Carter v. United States, 530 U.S. 255, 33 (2000)

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

Ginsburg, J., dissenting

the defendant carry away the property. As with intent to steal, the historical linkage of the two crimes reveals the Court's error. It is true that § 2113(b) includes the phrase "takes and carries away" while § 2113(a) says only "takes." Both crimes, however, included an asportation requirement at common law. See supra, at 279. Indeed, the text of §§ 2113(a) and (b)—which the Court maintains must be the primary focus of lesser included offense analysis—mirrors the language of the common law quite precisely. At common law, larceny was typically described as a crime involving both a "taking" and a "carrying away." See 4 Blackstone 231 (helpfully reminding us that "cepit et asportavit was the old law-latin"). Robbery, on the other hand, was often defined in "somewhat undetailed language," LaFave & Scott § 8.11, at 438, n. 6, that made no mention of "carrying away," see 4 Blackstone 231, but was nevertheless consistently interpreted to encompass an element of asportation. The Court overlooks completely this feature of the common-law terminology. I note, moreover, that the asportation requirement, both at common law and under § 2113, is an extremely modest one: even a slight movement will do. See LaFave & Scott § 8.11, at 439; 2 Russell & Greaves, Crimes and Misdemeanors, at *152-*153. The text of §§ 2113(a) and (b) thus tracks the common law. The Court's conclusory statement notwithstanding, nothing in the evolution of the statute suggests that "Congress adopted a different view in § 2113(a)," ante, at 272, deliberately doing away with the minimal asportation requirement in prosecutions for bank robbery. I would hold, therefore, that both crimes continue to contain an asportation requirement.

Finally, the Court concludes that the "value exceeding $1,000" requirement of the first paragraph of § 2113(b) is an element of the offense described in that paragraph. I agree with this conclusion and with the reasoning in support of it. See ante, at 273. It bears emphasis, however, that the lesser degree of bank larceny defined in § 2113(b)'s second para-

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