Carter v. United States, 530 U.S. 255, 21 (2000)

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Cite as: 530 U. S. 255 (2000)

Ginsburg, J., dissenting

Justice Ginsburg, 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 Court 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, 489 U. S. 705 (1989). First, the Court holds that bank larceny contains an "intent to steal" requirement that bank robbery lacks. Ante, at 267-271. Second, the Court concludes that larceny contains a requirement of carrying away, or "asportation," while robbery does not. Ante, at 272. And third, the Court states that the "value exceeding $1,000" requirement in the first paragraph of the larceny statute is an element for which no equivalent exists in the robbery statute. Ante, at 272-274. The Court's first and second points, I conclude, are mistaken. As for the third, I agree with the Court that the "value exceeding $1,000" requirement is an element essential to sustain a conviction for the higher degree of bank larceny. I would hold, however, that Carter was not disqualified on that account from obtaining the lesser included offense instruction he sought.

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