288
Ginsburg, J., dissenting
graph contains no dollar value element even arguably impeding its classification as a lesser included offense of bank robbery. The Government does not contend that the "value not exceeding $1,000" component of that paragraph is an element of the misdemeanor offense, and such a contention would make scant sense. Surely Congress did not intend that a defendant charged only with the lower grade of bank larceny could successfully defend against that charge by showing that he stole more than $1,000. In other words, if a defendant commits larceny without exhibiting the distinguishing characteristics of robbery (force and violence, or intimidation), he has necessarily committed at least the lesser degree of larceny, whether he has taken $500 or $5,000. Under Schmuck, then, a defendant charged with bank robbery in violation of § 2113(a) is not barred as a matter of law from obtaining a jury instruction on bank larceny as defined in the second paragraph of § 2113(b).
I see no reason why a defendant charged with bank robbery, which securely encompasses as a lesser included offense the statutory equivalent of petit larceny, should automatically be denied an instruction on the statutory equivalent of grand larceny if he wants one. It is clear that petit and grand larceny were two grades of the same offense at common law. See 4 Blackstone 229 (petit and grand larceny are "considerably distinguished in their punishment, but not otherwise"). And, as earlier explained, supra, at 278-279, robbery at common law was an aggravated form of that single offense. One of the key purposes of Schmuck's elements test is to allow easy comparison between two discrete crimes. See 489 U. S., at 720-721. That purpose would be frustrated if an element that exists only to distinguish a more culpable from a less culpable grade of the same crime were sufficient to prevent the defendant from getting a lesser included offense instruction as to the more culpable grade. I would therefore hold that a defendant charged with the felony of bank robbery is not barred as a matter of
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