274
Opinion of the Court
ond paragraph, but is a more realistic option from the jury's standpoint in a case such as this one where the value of the property clearly exceeds $1,000—the dissent sees no reason to bar him from making that election, even though the "value exceeding $1,000" element of § 2113(b)'s first paragraph is clearly absent from § 2113(a).
This novel maneuver creates a problem, however. Since subsection (a) contains no valuation requirement, a defendant indicted for violating that subsection who requests an instruction under subsection (b)'s first paragraph would effectively "waive . . . his [Fifth Amendment] right to notice by indictment of the 'value exceeding $1,000' element." Post, at 289. But this same course would not be available to the prosecutor who seeks the insurance policy of a lesser included offense instruction under that same paragraph after determining that his case may have fallen short of proving the elements of subsection (a). For, whatever authority defense counsel may possess to waive a defendant's constitutional rights, see generally New York v. Hill, 528 U. S. 110 (2000), a prosecutor has no such power. Thus, the prosecutor would be disabled from obtaining a lesser included offense instruction under Rule 31(c), a result plainly contrary to Schmuck, in which we explicitly rejected an interpretive approach to the Rule that would have permitted "the defendant, by in effect waiving his right to notice, . . . [to] obtain a lesser [included] offense instruction in circumstances where the constitutional restraint of notice to the defendant would prevent the prosecutor from seeking an identical instruction," 489 U. S., at 718.
* * *
We hold that § 2113(b) is not a lesser included offense of § 2113(a), and therefore that petitioner is not entitled to a jury instruction on § 2113(b). The judgment of the Third Circuit is affirmed.
It is so ordered.
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