Justice Thomas, delivered the opinion of the Court.
In Schmuck v. United States, 489 U.S. 705 (1989), we held that a defendant who requests a jury instruction on a lesser offense under Rule 31(c) of the Federal Rules of Criminal Procedure must demonstrate that "the elements of the lesser offense are a subset of the elements of the charged offense." Id., at 716. This case requires us to apply this elements test to the offenses described by 18 U. S. C. §§ 2113(a) and (b)
On September 9, 1997, petitioner Floyd J. Carter donned a ski mask and entered the Collective Federal Savings Bank in Hamilton Township, New Jersey. Carter confronted a customer who was exiting the bank and pushed her back inside. She screamed, startling others in the bank. Undeterred, Carter ran into the bank and leaped over the customer service counter and through one of the teller windows. One of the tellers rushed into the manager's office. Meanwhile, Carter opened several teller drawers and emptied the money into a bag. After having removed almost $16,000 in currency, Carter jumped back over the counter and fled from the scene. Later that day, the police apprehended him.
A grand jury indicted Carter, charging him with violating § 2113(a). While not contesting the basic facts of the episode, Carter pleaded not guilty on the theory that he had not taken the bank's money "by force and violence, or by intimidation," as § 2113(a) requires. Before trial, Carter moved that the court instruct the jury on the offense described by § 2113(b) as a lesser included offense of the offense described by § 2113(a). The District Court, relying
The Court of Appeals for the Third Circuit affirmed in an unpublished opinion, relying on its earlier decision in Mosley. Judgment order reported at 185 F.3d 863 (1999). While the Ninth Circuit agrees with the Third that a lesser offense instruction is precluded in this context, see United States v. Gregory, 891 F.2d 732, 734 (CA9 1989), other Circuits have held to the contrary, see United States v. Walker, 75 F.3d 178, 180 (CA4 1996); United States v. Brittain, 41 F.3d 1409, 1410 (CA10 1994). We granted certiorari to resolve the conflict, 528 U.S. 1060 (1999), and now affirm.
In Schmuck, supra, we were called upon to interpret Federal Rule of Criminal Procedure 31(c)'s provision that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged." We held that this provision requires application of an elements test, under which "one offense is not `necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense." 489 U. S., at 716.
Applying the test, we held that the offense of tampering with an odometer, 15 U. S. C. §§ 1984 and 1990c(a) (1982 ed.), is not a lesser included offense of mail fraud, 18 U. S. C. § 1341. We explained that mail fraud requires two elements—(1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts). The lesser offense of odometer tampering, however, requires the element of knowingly and willfully causing an odometer to be altered, an element that is absent from the offense of mail fraud. Accordingly, the elements of odometer tampering are not a subset of the elements of mail fraud, and a defendant charged with the latter is not entitled to an instruction on the former under Rule 31(c). Schmuck, supra, at 721-722.
Turning to the instant case, the Government contends that three elements required by § 2113(b)'s first paragraph are not required by § 2113(a): (1) specific intent to steal; (2) asportation; and (3) valuation exceeding $1,000. The statute provides:
"§ 2113. Bank robbery and incidental crimes
. . . . .
A "textual comparison" of the elements of these offenses suggests that the Government is correct. First, whereas subsection (b) requires that the defendant act "with intent to steal or purloin," subsection (a) contains no similar requirement. Second, whereas subsection (b) requires that the defendant "tak[e] and carr[y] away" the property, subsection (a) only requires that the defendant "tak[e]" the property. Third, whereas the first paragraph of subsection (b) requires that the property have a "value exceeding $1,000," subsection (a) contains no valuation requirement. These extra clauses in subsection (b) "cannot be regarded as mere surplusage; [they] mea[n] something." Potter v. United States, 155 U.S. 438, 446 (1894).
Carter urges that the foregoing application of Schmuck `s elements test is too rigid and submits that ordinary principles of statutory interpretation are relevant to the Schmuck inquiry. We do not dispute the latter proposition. The
We begin with the arguments pertinent to the general relationship between §§ 2113(a) and (b). Carter first contends that the structure of § 2113 supports the view that subsection (b) is a lesser included offense of subsection (a). He points to subsection (c) of § 2113, which imposes criminal liability on a person who knowingly "receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank . . . in violation of subsection (b). " (Emphasis added.) It would be anomalous, posits Carter, for subsection (c) to apply—as its text plainly provides—only to the fence who receives property from a violator of subsection (b) but not to the fence who receives property from a violator of subsection (a). The anomaly disappears, he concludes, only if subsection (b) is always violated when subsection (a) is violated—i. e., only if subsection (b) is a lesser included offense of subsection (a).
But Carter's anomaly—even if it truly exists—is only an anomaly. Petitioner does not claim, and we tend to doubt, that it rises to the level of absurdity. Cf. Green v. Bock Laundry Machine Co., 490 U.S. 504, 509-511 (1989); id., at 527 (Scalia, J.,concurring in judgment). For example, it may be that violators of subsection (a) generally act alone, while violators of subsection (b) are commonly assisted by fences. In such a state of affairs, a sensible Congress may have thought it necessary to punish only the fences of property taken in violation of subsection (b). Or Congress may have thought that a defendant who violates subsection (a)
Carter's second argument is more substantial. He submits that, insofar as subsections (a) and (b) are similar to the common-law crimes of robbery and larceny, we must assume that subsections (a) and (b) require the same elements as their common-law predecessors, at least absent Congress' affirmative indication (whether in text or legislative history) of an intent to displace the common-law scheme. While we (and the Government) agree that the statutory crimes at issue here bear a close resemblance to the common-law crimes of robbery and larceny, see Brief for United States 29 (citing 4 W. Blackstone, Commentaries *229, *232); accord, post, at 278-279, that observation is beside the point. The canon on imputing common-law meaning applies only when Congress makes use of a statutory term with established meaning at common law, and Carter does not point to any such term in the text of the statute.
This limited scope of the canon on imputing common-law meaning has long been understood. In Morissette v. United States, 342 U.S. 246 (1952), for example, we articulated the canon in this way:
We made this clear in United States v. Wells, 519 U.S. 482 (1997). At issue was whether 18 U. S. C. § 1014—which punishes a person who "knowingly makes any false statement or report . . . for the purpose of influencing in any way the action" of a Federal Deposit Insurance Corporation insured bank "upon any application, advance, . . . commitment, or loan"—requires proof of the materiality of the "false statement." The defendants contended that since materiality was a required element of "false statement"-type offenses at common law, it must also be required by § 1014. Although Justice Stevens in dissent thought the argument to be meritorious, we rejected it:
By contrast, we have not hesitated to turn to the common law for guidance when the relevant statutory text does contain a term with an established meaning at common law. In Neder v. United States, 527 U.S. 1 (1999), for example, we addressed whether materiality is required by federal statutes punishing a "scheme or artifice to defraud." Id., at 20, and 20-21, nn. 3-4 (citing 18 U. S. C. §§ 1341, 1343, 1344). Unlike the statute in Wells, which contained no commonlaw term, these statutes did include a common-law term— "defraud." 527 U. S., at 22. Because common-law fraud required proof of materiality, we applied the canon to hold that these federal statutes implicitly contain a materiality requirement as well. Id., at 23. Similarly, in Evans v. United States, 504 U.S. 255, 261-264 (1992), we observed that "extortion" in 18 U. S. C. § 1951 was a common-law term, and proceeded to interpret this term by reference to its meaning at common law.
Here, it is undisputed that "robbery" and "larceny" are terms with established meanings at common law. But neither
We turn now to Carter's more specific arguments concerning the "extra" elements of § 2113(b). While conceding the absence of three of § 2113(b)'s requirements from the text of § 2113(a)—(1) "intent to steal or purloin"; (2) "takes and carries away, " i. e., asportation; and (3) "value exceeding $1,000" (first paragraph)—Carter claims that the first two should be deemed implicit in § 2113(a), and that the third is not an element at all.
As to "intent to steal or purloin," it will be recalled that the text of subsection (b) requires a specific "intent to steal or purloin," whereas subsection (a) contains no explicit mens rea requirement of any kind. Carter nevertheless argues that such a specific intent requirement must be deemed implicitly present in § 2113(a) by virtue of "our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms
Before explaining why this is so under our cases, an example, United States v. Lewis, 628 F.2d 1276, 1279 (CA10 1980), cert. denied, 450 U.S. 924 (1981), will help to make the distinction between "general" and "specific" intent less esoteric. In Lewis, a person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy "specific intent").
The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct." X-Citement Video, supra, at 72. In Staples v. United States, 511 U.S. 600 (1994), for example, to avoid criminalizing the innocent activity of gun ownership, we interpreted a federal firearms statute to require proof that the defendant knew that the weapon he possessed had the characteristics bringing it within the scope of the statute. Id., at 611-612. See also, e. g., Liparota v. United States, 471 U.S. 419, 426 (1985); Morissette, 342 U. S., at 270-271. By contrast, some situations may call for implying a specific intent requirement into statutory text. Suppose, for example, a statute identical to § 2113(b) but without the words "intent to steal or purloin." Such a statute would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his. Reading the statute to require that the defendant possess general intent with respect to the actus reus—i. e., that he know that he is physically taking the money—would fail to protect the innocent actor. The statute therefore would need to be read to require not only general intent, but also specific intent—i. e., that the defendant take the money with "intent to steal or purloin."
In this case, as in Staples, a general intent requirement suffices to separate wrongful from "otherwise innocent" conduct. Section 2113(a) certainly should not be interpreted to apply to the hypothetical person who engages in forceful taking of money while sleepwalking (innocent, if aberrant activity), but this result is accomplished simply by requiring, as Staples did, general intent—i. e., proof of knowledge with respect to the actus reus of the crime. And once this mental state and actus reus are shown, the concerns underlying the presumption in favor of scienter are fully satisfied,
Independent of his reliance upon the presumption in favor of scienter, Carter argues that the legislative history of § 2113 supports the notion that an "intent to steal" requirement should be read into § 2113(a). Carter points out that, in 1934, Congress enacted what is now § 2113(a), but with the adverb "feloniously" (which all agree is equivalent to "intent to steal") modifying the verb "takes." Act of May 18, 1934, ch. 304, § 2(a), 48 Stat. 783. In 1937, Congress added what is now § 2113(b). Act of Aug. 24, 1937, ch. 747, 50 Stat. 749. Finally, in 1948, Congress made two changes to § 2113, deleting "feloniously" from what is now § 2113(a) and dividing the "robbery" and "larceny" offenses into their own separate subsections. 62 Stat. 796.
Carter concludes that the 1948 deletion of "feloniously" was merely a stylistic change, and that Congress had no intention, in deleting that word, to drop the requirement that the defendant "feloniously" take the property—that is, with intent to steal.
Contrary to the dissent's suggestion, post, at 283-284, this reading is not a fanciful one. The absence of a specific intent requirement from subsection (a), for example, permits the statute to reach cases like Lewis, see supra, at 268, where an ex-convict robs a bank because he wants to be apprehended and returned to prison. (The Government represents that indictments on this same fact pattern (which invariably plead out and hence do not result in reported decisions) are brought "as often as every year," Brief for United States 22, n. 13.) It can hardly be said, therefore, that it would have been absurd to delete "feloniously" in order to reach such defendants. And once we have made that determination, our inquiry into legislative motivation is at an end. Cf. Bock Laundry Machine Co., 490 U. S., at 510-511.
Turning to the second element in dispute, it will be recalled that, whereas subsection (b) requires that the defendant "tak[e] and carr[y] away the property," subsection (a) requires only that the defendant "tak[e]" the property. Carter contends that the "takes" in subsection (a) is equivalent to "takes and carries away" in subsection (b). While Carter seems to acknowledge that the argument is at war with the text of the statute, he urges that text should not be dispositive here because nothing in the evolution of § 2113(a) suggests that Congress sought to discard the asportation requirement from that subsection.
But, again, our inquiry focuses on an analysis of the textual product of Congress' efforts, not on speculation as to the internal thought processes of its Members. Congress is certainly free to outlaw bank theft that does not involve asportation, and it hardly would have been absurd for Congress to do so, since the taking-without-asportation scenario is no imagined hypothetical. See, e. g., State v. Boyle, 970 S.W.2d 835, 836, 838-839 (Mo. Ct. App. 1998) (construing state statutory codification of common-law robbery to apply to defendant who, after taking money by threat of force, dropped the money on the spot). Indeed, a leading treatise applauds the deletion of the asportation requirement from the elements of robbery. See 2 LaFave & Scott, Substantive Criminal Law § 8.11, at 439. No doubt the common law's decision to require asportation also has its virtues. But Congress adopted a different view in § 2113(a), and it is not for us to question that choice.
There remains the requirement in § 2113(b)'s first paragraph that the property taken have a "value exceeding $1,000"—a requirement notably absent from § 2113(a). Carter, shifting gears from his previous arguments, concedes the textual point but claims that the valuation requirement
The dissent agrees that the valuation requirement of subsection (b)'s first paragraph is an element, but nonetheless would hold that subsection (b) is a lesser included offense of subsection (a). Post, at 287-289. The dissent reasons that the "value not exceeding $1,000" component of § 2113(b)'s second paragraph is not an element of the offense described in that paragraph. Hence, the matter of value does not prevent § 2113(b)'s second paragraph from being a lesser included offense of § 2113(a). And if a defendant wishes to receive an instruction on the first paragraph of § 2113(b)—which entails more severe penalties than the second
This novel maneuver creates a problem, however. Since subsection (a) contains no valuation requirement, a defendant indicted for violating that subsection who requests an instruction under subsection (b)'s first paragraph would effectively "waive . . . his [Fifth Amendment] right to notice by indictment of the `value exceeding $1,000' element." Post, at 289. But this same course would not be available to the prosecutor who seeks the insurance policy of a lesser included offense instruction under that same paragraph after determining that his case may have fallen short of proving the elements of subsection (a). For, whatever authority defense counsel may possess to waive a defendant's constitutional rights, see generally New York v. Hill, 528 U.S. 110 (2000), a prosecutor has no such power. Thus, the prosecutor would be disabled from obtaining a lesser included offense instruction under Rule 31(c), a result plainly contrary to Schmuck, in which we explicitly rejected an interpretive approach to the Rule that would have permitted "the defendant, by in effect waiving his right to notice, . . . [to] obtain a lesser [included] offense instruction in circumstances where the constitutional restraint of notice to the defendant would prevent the prosecutor from seeking an identical instruction," 489 U. S., at 718.
* * *
We hold that § 2113(b) is not a lesser included offense of § 2113(a), and therefore that petitioner is not entitled to a jury instruction on § 2113(b). The judgment of the Third Circuit is affirmed.
It is so ordered.
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.
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.
I emphasize as well that the title of § 2113 is "Bank robbery and incidental crimes." This Court has repeatedly recognized that "`the title of a statute and the heading of a section' are `tools available for the resolution of a doubt'
In interpreting § 2113, then, I am guided by the commonlaw understanding of "robbery and incidental crimes." At common law, as the Government concedes, robbery was an aggravated form of larceny. Specifically, the common law defined larceny as "the felonious taking, and carrying away, of the personal goods of another." 4 W. Blackstone, Commentaries on the Laws of England 230 (1769) (Blackstone) (internal quotation marks omitted). Robbery, in turn, was larceny effected by taking property from the person or presence of another by means of force or putting in fear. Brief for United States 29-30 (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.11, pp. 437-438 (1986) (LaFave & Scott)). Larceny was therefore a lesser included offense of robbery at common law. See 4 Blackstone 241 (robbery is "[o]pen and violent larciny from the person" (emphasis deleted)); 2 E. East, Pleas of the Crown § 124, p. 707 (1803) (robbery is a species of "aggravated larceny"); 2 W. Russell & C. Greaves, Crimes and Misdemeanors *101 ("robbery is an aggravated species of larceny").
Closer inspection of the common-law elements of both crimes confirms the relationship. The elements of commonlaw larceny were also elements of robbery. First and most essentially, robbery, like larceny, entailed an intentional taking. See 4 Blackstone 241 (robbery is "the felonious and forcible taking, from the person of another, of goods or money to any value, by putting him in fear"); 2 East, supra, at 707 (robbery is the "felonious taking of money or goods, to any value, from the person of another, or in his presence, against his will, by violence or putting him in fear"). Second, as the above quotations indicate, the taking in a robbery had to be "felonious," a common-law term of art signifying an intent to steal. See 4 Blackstone 232 ("This taking, and carrying away, must also be felonious; that is, done animo
Precedent thus instructs us to presume that Congress has adhered to the altogether clear common-law understanding
Far from signaling an intent to depart from the common law, the codification of § 2113's predecessor statute suggests that Congress intended to adhere to the traditional ranking of larceny as a lesser included offense of robbery. There is no indication at any point during the codification of the two crimes that Congress meant to install new conceptions of larceny and robbery severed from their common-law foundations.
Prior to 1934, federal law did not criminalize bank robbery or larceny; these crimes were punishable only under state law. Congress enacted the precursor to § 2113(a) in response to an outbreak of bank robberies committed by John Dillinger and others who evaded capture by state authorities by moving from State to State. See Jerome v. United States, 318 U.S. 101, 102 (1943) (1934 Act aimed at "interstate operations by gangsters against banks—activities with which local authorities were frequently unable to cope"). In bringing federal law into this area, Congress did not aim to reshape robbery by altering the commonlaw definition of that crime. On the contrary, Congress chose language that practically jumped out of Blackstone's Commentaries:
In its 1948 codification of federal crimes, Congress delineated the bank robbery and larceny provisions of §§ 2113(a) and 2113(b) and placed these provisions under the title "Bank robbery and incidental crimes." Act of June 25, 1948, § 2113,
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.
The Government does not point to any cases involving its terrorist scenario, and I know of none. To illustrate its ex-convict scenario, the Government cites United States v. Lewis, 628 F.2d 1276 (CA10 1980), which appears to be the only reported federal case presenting this staged situation. The facts of Lewis —a case on which the Court relies heavily, see ante, at 268, 271—were strange, to say the least. Hoping to be sent back to prison where he could receive treatment for his alcoholism and have time to pursue his writing hobby, Lewis called a local detective and informed him of his intention to rob a bank. 628 F. 2d, at 1277. He also discussed his felonious little plans with the police chief, undercover police officers, and a psychologist. Ibid. He even allowed his picture to be taken so that it could be posted in local banks for identification. Ibid. Following his muchawaited heist, Lewis was arrested in the bank's outer foyer by officers who had him under surveillance. Id., at 1278.
I am not sure whether a defendant exhibiting this kind of "bizarre behavior," ibid., should in fact be deemed to lack a specific intent to steal. (The Tenth Circuit, I note, determined that specific intent was present in Lewis, for "[t]he jury, charged with the duty to infer from conflicting evidence the defendant's intent, could have concluded that
Indeed, there is no cause to suspect that the 1948 deletion of "feloniously" was intended to effect any substantive change at all. Nothing indicates that Congress removed that word in response to any assertion or perception of prosecutorial need. Nor is there any other reason to believe that it was Congress' design to alter the elements of the offense of robbery. Rather, the legislative history suggests that Congress intended only to make "changes in phraseology." H. R. Rep. No. 304, 80th Cong., 1st Sess., A135 (1947). See Prince v. United States, 352 U.S. 322, 326, n. 5 (1957) ("The legislative history indicates that no substantial change was made in this  revision" of § 2113); Morissette, 342 U. S., at 269, n. 28 ("The 1948 Revision was not intended to create new crimes but to recodify
Our decision in Prince supports this conclusion. The petitioner in that case had entered a bank, displayed a revolver, and robbed the bank. He was convicted of robbery and of entering the bank with the intent to commit a felony, both crimes prohibited by § 2113(a). The trial judge sentenced him, consecutively, to 20 years for the robbery and 15 years for the entering-with-intent crime. 352 U. S., at 324. This Court reversed the sentencing decision. The entering-withintent crime, we held, merges with the robbery crime once the latter crime is consummated. Thus, we explained, the punishment could not exceed 20 years, the sentence authorized for a consummated robbery. Id., at 329. In reaching our decision in Prince, we noted that, when the federal bank robbery proscription was enlarged in 1937 to add the entering-with-intent and larceny provisions, "[i]t was manifestly the purpose of Congress to establish lesser offenses."
United States v. Wells, 519 U.S. 482 (1997), relied on by the Court, ante, at 265, is not in point. In that case, we held that the offense of making a false statement to a federally insured bank, 18 U. S. C. § 1014, did not include a requirement of materiality. We reached that holding only after concluding that the defendants in that case had not "come close to showing that at common law the term `false statement' acquired any implication of materiality that came with it into § 1014." 519 U. S., at 491. Indeed, the defendants made "no claims about the settled meaning of `false statement' at common law." Ibid. Moreover, we held that "Congress did not codify the crime of perjury or comparable common-law crimes in § 1014; . . . it simply consolidated 13 statutory provisions relating to financial institutions" to create a single regulatory offense. Ibid. Three of those 13 provisions, we observed, had contained express materiality requirements and lost them in the course of consolidation. Id., at 492-493. From this fact, we inferred that "Congress deliberately dropped the term `materiality' without intending materiality to be an element of § 1014." Id., at 493. Here, by contrast, it is clear that Congress' aim was to codify the common-law offenses of bank robbery and bank larceny; that intent to steal was an element of common-law robbery brought into § 2113(a) via the word "feloniously"; and that Congress' deletion of that word was not intended to have any substantive effect, much less to dispense with the requirement of intent to steal.
Having accepted the Government's argument concerning intent to steal, the Court goes on to agree with the Government that robbery, unlike larceny, does not require that
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 paragraph
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
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.
Leading commentators agree that larceny is a lesser included offense of robbery. See, e. g., 2 LaFave & Scott § 8.11, at 437 ("Robbery . . . may be thought of as aggravated larceny . . . ."); 3 C. Wright, Federal Practice and Procedure § 515, p. 22 (2d ed. 1982) ("Robbery necessarily includes larceny . . . .").