OCTOBER TERM, 1999
Syllabus
CARTER
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 99-5716. Argued April 19, 2000-Decided June 12,2000
Having donned a ski mask and entered a bank, petitioner Carter
confronted an exiting customer and pushed her back inside. She
screamed, startling others in the bank. Undeterred, Carter ran
inside and leaped over a counter and through one of the teller
windows. A teller rushed into the manager's office. Meanwhile,
Carter opened several teller drawers and emptied the money into a
bag. After removing almost $16,000, he jumped back over the counter
and fled. He was charged with violating 18 U. S. C. § 2113(a),
which punishes "[w]hoever, by force and violence, or by
intimidation, takes ... any ... thing of value [from a] bank."
While not contesting the basic facts, Carter pleaded not guilty on
the theory that he had not taken the bank's money "by force and
violence, or by intimidation," as § 2113(a) requires. Before trial,
he moved for a jury instruction on the offense described by §
2113(b) as a lesser included offense of the offense described by §
2113(a). Section 2113(b) entails less severe penalties than §
2113(a), punishing,
inter alia, "[w]hoever takes and carries
away, with intent to steal or purloin, any ... thing of value
exceeding $1,000 [from a] ... bank." The District Court denied the
motion. The jury, instructed on § 2113(a) alone, returned a guilty
verdict, pursuant to which the District Court entered judgment. The
Third Circuit affirmed.
Held: Because § 2113(b) requires three elements not
required by § 2113(a), it is not a lesser included offense of §
2113(a), and petitioner is prohibited as a matter of law from
obtaining a lesser included offense instruction on the offense
described by §2113(b). Pp.260-274.
(a) In
Schmuck v.
United States, 489 U. S. 705, 716, this
Court held that a defendant who requests a jury instruction on a
lesser offense under Federal Rule of Criminal Procedure 31(c) must
demonstrate that the elements of the lesser offense are a subset of
the elements of the charged offense. This elements test requires a
textual comparison of criminal statutes, which lends itself to
certain and predictable outcomes.
Id., at 720. Here, the
Government contends that three elements required by § 2113(b) are
not required by § 2113(a). A "textual comparison" of the
elements of the two offenses suggests that the Government is
correct. Whereas § 2113(b) requires (1) that the defendant act
"with intent to steal or purloin," (2) that the defendant "tak[e]
and
256
Syllabus
carr[y] away" the property, and (3) that the property have a
"value exceeding $1,000," § 2113(a) contains no such requirements.
These extra clauses in subsection (b) cannot be regarded as mere
surplusage; they mean something.
Potter v.
United
States, 155 U. S.
438, 446. The Court rejects Carter's assertion that the
foregoing application of the elements test is too rigid. Although
he is correct that normal principles of statutory construction
apply, the Court rejects his claim that such principles counsel a
departure here from what is indicated by a straightforward reading
of the text. Pp. 260-263.
(b) The Court rejects Carter's arguments pertinent to the
general relationship between §§ 2113(a) and (b). His first
contention-that it would be anomalous to impose criminal liability
on a fence who receives bank property from a § 2113(b) violator, as
the text of § 2113(c) plainly provides, but not on a fence who
receives such property from a § 2113(a) violator, unless § 2113(b)
is a lesser included offense of § 2113(a)-is unpersuasive because
the anomaly, if it truly exists, is only an anomaly. It is doubtful
that it rises to the level of absurdity. Cf.
Green v.
Bock Laundry Machine Co., 490 U. S. 504, 509-511,
527. In any event, nothing in § 2113(c) purports to redefine the
elements required by the text of §§2113(a) and (b). Although more
substantial, Carter's second argument-that, insofar as §§ 2113(a)
and (b) are
similar to common-law robbery and larceny, the
Court must assume that they require the
same elements as
their common-law predecessors, absent Congress' affirmative
indication of an intent to displace the common-law scheme-is also
unavailing because the canon on imputing common-law meaning applies
only when Congress makes use of a statutory
term with
established meaning at common law. See,
e. g., Morissette v.
United States, 342 U. S. 246, 263.
Although "robbery" and "larceny" are terms with such meanings,
neither term appears in the text of § 2113(a) or § 2113(b). While
"robbery" appears in § 2113's title, the title of a statute is of
use only when it sheds light on some ambiguous word or phrase in
the statute itself.
E. g., Pennsylvania Dept. of Corrections
v.
Yeskey, 524
U. S. 206, 212. Carter does not claim that this title
illuminates any such ambiguous language. Pp.263-267.
(c) The Court also rejects Carter's specific arguments
concerning §2113(b)'s three "extra" elements. pp.267-274.
(i) Carter is mistaken when he argues that an "intent to steal
or purloin" requirement must be deemed implicit in § 2113(a) by
virtue of this Court's cases interpreting criminal statutes silent
as to
mens rea to include broadly applicable scienter
requirements, see,
e. g., United States v.
X-Citement
Video, Inc., 513
U. S. 64, 70. The presumption in favor of scienter generally
requires a court to read into a statute only that
mens rea
which is necessary to separate wrongful conduct
257
from "otherwise innocent conduct."
Id., at 72. In this
case, interpreting § 2113(a) not to apply to a person who engages
in innocent, if aberrant, activity is accomplished simply by
requiring general intenti.
e., proof of knowledge with
respect to the crime's
actus reus (here, the taking of
property of another by force or violence or intimidation). See,
e. g., Staples v.
United States, 511 U. S. 600, 611-612.
And once this mental state and
actus reus are shown, the
concerns underlying the presumption in favor of scienter are fully
satisfied, for a forceful taking-even by a defendant taking under a
good-faith claim of rightfalls outside the realm of the "otherwise
innocent." Thus, the presumption in favor of scienter does not
justify reading a specific intent requirement-"intent to steal or
purloin" -into § 2113(a). Carter's reliance on § 2113(a)'s
legislative history is unavailing in light of this Court's approach
to statutory interpretation, which begins by examining the text,
see,
e. g., Estate of Cowart v.
Nicklos Drilling Co.,
505 U. S. 469, 475, not by psychoanalyzing those who enacted
it,
Bank One Chicago, N. A. v.
Midwest Bank &
Trust Co., 516
U. S. 264, 279. Pp. 267-271.
(ii) Similarly, Carter's claim that § 2113(b)'s "takes and
carries away" requirement should be deemed implicit in § 2113(a)
also fails. His argument that "takes" in § 2113(a) is equivalent to
"takes and carries away" in § 2113(b) is at war with the statute's
text. His suggestion that the text is not dispositive because
nothing in § 2113(a)'s evolution suggests that Congress sought to
discard the common-law asportation requirement ignores the fact
that the Court's inquiry begins with the textual product of
Congress' efforts, not with speculation as to the internal thought
processes of its Members. Congress is free to outlaw bank theft
that does not involve asportation, and it hardly would have been
absurd for Congress to do so, since the taking-without-asportation
scenario has actually occurred. While the common law's decision to
require asportation may have its virtues, Congress adopted a
different view in § 2113(a), and it is not for this Court to
question that choice. P.272.
(iii) Finally, the Court disagrees with Carter's claim that §
2113(b)'s requirement that the property taken have a "value
exceeding $1,000" is a
sentencing factor, not an element of
the crime. First, § 2113(b)'s structure strongly suggests that its
two paragraphs-the first of which uses the phrase in question,
requiring that the property taken have "value exceeding $1,000,"
the second of which refers to property of "value not exceeding
$1,000"-describe distinct offenses. Each begins with the word
"[w]hoever," proceeds to describe identically (apart from the
differing valuation requirements) the elements of the offense, and
concludes by stating the prescribed punishment. That these pro-
258
visions "stand on their own grammatical feet" strongly suggests
that Congress intended the valuation requirement to be an element
of each paragraph's offense, rather than a sentencing factor of
some base §2113(b) offense.
Jones v.
United States,
526 U. S.
227,234. Furthermore, the steeply higher penalties-an
enhancement from a I-year to a 10-year maximum penalty on proof of
valuation exceeding $1,000leads to the conclusion that the
valuation requirement is an element of § 2113(b)'s first paragraph.
See,
e. g., Castillo v.
United States, ante, at 127.
Finally, the constitutional questions that would be raised by
interpreting the valuation requirement to be a sentencing factor
persuade the Court to adopt the view that the requirement is an
element. See
Jones, supra, at 239-252. Pp.272-274.
185 F.3d
863, affirmed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER,
and BREYER, JJ., joined,
post, p. 275.
Donald J. McCauley argued the cause for
petitioner.
With him on the briefs were Richard Coughlin, Jeffrey T. Green,
and Joseph S. Miller.
David C. Frederick argued the cause for the United States. With
him on the brief were Solicitor General Waxman, Assistant Attorney
General Robinson, Deputy Solicitor General Dreeben, and Thomas E.
Booth.
*
JUSTICE THOMAS delivered the opinion of the Court.
In
Schmuck v.
United States, 489 U. S. 705 (1989), we
held that a defendant who requests a jury instruction on a lesser
offense under Rule 31(c) of the Federal Rules of Criminal Procedure
must demonstrate that "the elements of the lesser offense are a
subset of the elements of the charged offense."
Id., at 716.
This case requires us to apply this elements test to the offenses
described by 18 U. S. C. §§ 2113(a) and (b)
* Joshua L. Dratel filed a brief for the National
Association of Criminal Defense Lawyers et al. as
amici
curiae urging reversal.
259
(1994 ed. and Supp. IV). The former punishes "[w]hoever, by
force and violence, or by intimidation, takes ... from the person
or presence of another ... any ... thing of value belonging to, or
in the ... possession of, any bank .... " The latter, which entails
less severe penalties, punishes,
inter alia, "[w]hoever
takes and carries away, with intent to steal or purloin, any ...
thing of value exceeding $1,000 belonging to, or in the ...
possession of, any bank .... " We hold that § 2113(b) requires an
element not required by § 2113(a)-three in fact-and therefore is
not a lesser included offense of § 2113(a). Petitioner is
accordingly prohibited as a matter of law from obtaining a lesser
included offense instruction on the offense described by §
2113(b).
I
On September 9, 1997, petitioner Floyd J. Carter donned a ski
mask and entered the Collective Federal Savings Bank in Hamilton
Township, New Jersey. Carter confronted a customer who was exiting
the bank and pushed her back inside. She screamed, startling others
in the bank. Undeterred, Carter ran into the bank and leaped over
the customer service counter and through one of the teller windows.
One of the tellers rushed into the manager's office. Meanwhile,
Carter opened several teller drawers and emptied the money into a
bag. After having removed almost $16,000 in currency, Carter jumped
back over the counter and fled from the scene. Later that day, the
police apprehended him.
A grand jury indicted Carter, charging him with violating §
2113(a). While not contesting the basic facts of the episode,
Carter pleaded not guilty on the theory that he had not taken the
bank's money "by force and violence, or by intimidation," as §
2113(a) requires. Before trial, Carter moved that the court
instruct the jury on the offense described by § 2113(b) as a lesser
included offense of the offense described by § 2113(a). The
District Court, relying
260
on
United States v.
Mosley, 126
F.3d 200 (CA3 1997),1 denied the motion in a preliminary
ruling. At the close of the Government's case, the District Court
denied Carter's motion for a judgment of acquittal and indicated
that the preliminary ruling denying the lesser included offense
instruction would stand. The jury, instructed on § 2113(a) alone,
returned a guilty verdict, and the District Court entered judgment
pursuant to that verdict.
The Court of Appeals for the Third Circuit affirmed in an
unpublished opinion, relying on its earlier decision in
Mosley. Judgment order reported at
185
F.3d 863 (1999). While the Ninth Circuit agrees with the Third
that a lesser offense instruction is precluded in this context, see
United States v.
Gregory, 891 F.2d
732, 734
(CA9 1989), other Circuits have held to the
contrary, see
United States v.
Walker, 75 F.3d
178, 180
(CA4 1996);
United States v.
Brittain, 41 F.3d
1409, 1410 (CAlO 1994). We granted certiorari to resolve the
conflict, 528 U. S. 1060 (1999), and now affirm.
II
In
Schmuck, supra, we were called upon to interpret
Federal Rule of Criminal Procedure 31(c)'s provision that "[t]he
defendant may be found guilty of an offense necessarily included in
the offense charged." We held that this provision requires
application of an elements test, under which "one offense is not
'necessarily included' in another unless the elements of the lesser
offense are a subset of the elements of the charged offense." 489
U. S., at 716.2 The
1 We granted certiorari in
Mosley to address the issue
that we resolve today,
Mosley v.
United States, 523
U. S. 1019 (1997), but dismissed the petition in that case upon the
death of the petitioner,
525 U. S. 120 (1998)
(per curiam).
2 By "lesser offense,"
Schmuck meant lesser in terms of
magnitude of punishment. When the elements of such a "lesser
offense" are a subset of the elements of the charged offense, the
"lesser offense" attains the status of a "lesser
included
offense."
261
elements test requires "a textual comparison of criminal
statutes," an approach that, we explained, lends itself to "certain
and predictable" outcomes.
Id., at 720.3
Applying the test, we held that the offense of tampering with an
odometer, 15 U. s. C. §§ 1984 and 1990c(a) (1982 ed.), is not a
lesser included offense of mail fraud, 18 U. s. C. § 1341. We
explained that mail fraud requires two elements-(l) having devised
or intending to devise a scheme to defraud (or to perform specified
fraudulent acts), and (2) use of the mail for the purpose of
executing, or attempting to execute, the scheme (or specified
fraudulent acts). The lesser offense of odometer tampering,
however, requires the element of knowingly and willfully causing an
odometer to be altered, an element that is absent from the offense
of mail fraud. Accordingly, the elements of odometer tampering are
not a subset of the elements of mail fraud, and a defendant charged
with the latter is not entitled to an instruction on the former
under Rule 31(c).
Schmuck, supra, at 721-722.
Turning to the instant case, the Government contends that three
elements required by § 2113(b)'s first paragraph are
not
required by § 2113(a): (1) specific intent to steal; (2)
asportation; and (3) valuation exceeding $1,000. The statute
provides:
"§ 2113. 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 attempts to obtain by extortion any property or money or
any other thing of value belonging to, or in the care, custody,
control,
3 A defendant must also satisfy the "independent prerequisite
... that the evidence at trial ... be such that a jury could
rationally find the defendant guilty of the lesser offense, yet
acquit him of the greater."
Schmuck, 489 U. S., at 716, n. 8
(citing
Keeble v.
United States, 412 U. S. 205, 208
(1973)). In light of our holding that petitioner fails to satisfy
the elements test, we need not address the latter requirement in
this case.
262
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
twenty years, or both.
"(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 possession of any bank, credit union, or any savings
and loan association, shall be fined not more than $1,000 or
imprisoned not more than one year, or both."
A "textual comparison" of the elements of these offenses
suggests that the Government is correct. First, whereas subsection
(b) requires that the defendant act "with intent to steal or
purloin," subsection (a) contains no similar requirement. Second,
whereas subsection (b) requires that the defendant "tak[e] and
carr[y] away" the property, subsection (a) only requires that the
defendant "tak[e]" the property. Third, whereas the first paragraph
of subsection (b) requires that the property have a "value
exceeding $1,000," subsection (a) contains no valuation
requirement. These extra clauses in subsection (b) "cannot be
regarded as mere surplusage; [they] mea[n] something."
Potter v.
United States, 155 U. S. 438, 446
(1894).
Carter urges that the foregoing application of
Schmuck's
elements test is too rigid and submits that ordinary principles of
statutory interpretation are relevant to the
Schmuck
inquiry. We do not dispute the latter proposition. The
263
Schmuck test, after all, requires an exercise in
statutory interpretation before the comparison of elements may be
made, and it is only sensible that normal principles of statutory
construction apply. We disagree, however, with petitioner's
conclusion that such principles counsel a departure in this case
from what is indicated by a straightforward reading of the
text.
III
We begin with the arguments pertinent to the general
relationship between §§ 2113(a) and (b). Carter first contends that
the structure of § 2113 supports the view that subsection (b) is a
lesser included offense of subsection (a). He points to subsection
(c) of § 2113, which imposes criminal liability on a person who
knowingly "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 ... in violation of
subsection (b)." (Emphasis added.) It would be anomalous,
posits Carter, for subsection (c) to apply-as its text plainly
provides-only to the fence who receives property from a violator of
subsection (b) but not to the fence who receives property from a
violator of subsection (a). The anomaly disappears, he concludes,
only if subsection (b) is always violated when subsection (a) is
violated-i.
e., only if subsection (b) is a lesser included
offense of subsection (a).
But Carter's anomaly-even if it truly exists-is only an anomaly.
Petitioner does not claim, and we tend to doubt, that it rises to
the level of absurdity. Cf.
Green v.
Bock Laundry Machine
Co., 490 U. S.
504, 509-511 (1989);
id., at 527 (SCALIA, J., concurring
in judgment). For example, it may be that violators of subsection
(a) generally act alone, while violators of subsection (b) are
commonly assisted by fences. In such a state of affairs, a sensible
Congress may have thought it necessary to punish only the fences of
property taken in violation of subsection (b). Or Congress may have
thought that a defendant who violates subsection (a)
264
usually-if not inevitably-also violates subsection (b), so that
the fence may be punished by reference to that latter violation. In
any event, nothing in subsection (c) purports to redefine the
elements required by the text of subsections (a) and (b).
Carter's second argument is more substantial. He submits that,
insofar as subsections (a) and (b) are
similar to the
common-law crimes of robbery and larceny, we must assume that
subsections (a) and (b) require the
same elements as their
common-law predecessors, at least absent Congress' affirmative
indication (whether in text or legislative history) of an intent to
displace the common-law scheme. While we (and the Government) agree
that the statutory crimes at issue here bear a close resemblance to
the common-law crimes of robbery and larceny, see Brief for United
States 29 (citing 4 W. Blackstone, Commentaries *229, *232);
accord,
post, at 278-279, that observation is beside the
point. The canon on imputing common-law meaning applies only when
Congress makes use of a statutory
term with established
meaning at common law, and Carter does not point to any such term
in the text of the statute.
This limited scope of the canon on imputing common-law meaning
has long been understood. In
Morissette v.
United
States, 342 U. S.
246 (1952), for example, we articulated the canon in this
way:
"[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning
from which it was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed. In such case, absence of
contrary direction may be taken as satisfaction with widely
accepted definitions, not as a departure from them." Id., at
263 (emphasis added).
265
In other words, a "cluster of ideas" from the common law should
be imported into statutory text only when Congress employs a
common-law
term, and not when, as here, Congress simply
describes an offense analogous to a commonlaw crime without using
common-law terms.
We made this clear in
United States v.
Wells,
519 U. S. 482
(1997). At issue was whether 18 U. S. C. § 1014-which punishes a
person who "knowingly makes any false statement or report ... for
the purpose of influencing in any way the action" of a Federal
Deposit Insurance Corporation insured bank "upon any application,
advance, ... commitment, or loan" -requires proof of the
materiality of the "false statement." The defendants contended that
since materiality was a required element of "false statement" -type
offenses at common law, it must also be required by § 1014.
Although JUSTICE STEVENS in dissent thought the argument to be
meritorious, we rejected it:
"[F]undamentally, we disagree with our colleague's apparent view
that any term that is an element of a common-law crime carries with
it every other aspect of that common-law crime when the term is
used in a statute. JUSTICE STEVENS seems to assume that because
'false statement' is an element of perjury, and perjury
criminalizes only material statements, a statute criminalizing
'false statements' covers only material statements. By a parity of
reasoning, because common-law perjury involved statements under
oath, a statute criminalizing a false statement would reach only
statements under oath. It is impossible to believe that Congress
intended to impose such restrictions sub silentio, however,
and so our rule on imputing common-law meaning to statutory
terms does not sweep so broadly." 519 U. S., at 492, n. 10
(emphasis added; citation omitted).4
4 The dissent claims that our decision in
United States
v.
Wells, 519
U. S. 482 (1997), is not in point because we went on in
Wells to discuss the evolution of the statute (specifically,
a recodification of numerous sections),
266
Similarly, in
United States v.
Turley, 352 U. S. 407 (1957), we
declined to look to the analogous common-law crime because the
statutory term at issue-"stolen"-had no meaning at common law. See
id., at 411-412 ("[W]hile 'stolen' is constantly identified
with larceny, the term was never at common law equated or
exclusively dedicated to larceny" (internal quotation marks
omitted)).
By contrast, we have not hesitated to turn to the common law for
guidance when the relevant statutory text does contain a term with
an established meaning at common law. In
Neder v.
United
States, 527 U. S.
1 (1999), for example, we addressed whether materiality is
required by federal statutes punishing a "scheme or artifice to
defraud."
Id., at 20, and 20-21, nn. 3-4 (citing 18 U. S. C.
§§ 1341, 1343, 1344). Unlike the statute in
Wells, which
contained no commonlaw term, these statutes did include a
common-law term"defraud." 527 U. S., at 22. Because common-law
fraud required proof of materiality, we applied the canon to hold
that these federal statutes implicitly contain a materiality
requirement as well.
Id., at 23. Similarly, in
Evans
v.
United States, 504 U. S. 255, 261-264
(1992), we observed that "extortion" in 18 U. S. C. § 1951 was a
common-law term, and proceeded to interpret this term by reference
to its meaning at common law.
Here, it is undisputed that "robbery" and "larceny" are terms
with established meanings at common law. But nei-
which revealed Congress' apparent care in retaining a
materiality requirement in certain sections while omitting it in
others, such as the one before us in
Wells. According to the
dissent, a similar statutory evolution is not present here. See
post, at 286. But, even assuming the dissent is correct in
this latter regard, the holding in
Wells simply cannot be
deemed to rest on our discussion of the statute's evolution.
Rather, we characterized that discussion as supporting a result we
had already reached on textual grounds. See 519 U. S., at 492
("Statutory history confirms the natural reading").
267
ther term appears in the text of § 2113(a) or § 2113(b).5 While
the term "robbery" does appear in § 2113's title, the title of a
statute" '[is] of use only when [it] shed[s] light on some
ambiguous word or phrase'" in the statute itself.
Pennsylvania
Dept. of Corrections v.
Yeskey, 524 U. S. 206, 212 (1998)
(quoting
Trainmen v.
Baltimore &
Ohio R.
Co., 331 U. S.
519, 528-529 (1947) (modifications in original)). And Carter
does not claim that this title illuminates any such ambiguous
language. Accordingly, the canon on imputing common-law meaning has
no bearing on this case.
IV
We turn now to Carter's more specific arguments concerning the
"extra" elements of § 2113(b). While conceding the absence of three
of § 2113(b)'s requirements from the text of § 2113(a)-(1) "intent
to steal or purloin"; (2) "takes
and carries away," i.
e., asportation; and (3) "value exceeding $1,000" (first
paragraph)-Carter claims that the first two should be deemed
implicit in § 2113(a), and that the third is not an element at
all.
A
As to "intent to steal or purloin," it will be recalled that the
text of subsection (b) requires a specific "intent to steal or
purloin," whereas subsection (a) contains no explicit
mens
rea requirement of any kind. Carter nevertheless argues that
such a
specific intent requirement must be deemed implicitly
present in § 2113(a) by virtue of "our cases interpreting criminal
statutes to include broadly applicable scienter requirements, even
where the statute by its terms
5 Congress could have simply punished "robbery" or "larceny" as
some States have done (and as Congress itself has done elsewhere,
see,
e. g., 18 U. S. C. §§ 2112, 2114, 2115), thereby
leaving the definition of these terms to the common law, but
Congress instead followed the more prevalent legislative practice
of spelling out elements of these crimes. See 2 W. LaFave & A.
Scott, Substantive Criminal Law § 8.11, p. 438, n. 6 (1986).
268
does not contain them."
United States v.
X-Citement
Video, Inc.,
513
U. S. 64, 70 (1994).6 Properly applied to § 2113, however, the
presumption in favor of scienter demands only that we read
subsection (a) as requiring proof of
general intent-that is,
that the defendant possessed knowledge with respect to the
actus
reus of the crime (here, the taking of property of another by
force and violence or intimidation).
Before explaining why this is so under our cases, an example,
United States v.
Lewis, 628 F.2d
1276, 1279 (CAlO 1980), cert. denied, 450 U. S. 924 (1981),
will help to make the distinction between "general" and "specific"
intent less esoteric. In
Lewis, a person entered a bank and
took money from a teller at gunpoint, but deliberately failed to
make a quick getaway from the bank in the hope of being arrested so
that he would be returned to prison and treated for alcoholism.
Though this defendant knowingly engaged in the acts of using force
and taking money (satisfying "general intent"), he did not intend
permanently to deprive the bank of its possession of the money
(failing to satisfy "specific intent").7 See generally 1 W. LaFave
& A. Scott, Substantive Criminal
6 This interpretive principle exists quite apart from the canon
on imputing common-law meaning. See,
e. g., X-Citement
Video, 513 U. S., at 70 (applying presumption in favor of
scienter to statute proscribing the shipping or receiving of visual
depictions of minors engaging in sexually explicit conduct, without
first inquiring as to the existence of a commonlaw antecedent to
this offense);
Staples v.
United States, 511 U. S. 600 (1994)
(similar).
7 The dissent claims that the
Lewis court determined that
the jury could have found specific intent to steal on the facts
presented, and thus disputes our characterization of the case as
illustrating a situation where a defendant acts only with general
intent.
Post, at 283-284 (citing
Lewis, 628 F. 2d, at
1279). The dissent fails to acknowledge, however, that the
Lewis court made this determination only because some
evidence suggested that, if the defendant had not been arrested, he
would have kept the stolen money.
Ibid. The
Lewis
court, implicitly acknowledging the possibility that some defendant
(if not Lewis) might unconditionally intend to turn himself in
after completing a bank theft, proceeded to hold, in the
alternative, that § 2113(a) covers a defendant who acts only with
general intent. See
ibid.
269
Law § 3.5, p. 315 (1986) (distinguishing general from specific
intent).
The presumption in favor of scienter requires a court to read
into a statute only that
mens rea which is necessary to
separate wrongful conduct from "otherwise innocent conduct."
X-Citement Video, supra, at 72. In
Staples v.
United States, 511 U. S. 600 (1994), for
example, to avoid criminalizing the innocent activity of gun
ownership, we interpreted a federal firearms statute to require
proof that the defendant knew that the weapon he possessed had the
characteristics bringing it within the scope of the statute.
Id., at 611-612. See also,
e. g., Liparota v.
United States, 471 U. S. 419, 426
(1985);
Morissette, 342 U. S., at 270-271. By contrast, some
situations may call for implying a specific intent requirement into
statutory text. Suppose, for example, a statute identical to §
2113(b) but without the words "intent to steal or purloin." Such a
statute would run the risk of punishing seemingly innocent conduct
in the case of a defendant who peaceably takes money believing it
to be his. Reading the statute to require that the defendant
possess general intent with respect to the
actus reus-i. e.,
that he know that he is physically taking the money-would fail to
protect the innocent actor. The statute therefore would need to be
read to require not only general intent, but also specific
intent-i.
e., that the defendant take the money with "intent
to steal or purloin."
In this case, as in
Staples, a general intent requirement
suffices to separate wrongful from "otherwise innocent" conduct.
Section 2113(a) certainly should not be interpreted to apply to the
hypothetical person who engages in forceful taking of money while
sleepwalking (innocent, if aberrant activity), but this result is
accomplished simply by requiring, as
Staples did, general
intent-i.
e., proof of knowledge with respect to the
actus reus of the crime. And once this mental state and
actus reus are shown, the concerns underlying the
presumption in favor of scienter are fully satis-
270
fied, for a forceful taking-even by a defendant who takes under
a good-faith claim of right-falls outside the realm of the
"otherwise innocent." Thus, the presumption in favor of scienter
does not justify reading a specific intent requirement-"intent to
steal or purloin" -into § 2113(a).8
Independent of his reliance upon the presumption in favor of
scienter, Carter argues that the legislative history of § 2113
supports the notion that an "intent to steal" requirement should be
read into § 2113(a). Carter points out that, in 1934, Congress
enacted what is now § 2113(a), but with the adverb "feloniously"
(which all agree is equivalent to "intent to steal") modifying the
verb "takes." Act of May 18, 1934, ch. 304, § 2(a), 48 Stat. 783.
In 1937, Congress added what is now §2113(b). Act of Aug. 24,1937,
ch. 747, 50 Stat. 749. Finally, in 1948, Congress made two changes
to § 2113, deleting "feloniously" from what is now § 2113(a) and
dividing the "robbery" and "larceny" offenses into their own
separate subsections. 62 Stat. 796.
Carter concludes that the 1948 deletion of "feloniously" was
merely a stylistic change, and that Congress had no intention, in
deleting that word, to drop the requirement that the defendant
"feloniously" take the property-that is, with intent to steaP Such
reasoning, however, misunder-
8 Numerous Courts of Appeals agree. While holding that §
2113(a)'s version of bank robbery is not a specific intent crime,
these courts have construed the statute to contain a general intent
requirement. See
United States v.
Gonyea, 140 F.3d
649, 653-654, and n. 10
(CA6 1998) (collecting
cases).
9 Relatedly, Carter argues that, even if a sensible Congress
might have deleted "feloniously," the 1948 Congress did not
adequately explain an intention to do so in the legislative history
to the 1948 Act. He points to the House Report, which states that
Congress intended only to make "changes in phraseology." H. R. Rep.
No. 304, 80th Cong., 1st Sess., A135 (1947). Carter further
suggests that the phraseology concern with "feloniously" was that
Congress in the 1948 codification generally desired to delete
references to felonies and misdemeanors in view of the statutory
definition of those terms in the former 18 U. S. C. § 1. Carter
fails, how-
271
stands our approach to statutory interpretation. In analyzing a
statute, we begin by examining the text, see,
e. g.,
Estate of Cowart v.
Nicklos Drilling Co., 505 U. S. 469, 475
(1992), not by "psychoanalyzing those who enacted it,"
Bank One
Chicago, N.
A. v.
Midwest Bank &
Trust
Co., 516 U. S.
264, 279 (1996) (SCALIA, J., concurring in part and concurring
in judgment). While "feloniously" no doubt would be sufficient to
convey a specific intent requirement akin to the one spelled out in
subsection (b), the word simply does not appear in subsection
(a).
Contrary to the dissent's suggestion,
post, at 283-284,
this reading is not a fanciful one. The absence of a specific
intent requirement from subsection (a), for example, permits the
statute to reach cases like
Lewis, see
supra, at 268,
where an ex-convict robs a bank because he wants to be apprehended
and returned to prison. (The Government represents that indictments
on this same fact pattern (which invariably plead out and hence do
not result in reported decisions) are brought "as often as every
year," Brief for United States 22, n. 13.) It can hardly be said,
therefore, that it would have been absurd to delete "feloniously"
in order to reach such defendants. And once we have made that
determination, our inquiry into legislative motivation is at an
end. Cf.
Bock Laundry Machine Co., 490 U. S., at
510-511.10
ever, to acknowledge that the House Report does not give that
reason for the deletion of "feloniously" from § 2113, even though
it explicitly does so in connection with the simultaneous
elimination of similar language from other sections. See,
e.
g., H. R. Rep. No. 304,
supra, at A67 ("References to
offenses as felonies or misdemeanors were omitted in view of
definitive section 1 of this title") (explaining revisions to 18 U.
S. C. § 751). As is often the case, the legislative history, even
if it is relevant, supports conflicting inferences and provides
scant illumination.
10 Carter claims further support in
Prince v.
United
States, 352 U. S.
322 (1957), for his view that § 2113(a) implicitly requires a
specific "intent to steal." But
Prince did not discuss the
elements of that subsection, let alone compare them to the elements
of subsection (b).
272
B
Turning to the second element in dispute, it will be recalled
that, whereas subsection (b) requires that the defendant "tak[e]
and carr[y] away the property," subsection (a) requires only that
the defendant "tak[e]" the property. Carter contends that the
"takes" in subsection (a) is equivalent to "takes and carries away"
in subsection (b). While Carter seems to acknowledge that the
argument is at war with the text of the statute, he urges that text
should not be dispositive here because nothing in the evolution of
§ 2113(a) suggests that Congress sought to discard the asportation
requirement from that subsection.
But, again, our inquiry focuses on an analysis of the textual
product of Congress' efforts, not on speculation as to the internal
thought processes of its Members. Congress is certainly free to
outlaw bank theft that does not involve asportation, and it hardly
would have been absurd for Congress to do so, since the
taking-without-asportation scenario is no imagined hypothetical.
See,
e. g., State v.
Boyle, 970 S. W.
2d 835, 836, 838-839 (Mo. Ct. App. 1998) (construing state
statutory codification of common-law robbery to apply to defendant
who, after taking money by threat of force, dropped the money on
the spot). Indeed, a leading treatise applauds the deletion of the
asportation requirement from the elements of robbery. See 2 LaFave
& Scott, Substantive Criminal Law § 8.11, at 439. No doubt the
common law's decision to require asportation also has its virtues.
But Congress adopted a different view in § 2113(a), and it is not
for us to question that choice.
C
There remains the requirement in § 2113(b)'s first paragraph
that the property taken have a "value exceeding $l,OOO"-a
requirement notably absent from § 2113(a). Carter, shifting gears
from his previous arguments, concedes the textual point but claims
that the valuation require-
273
ment does not affect the
Schmuck elements analysis
because it is a
sentencing factor, not an element. We
disagree. The structure of subsection (b) strongly suggests that
its two paragraphs-the first of which requires that the property
taken have "value exceeding $1,000," the second of which refers to
property of "value not exceeding $l,OOO"-describe distinct
offenses. Each begins with the word "[w]hoever," proceeds to
describe identically (apart from the differing valuation
requirements) the elements of the offense, and concludes by stating
the prescribed punishment. That these provisions "stand on their
own grammatical feet" strongly suggests that Congress intended the
valuation requirement to be an element of each paragraph's offense,
rather than a sentencing factor of some base § 2113(b) offense.
Jones v.
United States, 526 U. S. 227, 234
(1999). Even aside from the statute's structure, the "steeply
higher penalties"-an enhancement from a i-year to a 10-year maximum
penalty on proof of valuation exceeding $l,OOO-leads us to conclude
that the valuation requirement is an element of the first paragraph
of subsection (b). See
Castillo v.
United States,
ante, at 127;
Jones, 526 U. S., at 233. Finally, the
constitutional questions that would be raised by interpreting the
valuation requirement to be a sentencing factor persuade us to
adopt the view that the valuation requirement is an element. See
id., at 239-252.
The dissent agrees that the valuation requirement of subsection
(b)'s first paragraph is an element, but nonetheless would hold
that subsection (b) is a lesser included offense of subsection (a).
Post, at 287-289. The dissent reasons that the "value
not exceeding $1,000" component of § 2113(b)'s
second
paragraph is not an element of the offense described in that
paragraph. Hence, the matter of value does not prevent § 2113(b)'s
second paragraph from being a lesser included offense of § 2113(a).
And if a defendant wishes to receive an instruction on the first
paragraph of § 2113(b)-which entails more severe penalties than the
sec-
274
ond paragraph, but is a more realistic option from the jury's
standpoint in a case such as this one where the value of the
property clearly exceeds $l,OOO-the dissent sees no reason to bar
him from making that election, even though the "value exceeding
$1,000" element of § 2113(b)'s first paragraph is clearly absent
from § 2113(a).
This novel maneuver creates a problem, however. Since subsection
(a) contains no valuation requirement, a defendant indicted for
violating that subsection who requests an instruction under
subsection (b)'s first paragraph would effectively "waive ... his
[Fifth Amendment] right to notice by indictment of the 'value
exceeding $1,000' element."
Post, at 289. But this same
course would not be available to the prosecutor who seeks the
insurance policy of a lesser included offense instruction under
that same paragraph after determining that his case may have fallen
short of proving the elements of subsection (a). For, whatever
authority defense counsel may possess to waive a defendant's
constitutional rights, see generally
New York v.
Hill, 528 U.
S. 110 (2000), a prosecutor has no such power. Thus, the
prosecutor would be disabled from obtaining a lesser included
offense instruction under Rule 31(c), a result plainly contrary to
Schmuck, in which we explicitly rejected an interpretive
approach to the Rule that would have permitted "the defendant, by
in effect waiving his right to notice, ... [to] obtain a lesser
[included] offense instruction in circumstances where the
constitutional restraint of notice to the defendant would prevent
the prosecutor from seeking an identical instruction," 489 U. S.,
at 718.
***
We hold that § 2113(b) is not a lesser included offense of §
2113(a), and therefore that petitioner is not entitled to a jury
instruction on § 2113(b). The judgment of the Third Circuit is
affirmed.
It is so ordered.
275
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE BREYER join, dissenting.
At common law, robbery meant larceny
plus force,
violence, or putting in fear. Because robbery was an aggravated
form of larceny at common law, larceny was a lesser included
offense of robbery. Congress, I conclude, did not depart from that
traditional understanding when it rendered "Bank robbery and
incidental crimes" federal offenses. Accordingly, I would hold that
petitioner Carter is not prohibited as a matter of law from
obtaining an instruction on bank larceny as a lesser included
offense. The Court holds that Congress, in 18 U. S. C. § 2113, has
dislodged bank robbery and bank larceny from their common-law
mooring. I dissent from that determination.
I
The Court presents three reasons in support of its conclusion
that a lesser included offense instruction was properly withheld in
this case under the elements-based test of
Schmuck v.
United States, 489 U. S. 705 (1989).
First, the Court holds that bank larceny contains an "intent to
steal" requirement that bank robbery lacks.
Ante, at
267-271. Second, the Court concludes that larceny contains a
requirement of carrying away, or "asportation," while robbery does
not.
Ante, at 272. And third, the Court states that the
"value exceeding $1,000" requirement in the first paragraph of the
larceny statute is an element for which no equivalent exists in the
robbery statute.
Ante, at 272-274. The Court's first and
second points, I conclude, are mistaken. As for the third, I agree
with the Court that the "value exceeding $1,000" requirement is an
element essential to sustain a conviction for the higher degree of
bank larceny. I would hold, however, that Carter was not
disqualified on that account from obtaining the lesser included
offense instruction he sought.
276
I note at the outset that the structure of § 2113 points
strongly toward the conclusion that bank larceny is a lesser
included offense of bank robbery. Section 2113(c) imposes criminal
liability on any person who knowingly "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 ... in violation of subsection (b)." If bank larceny, covered
in § 2113(b), contains an intent or asportation element not
included in bank robbery, covered in § 2113(a), then § 2113(c)
creates an anomaly. As the Court concedes,
ante, at 263-264,
under to day's decision the fence who gets his loot from a bank
larcenist will necessarily receive property "stolen ... in
violation of subsection (b)," but the one who gets his loot from a
bank robber will not. Once it is recognized that bank larceny is a
lesser included offense of bank robbery, however, the anomaly
vanishes. Because anyone who violates § 2113(a) necessarily commits
the lesser included offense described in § 2113(b), a person who
knowingly receives stolen property from a bank robber is just as
guilty under § 2113(c) as one who knowingly receives stolen
property from a bank larcenist.1
I emphasize as well that the title of § 2113 is "Bank robbery
and incidental crimes." This Court has repeatedly recognized that
"'the title of a statute and the heading of a section' are 'tools
available for the resolution of a doubt'
1 I further note, and the Court does not dispute, that under
today's holding the Double Jeopardy Clause would not bar the
Government from bringing a bank larceny prosecution against a
defendant who has already been acquitted-or, indeed, convicted-by a
jury of bank robbery on the same facts. See
Blockburger v.
United States, 284 U. S. 299 (1932)
(Double Jeopardy Clause does not bar consecutive prosecutions for a
single act if each charged offense requires proof of an element
that the other does not); Tr. of Oral Arg. 46-47 (in response to
Court's inquiry, counsel for the Government stated that, under the
Government's construction of § 2113, if a jury acquitted a
defendant on an indictment for bank robbery, it would be open to
the prosecution thereafter to seek the defendant's reindictment for
bank larceny).
277
about the meaning of a statute."
Almendarez-Torres v.
United States, 523 U. S. 224, 234 (1998)
(quoting
Trainmen v.
Baltimore &
Ohio R.
Co., 331 U. S.
519, 528-529 (1947)).2 Robbery, all agree, was an offense at
common law, and this Court has consistently instructed that courts
should ordinarily read federal criminal laws in accordance with
their common-law origins, if Congress has not directed otherwise.
See
Neder v.
United States, 527 U. S. 1, 21 (1999)
("[W]here Congress uses terms that have accumulated settled meaning
under the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning of these terms." (internal quotation marks and
modifications omitted));
Evans v.
United States,
504 U. S. 255,
259 (1992) ("It is a familiar 'maxim that a statutory term is
generally presumed to have its common-law meaning.''') (quoting
Taylor v.
United States, 495 U. S. 575, 592
(1990));
United States v.
Turley, 352 U. S. 407, 411 (1957)
("We recognize 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."). As we explained in
Morissette v.
United
States, 342 U. S.
246 (1952):
"[W]here Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind
unless otherwise instructed. In such case, absence of contrary
2 The majority says that courts may use a statutory title or
heading only to "shed light on some ambiguous word or phrase," but
not as a guide to a statute's overall meaning. See
ante, at
267. Our cases have never before imposed such a wooden and
arbitrary limitation, and for good reason: A statute's meaning can
be elusive, and its title illuminating, even where a court cannot
pinpoint a discrete word or phrase as the source of the
ambiguity.
278
direction may be taken as satisfaction with widely accepted
definitions, not as a departure from them." Id., at 263.
In interpreting § 2113, then, I am guided by the commonlaw
understanding of "robbery and incidental crimes." At common law, as
the Government concedes, robbery was an aggravated form of larceny.
Specifically, the common law defined larceny as "the felonious
taking, and carrying away, of the personal goods of another." 4 W.
Blackstone, Commentaries on the Laws of England 230 (1769)
(Blackstone) (internal quotation marks omitted). Robbery, in turn,
was larceny effected by taking property from the person or presence
of another by means of force or putting in fear. Brief for United
States 29-30 (citing 2 W. LaFave & A. Scott, Substantive
Criminal Law § 8.11, pp. 437-438 (1986) (LaFave & Scott)).
Larceny was therefore a lesser included offense of robbery at
common law. See 4 Blackstone 241 (robbery is "[o]pen and violent
larciny from the person" (emphasis deleted)); 2 E. East, Pleas of
the Crown § 124, p. 707 (1803) (robbery is a species of "aggravated
larceny"); 2 W. Russell & C. Greaves, Crimes and Misdemeanors
*101 ("robbery is an aggravated species of larceny").
Closer inspection of the common-law elements of both crimes
confirms the relationship. The elements of commonlaw larceny were
also elements of robbery. First and most essentially, robbery, like
larceny, entailed an intentional taking. See 4 Blackstone 241
(robbery is "the felonious and forcible taking, from the person of
another, of goods or money to any value, by putting him in fear");
2 East,
supra, at 707 (robbery is the "felonious taking of
money or goods, to any value, from the person of another, or in his
presence, against his will, by violence or putting him in fear").
Second, as the above quotations indicate, the taking in a robbery
had to be "felonious," a common-law term of art signifying an
intent to steal. See 4 Blackstone 232 ("This taking, and carrying
away, must also be
felonious; that is, done
animo
279
furandi [with intent to steal]: or, as the civil law
expresses it,
lucri causa [for the sake of gain]."); Black's
Law Dictionary 555 (5th ed. 1979) ("Felonious" is "[a] technical
word of law which means done with intent to commit crime"). And
third, again like larceny, robbery contained an asportation
requirement. See 2 LaFave & Scott § 8.11, at 439 ("Just as
larceny requires that the thief both 'take' (secure dominion over)
and 'carry away' (move slightly) the property in question, so too
robbery under the traditional view requires both a taking and an
asportation (in the sense of at least a slight movement) of the
property." (footnotes omitted)). Unlike larceny, however, robbery
included one further essential component: an element of force,
violence, or intimidation. See 4 Blackstone 242 ("[P]utting in fear
is the criterion that distinguishes robbery from other
larcinies.").3
Precedent thus instructs us to presume that Congress has adhered
to the altogether clear common-law understanding
3 English courts continue to recognize larceny as a lesser
included offense of robbery. See,
e. g., Regina v.
Skivington, 51 Crim. App. 167, 170
(C. A. 1967)
("[L]arceny is an ingredient of robbery, and if the honest belief
that a man has a claim of right is a defence to larceny, then it
negatives one of the ingredients in the offense of robbery .... ").
After the enactment of the Theft Act, 1968, which consolidated the
crimes of larceny, embezzlement, and fraudulent conversion into the
single crime of theft, see
Director of Public Prosecutions
v.
Gomez, 96 Crim. App. 359, 377 (R. L. 1992) (Lord Lowry,
dissenting), English courts reaffirmed that theft remains a lesser
included offense of robbery, see
Regina v.
Guy, 93
Crim. App. 108, 111
(C. A. 1991) ("[Section 8(1) of the
Theft Act, 1968] makes it clear that robbery is theft with an
additional ingredient, namely the use of force, or putting or
seeking to put any person in fear of being subjected to force.
Therefore anyone guilty of robbery must, by statutory definition,
also be guilty of theft.").
Leading commentators agree that larceny is a lesser included
offense of robbery. See,
e. g., 2 LaFave & Scott
§ 8.11, at 437 ("Robbery ... may be thought of as aggravated
larceny .... "); 3 C. Wright, Federal Practice and Procedure § 515,
p. 22 (2d ed. 1982) ("Robbery necessarily includes larceny ....
").
280
that larceny is a lesser included offense of robbery, unless
Congress has affirmatively indicated its design, in codifying the
crimes of robbery and larceny, to displace their commonlaw meanings
and relationship.
Far from signaling an intent to depart from the common law, the
codification of § 2113's predecessor statute suggests that Congress
intended to adhere to the traditional ranking of larceny as a
lesser included offense of robbery. There is no indication at any
point during the codification of the two crimes that Congress meant
to install new conceptions of larceny and robbery severed from
their common-law foundations.
Prior to 1934, federal law did not criminalize bank robbery or
larceny; these crimes were punishable only under state law.
Congress enacted the precursor to § 2113(a) in response to an
outbreak of bank robberies committed by John Dillinger and others
who evaded capture by state authorities by moving from State to
State. See
Jerome v.
United States, 318 U. S. 101, 102 (1943)
(1934 Act aimed at "interstate operations by gangsters against
banks-activities with which local authorities were frequently
unable to cope"). In bringing federal law into this area, Congress
did not aim to reshape robbery by altering the commonlaw definition
of that crime. On the contrary, Congress chose language that
practically jumped out of Blackstone's Commentaries:
"Whoever, 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 shall be fined not more than $5,000 or
imprisoned not more than twenty years, or both." Act of May 18,
1934, ch. 304, § 2(a), 48 Stat. 783.
281
It soon became apparent, however, that this legislation left a
gap: It did not reach the thief who intentionally, though not
violently, stole money from a bank. Within a few years, federal law
enforcers endeavored to close the gap. In a letter to the Speaker
of the House, the Attorney General conveyed the Executive Branch's
official position: "The fact that the statute is limited to robbery
and does not include larceny and burglary has led to some
incongruous results." See H. R. Rep. No. 732, 75th Cong., 1st
Sess., 1 (1937) (reprinting letter). In particular, the Attorney
General cited the example of a thief apprehended after taking
$11,000 from a bank while a teller was temporarily absent.
Id., at 1-2. He therefore asked Congress to amend the bank
robbery statute, specifically to add a larceny provision shorn of
any force, violence, or fear requirement.
Id., at 2.
Congress responded by passing an Act "[t]o amend the bank robbery
statute to include burglary and larceny." Act of Aug. 24, 1937, ch.
747, 50 Stat. 749. The Act's new larceny provision, which Congress
placed in the very same section as the robbery provision, punished
"whoever shall take and carry away, with intent to steal or
purloin," property, money, or anything of value from a bank.
Ibid. There is not the slightest sign that, when this new
larceny provision was proposed in terms tracking the common-law
formulation, the Attorney General advocated any change in the
definition of robbery from larceny
plus to something less.
Nor is there any sign that Congress meant to order such a change.
The Act left in place the 1934 Act's definition of bank robbery,
which continued to include the word "feloniously," requiring (as
the Court concedes,
ante, at 270) proof by the Government of
an intent to steal. 50 Stat. 749.
In its 1948 codification of federal crimes, Congress delineated
the bank robbery and larceny provisions of §§ 2113(a) and 2113(b)
and placed these provisions under the title "Bank robbery and
incidental crimes." Act of June 25, 1948, § 2113,
282
62 Stat. 796-797. In this codification, Congress deleted the
word "feloniously" from the robbery provision, leaving the statute
in substantially its present form.
II
That 1948 deletion forms the basis of the Government's prime
argument against characterizing § 2113(b) as a lesser included
offense of § 2113(a), namely, that robbery, unlike larceny, no
longer requires a specific intent to steal. The Government concedes
that to gain a conviction for robbery at common law, the prosecutor
had to prove the perpetrator's intent to steal. The Government
therefore acknowledges that when Congress uses the terms "rob" or
"robbery" "without further elaboration," Congress intends to retain
the common-law meaning of robbery. Brief for United States 16, n.
9. But the Government contends that the 1948 removal of
"feloniously" from § 2113(a) showed Congress' purpose to dispense
with any requirement of intent to steal.
It is true that the larceny provision contains the words "intent
to steal" while the current robbery provision does not.4 But the
element-based comparison called for by
Schmuck is not so
rigid as to require that the compared statutes contain identical
words. Nor does
Schmuck counsel deviation from our
traditional practice of interpreting federal criminal statutes
consistently with their common-law origins in the absence of
affirmative congressional indication to the contrary. Guided by the
historical understanding of the relationship between robbery and
larceny both at common law and as brought into the federal criminal
code, I conclude that the offense of bank robbery under § 2113(a),
like the offense of bank larceny under § 2113(b), has always
included and continues to include a requirement of intent to
steal.
4 Notably, the Court would read a requirement of intent to steal
into § 2113(b) even if that provision did not contain such words.
Ante, at 269.
283
This traditional reading of the robbery statute makes common
sense. The Government agrees that to be convicted of robbery, the
defendant must resort to force and violence, or intimidation, to
accomplish his purpose. But what purpose could this be other than
to steal? The Government describes two scenarios in which, it
maintains, a person could commit bank robbery while nonetheless
lacking intent to steal. One scenario involves a terrorist who
temporarily takes a bank's money or property aiming only to disrupt
the bank's business; the other involves an ex-convict, unable to
cope with life in a free society, who robs a bank because he wants
to be apprehended and returned to prison. Brief for United States
22, n. 13.
The Government does not point to any cases involving its
terrorist scenario, and I know of none. To illustrate its
ex-convict scenario, the Government cites
United States v.
Lewis, 628 F.2d
1276 (CAlO 1980), which appears to be the only reported federal
case presenting this staged situation. The facts of
Lewis-a
case on which the Court relies heavily, see
ante, at 268,
271-were strange, to say the least. Hoping to be sent back to
prison where he could receive treatment for his alcoholism and have
time to pursue his writing hobby, Lewis called a local detective
and informed him of his intention to rob a bank. 628 F. 2d, at
1277. He also discussed his felonious little plans with the police
chief, undercover police officers, and a psychologist.
Ibid.
He even allowed his picture to be taken so that it could be posted
in local banks for identification.
Ibid. Following his
muchawaited heist, Lewis was arrested in the bank's outer foyer by
officers who had him under surveillance.
Id., at 1278.
I am not sure whether a defendant exhibiting this kind of
"bizarre behavior,"
ibid., should in fact be deemed to lack
a specific intent to steal. (The Tenth Circuit, I note, determined
that specific intent was present in
Lewis, for "[t]he jury,
charged with the duty to infer from conflicting evidence the
defendant's intent, could have concluded that
284
if Lewis was not arrested he would have kept the money and spent
it."
Id., at 1279.) But whatever its proper disposition,
this sort of case is extremely rare-the Government represents that,
nationwide, such indictments are brought no more than once per
year. Brief for United States 22, n. 13. Moreover, unlike a John
Dillinger who foils state enforcers by robbing banks in Chicago and
lying low in South Bend, the thief who orchestrates his own capture
at the hands of the local constable hardly poses the kind of
problem that one would normally expect to trigger a federal
statutory response. In sum, I resist the notion-apparently embraced
by the Court, see
ante, at 271-that Congress' purpose in
deleting the word "feloniously" from § 2113(a) was to grant
homesick ex-convicts like Lewis their wish to return to prison. Nor
can I credit the suggestion that Congress' concern was to cover the
Government's fictional terrorist, or the frustrated account holder
who "withdraws" $100 by force or violence, believing the money to
be rightfully his, or the thrill seeker who holds up a bank with
the intent of driving around the block in a getaway car and then
returning the loot, or any other defendant whose exploits are
seldom encountered outside the pages of law school exams.
Indeed, there is no cause to suspect that the 1948 deletion of
"feloniously" was intended to effect any substantive change at all.
Nothing indicates that Congress removed that word in response to
any assertion or perception of prosecutorial need. Nor is there any
other reason to believe that it was Congress' design to alter the
elements of the offense of robbery. Rather, the legislative history
suggests that Congress intended only to make "changes in
phraseology." H. R. Rep. No. 304, 80th Cong., 1st Sess., A135
(1947). See
Prince v.
United States, 352 U. S. 322, 326, n. 5
(1957) ("The legislative history indicates that no substantial
change was made in this [1948] revision" of § 2113);
Morissette, 342 U. S., at 269, n. 28 ("The 1948 Revision was
not intended to create new crimes but to recodify
285
those then in existence."). As the Third Circuit has recognized,
"it seems that the deletion of 'feloniously' was a result of
Congress' effort to delete references to felonies and misdemeanors
from the code, inasmuch as both terms were defined in 18 U. S. C. §
1," a statute that has since been repealed.5
United States
v.
Mosley, 126 F.3d
200, 205
(CA3 1997). See also
United States v.
Richardson, 687 F.2d
952,
957 (CA7 1982) (giving the same account of the 1948
revision). I would not attribute to Congress a design to create a
robbery offense stripped of the requirement of larcenous intent in
the absence of any affirmative indication of such a design.6
Our decision in
Prince supports this conclusion. The
petitioner in that case had entered a bank, displayed a revolver,
and robbed the bank. He was convicted of robbery and of entering
the bank with the intent to commit a felony, both crimes prohibited
by § 2113(a). The trial judge sentenced him, consecutively, to 20
years for the robbery and 15 years for the entering-with-intent
crime. 352 U. S., at 324. This Court reversed the sentencing
decision. The entering-withintent crime, we held, merges with the
robbery crime once the latter crime is consummated. Thus, we
explained, the punishment could not exceed 20 years, the sentence
authorized for a consummated robbery.
Id., at 329. In
reaching our decision in
Prince, we noted that, when the
federal bank robbery proscription was enlarged in 1937 to add the
entering-with-intent and larceny provisions, "[i]t was manifestly
the purpose of Congress to establish lesser offenses."
5 The various classes of federal felonies and misdemeanors are
now defined at 18 U. S. C. § 3559.
6 Congress could have provided such an affirmative indication in
any number of ways. The simplest would have been to say so in the
statute,
e. g.: "It shall not be a defense that the
accused person lacked an intent to steal." Cf. 18 U. S. C. § 645
(criminalizing embezzlement by judicial officers, and providing
that "[i]t shall not be a defense that the accused person had any
interest in [the embezzled] moneys or fund").
286
Id., at 327. We further stated that the "heart of the
[entering] crime is the intent to steal," and that "[t]his mental
element merges into the completed crime if the robbery is
consummated."
Id., at 328.
Prince thus conveys the
Court's comprehension that an intent to steal is central not only
to the entry and larceny crimes, but to robbery as well.
United States v.
Wells, 519 U. S. 482 (1997),
relied on by the Court,
ante, at 265, is not in point. In
that case, we held that the offense of making a false statement to
a federally insured bank, 18 U. S. C. § 1014, did not include a
requirement of materiality. We reached that holding only after
concluding that the defendants in that case had not "come close to
showing that at common law the term 'false statement' acquired any
implication of materiality that came with it into § 1014." 519 U.
S., at 491. Indeed, the defendants made "no claims about the
settled meaning of 'false statement' at common law."
Ibid.
Moreover, we held that "Congress did not codify the crime of
perjury or comparable common-law crimes in § 1014; ... it simply
consolidated 13 statutory provisions relating to financial
institutions" to create a single regulatory offense.
Ibid.
Three of those 13 provisions, we observed, had contained express
materiality requirements and lost them in the course of
consolidation.
Id., at 492-493. From this fact, we inferred
that "Congress deliberately dropped the term 'materiality' without
intending materiality to be an element of § 1014."
Id., at
493. Here, by contrast, it is clear that Congress' aim was to
codify the common-law offenses of bank robbery and bank larceny;
that intent to steal was an element of common-law robbery brought
into § 2113(a) via the word "feloniously"; and that Congress'
deletion of that word was not intended to have any substantive
effect, much less to dispense with the requirement of intent to
steal.
Having accepted the Government's argument concerning intent to
steal, the Court goes on to agree with the Government that robbery,
unlike larceny, does not require that
287
the defendant carry away the property. As with intent to steal,
the historical linkage of the two crimes reveals the Court's error.
It is true that § 2113(b) includes the phrase "takes and carries
away" while § 2113(a) says only "takes." Both crimes, however,
included an asportation requirement at common law. See
supra, at 279. Indeed, the text of §§ 2113(a) and (b)-which
the Court maintains must be the primary focus of lesser included
offense analysis-mirrors the language of the common law quite
precisely. At common law, larceny was typically described as a
crime involving both a "taking" and a
"carrying away." See 4
Blackstone 231 (helpfully reminding us that
"cepit et
asportavit was the old law-Iatin"). Robbery, on the other hand,
was often defined in "somewhat undetailed language," LaFave &
Scott § 8.11, at 438, n. 6, that made no mention of "carrying
away," see 4 Blackstone 231, but was nevertheless consistently
interpreted to encompass an element of asportation. The Court
overlooks completely this feature of the commonlaw terminology. I
note, moreover, that the asportation requirement, both at common
law and under § 2113, is an extremely modest one: even a slight
movement will do. See LaFave & Scott § 8.11, at 439; 2 Russell
& Greaves, Crimes and Misdemeanors, at *152-*153. The text of
§§ 2113(a) and (b) thus tracks the common law. The Court's
conclusory statement notwithstanding, nothing in the evolution of
the statute suggests that "Congress adopted a different view in §
2113(a),"
ante, at 272, deliberately doing away with the
minimal asportation requirement in prosecutions for bank robbery. I
would hold, therefore, that both crimes continue to contain an
asportation requirement.
Finally, the Court concludes that the "value exceeding $1,000"
requirement of the first paragraph of § 2113(b) is an element of
the offense described in that paragraph. I agree with this
conclusion and with the reasoning in support of it. See
ante, at 273. It bears emphasis, however, that the lesser
degree of bank larceny defined in § 2113(b)'s second para-
288
graph contains no dollar value element even arguably impeding
its classification as a lesser included offense of bank robbery.
The Government does not contend that the "value not exceeding
$1,000" component of that paragraph is an element of the
misdemeanor offense, and such a contention would make scant sense.
Surely Congress did not intend that a defendant charged only with
the lower grade of bank larceny could successfully defend against
that charge by showing that he stole
more than $1,000. In
other words, if a defendant commits larceny without exhibiting the
distinguishing characteristics of robbery (force and violence, or
intimidation), he has necessarily committed at least the lesser
degree of larceny, whether he has taken $500 or $5,000. Under
Schmuck, then, a defendant charged with bank robbery in
violation of § 2113(a) is not barred as a matter of law from
obtaining a jury instruction on bank larceny as defined in the
second paragraph of § 2113(b).
I see no reason why a defendant charged with bank robbery, which
securely encompasses as a lesser included offense the statutory
equivalent of petit larceny, should automatically be denied an
instruction on the statutory equivalent of grand larceny if he
wants one. It is clear that petit and grand larceny were two grades
of the same offense at common law. See 4 Blackstone 229 (petit and
grand larceny are "considerably distinguished in their punishment,
but not otherwise"). And, as earlier explained,
supra, at
278-279, robbery at common law was an aggravated form of that
single offense. One of the key purposes of
Schmuck's
elements test is to allow easy comparison between two discrete
crimes. See 489 U. S., at 720-721. That purpose would be frustrated
if an element that exists only to distinguish a more culpable from
a less culpable grade of the same crime were sufficient to prevent
the defendant from getting a lesser included offense instruction as
to the more culpable grade. I would therefore hold that a defendant
charged with the felony of bank robbery is not barred as a matter
of
289
law from requesting and receiving an instruction describing as a
lesser included offense the felony grade of bank larceny.7
To be sure, any request by the defendant for an instruction
covering the higher grade of bank larceny would be tantamount to a
waiver of his right to notice by indictment of the "value exceeding
$1,000" element. See
Stirone v.
United States,
361 U. S. 212,
215 (1960) (Fifth Amendment requires the Government to get a grand
jury indictment before it may prosecute any felony). The
constitutional requirement of notice would likely prevent the
prosecution from obtaining the same instruction without the
defendant's consent. I would limit any such asymmetry, however, to
the unusual circumstance presented here, where an element serves
only to distinguish a more culpable from a less culpable grade of
the very same common-law crime and where the less culpable grade
is, in turn, a lesser included offense of the crime charged.
***
In sum, I would hold that a defendant charged with bank robbery
as defined in 18 U. S. C. § 2113(a) is not barred as a matter of
law from obtaining a jury instruction on bank larceny as defined in
18 U. S. C. § 2113(b). In reaching the opposite conclusion, the
Court gives short shrift to the common-law origin and statutory
evolution of § 2113. The Court's woodenly literal construction
gives rise to practical anomalies, see
supra, at 276, and n.
1, and effectively shrinks the jury's choices while enlarging the
prosecutor's options. I dissent.
7 The court could instruct the jury as to the common elements of
both grades of bank larceny, and then add that in order to return a
conviction of the higher grade, the jury must also find that the
value of the stolen property exceeded $1,000. See Tr. of Oral Arg.
35; 3 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern
Federal Jury Instructions ~ 53.03, p. 53-55 (1999) ("The issue of
valuation should be considered by the jury only after they have
determined that the defendant is guilty of some type of bank
larceny within the meaning of section 2113(b).").
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