FindLaw > Criminal Law Summaries > Carter v. United States

LESSER INCLUDED OFFENSES — 18 U.S.C. §§ 2113(a) AND 2113(b)

Case: Carter v. United States

Issue: Whether a defendant charged, pursuant to 18 U.S.C. § 2113(a), with forcibly taking something of value belonging a bank is entitled to a lesser included offense instruction regarding an offense, 18 U.S.C. § 2113(b) (first paragraph), which punishes an individual for taking and carrying away something of value exceeding $1,000, and belonging to a bank, with an intent to steal or purloin.

Facts: Carter donned a ski masked and entered a New Jersey bank. He pushed a customer who was attempting to leave the bank back inside. He then ran into the bank and leaped over the service counter and through a teller window. He removed nearly $16,000 in currency and fled the scene.

He was charged with violation of 18 U.S.C. §2113(a) which punishes anyone who "by force and violence, or by intimidation, takes…from the person or presence of another…any…thing of value" belonging to a bank. He pled not guilty under the theory that he had not used force, violence or intimidation in the robbery. Carter moved under Fed. R. Crim. P. 31(c) that the jury be instructed on a lesser offense, 18 U.S.C. §2113(b) (first paragraph), which entails less severe penalties and punishes "whoever takes and carries away, with intent to steal or purloin, any…thing of value exceeding $1,000" belonging to a bank. Carter’s motion was denied, and the jury convicted him under §2113(a). The Court of Appeals affirmed the conviction.

Holding: The lesser offense for which defendant sought an instruction contains three elements not included in the offense for which defendant was on trial. He is therefore barred as a matter of law from receiving a lesser charge instruction.

Reasoning: In  Schmuck v. United States, 489 U.S. 705 (1989), the Court held that to receive a jury instruction on a lesser offense, the elements of the lesser offense must be a subset of the elements of the charged offense. Given this, the Court found that the lesser offense in this case contained three elements not found in the charged offense. Specifically, the lesser offense required that the defendant act with an intent to steal, that the defendant take and carry away the property, and that the property have a value over $1,000. Because the lesser offense had elements not included in the charged offense, Carter is barred as a matter of law from the instruction he requests.

Carter first argued that the structure of §§ 2113(a) and (b) supports the theory that § 2113(b) is a lesser included offense. The Court found that point irrelevant given the clear textual distinction in the elements of each section.

With respect to the intent element of §2113(b), Carter argued that the same intent was implied in §2113(a). The Court rejected this argument under  United States v. X-Citement Video, Inc. 513 U.S. 64 (1994), which held that when a statute is silent as to mens rea, the presumed scienter is only that mens rea that is necessary to distinguish wrongful conduct from otherwise innocent conduct. In this case, the minimum mens rea in §2113(a) is knowledge with respect to the actus reus — in other words, knowledge of the taking of another’s property by force or violence. Once this lesser mens rea is identified, the Court held, there is no reason to assume that the higher mens rea of intent in §2113(b) applies to §2113(a).

Carter next maintained that, because §§ 2113(a) and (b) are akin to the common law crimes of robbery and larceny, the Court had to assume that §§ 2113(a) and (b) require the same elements as their common law predecessors. (Larceny was a lesser included offense of robbery at common law.) The Court also found this argument irrelevant since "[t]he 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."

Next, the Court rejected Carter’s argument that the elements of "takes" and "takes and carries away" are the same. Because Congress was within its rights to criminalize bank theft that does not involve asportation, it makes no sense to assume that Congress did not mean to do this when it wrote §2113(a).

The Court also rejected Carter’s argument that §2113(b)’s requirement that the stolen property exceed $1,000 in value is a sentencing factor, not an element. First, the structure of § 2113(b), which contains two paragraphs, one criminalizing whoever takes and carries away with intent to steal or purloin property of a value "exceeding $1,000," and the other of which criminalizes identical conduct when the value is "not exceeding $1,000," suggests that its two paragraphs describe separate offenses. Moreover, because the two paragraphs within § 2113(b) have drastically different penalties — a one year maximum when there is proof that the value was $1,000 or less and a 10 year maximum if the value is over $1,000, this illustrates that the valuation requirement is an element, not a sentencing factor. Finally, if the valuation factor was a sentencing requirement rather than an element, constitutional questions would be raised. The Court interpreted §2113(b) to avoid raising those issues.

Other Opinions: Justices Ginsburg, Stevens Souter, and Breyer dissented from the opinion. The dissent argued that at common law, robbery meant larceny plus force, violence or intimidation. Because robbery was an aggravated form of larceny at common law, larceny was a lesser offense of robbery. The dissent argued that Congress did not depart from this traditional understanding when it rendered bank theft and other incidental crimes federal offences. Thus, Carter is not prohibited as a matter of law from obtaining an instruction on bank larceny as a lesser included offense. The Court’s opposite holding in this case, the dissent argued, has "dislodged bank robbery and bank larceny from their common-law mooring."