OCTOBER TERM, 1999
Syllabus
certiorari to the united states court of appeals for the third circuit
No. 99-5716. Argued April 19, 2000—Decided June 12, 2000
Having donned a ski mask and entered a bank, petitioner Carter confronted an exiting customer and pushed her back inside. She screamed, startling others in the bank. Undeterred, Carter ran inside and leaped over a counter and through one of the teller windows. A teller rushed into the manager's office. Meanwhile, Carter opened several teller drawers and emptied the money into a bag. After removing almost $16,000, he jumped back over the counter and fled. He was charged with violating 18 U. S. C. § 2113(a), which punishes "[w]hoever, by force and violence, or by intimidation, takes . . . any . . . thing of value [from a] bank." While not contesting the basic facts, Carter pleaded not guilty on the theory that he had not taken the bank's money "by force and violence, or by intimidation," as § 2113(a) requires. Before trial, he moved for a jury instruction on the offense described by § 2113(b) as a lesser included offense of the offense described by § 2113(a). Section 2113(b) entails less severe penalties than § 2113(a), punishing, inter alia, "[w]hoever takes and carries away, with intent to steal or purloin, any . . . thing of value exceeding $1,000 [from a] . . . bank." The District Court denied the motion. The jury, instructed on § 2113(a) alone, returned a guilty verdict, pursuant to which the District Court entered judgment. The Third Circuit affirmed.
Held: Because § 2113(b) requires three elements not required by § 2113(a), it is not a lesser included offense of § 2113(a), and petitioner is prohibited as a matter of law from obtaining a lesser included offense instruction on the offense described by § 2113(b). Pp. 260-274.
(a) In Schmuck v. United States, 489 U. S. 705, 716, this Court held that a defendant who requests a jury instruction on a lesser offense under Federal Rule of Criminal Procedure 31(c) must demonstrate that the elements of the lesser offense are a subset of the elements of the charged offense. This elements test requires a textual comparison of criminal statutes, which lends itself to certain and predictable outcomes. Id., at 720. Here, the Government contends that three elements required by § 2113(b) are not required by § 2113(a). A "textual comparison" of the elements of the two offenses suggests that the Government is correct. Whereas § 2113(b) requires (1) that the defendant act "with intent to steal or purloin," (2) that the defendant "tak[e] and
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