the
nature of the property taken; and it concludes with a sentencing
provision. That is the natural way to define a
offense. See Jones v. United States, 626 U.S. 227, 233-234 (1999).
27
exists for misdemeanors. See Ex parte Wilson, 114
U.S. 417, 429 (1885) (defining “infamous crime” in Fifth
Amendment as one “punishable by imprisonment at
hard labor ina * * * penitentiary”). See generally
Fed. R. Crim. P. 7(a); W. LaFave & J. Israel, Criminal
Procedure § 15.1(a) at 616 (1985) (Ex parte Wilson
definition “encompasses all federal felony offenses”).
Contrary to petitioner’s citation (Br. 43-44), nowhere
did Blackstone report otherwise with regard to the
“twelvepence” distinction between grand larceny and
petit larceny. Rather, even at common law the valua-
tion element differentiated the larceny offenses in a
manner that would affect how they were charged and
proved at trial. See R. Perkins & R. Boyce, supra, at
835 (“For many years the almost universal plan made
grand larceny a felony and petit larceny a misde-
meanor, although there were wide differences in the
determination of the grade.”).”
17 The monetary valuation element in the theft of government
property offense of 18 U.S.C. 641 distinguishes between felony and
misdemeanor theft based on the value of the property taken.
Courts appear uniformly to hold that the government must charge
in the indictment and prove to the jury that the value of the
property exceeds the threshold for felony theft. See, e. g., United
States v. DiGilio, 588 F. 2d 972, 978 (3d Cir. 1976) (valuation an ele-
ment of Section 641 offense), cert. denied, 429 U.S. 1038 (1977);
Stevens v. United States, 297 F.2d 664, 665 (10th Cir. 1961) (per
curiam) (“Value is an essential element of the offense [under 18
U.S.C. 641] which must be alleged and proved in the same manner
as any other essential element of the offense.”); United States v.
Wilson, 284 F.2d 407, 408 (4th Cir. 1960) (holding value an element
of the offense); Cartwright v. United States, 146 F.2d 133, 135 (6th
Cir. 1944) (considering it “well settled that where the grade of
larceny, and consequently the punishment, depend on the value of
the property, it is essential that the value of the property
defendant is charged with having taken be alleged and proved”).
28
State practice supports that conclusion. Cf. Jones,
526 U.S. at 236 (discussing bodily injury factor in state
robbery statutes). State statutes with similar
to the monetary valuation element in Section 2113(b)
bank larceny have held that, because the valuation
element must be proved in a larceny case, and because
the prosecution need not prove a monetary value of the
property taken to establish robbery, larceny is not a
lesser included offense of robbery. State v. Boucino,
506 A.2d 125, 135 (Conn. 1986) (holding that “the crimes
of robbery in the first degree and larceny in the first
degree require proof of distinct elements
[because] [le lonvietion for robbery in the first degree
requires proof of varying degrees of force * * *
[whereas] the state had to prove the value of the money
taken from the bank in order to obtain a conviction on
the charge of larceny in the first degree”).”
18 See State v. McGarrett, 535 N.W.2d 765, 769 (S.D. 1995)
(applying statutory elements test, grand theft under state statute
is not lesser included offense of robbery, because “grand theft re-
quires the stolen property be in excess of $500 [whereas} robbery
can be committed without complying with that dollar amount”);
State v. Ates, 377 S.E.2d 98, 99 n.1 (S.C. 1989) (“In a grand larceny
prosecution, value is a critical element; it is the State’s burden to
prove that the value of stolen goods exceeds $200.”); State v.
Redding, 331 N.W.2d 811, 813-815 (Neb. 1983) (holding value an
element of larceny but ruling that failure to include it was harm-
less error); State v. Combs, 316 N.W.2d 880, 883 (Iowa 1982)
(holding that monetary valuation is element of second degree
theft); People v. Myers, 73 N.E.2d 288, 291 (Ill. 1947) (holding
indictment for larceny “fatally defective” in part “for failure to
allege the value of the goods stolen”); Haley v. State, 315 So. 2d
525, 527 (Fla. Dist. Ct. App. 1975) (holding that grand larceny “is
not necessarily included in the offense of robbery” because grand
larceny “contains an element not present in the offense of robbery:
that the value of the property stolen was one hundred dollars or
more”); Coker v. State, 396 So.2d 1094, 1096 (Ala. Crim. App. 1981)
B. The Legislative History Of Section 2113 Does Not
Show Congressional Intent To Make Baak Larceny A
Lesser Included Offense Of Bank Robbery
In arguing that bank larceny should be treated as a
lesser offense of bank robbery, despite the textual
elements of bank larceny not found in the putatively
“greater” offense, petitioner relies (Br. 14-20) on the
rule of statutory construction that “where a federal
criminal statute uses a common-law term of established
meaning without otherwise defining it, the general
practice is to give that term its common-law meaning.”
Moskal, 498 U.S. at 114 (quoting United States v.
Turley, 352 U.S. 407, 411 (1957)). Because larceny was
a lesser included offense of robbery at common law,
petitioner maintains that Congress must have intended
to make the crime proscribed in Section 2113(b) a lesser
included offense of the Section 2113(a) crime. See Pet.
Br. 24-26. That argument, however, cannot be squared
with the legislative history of Section 2113 or this
Court’s prior construction of the statute. Those sources
demonstrate that Congress did not intend merely to
codify the common law in Section 2113, but rather
intended to create federal offenses with specific ele-
ments designed to address contemporary needs.
1. At common law, larceny was generally defined as
the felonious taking and carrying away of the personal
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, The Law of
Crime 258-263 (1946). Robbery was an aggravated
form of larceny; it contained all of the elements of lar-
ceny plus two additional ones: (1) the property must be
(“{wJhether or not a theft in a particular case is of one degree or
another is a question of fact addressed to the jury”).
30
taken from the person or presence of another (2) by
means of force or putting in fear. See 2 W. LaFave &
A. Scott, supra, §§ 8.2, 8.11, at 333, 437-438. Common
law robbery was often defined in simple and undetailed
language, such as the felonious and violent taking of
goods or money from the person of another by force or
intimidation.” Id. § 8.11 n.6. The phrase “felonious
* * * taking” meant a taking with the intent to
deprive the owner permanently of his property. R.
Perkins & R. Boyce, supra, at 343. Because, under
common law, robbery contained all of the elements of
larceny (plus the - litional elements of personal
presence and force), larceny is a lesser included offense
of robbery in those jurisdictions that have retained the
common law definitions of the two crimes. See, ¢.g.,
Government of the V.I. v. Jarvis, 653 F.2d 762, 765 (3d
Cir. 1981); United States v. Belt, 516 F.2d 873, 875 (8th
Cir. 1975), cert. denied, 423 U.S. 1056 (1976). See gen-
erally R. Perkins & R. Boyce, supra, at 343 (defining
“robbery” as “larceny from the person by violence or
intimidation”).
2. As already interpreted by this Court’s decisions,
however, the language and background of Section 2113
reveals that Congress did not intend to codify the com-
mon law in that provision. Before 1934, banks orga-
nized under federal law were protected against embez-
zlement (Rev. Stat. § 5209 (1875 ed.), as amended by the
Act of Sept. 26, 1918, ch. 177, § 5209, 40 Stat. 972), but
not robbery, larceny, or burglary, which were punish-
able only under state law. In 1934, Congress enacted
the precursor to Section 2113(a) in response to a series
of bank robberies committed by John Dillinger and
other criminals who moved from State to State and
were able to avoid capture by state authorities. See
Jerome v. United States, 318 U.S. 101, 102-104 (1943)
31
(discussing legislative history of bank robbery statute);
Bell v. United States, 462 U.S. 356, 363-364 (1983)
(Stevens, J., dissenting) (same). The Attorney General
proposed legislation (S. 2841, 73d Cong., 2d Sess. (1934))
that would have prohibited robbery (§ 4), burglary (§ 3),
and theft (§ 2). The 1934 bill passed the Senate in that
form, but the House Judiciary Committee, without
explanation, struck the burglary and theft provisions
from the bill. See Jerome, 318 U.S. at 102-104; Bell, 462
U.S. at 364 & n.2 (Stevens, J., dissenting). The bill
enacted by Congress applied to bank robbery and cer-
tain violent crimes committed during a bank robbery.
The bank robbery offense punished “[wJhoever, by
force and violence, or by putting in fear, feloniously
takes, or feloniously attempts to take, from the person
or presence of another any property or money or any
other thing of value belonging to, or in the care,
custody, control, management, or possession of, any
bank.” Act of May 18, 1934, ch. 304, § 2a, 48 Stat. 783.
The 1934 statute left gaps in its protection of federal
banks. Because the statute did not cover bank larceny,
a person who stole money from a bank without force,
violence, or “putting in fear” was immune from federal
prosecution. In 1937, the Attorney General proposed
amending the bank robbery statute to close that
loophole. See H.R. Rep. No. 732, 75th Cong., Ist Sess.
1-2 (1927); Bell, 462 U.S. at 361; Jerome, 318 U.S. at 103.
Congress ultimately passed a bill that prohibited bank
larceny and bank burglary. The 1937 statute’s larceny
offense punished “whoever shall take and carry away,
with intent to’steal or purloin,” property, money, or
of value from a bank. Act of Aug. 24, 1937, ch.
747, 50 Stat. 749. The 1937 version of bank larceny is
32
identical to the version presently codified in Section
2113(b) in all relevant respects.”
In 1948, Congress codified the criminal code. Act of
June 25, 1948, ch. 645, 62 Stat. 683. As part of that
codification, Congress made several changes to the
bank robbery offense. The principal statutory changes
were the deletion of the term “feloniously” before the
terms “takes” and “attempts” and the substitution of
the term “intimidation” for “putting in fear.“ The His-
torical and Revision Notes (Reviser’s Note) to Section
2113 are silent on the reason for removing the term
“feloniously” from the bank robbery offense. The
Reviser’s Note stated, in language that mirrored the
comprehensive House report accompanying the legisla-
tion, that “[nJecessary minor translations of section
references, and changes in phraseology, were made.”
19 Petitioner argues (Br. 31) that because the 1937 legislation
used the common law word “larceny” in its caption, Congress in-
tended for bank larceny to be a lesser included offense of bank
robbery. The title to the 1937 law, however, is irrelevant to the
construction of the bank robbery offense, since that offense was
amended in 1948. In any event, the title to the statute is useful
only if there is ambiguity in the text; it may not limit the plain
meaning of the statute. See, e. g., Pennsylvania Dep't of Correc-
tions v. Yeskey, 524 U.S. 206, 212 (1998); Railroad Trainmen v.
Baltimore & Ohio R. R., 331 U.S. 519, 528-529 (1947).
2 The 1948 revision also amended the bank burglary offense by
substituting the phrase “felony affecting such bank and in violation
of any statute of the United States, or any larceny” for the term
“felony or larceny.” The Historical and Revision Notes (Reviser’s
Note) indicate that that change was intended to conform the
statute to the Court’s decision in Jerome, which held that the term
“felony” in the bank burglary offense embraced only those offenses
that are felonies under federal law affecting banks protected by
the Act. See also H.R. Rep. No. 304, 80th Cong., Ist Sess. A135
(1947) (same).
See also H.R. Rep. No. 304, 80th Cong., Ist Sess. A135
(1947) (same language used by House Committee to
explain change).
3. As the foregoing history demonstrates, the
offenses in Section 2113(a) and (b) do not simply repli-
cate their common law antecedents of robbery and
larceny. The 1934 and 1987 statutes contained a mix of
common law and modern terms. The common law
mental element of larceny—“feloniously takes”—was
incorporated into bank robbery in 1934 but eliminated
in 1948. The mental element of bank larceny—‘“intent
to steal or purloin”—“has no established meaning at
common law.” Bell, 462 U.S. at 360.”
This Court has recognized that the 1934 and 1937
statutes contained elements that were broader than the
common law. See Bell, 462 U.S. at 361 (“Section 2113(b)
* * * goes well beyond even this expanded definition”
of the common law crime of “larceny,” and thus “the
21 In Turley, 352 U.S. at 411-412, the Court noted that the term
“steal[]” had no accepted common law meaning and was never
equated with larceny. See Factor v. Laubenheimer, 290 U.S. 276,
803 (1933). Similarly, the term “purloin,” which was not included in
the common 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).
An “intent to steal” has a broader scope than the common law’s
intent to deprive the owner permanently of his property. An
intent to steal includes the intent to deprive permanently or for an
unreasonable length of time, or in such a way that the owner will
thus be deprived of his property. See 2 W. LaFave & A. Scott,
supra, § 8.5. By contrast, a person does not have a common law
intent to steal if he intends to return the very property taken, and
it is unclear whether it is a defense that he intended to return
equivalent property. Id. $§ 8.5(a), 8.5(b), at 358-359, 359-362.
34
statutory language does not suggest that it covers only
common-law larceny.”). At common law, larceny was
limited to thefts of tangible personal property. The
statute, however, covers theft of “any property or
money or any other thing of value.” 18 U.S.C. 2113(a)
and (b) (1994 & Supp. IV 1998). Moreover, common law
larceny required a theft from the possession of the
owner. By contrast, the bank larceny statute applies
when the property is in the “care, custody, control,
management, or possession of, any bank.” Ibid. Based
on that broad language, Bell held that bank larceny in
Section 2113(b) is not limited to common law larcenies.
462 U.S. at 360-361. For similar reasons, there is no
sound basis for importing common law elements into
Section 2113(a)’s robbery offense that Congress omitted
from its text.
4. Petitioner contends (Br. 33-34) that the deletion of
the term “feloniously” from the bank robbery statute in
the 1948 codification was inadvertent and was not in-
tended to delete the specific intent element from the
offense of bank robbery. He maintains that that
amendment was part of Congress’s decision to delete
most references to “felony” and “misdemeanor” from
the Code because those terms were defined in Section 1
of Title 18. See 18 U.S.C. 1 (1982).”
Petitioner’s contention is incorrect. When Congress
deleted the term “felony” or “misdemeanor” from a
2 Congress codified those terms in one section because, before
1948, the lack of uniformity in statutory usages of “felony” and
“misdemeanor” had caused courts to diverge when assessing
whether a particular crime should be punished as a felony or a
misdemeanor. See H.R. Rep. No. 304, supra, at A2-A4. Section 1
of Title 18 was repealed by Department of the Interior and
Related Agencies Appropriation Act, Pub. L. No. 98-473, Tit. II,
§ 218(a)(1), 98 Stat. 2027.
statute because of Section 1, the Reviser’s Notes to the
statute specifically explained that as the reason for the
change.” By contrast, the Reviser’s Note to Section
2113(a) is silent on the reason for the deletion of
“feloniously.” See also H.R. Rep. No. 304, supra, at
A134-A135 (same). Thus, petitioner (Br. 32-34) has no
basis for asserting that Section 1 was the reason Con-
gress deleted “feloniously” from Section 2113(a).
The disputed deletion was not an isolated action.
Congress also deleted the term “feloniously” before the
term “takes” in the offense that proscribes a forceful
taking within the special maritime and territorial
jurisdiction of the United States under Section 2111.
18 U.S.C. 2111; see Act of Mar. 4, 1909, ch. 321, § 284, 35
Stat. 1144.“ The Reviser’s Note gives no reason for
that deletion, stating only that “[m]Jinor changes were
made in phraseology.” See also H.R. Rep. No. 304,
supra, at A134 (same). Nor is petitioner aided by the
See, e.g., Reviser's Note to 18 U.S. C. 751 (“References to
offenses as felonies or misdemeanors were omitted in view of de-
finitive section 1 of this title.“), H.R. Rep. No. 304, supra, at A67
(same); Reviser’s Note to 18 U.S.C. 550 (“Reference to felony
* * * was omitted as unnecessary in view of definition of felony in
section 1 of this title.“), H.R. Rep. No. 4, supra, at A47 (same);
Reviser’s Note to 18 U.S.C. 2076 (“The reference to the offense as
a misdemeanor was omitted as unnecessary in view of the defini-
tion of ‘misdemeanor’ in section 1 of this title.”), H.R. Rep. No. 304,
supra, at A184 (same); Reviser’s Note to 18 U.S.C. 1951 (Pro-
visions designating offense as felony were omitted as unnecessary
in view of definitive section 1 of this title”), H.R. Rep. No. 304,
supra, at A131 (same).
* Section 2111 of Title 18 provides: “Whoever, within the
special maritime and territorial jurisdiction of the United States,
by force and violence, or by intimidation, takes or attempts to take
from the person or presence of another anything of value, shall be
imprisoned not more than fifteen years.”
statement in the Reviser’s Note that only changes “in
phraseology” were made. Where Congress specifically
deletes or omits an element of an offense from the
statute, the change is substantive despite the Revisers’
Notes to the contrary. See Wells, 519 U.S. at 497
(noting that Id lropping the materiality element from
the three [bank offenses] could not, then, reasonably
have been seen as making no change” and that “(t]hose
who write revisers’ notes have proven fallible before”);
United States v. Lanier, 520 U.S. 259, 268 n.6 (1997)
(“The legislative intent of Congress is to be derived
from the language and structure of the statute itself, if
possible, not from the assertions of codifiers directly at
odds with clear statutory language.”). In short, the
Reviser’s Notes are not a basis for disregarding the
plain language of Section 2113(a), which, unlike Section
2113(b), does not contain specific intent, asportation, or
monetary valuation requirements.
C. Precedent And Canons Of Statutory Interpretation Do
Not Support Petitioner's Argument
1. Petitioner contends (Br. 36-37) that Prince v.
United States, 352 U.S. 322 (1957), indicates that bank
robbery contains the same intent to steal element as
bank larceny. That contention is mistaken. In Prince,
the Court held that Congress did not authorize cumula-
tive punishment for convictions for bank robbery and
entering the bank with intent to commit a felony, both
of which are prohibited by Section 2113(a). The Court
reasoned that Congress inserted the offense of unlawful
bank entry into the statute in 1937 to reach a person
who entered a bank to rob it but was able to obtain the
bank’s money without using force or intimidation, and it
inserted larceny offenses for similar reasons. The
Court stated that the statute could serve the purpose of
37
reaching those acts without being read to create
completely independent offenses. Thus, while it “was
manifestly the purpose of Congress to establish lesser
offenses” in drafting the statute, the Court found no
indication that Congress intended to “pyramid” the
penalties. Jd. at 327.
The Court’s statements that Congress’s purpose was
to create lesser offenses in the 1937 legislation and that
the mental element of an intent to steal required for
unlawful bank entry “merges” into the offense of bank
robbery upon consummation of the robbery, 352 U.S. at
328, do not resolve the issue in this case. First, the
“narrow” issue before the Court, id. at 325, was
whether the statute authorized cumulative punishment
for the two offenses, and that was the only issue the
Court resolved, id. at 324-825. Thus, even if this Court
were to apply the holding of Prince to convictions
obtained under the first paragraph of Section 2113(a)
and Section 2113(b), such a holding would not compel a
trial court to give an instruction for a lesser included
offense if the government were to indict the defendant
only for a violation of Section 2113(a). A proper
application of Prince would require only that guilty
verdicts under those two provisions be merged into one
conviction.
Merger analysis is separate from the lesser offense
issue presented here. Under this Court’s cumulative
punishment jurisprudence, the test is whether Con-
gress intended to authorize punishment for the two
crimes to be imposed cumulatively. If it so chooses,
Congress can authorize cumulative punishment for a
greater and lesser offense. Cf. Missouri v. Hunter, 459
U.S. 359 (1983); Albernaz v. United States, 450 U.S.
333, 340 (1981). Likewise, Congress can forbid cumu-
lative punishment even where two crimes may not bear
the relation of greater and lesser offenses. See, e. g.,
Simpson v. United States, 435 U.S. 6, 11 (1978) (finding
cumulative punishment barred for two offenses, but not
reaching question whether offenses were greater and
lesser offenses). Thus, it was not necessary for the
Court in Prince to conclude that bank robbery had an
intent-to-steal element to hold that cumulative punish-
ment was barred for bank robbery and unlawful entry
of a bank.
Second, although Prince remarked in passing that
“the purpose of Congress [was] to establish lesser
offenses,” 352 U.S. at 327, the Court in that case did not
analyze the lesser included offense issue by comparing
the elements of each offense. This Court’s subsequent
decision in Schmuck now requires that approach.
Indeed, in conducting its analysis, the Prince Court did
not even have before it a charge of Section 2113(b) bank
larceny in the case. Thus, Prince does not establish
that bank larceny is a lesser included offense of bank
robbery.”
% Nor does this Court’s decision in United States v. Gaddis, 424
U.S. 544 (1976), support the conclusion that Section 2113(b) is a
lesser included offense of bank robbery. In that case, the Court
held that a defendant could not be separately convicted for both
committing bank robbery in violation of Section 2113(a) and for
receiving the proceeds of a bank theft in violation of Section
2113(c). It also held that if a jury erroneously did so, the defendant
would not be entitled to a new trial if the evidence supported the
verdict as to conviction for the Section 2113(a) offense. Id. at 550.
While Gaddis could be taken to imply that bank larceny is a lesser
offense of bank robbery (since subsection (c) explicitly refers only
to the larceny and not the robbery subsection), that is not a point
that the Court explicitly made or on which it relied in its holding.
Gaddis therefore simply prevents unintended multiple punish-
ments under Section 2113; it does not express a view of greater
and lesser offenses under that provision. Indeed, Gaddis relied on
Finally, the essential holding of Prince is that Con-
gress did not intend to pyramid punishments for un-
lawful bank entry and completed bank robbery; today
that result would be achieved under the Sentencing
Guidelines. Sentencing under the Guidelines generally
takes account of the total course of a defendant’s
conduct and “groups” the related counts to prevent
improper incremental punishment for closely related
counts. See Sentencing Guidelines Ch. 3, Pt. D (1995).
Thus, if a defendant in the position of petitioner were to
be charged and convicted separately of Section 2113(a)
bank robbery and Section 2113(b) bank larceny, the
bank larceny conviction would have no effect on peti-
tioner’s length of incarceration. See id. § 2B3.1 (Rob-
bery Guideline).
2. Petitioner also contends (Br. 34-35) that, under
Morissette, supra, bank robbery must be presumed to
contain a mental element despite Congress’s failure to
provide expressly for one during the codification of the
statute in 1948. That proposition is correct, but it does
not lead to the conclusion that the mental element in
the first paragraph of Section 2113(a) is a specific intent
to steal.
In Morissette, 342 U.S. at 276, the Court read the
offense of conversion in the federal theft statute, 18
U.S.C. 641,“ to require proof of an intent to “deprive
Heflin v. United States, 358 U.S. 415, 419 (1959), which had stated
that “subsection (c) [of Section 2113] was not designed to increase
— canes ar aati diye a en Ae toy Sep ay Be boar gym
punishment for those who receive the loot from the robber.”
USS. at 547.
As the Court’s opinion reflects, the text of 18 U.S.C. 641 at
that time, in pertinent part, made it an offense for anyone who
“embezzles, steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes
40
another of possession of property,” despite the absence
of such an element from the text of the statute. The
Court reasoned that, at common law, “there are unwit-
ting acts which constitute conversions” in the civil tort
context. 342 U.S. at 270. “Had the statute applied to
conversions without qualification, it would have made
crimes of all unwitting, inadvertent and unintended
conversions.” Ibid.
As the Court reasoned, It is not difficult to think of
intentional and knowing abuses and unauthorized uses
of government property that might be knowing con-
versions but which could not be reached as embezzle-
ment, stealing or purloining. Knowing conversion adds
significantly to the range of protection of government
proverty without interpreting it to punish unwitting
conversions.” 342 U.S. at 272. The Court noted that,
even though the “1948 Revision was not intended to
create new crimes but to recodify those then in
existence,” the offense of “‘converts’ does not appear in
any of [18 U.S.C. 641’s] predecessors.” 342 U.S. at 269
n.28.
The Court’s analysis in Morissette does not apply to
the bank robbery statute for three reasons. First, the
Court construed a common law word, “converts,” and
attributed to Congress the intent to include the associ-
ated mental element from the common law where
Congress had not otherwise specified the elements of
the crime. In the bank robbery and bank larceny
offefises, however, Congress specifically used some
elements from the common law and changed others. See
pp. 33-34, supra. Second, in Morissette the Court
emphasized the importance of the mental element in
of any record, voucher, money, or thing of value of the United
States.” Morissette, 342 US. at 248 n.2.
41
avoiding criminalizing what otherwise would be “un-
witting, inadvertent and unintended conversions.” 342
U.S. at 270. That concern is not present in the bank
robbery context, because the defendant’s knowing use
of force to take property is sufficient to demonstrate
culpable conduct. See, e.g., DeLeo, supra.
Third, the 1948 codification of the bank robbery
statute differs in important respects from the history of
Section 641. Congress’s specific elimination of “feloni-
ously” from the bank robbery section of the statute,
while retaining the “intent to steal or purloin” element
in the bank larceny section of the statute, showed an
“affirmative instruction” to delete an intent to steal
from the bank robbery statute. Morissette, 342 U.S. at
273. Congress is presumed to know the law when it
legislates. See Albernaz, 450 U.S. at 841. It knew that
it could follow the common law definition of robbery in
the statute by simply using the word “rob” or
“robbery” in defining the offense, oecause previous
statutes using those terms had been interpreted as
having incorporated the common law meaning of the
offense. See Harrison v. United States, 163 U.S. 140,
142 (1896) (statute prohibiting robbery of the mails).
Thus, Congress must be presumed to have understood
that it was making a substantive change in the law
when it deleted the term “feloniously” from the bank
robbery statute.”
27 Although petitioner has not invoked it, the rule of lenity does
not justify reading an “intent to steal” element into bank robbery.
That rule “applies only if, after seizing everything from which aid
can be derived, . . . we can make no more than a guess as to what
Congress intended.” Muscarello, 624 U.S. at 138 (internal quota-
tion marks omitted). Lenity thus requires a narrow construction
of a atatute when the statute contains a “grievous ambiguity or
uncertainty.” Staples, 511 U.S. at 619 n.17 (quoting Chapman v.
42
3. Petitioner’s reliance (Br. 15-16) on Neder v.
United States, 527 U.S. 1 (1999), is also misplaced. In
Neder, the Court held that materiality is an element of
a “scheme or artifice to defraud” under the federal mail
fraud (18 U.S.C. 1341), wire fraud (18 U.S.C. 1343) and
bank fraud (18 U.S.C. 1344) statutes, despite the ab-
sence of an express materiality element in the text of
those offenses. The Court noted that, at common law,
“the well-settled meaning of ‘fraud’ required a misrep-
resentation or concealment of material fact.” 527 U.S.
at 22. The Court noted that Congress presumably in-
tends to incorporate the meaning of common law terms
in criminal statutes and that it could not infer, absent u
contrary indication from Congress, that the mere omis-
sion of materiality evidenced an intent to drop that
element from the fraud statutes. Finding no such con-
trary indication from the legislative history of the stat-
utes, the Court concluded that materiality was an ele-
ment of those fraud statutes. Jd. at 22-23.
The bank robbery statute differs in important
respects from the fraud statutes in Neder. First, the
fraud statutes used a common-law term that had an
accepted meaning, and the question was whether
Congress intended to incorporate that meaning into the
offense; in contrast, the bank robbery statute uses a
United States, 500 U.S. 453, 468 (1991)). In this case, however, the
language and the legislative history of Section 2113(a) demonstrate
that the omission of an “intent to steal” element from bank robbery
was deliberate. There is no “grievous ambiguity” in Section
2113(a); thus the rule of lenity is not applicable. See Muscarello,
524 U.S. at 139.
% The Court rejected the government’s arguments that mate-
riality was not incorporated because the statutes were broader
than the common law and that other fraud statutes do not contain
an express materiality element. 527 U.S. at 22-23 & n.7.
43
combination of common-law and non-common-law terms
to define the eiements of the offense. Petitioner thus is
forced to argue that common-law terms (“take”) in
Section 2113(a) incorporate other elements (“specific
intent to steal”) or that the additional elements found in
bank larceny but not in robbery are unimportant.
Second, unlike the federal fraud statutes, which omitted
an express materiality element from their inception,
Congress expressly deleted the “feloniously” element
from the bank robbery statute in 1948. Congress’
express elimination of the common law mental element
from the statute demonstrates that Congress did not
intend to restrict bank robbery to its common law
mental element.
II. EVEN IF BANK LARCENY IS A LESSER IN-
CLUDED OFFENSE OF BANK ROBBERY UNDER
THE STATUTORY ELEMENTS TEST, THERE
WAS NO ERROR IN THE CHARGE TO THE
JURY
Federal Rule of Criminal Procedure 31(c) entitles a
defendant to a lesser included offense instruction only if
the evidence would permit a rational jury to convict
him of the lesser offense while acquitting him of the
greater one. Keeble v. United States, 412 U.S. 205, 208
(1973); Stevenson v. United States, 162 U.S. 313, 314-
315 (1896). Thus, a factual dispute must exist as to an
element of the greater offense that, if resolved in the
defendant’s favor, would still result in a conviction on
the lesser offense. See Sansone v. United States, 380
U.S. 348, 350-351 (1965); see also 1 L. Sand et al.,
Modern Federal Jury Instructions { 9.07, at 9-29. If
there is no factual dispute, the court need not give a
charge for the lesser included offense. See, e.g., United
States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993),
44
cert. denied, 510 U.S. 1040 (1994); United States v.
Payne, 805 F.2d 1062, 1067 (D.C. Cir. 1986). Thus, in
addition to all of the elements of the uncharged offense
being encompassed within the charged offense and to
having fewer elements than the charged offense, the
evidence must support a conviction on the lesser, but
not the greater, offense charged. See Schmuck, 489
U.S. at 717 & n.9; Sansone, 380 U.S. at 350; Berra v.
United States, 351 U.S. 131, 134 (1956).
In this case, the district court specifically instructed
the jury on whether petitioner had taken property “by
force and violence, or by intimidation”:
Now the phrase by force and violence or by
intimidation used in the statute means either first,
the use of actual physical strength or actual physical
violence; or second, doing some act or making some
statement to put someone in fear of bodily harm.
The intimidation must be caused by an act
knowingly and deliberately done or a statement
knowingly and deliberately made by the particular
defendant and that it was done in such a manner or
under such circumstances that would produce such a
reaction or such fear of bodily harm in a reasonable
person.
J.A. 56. The court also properly denied petitioner’s
Rule 29 motion for acquittal, concluding that “the facts
of this case are far removed from a peaceable and
stealthy theft of money from this bank and I think that
a reasonable jury could indeed find beyond a reasonable
doubt * * * [that] the behavior of [petitioner] was
such as could put a reasonable person in fear of bodily
harm and that that could amount to force or intimida-
tion such as to satisfy the third element of the bank
45
robbery offense.” Id. at 32. Petitioner’s contrary claim,
which the district court correctly rejected, rests on the
assumption that a jury could find that he obtained funds
from the banks with intent to steal them—and thus was
guilty of bank larceny—without also finding that he
used intimidation to obtain the money. Despite peti-
tioner’s efforts in his own testimony to convince the
jury that he had not used force or intimidation, see C.A.
App. 180-189, the evidence showed that intimidation
occurred.”
More importantly, as the district court properly
concluded, no reasonable juror could find otherwise, as
there was no evidence to suggest that the tellers
handed petitioner thousands of dollars in bank money
voluntarily and of their own free will, i. e., without
intimidation. Certainly there was no evidence that the
tellers were petitioner’s accomplices. Nor was there
evidence that petitioner filled out a withdrawal slip or
performed any other act that would cause a teller
voluntarily to hand him cash. To the contrary, the
evidence can support only one conclusion: petitioner
gained access to the teller station and took the money
® Petitioner entered the bank wearing a ski mask and several
layers of clothing even though it was warm outside; he restrained a
customer from leaving and pushed her back into the bank, causing
her to be so terrified that she screamed and later hid in her car
praying on the floor of it; he vaulted the teller counter and got so
close to a teller that she yelled “that a robber was after her”; he
then vaulted back over the counter and “warned that no one was to
follow him.” J.A. 82. Moreover, other testimony established that
the tellers and customer were terrified. See, e. g., C.A. App. 32
(testimony of Maria Zahn) (testifying that “I screamed out loud”
because “I was scared”); id. at 79 (testimony of Mildred Calacal)
(describing fellow bank teller Christine Sentech as “crying and
trembling”)
46
“by intimidation” within the meaning of Section 2113(a).
Because no reasonable juror could reach the contrary
conclusion, no bank larceny instruction was required,
even if this Court were to conclude that bank larceny is
a lesser included offense of bank robbery under the
statutory elements test.”
% Because the same analysis will generally apply in bank rob-
bery prosecutions, the question whether bank larceny is a lesser
included offense of bank robbery would rarely affect the trials or
results in bank robbery prosecutions. Cases in which bank
robbery defendants are able to present plausible evidence that the
tellers willingly allowed the defendant to take money from their
teller stations without intimidation are infrequent at best. It thus
comes as no surprise that the vast majority of cases that even
mention the issue presented in this case have upheld the trial
court’s refusal to give a bank larceny instruction on the ground
that it is not supported by the evidence. See, e. g., United States v.
Cornillie, 92 F.3d 1108, 1109-1110 (11th Cir. 1996); United States v.
Sandles, 80 F.3d 1145, 1147 n.1 (7th Cir. 1996); United States v.
Walker, 75 F.3d 178, 180-181 (4th Cir.), cert. denied, 517 U.S. 1250
(1996); United States v. Lajoie, 942 F.2d 699, 700-701 (10th Cir.),
cert. denied, 502 U.S. 919 (1991); see also United States v. Perry,
991 F.2d 304, 310-311 (6th Cir. 1993) (declining to address the
appellant’s contention that bank larceny is a lesser included offense
because no rational jury could find that the teller handed money to
the defendant voluntarily).
47
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAVID C. FREDERICK
Assistant to the Solicitor
General
THOMAS E. BOOTH
Attorney
1. Federal Rule of Criminal Procedure 31(c)
provides:
Conviction of Less Offense. The defendant may
be found guilty of an offense necessarily included in
the offense charged or of an attempt to commit
either the offense charged or an offense necessarily
included therein if the attempt is an offense.
2. Section 2118 of Title 18 provides:
Bank robbery and incidental crimes
(a) Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from the
person or presence of another, or obtains or at-
tempts to obtain by extortion any property or
money or any other thing of value belonging to, or in
the care, custody, control, management, or posses-
sion of, any bank, credit union, or any savings and
loan association; or
Whoever enters or attempts to enter any bank,
credit union, or any savings and loan association, or
any building used in whole or in part as a bank,
credit union, or as a savings and loan association,
with intent to commit in such bank, credit union, or
in such savings and loan association, or building, or
part thereof, so used, any felony affecting such bank,
credit union, or such savings and loan association
and in violation of any statute of the United States,
or any larceny—
Shall be fined under this title or imprisoned not
more than twenty years, or both.
(la)
2a
(b) Whoever takes and carries away, with
intent to steal or purloin, any property or money or
any other thing of value exceeding $1,000 belonging
to, or in the care, custody, control, management, or
possession of any bank, credit union, or any savings
and loan association, shall be fined under this title or
imprisoned not more than ten years, or both; or
Whoever takes and carries away, with intent to
steal or purloin, any property or money or any other
thing of value not exceeding $1,000 belonging to, or
in the care, custody, control, management, or pos-
session of any bank, credit union, r any savings and
loan association, shall be fined not more than $1,000
or imprisoned not more than one year, or both.
(c) Whoever receives, possesses, conceals,
stores, barters, sells, or disposes of, any property or
money or other thing of value which has been taken
or stolen from a bank, credit union, or savings and
loan association in violation of subsection (b),
knowing the same to be property which has been
stolen shall be subject to the punishment provided
in subsection (b) for the taker.
(d) Whoever, in committing, or in attempting
to commit, any offense defined in subsections (a) and
(b) of this section, assaults any person, or puts in
jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under
this title or imprisoned not more than twenty-five
years, or both.
(e) Whoever, in committing any offense defined
in this section, or in avoiding or attempting to avoid
apprehension for the commission of such offense, or
3a
in freeing himself or attempting to free himself from
arrest or confinement for such offense, kills any
person, or forces any person to accompany him with-
out the consent of such person, shall be imprisoned
not less than ten years, or if death results shall be
punished by death or life imprisonment.
(f) As used in this section the term “bank”
means any member bank of the Federal Reserve
System, and any bank, banking association, trust
company, savings bank, or other banking institution
organized or operating under the laws of the United
States, including a branch or agency of a foreign
bank (as such terms are defined in paragraphs (1)
and (3) of section 1(b) of the International Banking
Act of 1978), and any institution the deposits of
which are insured by the Federal Deposit Insurance
Corporation.
(g) As used in this section the term “credit
union” means any Federal credit union and any
State-chartered credit union the accounts of which
are insured by the National Credit Union Ad.aini-
stration Board, and any “Federal credit union” as
defined in section 2 of the Federal Credit Union Act.
The term “State-chartered credit union” includes a
credit union chartered under the laws of a State of
the United States, the District of Columbia, or any
commonwealth, territory, or possession of the
United States.
(h) As used in this section, the term “savings
and loan association” means—
(1) a Federal savings association or State
savings association (as defined in section 3(b) of
4a
the Federal Deposit Insurance Act (12 U.S.C.
1813(b))) having accounts insured by the Federal
Deposit Insurance Corporation; and
(2) a corporation described in section
3(b)(1(C) of the Federal Deposit Insurance Act
(12 U.S.C. 1813(b)(1)(C)) that is operating under
the laws of the United States.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.