William H. Rehnquist: We'll hear argument next in Number 97-7213, Sylvester Mosley v. The United States. Mr. McCauley.
Donald J. McCauley: Mr. Chief Justice, and may it please the Court: The issue in this case--
William H. Rehnquist: Just a moment, Mr. McCauley. Spectators are admonished, do not talk until you get out of the courtroom. The Court remains in session. Proceed, Mr. McCauley.
Donald J. McCauley: --The issue in this case is, if this Court is to imply a mens rea element in the Federal bank robbery statute, as both sides concede it must, then the Court's decision in Morissette v. The United States governs. In Morissette v. The United States, the Court held that it would imply a specific intent element into a statute that codified a common law crime.
William H. Rehnquist: There, the statute itself had no intent requirement, did it, in Morissette, statute by its terms.
Donald J. McCauley: That's correct, although I believe there was mention of a knowingly in the Morissette case, a general intent, and this Court held that where the legislature, Congress was codifying a crime that was a crime at common law, it considered the whole tradition of the common law, wherein an evil intent had always been either a specific element of the statute of common law, or the understanding of the case law common law, so when the Congress was legislating against that common law backdrop, this Court held a statute that did not have the literal word intent, or evil will, that was not deleted by Congress through inadvertence, that the Court would require a specific statutory statement by the Congress saying that it intended and directing that its intention was contrary to the common law understanding that an evil intent was always there.
William H. Rehnquist: What we're talking about here, I guess the question presented is whether bank larceny is a lesser-included offense of bank robbery, is that right?
Donald J. McCauley: Yes.
William H. Rehnquist: And the reason that intent is important, and that's why you're talking about it, is what?
Donald J. McCauley: Is the larceny statute specifically has an element, intent to steal, whereas the current codification of the bank robbery statute does not have the word intent. It has the steal language in that there's a phrase, to take from the person or presence of another, which is the definitional term for steal.
William H. Rehnquist: And if intent is read into it, then it... bank larceny is a lesser-included offense, and if intent is not read into the robbery statute, then bank larceny is not a lesser-included offense?
Donald J. McCauley: Yes, Your Honor, under this Court's holding in Schmuck. If it is read in, and we have the definitional phrase connoting steal, then it mirrors the elements that are at issue in the lesser offense, the intent to steal.
David H. Souter: Well, even if that is so, don't you have a problem in this case, because the lesser-included offense that you ask the charge to be given on was the more serious of the two larceny offenses, i.e., theft of something more than 1,000, and there's no requirement of value of more than 1,000 in the robbery statute, so is it not... I guess another way to put my question is, is it not the case that if you're right so far, the lesser of the two larceny statutes may be a lesser-included offense, but the one you asked for, which requires proof of more than 1,000, is not?
Donald J. McCauley: No, Justice Souter. The 1,000 threshold that's in the two paragraphs of the larceny statute is not a requisite element of larceny.
David H. Souter: Well, why isn't it? It is, as you just said, in a separate paragraph. That's not usually the way sentencing elements are described.
Donald J. McCauley: I submit that the 1,000 threshold is to distinguish between a felony larceny, felony bank larceny--
David H. Souter: Mm-hmm.
Donald J. McCauley: --and a misdemeanor bank larceny. Now, the crime of robbery is always a felony, and we were charged in the indictment with a crime of robbery, and the indictment set forth amounts more than 1,000, 9,000 in count 1--
David H. Souter: Yes, but the test is not whether this is lesser-included within the meaning of the indictment as it charged the crime in fact. It's... the test is a reference to the statutory elements and, if that's the test, then an element of more than 1,000 dollars, it seems to me, defeats your case.
Donald J. McCauley: --That's why it is our position, and we urge the Court, that the 1,000 dollars mentioned in the two paragraphs of the larceny statute is not a requisite element.
David H. Souter: But if we take the position that it is a requisite element, that's the end of your case, right?
Donald J. McCauley: I don't believe so, because there's language in the robbery statute regarding monetary value.
David H. Souter: Yes, but there's nothing about 1,000 dollars. If I steal... if I rob the bank teller of 1 dollar, I've committed the robbery offense. I've not committed the 1,000 dollar larceny offense.
Donald J. McCauley: No. You would have committed the misdemeanor larceny offense.
Stephen G. Breyer: I take it you think the 1,000 dollars is simply an amount that triggers different punishment levels.
Donald J. McCauley: Yes, and I think it's illustrated by the indictment requirement, the Fifth Amendment right to indictment, where any felony we're entitled to a right to an indictment, where you wouldn't be entitled to a right to an indictment on a misdemeanor larceny.
Antonin Scalia: Well, you said in your brief that the model instructions for this crime also support your position, but those model instructions tell the jury first to find whether there's been larceny, and then if they do find it, the jury finds whether there's been 1,000 dollars or more of value involved. It goes to the jury, doesn't it, under those model instructions that you cite?
Donald J. McCauley: Yes. If that is--
Antonin Scalia: Well, why would it go to the jury if it's just a sentencing factor?
Donald J. McCauley: --Only if that issue is being litigated.
Antonin Scalia: Why would it go to the jury even if it's being litigated? Why wouldn't it be a matter for the judge?
Donald J. McCauley: If there were... if there was evidence issues regarding the exact amount of the money the triggers--
Antonin Scalia: When there's evidence issues on a sentencing factor, it goes to the jury?
Donald J. McCauley: --No. If there were, under a particular scenario, evidence to support either--
Antonin Scalia: Under those model instructions the question of 1,000 dollars goes to the jury I think because it's a separate crime. The Third Circuit dealt with this question. What did they say about it? They dealt with the amount.
Donald J. McCauley: --In a footnote, they said this is not an element. They said it had... it was not a requisite element, that common law, Congress did not when it legislated consider this a requisite element, when it took the common law terms and laid them out in what is a larceny.
Antonin Scalia: Mr. McCauley, I know you didn't intend this, but when you set forth section 2113 on page 2 of your brief I find it misleading. It shows subsection (b) as containing only one paragraph, whereas in fact, as shown in the Government's... the appendix to the Government's brief, page 2a of the appendix, subsection (b) contains two separate paragraphs, one of which is the 1,000 dollars, and the other one is no value requirement at all, and I think that makes a big difference as to whether you consider this just a sentencing factor or a separate offense.
Donald J. McCauley: Oh, it is a critical difference.
Antonin Scalia: Well then, why didn't you set forth the whole statute instead of just that one paragraph?
Donald J. McCauley: Well, we apologize if that... we did not believe that that was at issue, that the Third Circuit, the court below dropped a footnote, said this is not an element, it's clearly a distinction between felonious... a felony and a misdemeanor. Our understanding of the case law was that that's the reason for the S1, 000. The critical element that the court below was saying is missing from the robbery statute is this intent to steal, and the position is that that has always been in the robbery statute. The Government concedes it was a requisite element up until 1948. It's only with the recodification of title XVIII in 1948 that the word intent in the form of the term felonious is deleted, and that's explained by this Court in the Prince matter, that it was just a change in phraseology, and that--
Anthony M. Kennedy: Suppose the statute first said that robbery must be done with intent to steal and to take away, then 2 years later the Congress excises that phrase intent. What would we take Congress' purpose to be, just by comparing the two statutes?
Donald J. McCauley: --Under the Court's holding in Morissette, and reaffirmed 4 years ago in Staples and X-Citement Video, you would require a specific statutory statement saying that we are acting contrary to the common law understandings of a common law crime.
Anthony M. Kennedy: In other words, you understand Morissette to say that Congress has to say, we are enacting the statute contrary to the common law and the foregoing paragraph is to be interpreted accordingly? Does Congress have to say that?
Donald J. McCauley: Yes. That's my understanding in Morissette with respect to common law crimes, crimes that were malum in se at common law, not crimes that are malum prohibitum. As the Morissette case says, if we were dealing with just regulatory offenses, it would not... if this Court, under its holding in Morissette, would not require a specific contrary statement by Congress. But the Court stated in the Morissette opinion absent a specific statement to the contrary we will imply this scienter requirement, this mens rea, this intent, and there... and I think what's also illustrating--
Anthony M. Kennedy: Well, but Morissette didn't... or maybe it did. Correct me if I'm wrong... didn't involve the hypothetical that I put of a statute which is specific, and then a statute that's changed the next year, not as part of a recodification, just suppose that Congress changes the one specific statute. Morissette didn't involve that instance, did it?
Donald J. McCauley: --Yes. Felonious had fallen out of section 641, the statute that was interpreted in Morissette, and the Court--
Anthony M. Kennedy: Felonious did. Felonious did, but what... suppose the words were, with intent to steal. Same rule?
Donald J. McCauley: --Yes, the same rule, because the Court in Morissette said, anything, these critical elements, whether they be actus reis or mens reas, that had been established in the more important part of criminal jurisprudence, they are not changed--
Anthony M. Kennedy: Well--
Donald J. McCauley: --by inadvertence.
William H. Rehnquist: --Well, that was an... that's an extraordinary position you're taking, that in... the statute at one time says with intent to steal, and Congress passes a law saying, we repeal the requirement that there be an intent to steal, and you're saying in effect Congress can't do that.
Donald J. McCauley: No. Then that is a specific statement that the Court is looking for in the Morissette analysis.
William H. Rehnquist: So all you need, then, is an express repeal by Congress of an intent requirement that was formerly there.
Donald J. McCauley: Yes. That is my understanding of Morissette.
Antonin Scalia: But you have that here. I mean--
Donald J. McCauley: No. The legislative history is silent on that, and the legislative history--
Antonin Scalia: --I don't care about the legislative history. Feloniously was there, and feloniously was repealed.
Donald J. McCauley: --And it was explained in the Prince case as a change in phraseology to tidy up the statutes.
Antonin Scalia: Well, but then you have to answer the Chief Justice's question differently, and you have to appeal to legislative history instead of simply asking... answering his question that it... that you accept the fact that if the word is there, and is then repealed by Congress, the common law requirement is eliminated, because that is the situation here.
Donald J. McCauley: I understand the Chief Justice's question to say if Congress says we're repealing that, that is a specific statement to the contrary--
Antonin Scalia: Congress has to say it in addition to passing the statute that says it?
Donald J. McCauley: --A specific indication that it is acting contrary to the common law--
Antonin Scalia: You need legislative history to confirm what the statue says, or else the statute is ineffective to do that?
Donald J. McCauley: --If you have it. If you don't have legislative history, you look at the text, and you understand the text, and if it's a common law offense, the Court's... under the Court's precedents an implied... specific intent will be implied in--
William H. Rehnquist: That's an equally extraordinary position, it seems to me. You have a situation where the statute at one time says, with intent to steal, and then Congress passes a law that says, you know, enacted by Congress and so forth, that the words intent to steal are hereby deleted from the statute, and there are no committee reports, no legislative history. Now, does that successfully get rid of the intent to steal requirement?
Donald J. McCauley: --Yes. That's a specific statement by the Congress that it is deleting that element that has previously been there.
William H. Rehnquist: Well, it isn't a... it's not a specific statement. It's a deletion, and that, I gather, is enough.
Donald J. McCauley: Yes, and it is changing. It is changing the requisite elements. Here, they're--
Antonin Scalia: That is not the situation here because the legislative history, in your estimation, shows what?
Donald J. McCauley: --That felonious was deleted as a matter of phraseology to tidy up the statutes in 1948 that had become cumbersome through the repeated use of the term, felony and misdemeanors.
David H. Souter: We don't... as I understand it, we wouldn't necessarily have to go to legislative history for that conclusion, would we, because I assume what we would find, if we went through the codification, is that two things happened. They took out the word feloniously in all the statutes that used to have feloniously in it, and they simultaneously enacted a new definitional section which described as a matter of definition what a felony is and what a misdemeanor is, and I take it we could infer from that, without even getting to legislative history explanations, that what they were doing, as you said, was sort of tidying up. They were taking out what they thought were merely useless words of classification, but nothing more. Is that fair to say?
Donald J. McCauley: Yes, and what they did not delete... and in 1937, that was the first modification of the original bank robbery statute that was enacted in 1934. The Prince case explains and the legislative history is not malleable on this. The statement is, it's an act, the 1937 act is an act to include lesser-included offenses of robbery, and it was in response to the Justice Department writing to the Congress saying, they had an example where someone went into the bank and took the money, but there was no force, threat, or intimidation, and they couldn't be prosecuted under the robbery statute because of the robbery's requirement of that extra element of force, threat, or intimidation. And the Congress responded and entitled the act, Bank Robbery and Incidental Crimes, and their statement in the legislative history specifically stated, this is an act to amend the bank robbery statute to include the lesser offenses of bank burglary and bank larceny.
Ruth Bader Ginsburg: They said the words, lesser offenses?
Donald J. McCauley: Yes.
Ruth Bader Ginsburg: Because it's one thing to say they filled a gap that the bank robbery statute left open, and another to say that the way they filled it was by creating a lesser-included offense.
Donald J. McCauley: Yes. I believe the statement, preface statement is, this is an act to amend the robbery statute to include the lesser offenses.
William H. Rehnquist: But Prince deals with the merger of offenses, doesn't it? It doesn't talk about the same thing we're talking about here, lesser-included offenses.
Donald J. McCauley: That's correct. The Prince case held that there couldn't be pyramiding of punishments. If the actual robbery is completed, and the person had been indicted for the completed robbery and also indicted for the unlawful entry with the intent, that the... those elements would collapse in and there could only be one punishment. The Court struck down the consecutive sentences in Prince. I cited the Prince case for the explanation of what... how felonious does not appear in the current statute, where it always did appear in the original enactment and then in the amendment in 1937, because that is the critical term that is missing. I think what's also illustrates this, and it's the Government's brief at page 11, when they recite what they say are the requisite elements of the bank robbery statute, they do not recite the language, to take from the person or presence of another. The definitional term of the word steal, it's there in the text. The Government overlooks it in its recitation on page 11. It also overlooks it when it draws this Court's attention to other robbery statutes that the Congress has enacted on pages 14 through 15 of the Government's brief. It deletes in their recitation... and it's included in the whole appendix, but not when they have it in the body of their brief, these... the critical definitional term for steal, to take from the person or presence of another.
Ruth Bader Ginsburg: Then what you're saying is that the bank larceny statute is simply redundant. Both statutes use the word take, but the bank larceny statute goes on to say, and carry away with intent to steal, so I gather what you're telling me now is that the words, carry away with intent to steal, are surplusage, that all it takes is the word take.
Donald J. McCauley: They were used... at common law the statutes had used the word take, and also carry away, as delineating various elements. It was a requirement of asportation, was the term that was used. There had to be some movement.
Ruth Bader Ginsburg: Would the bank larceny statute be any different, would it cover anything less, if it simply read, takes, and left out the words, carries away with intent to steal?
Donald J. McCauley: If the carries away was taken out, there wouldn't be this asportation, of the movement--
Ruth Bader Ginsburg: All right, with intent to steal. It just--
Donald J. McCauley: --of the property with intent to steal.
Ruth Bader Ginsburg: --If it just said take--
Donald J. McCauley: Yes, and I say the greater offense, robbery, also has this asportation requirement in the definition of steal, and take--
Antonin Scalia: --What if it says, takes and carries away, but does not say, with intent to steal or purloin?
Donald J. McCauley: --Then it's not a larceny. That was a requisite element at common law.
Antonin Scalia: And we wouldn't read that element in?
Donald J. McCauley: No, not that actus reis.
Antonin Scalia: We would not read it in? We wouldn't read it into the statute? Gee. But you're asking us to do the same thing to (a).
Donald J. McCauley: I--
Antonin Scalia: Why wouldn't we do the same thing to (b), if that phrase was not in (b)?
Donald J. McCauley: --Because the evil intent was always a critical element, the means rea element, whereas whatever actus reis may have been required, but not--
Antonin Scalia: Gee, I really don't understand your case, then, because I had thought that your case was, in describing common law crimes, Congress is often a little sloppy, and sometimes they leave out a word like feloniously. It doesn't mean that it wasn't intended to be there. They just leave it out sometimes. Now I ask you if they left it out in (b), would that make any difference, but you say, oh, no, (b), if they left it out they would change the crime. It would no longer be the crime of larceny. Why can't they be elliptical in (b) just as you say they have been elliptical in (a)?
Donald J. McCauley: --I don't understand... if they take out the intent to steal element of larceny, my answer was that then it wasn't a larceny by definition in common law.
Antonin Scalia: Now, I... oh, maybe what you... maybe the reason we're not... I don't mean that they take it away with the intent of taking it away. They just delete it from the statute. The next time the statute appears, they say, we've consolidated statutes, and there are too many words in these statutes. We're going to take away with intent to steal or purloin, okay, the same thing that you say happened under (a), that they just dropped feloniously because it was too verbose, or whatever. Suppose they did the same in (b), and they dropped with intent to steal or purloin.
Donald J. McCauley: And they still labeled that bank larceny.
Antonin Scalia: Yes. Then it would still be larceny, wouldn't it?
Donald J. McCauley: Absent a contrary expression that they were rewriting the common law, the Court could imply that requisite element.
Ruth Bader Ginsburg: I thought your position was that the word takes does it all, so why should the word takes be any different when you're talking about larceny than a robbery? I thought you said that the whole thing that imports the idea of intent to steal is the word take. You said that about the bank robbery statute, and now you're saying something different, no, you need more in the bank larceny statute.
Donald J. McCauley: In the bank robbery statute, I'm relying on the Court's holding in Morissette and its prodigy to put that critical mens rea intent element in where felonious had been, and felonious had modified the definitional term of steal. So up until 1948, we had intent to take from the person of another, intent to steal. The element that the court below held as a matter of law does not appear in the robbery statute, and because it doesn't appear, the robbery statute doesn't embrace, fully embrace the requisite elements of the larceny statute. So under Schmuck, as a matter of law, it's not a lesser-included offense. I say, as a matter of law, intent is there implicitly, impliedly by the Court's precedents, and that when felonious was taken out, absent a specific congressional statement that they were doing that intentionally and not by inadvertence. They were not looking to revolutionize the understanding of robberies and larcenies--
John Paul Stevens: But there's another--
Donald J. McCauley: --which they recodified in 1948.
John Paul Stevens: --Isn't there another problem, that the criminal intent can be one of two kinds? It can be a general intent to violate the law, which Morissette says we will always imply, or it can be more specific, an intent to deprive the person permanently of the property. You could have the former without having the latter.
Donald J. McCauley: Yes.
John Paul Stevens: And I think one of the Government's argument is that, well, you have the former in (a) but not necessarily the latter, and what is your response to that?
Donald J. McCauley: Well, that essentially turns the reasoning of Morissette on its head, because Morissette said, when we're dealing with statutory definitions or codification of common law offenses, we will imply this evil mens rea, specific intent. I believe that is the holding and the rationale in Morissette. We would not do it, we would allow for a general intent in other offenses, public welfare offenses, regulatory offenses. But where Congress legislates in the traditional common law area of crimes, absent a specific statement, it will be the specific intent that the Court would apply.
Stephen G. Breyer: I don't understand these words, specific intent, et cetera, so in my own mind it comes down to just what Justice Stevens said, that the difference, whether there's a specific intent or not, from any practical point of view, is whether a person who goes into a bank, puts out a gun, takes the money, goes out of the bank, but he did it with an intent to return the money, you see. [Laughter] Now, if, in fact, he still committed bank robbery, they win, but if, in fact, he hasn't committed bank robbery, you win. Isn't that what it comes down to?
Donald J. McCauley: Yes.
Stephen G. Breyer: Yes, and if it comes down to that, have you found any case, ever, in history, where there was such a person, where in fact he put the gun up... I mean, we found one, almost, in the Sentencing Commission, where a person who took some money with a toy gun to pay his veterinarian and... because he wanted the dog cured, and gave back the money when the dog died, I mean, but that was... that was an unusual case, and I'm not sure it applies. So I take it we're talking about very unusual cases. You've both done research. I will ask both sides the same question. Has any case that sheds any light on that particular question, rather than using these vague words, ever come up?
Donald J. McCauley: The intent, in any case--
Stephen G. Breyer: I don't want to use words like intent. What I want to know is, has there ever been a case one way or the other where a person who did all these things for bank robbery, and he walked out the door, but he intended to give the money back. In that sense there's proof he was going to give the money back. He was just going to walk around the block with it and give it back, or the equivalent. Now, that's what you say the case turns on, and I agree with you. Now, has there ever been such a case, or the equivalent?
Donald J. McCauley: --There wouldn't be a reported case because I submit it's not a robbery, and he may not have been indicted.
Stephen G. Breyer: No, no, there could be. The Government or the State could have prosecuted somebody for that as robbery, and the judge would have had to decide, yes or no, is it a robbery. That could have happened in the history of the 50 States, and common law and, I don't know, everything else, or statutes like this could have happened.
Donald J. McCauley: I'm not aware of a case that, Your Honor, Justice Breyer--
Antonin Scalia: I think I recall a case in which somebody walked in and was under the impression that money that was in the hands of a teller belonged to him, rather than to the bank. That's another instance. And he snatched the money violently out of the hands of the teller, and said, give me that, that's mine, and without the feloniously portion of this statute, that would have been a crime. I don't remember where that case is. Oh, no, but that's the other possibility. I didn't-- --I don't know any such case, but it's very possible for such a case to exist. Didn't the Tenth Circuit in this case mention that as one possibility?
Donald J. McCauley: --Yes.
Ruth Bader Ginsburg: In the Brittain case, the Tenth Circuit... the Tenth Circuit gave two examples that seemed rather far out. One was, it was... I thought it was my money that I was grabbing, and the other was, I really want to be put back in prison, so I actually intimidated the teller to give me the money, and I looked for the cops when I got out on the street so I could be caught and be put back in prison.
Donald J. McCauley: Well, Justice Ginsburg, with respect to the first hypothetical, that I really thought it was my money, that had been a defense at common law. Under claim of right, if a person was recovering their own money by force and violence, that could defend and defeat the mens rea, the evil intent. However, Congress, in drafting this language, and the text of this statute, both the larceny provision and the robbery provision has the added language that takes away that defense of claim of right. The added language is, the property or money in the care, custody, and control of the bank, so irrespective, the going in and saying, give me my money, if it's done by force, threat, in the presence of a person, it's a completed robbery, if... irrespective if it's your own money, because it's in the care, custody, and control. So they broadened the common law--
Antonin Scalia: I don't understand that. I don't understand why that, adding that it has to be in the care, custody, or control of the bank eliminates the requirement that you intend to steal, rather than intend to get your own money back, even though it is in the--
Donald J. McCauley: --Oh, it doesn't. It doesn't. My point was that it took away... that language takes away the common law defenses, but a defendant claiming right to the money, and therefore defeating the element of intent to steal, because--
Antonin Scalia: --No, I--
Donald J. McCauley: --If the money is in the care of the bank--
Antonin Scalia: --No, it isn't really his money. He thought it was his money.
Donald J. McCauley: --Then I would say that's a completed robbery.
Anthony M. Kennedy: I'd like to ask you, if I could, about section... subsection (c), which is at page 2a of the petition in the Government's brief. The receiver of stolen property is guilty only if it's been stolen... only if there's been a larceny under (b).
Donald J. McCauley: Yes.
Anthony M. Kennedy: Not under (a).
Donald J. McCauley: Yes.
Anthony M. Kennedy: Which way does that cut? Does that distinction help you, or does it help the Government?
Donald J. McCauley: Well, this distinction, I believe it helps us both, because it illustrates--
Anthony M. Kennedy: That doesn't help me much, but-- [Laughter]
Donald J. McCauley: --This Court's opinion in Gaddis interprets this statute. This is a receiving stolen property, and in Gaddis it was similar to the Prince analogy of pyramiding and consecutive sentences, and I think a reading of the Gaddis opinion, which was issued prior to the Prince elements test, the Gaddis opinion I think is illustrative and instructive, because I believe the Court in Gaddis is assuming that 2113(b) is a lesser-included offense of 2113 (a). This enacted in (c)--
Anthony M. Kennedy: No, but on the other hand, it seems to me to help the Government in that the statute seems to envisage a situation in which property has not... in which there has been a robbery, but property has not been stolen, and that, it seems to me, helps the Government.
Donald J. McCauley: --Well, why it's not a lesser-included offense, and I would submit it's not a lesser-included offense of the robbery, where I submit (b) is, is because there's an additional element and there's additional purpose behind the text, and it's to go at other individuals, a different class of individuals, receivers of property, and that's what the Gaddis opinion explains. So that's an additional class of people, a different purpose behind the text, and a different element, whereas I submit all of the elements within the text--
William H. Rehnquist: Thank you, Mr. McCauley. Mr. Frederick, we'll hear from you.
David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court: Bank larceny is not a lesser-included offense of bank robbery under the statutory elements test announced by this Court in Schmuck v. United States. The plain language of the statute--
Sandra Day O'Connor: Well, it might be if we read in the intent to steal requirement.
David C. Frederick: --No, Justice O'Connor, that's not correct, because even if you were to read in an intent to steal element in the bank robbery offense, there are two other textual indicators that suggest strongly that Schmuck test has not been met.
Sandra Day O'Connor: Well, you say the take and carry, but robbery requires taking from, and that's close enough for Government work, as they-- [Laughter]
David C. Frederick: Not this Government, Justice O'Connor. [Laughter] Take had a distinct meaning both at common law and under this statute. It means to gain caption over. Carrying away is to move while supporting, and all of the commentators who have construed those terms say that carrying away is a distinct element, that one could gain caption over property in a bank, commit the robbery offense, but not carry that property away, and so we would submit that the omission of carried away is... is a significant omission for establishing the elements test. I would first--
Ruth Bader Ginsburg: On that point, then, suppose the scenario is, somebody grabs 10,000 dollars from the bank, they didn't use any force or intimidation, and they start walking away. They're stopped at the door by the guard, so they didn't get away from the bank. No bank larceny.
David C. Frederick: --Well, that's correct in those common law jurisdictions that it construed carrying away to go beyond the curtilage of the particular edifice.
Ruth Bader Ginsburg: I'm asking about this statute. This bank larceny statute. I'm in the bank, I grab 10,000 dollars, intending to make it my own, but I'm apprehended at the door before I cross the threshold, and get outside the bank.
David C. Frederick: We would prosecute that person, and we would argue that carrying away had been satisfied, because the place where the person had taken the money or gained caption over it very likely was where the teller is, and the person had--
Antonin Scalia: So as soon as he takes one step, he's carrying it away.
David C. Frederick: --It's a... that's correct, Justice Scalia.
Antonin Scalia: This is a finely crafted statute. You're guilty of that offense if you take a step, and you're not guilty of it if you don't take a step. It seems very strange.
David C. Frederick: Well, the commentators noted that the asportation requirement was a minimal one. Justice Ginsburg, in further response to your question, there are jurisdictions that would not have found larceny on those facts because the carrying away had to go beyond the edifice, and typically it was a house where the larceny was--
Sandra Day O'Connor: Yes, but here we just want to know if this particular statute is a lesser-included offense of the bank robbery, so you're telling me that the difference between the two is one step. You don't have to take any step in robbery as long as you used intimidation or force, but you do have to take one step--
David C. Frederick: --You have to make a carrying-away movement, and the jury must find that after it has been put in the indictment and proved beyond a reasonable doubt by the Government. In the same--
David H. Souter: --No, finish your answer.
David C. Frederick: --No, I... in the same way that the Government must plead in the indictment under larceny that the amount taken was above 1,000 dollars and the jury must find that. That is an element of the larceny offense and not an element of the bank robbery offense, and we know that--
David H. Souter: Was it ever an element of the robbery offense at common law?
David C. Frederick: --No.
David H. Souter: So therefore, even on your position, even before the word feloniously was eliminated that still was not an element, and there was never this identity.
David C. Frederick: The monetary requirement, or the feloniously requirement. I'm--
David H. Souter: When feloniously was removed from the statute, assuming it did nothing more than have this tidying up, or classifying a function, it did not... it would be easier, I guess, to go back to my original question. Before feloniously was removed from the statute, the Federal robbery statute never required an asportation because in your view that was not a requirement of common law and would not have been read into it under the words feloniously or in any other way, is that correct?
David C. Frederick: --Yes, but let me explain further, because the asportation requirement was a requirement of robbery at common law, and feloniously did not encompass the asportation requirement. They were distinct. If you look at Blackstone, Blackstone says feloniously takes and carries away, using force in the person or presence of another.
Speaker: Right.
David C. Frederick: So if I've understood the multiple parts of your question--
David H. Souter: No, I... you've answered my question. You have said, it was a requirement at common law, but it was not comprehended by the word feloniously. It had to be spelled out in the statute. It was never spelled out in this statute, and therefore the removal of feloniously has nothing to do with the requirement under the Federal statute.
David C. Frederick: --Of carrying away, that's correct, Justice Souter.
Antonin Scalia: But if you define an... call an offense robbery, and you define it, and suppose you left out carry away, I thought under Morissette and our jurisprudence that we would assume that the traditional asportation requirement was not eliminated simply by the failure to recite it.
David C. Frederick: Well, I'm glad that you raised Morissette, because I think there is some confusion about what the Court addressed and what it held. The Court in Morissette did not hold that when Congress has defined terms using non-common law words, and six of the eight elements of this bank robbery statute depart from the common law, Morissette did not say you read in common law requirements. In fact, in Morissette, as the Court explains in footnote 28 of its opinion, in describing the drafting history of section 641, Congress used the word converts, which was a common law word, and the question before the Court was, what did Congress mean when it used the word converts? It had not appeared in any of the predecessor sections of that statute, and so what the Court held was that in tort cases a conversion could occur by an unwitting action if there was some negligence or something in the interference with the property rights of the true owner. So in reading... but at common law the crime of conversion required an intent to steal, so what the Court held in Morissette was that because Congress had used the words, knowingly converts in a crime, that it must have meant to include the intent to steal, because otherwise innocent conduct would be subject to the criminal sanction.
William H. Rehnquist: Congress had not used any words other than knowingly convert.
David C. Frederick: Well, it used embezzlement and steal, but the Government's prosecuted theory--
William H. Rehnquist: Was based on the converts.
David C. Frederick: --That's correct.
Anthony M. Kennedy: That footnote also says the 1948 revision was not intended to create new crimes but to codify those then in existence. How would you describe what happened here in light of that statement?
David C. Frederick: What we know, Justice Kennedy, is that the word feloniously was removed from the statute. The reviser's notes don't explain why. The reviser just simply says that there were changes in phraseology, so we do not know what Congress was thinking when it omitted those words.
Anthony M. Kennedy: So we do not know whether it intended simply to recodify or, on the other hand, whether it intended to create new crimes with new definitions. We just don't know.
David C. Frederick: That's unfortunately correct, Justice Kennedy. I would point out that 2 years before the--
Anthony M. Kennedy: Wasn't there a general statement that the whole revision was intended to be a mere codification?
David C. Frederick: --Yes, but this Court in Wells held that an omission of a word that had appeared in prior versions was not going to be read back in, and materiality in Wells was an element of the offense.
Stephen G. Breyer: Suppose, then, we said there are two choices. Choice 1 is that Congress, in putting the word steal in the one and not in the other... it ended up that way, didn't it? And robbery doesn't have the word intent to steal, larceny does.
David C. Frederick: That's correct.
Stephen G. Breyer: One possibility is that's simply an oversight, or they assumed it would be read in, and the other possibility is no, Congress did it purposely, leaving out the words, intent to steal, or feloniously, because Congress wanted to be sure that the person in Justice Scalia's hypothetical who unfortunately is trying to steal his own money, or the person in my hypothetical who, in fact, takes it out the door, walks around the block and wants to give it back, that that's what Congress wanted to do. Congress wanted to punish those two people. Now, those seem to be the only two hypotheses I can think of, and it's obvious from the way I've stated it that I find the second hypothesis totally fanciful, but perhaps... I mean, there's never been such a case, there never will be such a case, so the notion that Congress wanted to punish those two cases which will never occur is fanciful. The notion that it wanted to keep the same requirement, and had nothing more in mind than everybody read it in, is not fanciful, so what's your response to that?
David C. Frederick: 2 years before Congress codified the laws in 1948--
Speaker: Yes.
David C. Frederick: --it enacted a definition of robbery in the Hobbs Act which did not contain an intent to steal, but which underscored the seriousness Congress attached to forceful takings of property in the presence or from the person of another, and it is clear, as Judge Coffin in the First Circuit said in the DeLeo case in 1970 that the acts of robbery are so unambiguously dangerous as to make implicit the mental element underlying the offense. Our position is that robbery and the way Congress has defined it go to the means that the person uses to take the property from another, whereas larceny is addressed to the ends that the person intends when he has taken the property, and they are two different offenses. Robbery is an offense against the person, and larceny is an offense involving property.
Antonin Scalia: Are there cases involving the Hobbs Act... there's none in this Court... in which we've said that the intent to steal does not... is not included, but are there cases in the courts of appeals?
David C. Frederick: There are cases in the courts of appeals that hold that the Hobbs Act does not require an additional mental element of intent to steal or other... any other special intent requirement, as Congress drafted in three different provisions of the bank robbery statute. The knowing, knowing that the stolen property, the receiver of stolen property has to know that it is stolen in 2113(c), in 2113(b) the intent to steal, and in second paragraph, 2113(a), the bank burglary offense Congress drafted that the person entering the bank has to do so with intent to commit a felony. So it is clear that there are specific textual indicators of this statute that underscore that Congress knew how to include a special mental element but did not do so in the bank robbery offense.
William H. Rehnquist: Let me ask you, Mr. Frederick, about the common law defense to the crime of robbery, and as I understand it, or your opposite counsel, that it was a defense if the defendant thought it was his own property.
David C. Frederick: That's correct. The--
William H. Rehnquist: But I suppose no reasonable defendant could think that a bunch of dollar bills in a drawer in a bank were his own property. He might think that he had maybe 10 days earlier deposited another bunch of dollar bills, but certainly he wouldn't think that the particular dollar bills that he cashier gave him under the threat of a gun were his own property.
David C. Frederick: --I think that's reasonable, Mr. Chief Justice.
Antonin Scalia: Well, that may be, but then why does that appear in (b)?
David C. Frederick: It appears--
Antonin Scalia: Which also applies only to money in the possession of any bank, credit union, or any savings and loan association, and it specifically requires an intent to steal or purloin.
David C. Frederick: --Traditionally a person could take money. A person who goes into a bank has... you know, fills out the deposit slip or the withdrawal slip in a certain way and takes out 1,000 dollars, intending only to make a withdrawal of 100 dollars, and the teller says, hey, wait a minute, you've just walked out of the bank, you have taken 1,000 dollars from the care, custody, or control of the bank. That is not larceny unless the person had the intent to steal the money. An innocent taking would not be criminalized in the same way that a person who went into the bank with a gun and said to the teller, give me 1,000 dollars, would be regardless of what the robber ultimately intended to do with the funds. Our position is that that dangerous activity by a robber fundamentally makes robbery a different offense from larceny.
Stephen G. Breyer: Can I ask a question about the 1,000 dollars, because you've only... you've devoted about three or four sentences in your brief, but it is different, and the jury does have to find, I take it, the 1,000, is that right?
David C. Frederick: Yes.
Stephen G. Breyer: All right. But if we say... I don't know how to deal with that. That is, it would seem to me that if that's what makes the difference, then in instances where Congress could really want a lesser-included offense... say, (b) is lesser-included of (a), let's say. And then it takes (b) and it divides it into two or three parts, one part being a misdemeanor, another part being a felony, another part being a more serious felony, it would turn out even though Congress wanted it to be a less... a lesser-included offense, you never could get the charge, because you'd have to pick (a) or (b) or (c). You see, you'd have to pick version 1, version 2, or version 3, since one or the other would fit your case, and then the fact that there were these two other versions would prevent you from getting the charge, so I can't work it out.
David C. Frederick: Justice Breyer, we would concede that a case arising, a question under second paragraph (b) is a much more difficult one than under first paragraph (b), but let me emphasize, and I'm looking at 2a of the appendix to our brief where the language is set forth, the with... not exceeding 1,000 dollars is right between two elements of the offense.
William H. Rehnquist: You're talking about the first paragraph of (b)?
David C. Frederick: Yes.
William H. Rehnquist: Or the second paragraph?
David C. Frederick: The first paragraph of (b). The value exceeding 1,000 dollars occurs between two elements of the offense. It occurs to us as an untenable argument to make that exceeding 1,000 dollars is not an element of the offense. And furthermore, there would be a grand jury clause problem if we were not to charge it in the indictment.
Stephen G. Breyer: That's true, but what worries me is, imagine the other two elements are out of the case. Suppose Congress wrote (b)... you know, both parts of it, both parts of the bank larceny statute in identical words to (a), so robbery, absolutely identical but for the force or violence. And now what it does is, instead of having one provision saying that, it has two provisions saying it, distinguished only by the 1,000 dollars. All that Congress wanted to do there is make it a felony or make it a misdemeanor, but the felon couldn't get... you see, then no one could get the lesser-included charge simply because of that fact. That can't be right, but I don't know why it isn't right.
David C. Frederick: I would concede it is a much more difficult question, but let me point out that in either circumstance Congress was talking about property that was subject to monetization. It had to be property with a monetary value. There are circumstances in which a robber could ask for property that could not be given a monetary value such as, give me the blank checks that are in your till. Give me the account information of all of the people who have more than 1 million dollars in this bank. Give me the computer access codes so that I can go home and I can get into the bank. You know, that kind of information is very valuable to a robber, but would not necessarily be subject to the monetization requirement, and the prosecution in that kind of bank robbery would not have to prove beyond a reasonable doubt that there was some monetary value, and the jury would not have to find it. We would simply have to establish that the robber had used force within the person or presence of another to get anything of value, and I think we would be able to satisfy the requisites of the offense in a prosecution of that type.
David H. Souter: Yes, but when you do that, what you have done is to prove the misdemeanor variety. You have proved that there is some value, but you have not proved that the value is over 1,000 dollars, so you've got a simple lesser-included in that case.
David C. Frederick: Well, it depends on--
Speaker: Isn't it... I'm--
David C. Frederick: --Justice Souter, that is a very difficult question, because the wording of second paragraph (b) is not exceeding 1,000 dollars, so you know, the question is, what does that mean? Our position is that the offenses--
Speaker: --Well, it means... since you have the burden of proof, it means anything that you have proven... anything that you have not proven to have a value exceeding a 1,000.
David C. Frederick: --We construe the provision to be property that is subject to some kind of monetary valuation.
Speaker: Why isn't the better answer to the problem... I mean, we all have it. Justice Breyer articulated it, but I mean, this strikes us all as odd. But why isn't the answer to it, Congress could put in a sentence and say that in an indictment that charges property of value exceeding 1,000 dollars... I'm sorry, that in an indictment for robbery that does not specify value, that depending on... that either of the subparagraphs may be treated as a lesser-included offense?
David C. Frederick: It could certainly have done that, Justice Souter.
Speaker: You know, depending on the value that's actually proven at trial.
David C. Frederick: Absolutely, and I would like to make one other point about this statute in that regard, that in the subsections (d) and (e) Congress did use very similar language to make clear that (a) and (b) were lesser-included offenses of aggravated robbery where the person had been assaulted or there had been a death ensuing. And the way Congress worded that made it clear from the very first provision of the bank robbery statute in 1934 there was a lesser-included offense for simple bank robbery versus aggravated bank robbery.
Speaker: In effect a special rule to get around Schmuck in cases like this.
David C. Frederick: No. The point is that Congress did not intend to make bank larceny a lesser-included offense of bank robbery, and we know that from the various textual indications in the statute.
Speaker: No, but if it wants to there's a simple way to do it.
David C. Frederick: Well, no, because--
Speaker: Without getting into a Schmuck elements problem. That's all I'm saying.
David C. Frederick: --I don't think Congress could get around that, Justice Souter--
Speaker: Why?
David C. Frederick: --because the prosecution would still have to prove all of the elements. It would simply have to prove the additional element.
Speaker: You mean, you can't make it a lesser-included unless it is a lesser-included.
David C. Frederick: That's right.
Speaker: You can only make it a lesser-included by defining the elements in such a way that it is.
David C. Frederick: Yes, or saying we incorporate this subsection in all of the elements.
Speaker: Why is that so?
David C. Frederick: Because the elements--
Speaker: Why can't Congress say, we're going to treat this as if it were a lesser-included, depending on the proof that is adduced at trial? Why can't Congress do that?
David C. Frederick: --Well, I think Congress can do that, but the way it would have to do that would be by reference to the prior offense, or the greater offense, and taking out a subset that would not have to be proved.
Speaker: Well, if that-- --Mr. Frederick, you've said that (a) is not a statute that uses common law terms, that there are a lot of things in the first paragraph of (a) which are not common law robbery terms. What in particular, by force and violence? Isn't that the standard requirement?
David C. Frederick: At common law the phrase was, force or putting in fear. It's broader in this by including force and violence or by intimidation, which is not... is close to putting in fear, but we would submit not of the same degree of magnitude in terms of force, that there is no intent to--
Speaker: Gee, I don't think that's very much difference. Do you think they meant something different by saying by force and violence, or by intimidation they meant something different than by--
David C. Frederick: --I think they meant for--
Speaker: --force or putting in fear?
David C. Frederick: --I think they meant for it to be easier to establish. Here, in this case, for instance, it was an intimidation theory, where the defendant in this case went to the teller, in one case used a sign saying, hold-up, and frightened the teller. It--
Speaker: Now, that is to say, put the teller in fear. I think you intimidate somebody if you put them in fear. I don't--
David C. Frederick: --Well, let me move to another one--
Speaker: --Yes, try--
David C. Frederick: --that may be more persuasive to you.
Speaker: --What else is there? I mean, I understand the later portion, or obtains, or attempts to obtain by extortion. Well, that's fine, but that's a different section of it. That's not the robbery section, I wouldn't say.
David C. Frederick: That's correct. Let's start with property. At common law it had to be personal, tangible property that was taken. Under this statute, there is no such limitation. It's any property or money or any other thing of value.
Speaker: Uh-huh.
David C. Frederick: At common law, it had to be property of another. Under this statute, it is belonging to or in the care, custody, control, management, or possession of any bank, credit union, or savings and loan institution. It's a broader--
Speaker: Even, presumably, if it's your own money, yes.
David C. Frederick: --That's correct. Robbery of your own money would still be robbery under this statute. As we've pointed out, there's no carrying away requirement, and there is no intent to deprive permanently of property, so--
Speaker: Yes, but they could have been left out, because you acknowledge that sometimes in the Federal context, even in the State context, some of the elements, when a crime is defined, are left out, but without the intention of not requiring them.
David C. Frederick: --Justice Scalia, I would not want to concede that for purposes of this argument we would be taking--
Speaker: Okay.
David C. Frederick: --the view that criminal offenses should be construed by courts to have common law concepts reinserted without some very clear indication that Congress intended to do that.
Speaker: Fair enough. In other words, if you know that the bank robber... sorry, the bank robber knows that the money on the counter belongs to him, the bank robber. In fact, he's not a bank robber. He's just an irate customer, and he gets so angry at the delay that that money that he knows is his, he threatens to punch the teller in the nose. I guess that could happen. The teller's taking a long time. In your view, Congress intended to punish that as bank robbery?
David C. Frederick: Yes.
Speaker: Yes. Is there any indication anywhere that Congress wanted to punish that as bank robbery?
David C. Frederick: No, except for the words of the statute, which suggest that Congress wanted to deal with people who forcefully took property from the person or presence of another in a way that would be deemed in, I think, unsocial behavior, and that is the essence of our theory that robbery is fundamentally different because of the means the person uses to take the property.
Speaker: But let me ask you, I'm still... I'm still not totally... I... and you might be helpful on this. If... remember, I'm imagining that all your arguments are out of this case. It is written identically, the larceny, to the robbery ones, and none of your arguments are there but for the force or violence, but for the 1,000 dollars. I'm still... and you agree, I take it, or don't you, that if Congress had wanted, in (a) it has bank robbery, in (b) and (c) it has bank larceny, identically worded but for force in (a) and but for 1,000 dollars in (b) and nothing in (c). All right. Now, do you think Congress could have said, and by the way, being a little informal, we want (b) and (c) to be lesser-included offenses of (a)? It could have said that.
David C. Frederick: Yes.
Speaker: And if it had said that, they'd be entitled to the charge.
David C. Frederick: Yes. I think that--
Speaker: All right. Then my question is, given a Federal Criminal Code with 4,000 sections, or 3,800, having been written at different periods with different drafting styles, with different understandings of law, don't we have to try to figure out whether Congress implicitly wanted to do that, rather than looking for some actual form of words in (a) that would tell us?
David C. Frederick: --Yes. I do think that the Court has to do what it can to infer congressional intent, and the position that you've articulated is by far the most difficult--
Speaker: Yes.
David C. Frederick: --hypothetical under this statute.
Speaker: Do you think that Congress gives a lot of intent in drafting statutes as to whether one is a lesser-included offense than the other?
David C. Frederick: Well, in some instances it is clear that Congress has intended to do that. In other instances, it is less clear.
Speaker: You say this is not one of them.
David C. Frederick: Well, this is one where Congress did, we submit, think about the overall concept of lesser-included offenses, because it made aggravated robbery a greater offense of simple robbery.
Speaker: Really? Do you really think that a majority of the Members of Congress even knew that the word feloniously had been dropped from this provision, much less had a particular intent as to what the dropping of it meant? Do you really think that?
David C. Frederick: What we know is that the act that they all voted on did not have the word feloniously in it, and--
Speaker: It seems to me... I have one question under (c) again. Under your view, if there's been a robbery under (a), then there can be no receiving stolen property under (c) without your going ahead and showing that the elements of larceny were really there anyway. That seems to me a little odd.
David C. Frederick: --The omission--
Speaker: I mean, you're going to have robberies under (a) that you prosecute under (a), but then you have people who receive stolen property and you're going to have to show there's a (b) offense. That seems to me a strange way to operate.
David C. Frederick: --It is, and the Court dealt with that in Gaddis by saying that it functionally was to be construed that the person... if the property had been stolen through a robbery, that intent requirement is what had to be established there even though the word a) doesn't appear in the subsection (c)--
Speaker: And to that extent it seems to me, even given Gaddis, that the (c) problem helps the petitioner more than you.
David C. Frederick: --Well, as to who it helps more, it's six of one, half-dozen of the other, because (c) also includes a special mental element indicating that Congress knew how to put special mental elements in these provisions when it wanted to, and it did not do that for the robbery provision. So... Gaddis also says that (c) is not a lesser offense of (a) and (b), that it is a distinct offense because of the different elements that were required to be proved for that. Now, I would like to make one final point before closing, and that is that a number of courts of appeals, in addressing the question of intent under this statute, have faced claims by defendants that they lacked the requisite intent to commit bank robbery either because they were involuntarily intoxicated or they were on LSD, or they had psychic problems, or some other nature that would negate the specific intent that they thought had to be proved under the provision. An argument that robbery has such a special mens rea raises the specter that defendants will attempt to negate that element of intent.
Speaker: May I ask you one historical question? You mentioned some elements of this offense that differ from common law robbery such as the care, custody, and control of the bank and so forth. Were those elements in the statute before 1948?
David C. Frederick: Yes.
Speaker: So if... so they don't show that the '48 revision made a change. They are not evidence of the '48 codification changing the meaning of the statute.
David C. Frederick: That's correct. The 1934 act was 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, and the subse... I mean, that core language has basically stayed with the provision from 1934 to the present day. If there are no further questions, we would submit that the decision should be affirmed.
William H. Rehnquist: Thank you, Mr. Frederick. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.