Lead Opinion
delivered the opinion of the Court.
In Schmuck v. United States,
f — 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
The Court of Appeals for the Third Circuit affirmed in an unpublished opinion, relying on its earlier decision in Mosley. Judgment order reported at
II
In Schmuck, supra, we were called upon to interpret Federal Rule of Criminal Procedure 31(e)’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.”
Applying the test, we held that the offense of tampering with an odometer, 15 U. S. C. §§ 1984 and 1990e(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 — (1) 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(e). Schmuck, supra, at 721-722.
Turning to the instant ease, 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:
Ҥ2113. 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,*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,
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
Ill
We begin with the arguments pertinent to the general relationship between §§ 2118(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 §2118, 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 (e) 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.,
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,
“[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).
We made this clear in United States v. Wells,
‘‘[Fjundamentally, 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
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,
Here, it is undisputed that “robbery” and “larceny” are terms with established meanings at common law. But nei
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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 tei’ms
Before explaining why this is so under our cases, an example, United States v. Lewis,
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,
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
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 steal.
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 eases 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.,
Turning to the second element in dispute, it will be recalled that, whereas subsection (b) requires that the defendant “tak[e] and earr[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 aspor-tation, 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,
C
There remains the requirement in §2113(b)’s first paragraph that the property taken have a “value exceeding $1,000” — a requirement notably absent from § 2113(a). Carter, shifting gears from his previous arguments, concedes the textual point but claims that the valuation require
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
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,
* * *
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.
Notes
We granted certiorari in Mosley to address the issue that we resolve today, Mosley v. United States,
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.”
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,
The dissent claims that our decision in United States v. Wells,
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).
This interpretive principle exists quite apart from the canon on imputing common-law meaning. See, e. g., X-Citement Video,
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,
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,
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 “felo-niously” 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
Carter claims further support in Prince v. United, States,
Dissenting Opinion
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 Gourt 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,
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’
“[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*278 direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Id., at 263.
In interpreting §2118, then, I am guided by the common-law 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 lareeny 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 lareiny 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 lareeny”).
Closer inspection of the common-law elements of both crimes confirms the relationship. The elements of common-law lareeny were also elements of robbery. First and most essentially, robbery, like lareeny, 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
Precedent thus instructs us to presume that Congress has adhered to the altogether clear common-law understanding
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,
“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.
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,
f — -! ) — <
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.
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,
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
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,
Our decision in Prince supports this conclusion. The petitioner in that ease 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.
United States v. Wells,
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
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
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
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,
* * *
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.
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,
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.
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) C‘[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 (H. L. 1992) (Lord Lowry, dissenting), English courts reaffirmed that theft remains a lesser included offense of robbery, see Regina v. Guy, 98 Crim. App. 108, 111 (C. A. 1991) (“[Section 8(1) of the Theft Act, 1968] makes it dear 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 induded 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 indudes larceny_”).
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.
The various classes of federal felonies and misdemeanors are now defined at 18 U. S. C. §3559.
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”).
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).”).