Carter v. United States, 530 U.S. 255, 28 (2000)

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282

CARTER v. UNITED STATES

Ginsburg, J., dissenting

62 Stat. 796-797. In this codification, Congress deleted the word "feloniously" from the robbery provision, leaving the statute in substantially its present form.

II

That 1948 deletion forms the basis of the Government's prime argument against characterizing § 2113(b) as a lesser included offense of § 2113(a), namely, that robbery, unlike larceny, no longer requires a specific intent to steal. The Government concedes that to gain a conviction for robbery at common law, the prosecutor had to prove the perpetrator's intent to steal. The Government therefore acknowledges that when Congress uses the terms "rob" or "robbery" "without further elaboration," Congress intends to retain the common-law meaning of robbery. Brief for United States 16, n. 9. But the Government contends that the 1948 removal of "feloniously" from § 2113(a) showed Congress' purpose to dispense with any requirement of intent to steal.

It is true that the larceny provision contains the words "intent to steal" while the current robbery provision does not.4 But the element-based comparison called for by Schmuck is not so rigid as to require that the compared statutes contain identical words. Nor does Schmuck counsel deviation from our traditional practice of interpreting federal criminal statutes consistently with their common-law origins in the absence of affirmative congressional indication to the contrary. Guided by the historical understanding of the relationship between robbery and larceny both at common law and as brought into the federal criminal code, I conclude that the offense of bank robbery under § 2113(a), like the offense of bank larceny under § 2113(b), has always included and continues to include a requirement of intent to steal.

4 Notably, the Court would read a requirement of intent to steal into § 2113(b) even if that provision did not contain such words. Ante, at 269.

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