Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
law from requesting and receiving an instruction describing as a lesser included offense the felony grade of bank larceny.7
To be sure, any request by the defendant for an instruction covering the higher grade of bank larceny would be tantamount to a waiver of his right to notice by indictment of the "value exceeding $1,000" element. See Stirone v. United States, 361 U. S. 212, 215 (1960) (Fifth Amendment requires the Government to get a grand jury indictment before it may prosecute any felony). The constitutional requirement of notice would likely prevent the prosecution from obtaining the same instruction without the defendant's consent. I would limit any such asymmetry, however, to the unusual circumstance presented here, where an element serves only to distinguish a more culpable from a less culpable grade of the very same common-law crime and where the less culpable grade is, in turn, a lesser included offense of the crime charged.
* * *
In sum, I would hold that a defendant charged with bank robbery as defined in 18 U. S. C. § 2113(a) is not barred as a matter of law from obtaining a jury instruction on bank larceny as defined in 18 U. S. C. § 2113(b). In reaching the opposite conclusion, the Court gives short shrift to the common-law origin and statutory evolution of § 2113. The Court's woodenly literal construction gives rise to practical anomalies, see supra, at 276, and n. 1, and effectively shrinks the jury's choices while enlarging the prosecutor's options. I dissent.
7 The court could instruct the jury as to the common elements of both grades of bank larceny, and then add that in order to return a conviction of the higher grade, the jury must also find that the value of the stolen property exceeded $1,000. See Tr. of Oral Arg. 35; 3 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions
¶ 53.03, p. 53-55 (1999) ("The issue of valuation should be considered by the jury only after they have determined that the defendant is guilty of some type of bank larceny within the meaning of section 2113(b).").
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