41 F.

3d 1409

UNITED STATES of America, Plaintiff-Appellee,

v.
John H. BRITTAIN, Defendant-Appellant.
No. 93-1446.

United States Court of Appeals,

Tenth Circuit.
Dec. 6, 1994.

Michael G. Katz, Federal Public Defender, Warren R. Williamson, Asst.

Federal Public Defender, Denver, CO, and Caroline E. Durham for
defendant-appellant.
Henry L. Solano, U.S. Atty., Thomas M. O'Rourke, Asst. U.S. Atty.,
Denver, CO, for plaintiff-appellee.
Before BALDOCK and EBEL, Circuit Judges, and BROWN, District
Judge.*
WESLEY E. BROWN, Senior District Judge.
The issue in this appeal is whether bank larceny, 18 U.S.C. Sec. 2113(b),
is a lesser included offense of bank robbery, 18 U.S.C. Sec. 2113(a).1 The
district court determined that it was not a lesser included offense and
refused the defendant's request for such an instruction. The jury found the
defendant guilty on a charge of bank robbery under Sec. 2113(a). We
conclude that Tenth Circuit precedent considers bank larceny to be a lesser
included offense of bank robbery. We therefore vacate the judgment of the
district court and remand the case for further proceedings consistent with
this opinion.
I.
On September 28, 1992, the defendant John H. Brittain walked into the
Colorado National Bank in Longmont, Colorado, and entered a line of
customers waiting for tellers. Jamie Marie Helgeland was working as a
teller in the bank. When Helgeland had no customers in her line, she
motioned to Brittain to move to her station. The defendant walked up to

Helgeland and presented a hand-written note which stated:

Don't give any kind of alarm.
Put all of the $100. $50. & $20. in front of you.
Give them to me all at one time.
I have someone watching.
Govt.Exh. 1. Helgeland took $1,170.00 out of the teller drawer and gave it
to the defendant, who walked out of the bank with the money. The
deposits of the bank were insured by the Federal Deposit Insurance
Corporation.
Helgeland acted calmly during this episode but was afraid and concerned
for her safety. When she read the words "I have someone watching" she
felt "that maybe somebody would have come barging in there with a gun
maybe, or I don't know, put myself in danger." Tr. Vol. 3 at 9. Ms.
Helgeland's testimony indicated that the bank's policy in this type of
situation was for the teller to do exactly what the person said to do. Id. at
12. After the defendant walked away from the teller station but before he
left the bank, Helgeland pushed a silent alarm button. She cashed checks
for the next customer in her line but did so hurriedly and with her hands
trembling. She then informed another bank employee what had happened.
The employee took Helgeland to a back room where she was interviewed
about the incident. Helgeland was visibly upset during the interview.
On May 26, 1993, Trooper Robert Gemmel of the Nevada Highway
Patrol found the defendant in the back of a U-Haul truck at a rest stop
along a highway in Nevada. The defendant was apparently attempting to
take his own life. The engine of the truck was running and a hose ran from
the exhaust pipe to the enclosed back portion of the truck where the
defendant was found by the trooper. Trooper Gemmel disconnected the
hose and had the defendant come out of the back compartment of the
truck. The defendant subsequently stated to Gemmel that he was wanted
for robbery in Longmont, Colorado. The defendant explained that he had
entered a bank in Longmont, passed a note to a teller and then walked out
with the money.
II.
Section 2113 of title 18 of the United States Code is entitled "Bank
robbery and incidental crimes." The defendant was indicted on one count

of bank robbery under Sec. 2113(a), which provides in part:

Whoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another, ... any property or money or
any other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank ...
Shall be fined not more than $5,000 or imprisoned not more than twenty
years, or both.
At his trial the defendant requested that the jury be given a lesser included
offense instruction based on subsection (b) of Sec. 2113. That subsection,
commonly referred to as the "bank larceny" provision, states in part:
Whoever takes and carries away, with intent to steal or purloin, any
property or money or other thing of value exceeding $100 belonging to, or
in the care, custody, control, management, or possession of any bank, ...
shall be fined not more than $5,000 or imprisoned not more than ten
years, or both; ...
18 U.S.C. Sec. 2113(b). Counsel for the defense argued that there was
some ambiguity in the evidence concerning whether the taking was "by
intimidation." He asked that the jury be allowed to consider whether the
defendant had committed bank larceny, which does not require proof of
intimidation.
Rule 31(c) of the Federal Rules of Criminal Procedure states that "[t]he
defendant may be found guilty of an offense necessarily included in the
offense charged...." The Supreme Court interpreted this rule in Schmuck
v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989),
and adopted the so-called "elements test" for identifying lesser included
offenses. Under this test, one offense is not "necessarily included" in
another "unless the elements of the lesser offense are a subset of the
elements of the offense charged." Id., 489 U.S. 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.
The elements test does not depend upon inferences arising from the
evidence nor does it inquire into similarities in the interests furthered by
the statutes. Id. at 720, 109 S.Ct. at 1452-53. Instead, it involves a textual
comparison of the criminal statutes. Id. By contrast the "inherent
relationship test," an approach previously used by some circuits and which
was rejected by the Supreme Court in Schmuck, inquired whether the
offenses related to protection of the same interests and whether they were

so related "that in the general nature of these crimes, though not

necessarily invariably, proof of the lesser offense is necessarily presented
as part of the showing of the commission of the greater offense." Id. The
elements test, the Supreme Court observed, is consistent with the history
and wording of Rule 31(c) as well as the constitutional requirement that
the defendant be given notice of the charge against him, and it has the
added benefit of being certain and predictable in its application. Id. at 71621, 109 S.Ct. at 1450-53.
After examining the statutes at issue here, the district court applied the
elements test and determined that bank larceny is not a lesser included
offense because it contains an element that bank robbery does not: the
intent to steal or purloin.2 The court recognized that Tenth Circuit cases
had previously characterized bank larceny as a lesser included offense, but
observed that it was unclear if those decisions had applied the elements
test announced in Schmuck. Furthermore, the court noted, none of the
Tenth Circuit cases had addressed the specific question of whether intent
to steal was an element of bank robbery. The district court relied upon
United States v. Gregory, 891 F.2d 732 (9th Cir.1989), in which the Ninth
Circuit distinguished its prior rulings and concluded that the elements test
required it to find that bank larceny was not a lesser included offense of
bank robbery.
III.
In United States v. Slater, 692 F.2d 107 (10th Cir.1982), we reversed a
defendant's conviction for bank robbery under 18 U.S.C. Sec. 2113(a)
because of the trial court's failure to give a lesser included instruction on
bank larceny, 18 U.S.C. Sec. 2113(b). In support of this holding we stated:
"The crime of bank robbery contains all the elements of bank larceny." Id.
at 109 (citing United States v. Carter, 540 F.2d 753 (4th Cir.1976) and
Larson v. United States, 296 F.2d 80 (10th Cir.1961)). We subsequently
cited Slater in a post-Schmuck decision, United States v. Smith, 10 F.3d
724 (10th Cir.1993), and in the course of rejecting a defendant's claim for
ineffective assistance of counsel we reiterated Slater 's conclusion that
bank larceny is a lesser included offense of bank robbery.3 Cf. United
States v. Combs, 634 F.2d 1295, 1297 (10th Cir.1980), cert. denied, 451
U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981) ("18 U.S.C. Sec.
2113(a) and (b) are lesser and greater forms of the same offense and hence
may not be the basis of cumulative punishment.")
We note at the outset that Slater 's statement regarding the elements of
bank larceny and bank robbery raises some troubling questions. Several

issues relevant to the lesser included inquiry were apparently not raised
(and were therefore not addressed) in Slater. Three concerns in particular
seem relevant in light of Slater's cryptic reference to the elements of these
offenses. We outline these concerns below.
A. Plain Language of the Statute. First and foremost, the language of Sec.
2113 calls into question Slater's conclusion that bank robbery contains all
the elements of bank larceny. Section 2113(b), the bank larceny provision,
clearly requires a taking "with intent to steal or purloin." One must infer
from Slater's holding that intent to steal or purloin is also an element of
bank robbery. But the bank robbery provision, Sec. 2113(a), contains no
such language. A straightforward comparison of the statutory elements of
the offenses, then, would seem to require a finding that bank larceny is not
a lesser included offense of bank robbery.4
B. History of Sec. 2113. Although Sec. 2113's somewhat tortured past
could provide a basis for developing arguments either way, there is
nothing in the legislative history to specifically indicate that Congress
intended Sec. 2113(a) to contain an "intent to steal" element identical to
Sec. 2113(b).
The statute originated with the Bank Robbery Act of 1934, 12 U.S.C. Sec.
588a. It was prompted by concern over the inability of local authorities to
cope with the interstate operations of gangsters. See Jerome v. United
States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943). When the bill
was initially proposed it contained both a robbery and a larceny provision,
but the larceny provision was taken out by the House Judiciary
Committee. Id. The robbery provision was enacted in 1934. A larceny
provision was added to the statute in 1937, together with a provision
dealing with attempts to commit such crimes. The larceny section was
apparently added in response to the case of a man who walked into a bank
and, in the momentary absence of a bank employee, helped himself to
$11,000. See Bell v. United States, 462 U.S. 356, 365 n. 4, 103 S.Ct.
2398, 2404 n. 4, 76 L.Ed.2d 638 (1983) (Stevens, J., dissenting).

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.")
2

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....").
5

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.")

10

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

IV.
11

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).

12

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.
V.
13

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.

14

EBEL, Circuit Judge, concurring.

15

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.

16

BALDOCK, Circuit Judge, dissenting.

17

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.

18

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.

19

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.

20

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.

Honorable Wesley E. Brown, United States Senior District Judge for the
District of Kansas, sitting by designation

The parties have waived oral argument. After examining the briefs and
appellate record, this panel has determined unanimously that oral argument
would not materially assist the determination of this appeal. See Fed.R.App.P.
34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted on the briefs

Aside from the elements test, a separate prerequisite must also be satisfied
before a lesser included instruction can be said to be required under Rule 31(c):
the evidence at trial must be such that "a jury could rationally find the
defendant guilty of the lesser offense, yet acquit him of the greater." See
Schmuck, 489 U.S. at 716 n. 8, 109 S.Ct. at 1451 n. 8
The district court below found that the evidence concerning intimidation was
such that a rational jury could find the defendant guilty of bank larceny but not
guilty of bank robbery. The government conceded that this ruling was correct,
Tr.Supp. I at 23, and it has not been raised as an issue on appeal. Cf. United
States v. Lajoie, 942 F.2d 699, 701 (10th Cir.), cert. denied, --- U.S. ----, 112
S.Ct. 328, 116 L.Ed.2d 268 (1991) (Undisputed evidence that the taking
occurred through intimidation precluded the giving of a lesser included
instruction for bank larceny.)

The defendant in Smith was convicted of bank robbery. His attorney stipulated
during the trial that the defendant had robbed the bank but claimed that the
defendant acted under duress because of threats he had received. On appeal, the
defendant argued that his lawyer had been ineffective, in part because of his
failure to request a lesser included instruction on bank larceny. The lawyer filed
an affidavit stating that he had overlooked the availability of this possible
defense. Despite the attorney's admission we found that his performance had
not fallen below an objective standard of reasonableness. We reasoned that
even if counsel "had in fact been aware of the availability of the lesser included
offense," it would have been reasonable for him to avoid it and to focus instead
on the defendant's duress defense, especially in light of strong evidence at trial
that the taking of money had been achieved through intimidation. In the course
of reaching this conclusion we noted: "Bank robbery includes all the elements
of bank larceny, see 18 U.S.C. Sec. 2113; United States v. Slater, 692 F.2d 107,
109 (10th Cir.1982), with the difference being that bank larceny does not
require the use of force, violence, or intimidation." Smith, 10 F.3d at 729

Although neither party has raised the issue, we also note that Sec. 2113(b)
requires a showing of a taking and carrying away of money or property.
("Whoever takes and carries away...."). Section 2113(a) does not contain the
"carries away" language

Section 588a provided in pertinent part:

Whoever, by force and violence, or by putting in fear, feloniously takes, or

feloniously attempts to take, from the person or presence of another any
property or money or any other thing of value belonging to, or in the care,
custody, control, management, or possession of, any bank shall be fined not
more than $5,000 or imprisoned not more than twenty years, or both.
See Jerome, 318 U.S. at 103 n. 3, 63 S.Ct. at 485 n. 3.
6

We note that Slater appears to be consistent with United States v. Combs, 634
F.2d 1295 (10th Cir.1980). In Combs a majority of the panel concluded that
under the facts of the case bank robbery and bank larceny were the "same
offense" for purposes of double jeopardy. The majority seemed to reject the
district court's ruling in that case that bank larceny contained a specific intent
element not present in bank robbery. Id. at 1294-95

See Modern Fed. Jury Instructions p 53.01 at 53-22 (Matthew Bender 1994):
"In both United States v. Slater, and United States v. Carter, it was held that
section 2113(b) is a lesser included offense of section 2113(a). These decisions
are supported by the Supreme Court's decision in United States v. Gaddis, [424
U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976) ], which indicates that
subsections (a), (b), and (d) of section 2113 are all gradations of bank robbery
It should be noted, however, that in circuits in which specific intent is not an
element of section 2113(a), section 2113(b) is not technically a lesser included
offense of section 2113(a). This is because each offense would have an element
that the other lacked: section 2113(a) would require a finding that the defendant
accomplished the taking either by using force or violence or by acting in an
intimidating manner while section 2113(b) would require a finding that the
defendant acted with an intent to steal while section 2113(a) would not.
Nevertheless, the Tenth Circuit, which decided Slater, is a circuit which has
held that specific intent is not an element of section 2113(a), [citing Lewis ] so
it appears that a section 2113(b) lesser included offense instruction, if
requested, is available in such circuits."