41 F. 3d 1409 - United States v. H Brittain

In light of the fact that robbery and larceny were offenses at common law, it might be argued that Congress intended to incorporate into Sec. 2113 the intent element required for the offenses at common law. According to some commentators, common law robbery and larceny each required a showing of animus furandi, or "the intent to steal." See LaFave & Scott, Criminal Law Sec. 8.11 (2nd Ed.1986). Even if animus furandi was considered an element of robbery at common law, however, there is no specific indication that Congress intended to incorporate it into Sec. 2113(a). Cf. Bell, supra, (Section 2113(b) is not limited to the common law definition of larceny). Moreover, it is difficult to see how such an element could be considered the same as the intent element contained in Sec. 2113(b) in light of the Supreme Court's statement in Bell v. United States, supra, that the phrase "with intent to steal or purloin" in subsection (b) "has no established meaning at common law." Id. at 360, 103 S.Ct. at 2401. Cf. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (At common law larceny was "the felonious taking and carrying away of the personal goods of another.")

The argument for an implied "intent to steal" element in the bank robbery provision would have been stronger under the language of the statute as originally enacted. Section 588a applied to one who "feloniously" took property or money by force and violence or by putting in fear.5 The word "feloniously" could have been interpreted as requiring an intent to steal; courts have often construed the phrase "felonious taking" in robbery statutes in such a fashion. See e.g., State v. Olin, 111 Idaho 516, 725 P.2d 801, 802-06 (App.1986) (citing cases), modified by 112 Idaho 673, 735 P.2d 984 (1987). See also Black's Law Dictionary at 744 (4th Ed.) ("Felonious," in the context of larceny, means "done 'animo furandi,' that is, with intent to steal."). We note that Sec. 588a as originally enacted was similar to many robbery statutes that have been found to require an element of intent to steal. See LaFave & Scott, Criminal Law Sec. 8.11 at 776 n. 6: "American statutes do not generally spell out the eight elements; they define the crime of robbery in different ways, often in the somewhat undetailed language used by Blackstone, Hawkins, Hale and East in defining common-law robbery, e.g., 'the felonious and violent taking of goods or money from the person of another by force or intimidation.' "

When the criminal code was revised in 1948, however, the word "feloniously" was deleted from the first paragraph of Sec. 2113(a). The Revisor's Notes to Sec. 2113 indicate that this was considered only a "change in phraseology." See also Prince v. United States, 352 U.S. 322, 326 n. 5, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) (The legislative history indicates that no substantial change was made in this revision.) Although it is not entirely clear, it seems likely that the deletion of "feloniously" was simply a result of Congress' effort to remove references to felonies and misdemeanors from the code; such terms were considered redundant in light of a specific definition of those terms provided in 18 U.S.C. Sec. 1. See United States v. Richardson, 687 F.2d 952, 957 (7th Cir.1982).

Regardless of the subtle inferences one might draw from the history of Sec. 2113, the fact is that the plain language of the statute provides no basis for implying that intent to steal is an element of bank robbery under Sec. 2113(a). Clearly, when Congress intended to require the presence of a specific mental state for the commission of an offense under Sec. 2113, it knew how to do so in so many words. See Sec. 2113(a) (Prohibiting entry into a bank "with intent to commit ... any felony ... or any larceny...."); Sec. 2113(b) (Prohibiting the taking and carrying away "with intent to steal or purloin...."); Sec. 2113(c) (Prohibiting receiving stolen property "knowing the same to be property which has been stolen....").

C. United States v. Lewis. In addition to the language and history of the statute, we are also concerned whether Slater is compatible with our holding in United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981).6 The defendant in Lewis was convicted of bank robbery under 18 U.S.C. Sec. 2113(a). He maintained at trial and on appeal that he had committed the robbery for the purpose of getting sent back to prison. Id. at 1277. He argued that he had no intent to steal money from the bank and that, at most, he intended only to deprive the bank of funds for a very short time until he turned himself in. There was some evidence to support his contention; he had told a police officer of his plans to rob the bank two days before the robbery and he was captured after the robbery in the foyer of the bank. Id. at 1277-78. On appeal, we first concluded that the evidence was sufficient to support a finding that the defendant actually intended to escape and spend the money. We went on to add:

Assuming, however, that Lewis did intend to turn himself in after the robbery, did he still have the intent required by the statute? The second paragraph of section 2113(a) requires specific intent to commit a felony in a bank, here bank robbery. Felonious intent is not specifically incorporated into the offense of bank robbery under the first paragraph of section 2113(a), but we agree with United States v. De Leo, 422 F.2d 487, 491 (1st Cir.), [cite omitted] that the offense is so "unambiguously dangerous to others that the requisite mental intent is necessarily implicit in that description."

We believe that an individual who enters into a bank with the intention of taking money by intimidating employees of the bank, is answerable for the consequences of his actions, if he is mentally competent, even assuming his motive for committing the act was to be caught and returned to prison. The fact that the bank was to be deprived of the funds only temporarily does not change the result.

Lewis, 628 F.2d at 1279.

The case upon which Lewis relied, United States v. DeLeo, 422 F.2d 487 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970), seems to state that intent to steal is not a necessary element of bank robbery. The DeLeo case dealt with a challenge to the sufficiency of an indictment for bank robbery. The indictment failed to allege that the defendant acted with felonious intent. In addressing this claim the DeLeo court found the absence of an express intent requirement in Sec. 2113(a) to be significant, noting that "intent to steal or purloin" was expressly required in subsection (b). The reason for the difference, the court explained, was that a "taking" could be an innocent act and felonious intent was therefore required; a taking through force or intimidation, however, was "so unambiguously dangerous that the requisite mental element is necessarily implicit in the description." Id. at 491. The difference in the statute, DeLeo suggested, was the product of "careful draftsmanship" on the part of Congress. Id. at 490. Thus, the lack of an allegation of felonious intent was irrelevant as far as the offense of bank robbery was concerned: "It is therefore immaterial for sections 2113(a) and (d) whether the subjective intent of a bank robber is to steal that to which he has no claim or to recover his own deposit; the crime is his resort to force and violence, or intimidation, in the presence of another person to accomplish his purposes." Id. at 491. Cf. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("To steal means to take away from one in lawful possession without right with the intention to keep wrongfully.")

At the very least, this seeming contradiction between Slater and Lewis is likely to cause confusion concerning the elements of bank robbery under Sec. 2113(a) and how larceny can be considered a lesser included offense of that crime.7

Notwithstanding the concerns we have about United States v. Slater, 692 F.2d 107 (10th Cir.1982), we conclude that we are bound by Slater's holding that bank larceny is a lesser included offense of bank robbery. See United States v. Spedalieri, 910 F.2d 707, 709 n. 3 (10th Cir.1990) (A three-judge panel is bound to adhere to and cannot overrule circuit precedent.) The appellee argues that Slater is not controlling because it was based on the "inherent relationship" test rejected by the Supreme Court in Schmuck. Appellee points out that prior to Schmuck this court frequently applied the "inherent relationship" test for lesser included offenses. See United States v. Pino, 606 F.2d 908, 916 (10th Cir.1979). See also United States v. Horn, 946 F.2d 738, 744 (10th Cir.1991) (listing cases).

We recognize that in some circumstances an intervening Supreme Court decision may allow a panel of this court to determine that a previous circuit court decision is no longer binding. See United States v. Killion, 7 F.3d 927, 930 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1106, 127 L.Ed.2d 418 (1994) (panels are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.) Given Slater's direct language indicating that its conclusion was based on the elements of the offenses, however, we are unable to find that the decision is invalid by reason of Schmuck 's subsequent adoption of the elements test. Although appellee argues that Slater employed an improper test, we see nothing in the court's opinion to indicate that was the case. The Slater opinion referred only to the elements of the offenses; the court said nothing about the interests furthered by the statutes or the fact that proof of larceny is generally presented as part of a showing of bank robbery. It thus appears that the court purported to apply the proper test. This view is further supported by the fact that Slater cited Larson v. United States, 296 F.2d 80 (10th Cir.1961) to support its statement concerning the elements of the offenses. Although Larson was not a bank robbery case, the decision is significant because it clearly applied the "impossibility test" for identifying lesser included offenses. Id. at 81 ("[T]he lesser offense must be such that it is impossible to commit the greater without first having committed the lesser.") That test is consistent with the elements test adopted by the Supreme Court. See Schmuck, 489 U.S. at 719, 109 S.Ct. at 1452. In sum, we find that Slater is controlling and, in light of that decision, we must conclude that the district court committed reversible error by refusing to instruct on the lesser included offense.

Tenth Circuit precedent holds that bank larceny is a lesser included offense of bank robbery. We therefore VACATE the judgment and REMAND the case for further proceedings consistent with this opinion.

EBEL, Circuit Judge, concurring.

I am pleased to concur in the result reached in this case. The opinion for the court quite correctly concluded that the Tenth Circuit precedent requires us to conclude that bank larceny is a lesser included offense of bank robbery. However, I write separately to concur in the result rather than in the opinion because I do not agree with the criticism leveled against United States v. Slater, 692 F.2d 107 (10th Cir.1982). In my opinion, bank larceny, 18 U.S.C. Sec. 2113(b) is clearly a lesser included offense of bank robbery, 18 U.S.C. Sec. 2113(a) and United States v. Slater was correct in that regard.

BALDOCK, Circuit Judge, dissenting.

I respectfully dissent. This court concludes bank larceny is a lesser included offense of bank robbery relying on United States v. Slater, 692 F.2d 107, 109 (10th Cir.1982). In so holding, the court concludes it must follow Slater despite the Supreme Court's intervening decision in Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Because I conclude Slater does not conduct the proper analysis required by Schmuck, I dissent.

In Slater, we summarily concluded bank larceny is a lesser included offense of bank robbery noting that "the crime of bank robbery contains all the elements of bank larceny." Slater, 692 F.2d at 109. Subsequent to our decision in Slater, the Supreme Court decided Schmuck and adopted the "elements test" for determining whether an offense is a lesser included offense. Under this test, a court must engage in a textual comparison of the criminal statutes at issue, Schmuck, 489 U.S. at 720, 109 S.Ct. at 1452-53, and determine whether "the elements of the lesser offense are a subset of the elements of the offense charged." Id. at 716, 109 S.Ct. at 1450. "Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c)." Id.

In the instant case, this court concludes Slater "purported to apply" the elements test as dictated by Schmuck because it "referred only to the elements of the offenses." I disagree. "[T]he elements approach involves a textual comparison of criminal statutes," id. at 720, 109 S.Ct. at 1453, and there is no indication the Slater court engaged in a textual comparison of the elements of the offenses. Rather, the court summarily concluded that "the crime of bank robbery contains all the elements of bank larceny." Slater, 692 F.2d at 109. This analysis is insufficient under Schmuck.

I believe the analysis required by Schmuck is properly set forth in United States v. Gregory, 891 F.2d 732 (9th Cir.1989). In Gregory, the Ninth Circuit applied Schmuck and engaged in a textual comparison of the federal bank robbery and bank larceny statutes and concluded bank larceny was not a lesser included offense of bank robbery. Id. at 734. I would follow the analysis set forth in Gregory and affirm the district court.