Bell v. United States - Oral Argument

ORAL ARGUMENT OF ROY W. ALLMAN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: The next case is Bell v. United States.

Mr. Allman, you may proceed whenever you're ready.

Mr. Allman: Mr. Chief Justice, and may it please the Court.

It is my position here in the interpretation of the federal bank robbery statute, section 2113(b) does not cover the crime of false pretenses.

Here, as the facts indicated in the brief, a client managed to take some money from Dade Federal Savings and Loan by and with their consent with an artificial trick.

That is, he altered a check which was sort of obvious had they looked at it and took $10,000 from this account which he created in his own name.

The check was drawn to him.

It was done totally by mistake on behalf of the bank.

Basically what we have--

Unidentified Justice: Mr. Allman, Daytona wasn't the drawee of the check either, was it?

Mr. Allman: --No, Dade Federal Savings and Loan.

It was a check which he somehow came into possession of, altered the deposit number on the back, i.e., put his account number after scratching out somebody else's and put it in an account that he created at Dade Federal Savings and Loan.

Unidentified Justice: The check wasn't drawn on Dade Federal Savings and Loan?

Mr. Allman: No, it was not.

It was drawn through somebody else for deposit to some account of the person whose check it was.

Basically, he got the bank involved through the bank's mistake.

It is my position in reading the statute and it has created an ambiguity.

It has got the Courts of Appeal... I think it is five to four now... construing this statute both narrowly and broadly.

The bank robbery statute which in 1934 was specifically limited to bank robbery amended in 1937 to include the terms 1937 interpreted and argued by the government that, in fact, this covered only common law larceny.

So the position now... The former Fifth Circuit now the Eleventh first went along with my arguments in my brief then en banc reversed itself and took the broad position that 2113(b) covered the crime of false pretense.

The reason all this has come about is the way this Congress drew the statute.

The statute was drawn as follows: It indicated that you take and carry away, steal, or purloin, words that are not necessarily defined specifically at common law but are in fact defined now generically.

But in 1934, 1937 were contemplated in the common law sense.

What has happened is this.

In 1934 a broad bank robbery statute in dual form was submitted to the House Judiciary Committee.

The Committee considered this bill and specifically, specifically rejected the aspects of the bill that covered crimes of false pretense, embezzlement and other crimes by trick or consensual takings and restricted it to the forceful robbery concept.

Thus, the title of the Act, the text of the bill and the thrust of the situation in 1934 with the gangster-style bank robberies going on.

Subsequently, apparently in briefly reading the Act the prosecutors have brought prosecutions of people who take money from banks in various types of ways, false checks, forgeries, false pretenses, trick, deceipt, fraud, et cetera.

Four districts have gone along with this.

Four districts have not.

However, the Supreme Court itself in Jerome in 1943 took the position and the government took the position that the Bank Robbery Act, 2213(b) was a common law situation defining the crimes it intended to proscribe as robbery, burglary, and larceny even though the Act eventually uses the terms

"steal, purloin, take and carry away. "

which are not specific to those crimes.

In Turley, the Supreme Court gave us some indications how we should interpret these nonspecific common law terms.

What they have said is this.

You look to the legislative history of the Act.

In this case specifically in Le Master the Ninth Circuit looked at the legislative history in great detail and quoted directly from it saying they could not do better than the analysis which they put forth of the legislative history which showed specifically the Act was originally intended to be broad.

It was tightened and limited to robbery in 1934 and then extended to burglary and common law larceny only in 1937.

For this reason the factual situation that Mr. Bell put himself in unwittingly exempted him from prosecution under 2113(b).

In the dissent in the Eleventh Circuit the judge said it is not a question that Mr. Bell has committed some kind of a crime.

However, the crime he committed is not contemplated in 2113(b) because the legislative history combined with the title to the Act combined with the fact that the Act contemplated a, shall we say, active or violent taking away from, robbery, burglary, some kind of active, moving type of crime as opposed to the act of crime of false pretenses.

That is something stealthily done.

It is our position if you follow Turley and the appellate courts that look at Turley carefully and analyze the guidelines in Turley and apply them to the act in this case including the context of the Act, that is robbery, violent acts, taking away, carrying away, that type of thing with the fact that they were specifically in the bill in the House investigation of what they should do about the robbery situations occurring in the '30s took and eliminated the crime of false pretenses from the purview of this Act.

It is my conclusion and I think the only conclusion that is reasonable if you take the Act and interpret the ambiguities in it in accordance with what has happened, legislative--

Unidentified Justice: You agree you must resort to legislative history to win your case?

Mr. Allman: --Yes, I do, Judge, and I think in the Ninth Circuit Le Master analyzed the legislative histories of 2113(b) even though Turley was a--

Unidentified Justice: What is the ambiguity in the statute?

Do you think it is what meaning you give to steal--

Mr. Allman: --Steal and purloin, yes, sir.

Unidentified Justice: --Because there was a carrying away of money with some kind of an intent to... At least the person knew he was not entitled to the money.

Mr. Allman: There is no question about that, Judge.

He committed a crime probably a state crime involving the generic term.

He stole.

He took somebody else's property.

Unidentified Justice: But Jerome at least used words that had some common law meaning like larceny--

Mr. Allman: Larceny--

Unidentified Justice: --and things like that, but steal or purloin does not have that kind of meaning.

Mr. Allman: --It is a generic term.

That is correct, and that creates the ambiguity in this sense.

If you look at the history of the law, if they intended to cover that type of crime they would not have eliminated specifically the crime of false pretenses as they did in the legislative debates that created the robbery statute.

They wanted to leave the states with that type of crime specifically focusing the federal law on the crime involving robbery, active carrying away, the violent gangster-type crime that initiated this situation.

That is my analysis of that ambiguity situation, Judge.

In Turley where they were interpreting the dire act of the interstate transportation of stolen motor vehicles that type of thing, stolen was construed consistently with the legislative history to be a broad thing where the federal government had an interest in controlling interstate transportation of stolen vehicles.

In this case it is the exact opposite.

The Congress specifically eliminated the crime of false pretenses in its debate before creating the statute.

That is analyzed very well, I think, in Le Master, the Ninth Circuit decision which is inconsistent with the other four decisions in applying Turley to the word "stolen" in the context of the statute along with the legislative history.

The only conclusion I think you can come to reasonably if you look at Le Master and go along with Turley is that 2113(b) was a restrictive statute and the government used to argue in 1937 that in fact it was a restrictive statute.

Unidentified Justice: Are there any other statutes that would make it a crime to get money from a bank other than by this violent kind of crime?

Mr. Allman: Yes, there are, Judge.

I think every state in the Union has a generic term which they--

Unidentified Justice: I mean any other federal law, any federal law.

Mr. Allman: --Yes, as a matter of fact, a recent case, Williams.

The Williams case construing, I think it was 1025, indicates that, and this Court held recently, I think it was 1982 that unless the Congress specifically says in so many words that this is the proscribed act, we will not expand the congressional intent to cover a generic-type situation.

In analyzing the legislative history in Williams, this is exactly what they did.

The government was seeking to place a broad concept on the word's use in the statute where Congress in its legislative history did not intend to say--

Unidentified Justice: I will put it another way.

Does this Act go as far as any Act towards covering false pretenses kinds of crime, or are there some other statutes that might reach false pretenses?

Mr. Allman: --There are other statutes both state and federal.

I believe--

Unidentified Justice: I mean federal.

Mr. Allman: --Okay.

Unidentified Justice: Or does this come as close as any?

Mr. Allman: I believe this comes about as close as any.

There are other statutes that cover, for instance, the card sharking statute which specifically contemplated false pretenses by specific language which I cite in my brief.

I can't recall the case name at this time.

However, in that case the Congress specifically said card sharking and false pretenses is a federal crime on the high seas... It was gambling off the shore of New Jersey or something like that... specifically enumerated by Congress.

This is the reverse.

In this case Congress specifically contemplated a broad bank robbery statute in the House bill and rejected it.

Unidentified Justice: Well, do some of the cases on either side of this issue... Do some of them relate to say giving a bank false information in an application for a loan and getting money from--

Mr. Allman: That is Williams.

That was decided in 1982.

That is the one--

Unidentified Justice: --Well, couldn't this defendant perhaps have been charged under that section 1014?

Mr. Allman: --I don't believe so, Your Honor.

Reading that as a false statement report to get money to lend.

I guess that is probably inducing a bank to lend you money by false statement or some other misrepresentation.

That is the way I read Section 18 U.S.C. 1014.

Unidentified Justice: Well, he certainly got money by means of false statements here.

Mr. Allman: Well, in reality he took advantage of the bank's mistake.

He basically forged the check, eliminated the back deposit number, put his number and name on it and deposited it.

The bank didn't look at the check and paid him the money.

The false statement I guess... He induced the bank by trick or fraud to give him somebody else's money is what he did.

There is no question about it.

He committed a crime.

The only problem was the crime was not 2113(b).

Unidentified Justice: Have the liabilities been settled as between the Dade Federal Savings and whatever bank the check was drawn upon in this case?

Mr. Allman: I am not certain about that, but I am certain that Dade Federal guaranteed his endorsement and, therefore, they ultimately would have paid for their mistake, I'm sure.

It is an interesting footnote that the money this man got by this means was taken from him in a burglary apparently.

That is immaterial, I guess.

[Laughter]

Unidentified Justice: In 1014 Congress has protected the bank against false statements in loan applications?

Mr. Allman: Yes, sir.

Unidentified Justice: So it really has not left to the states in all circumstances the false pretenses crimes, all of them?

Mr. Allman: I would agree with that 100 percent, yes, sir.

Unidentified Justice: Well, here is just another arguably did not leave the false pretenses kind of crime involved in this case.

Mr. Allman: I would have no problem with that in resolving the ambiguity in saying stolen or purloined if the legislative history had not specifically eliminated the crime of false pretenses.

In Le Master, in Jerome if you look at the Le Master case, the House Judiciary Committee had a very broad bill.

They accepted one provision and eliminated two others.

Specifically section 2 said it should be a crime for anybody to trick a bank in any way shape or form, false pretenses or whatever and accomplish the taking of money from said bank.

This was not enacted in the statute.

It was contemplated and eliminated specifically in 2113(b).

That is why I think it is different.

I think it would be a good result had they left it in, but they did not.

That is my problem with 2113(b) in this prosecution.

Unidentified Justice: What would he have been charged with under state law?

Do you suppose forgery?

Mr. Allman: Larceny.

Straight larceny.

Unidentified Justice: I know but how about--

Mr. Allman: Forgery.

Unidentified Justice: --He forged somebody's name, did he not?

Mr. Allman: In reality forgery is given very broad definition in Florida.

If you do something that alters something to your benefit--

Unidentified Justice: Well, he purported to be the payee, did he not?

Mr. Allman: --Yes.

He removed for deposit only to some account number.

He scratched that out, for deposit only, me, my account number.

That is exactly what he did.

The bank chose to ignore the fact that he scratched out the prior limited endorsement, and they guaranteed his endorsement.

That was the bank's mistake.

But that is not a crime under 2113(b) and that is the whole problem here.

It should be, but it is not.

The Congress chose to eliminate that specifically in the legislative history, and that is the problem.

Unidentified Justice: Is there not an aspect of the legislative history that you have not addressed at least yet?

In the '34 bill they broke it into two parts, consensual takings and nonconsensual takings and it was with the consent of the bank that the artifice and trick line which appeared.

But in the '37 bill there is no division between consensual and nonconsensual from which one might infer, I am not sure this is right, that the statute was intended to cover both categories and once it covers both categories you do not need the artifice language because takes and carries away is enough to take care of it.

Anyway, you see what I mean.

Mr. Allman: You could argue that, Judge, but when Congress has done something specifically and not later taken corrective action as they have done in other cases--

Unidentified Justice: They did take out the words

"without the consent of the bank. "

which was also in the '34 bill.

Mr. Allman: --The bill which was not enacted into law--

Unidentified Justice: Correct.

That bill said without the consent of the bank was one of the two alternatives, but that language is not in the '37 Act.

Mr. Allman: --That is correct.

If you look at the '37 Act, the Attorney General said, look, we have got a robbery statute but if there is nobody around and the guy comes in and takes the money off the counter and walks out, we do not have a robbery.

We cannot prosecute him under our Bank Robbery Act.

Therefore, we should change the Act as follows: make it burglary, you do not have to put anybody into fear to take the money, and larceny, common law larceny.

At that time the government argued, yes, the definition is common law larceny--

Unidentified Justice: If they wanted just to cover that situation, should they not have said takes and carries away without the consent of the bank because in that situation there would have been no consent--

Mr. Allman: --That is correct.

Unidentified Justice: --the one that they are talking about specifically.

Somebody came in and found the money on the counter.

Mr. Allman: Takes and carries away, steals, or purloins.

That is an inaccurate common law larceny definition basically.

It is a little broader than that.

I agree with you.

Unidentified Justice: You are suggesting the statute should be read as if it included the words

"without the consent of the bank? "

Mr. Allman: If we are going to separate the part... False pretenses gets us to the fact that they tricked him.

The bank gave consent to take it, yes.

With the larceny situation, and I think as the statute reads and as Congress intended it contemplated an active, violent, robbery, burglary concept, coming in and taking something, not coming in talking to the teller, putting a check in, going back, waiting the 20-day period and then withdrawing the money at their leisure taking a chance that the bank would not detect this.

This is not common law larceny.

This is false pretenses.

Le Master specifically addressed this issue and said the statute does not cover it.

Unidentified Justice: Well, Mr. Allman--

Mr. Allman: Yes, sir?

Unidentified Justice: --wasn't common law an element of I think they call it aspertation in larceny.

Was that not just taking and carrying away requiring a removal right them so to speak?

Mr. Allman: This is the way I feel and this is what I think Congress was concerned with.

They were concerned with, I think, the violent aspect, taking and carrying away, the robbery concept.

This is the Federal Bank Robbery Act.

Twenty-one thirteen (b) is, I think, a lessening of the requirement for violence but requiring still the nonconsensual taking away.

Unidentified Justice: Certainly it does not have to be robbery.

It could be burglary.

Mr. Allman: Burglary or larceny, but the quick, violent active type of crime that Congress was addressing in this matter, if you look at legislative history and if you look at the interpretation in Turley, Turley says how are we going to interpret the words "steal and purloin"?

Purloin could mean by stealth, but it is still the same concept.

All the tellers go to the coffee machine.

He comes in sees the money on the table picks it up and walks out.

That is a larceny.

Like you say, there is no consent from the bank.

In this case the bank helped him commit this crime by a mistake.

He tricked the bank as just as though he tricked the people who had the money.

That is why Congress in limiting itself to the violent type of crime specifically said, we do not want to cover the crime of false pretenses by eliminating section 2 in the 1934 bill and again in 1937 not specifically enacting it.

Unidentified Justice: When you say a violent I take it--

Mr. Allman: I mean active.

Unidentified Justice: --burglary could certainly obtain at 3:00 in the morning and no guards around.

There would be no violence but there would be an immediate removal.

Mr. Allman: Nonconsensual, active taking away, yes, sir.

That is my problem with this statute applying to this case.

Unidentified Justice: Why is this less a removal than taking it a 3:00 in the morning when they happen to leave the door open?

Mr. Allman: It is both a removal.

There is no question about it.

It is a crime.

The difference is this--

Unidentified Justice: He carries it away in both cases does he not?

Mr. Allman: --I'm sorry?

Unidentified Justice: He carries it away in both cases?

Mr. Allman: Yes.

He carries it away.

There is no question about it.

The difference is in this case Congress considered the option of covering consensual trickery or crimes by the bank coming in and being suckered into a deal.

They considered that.

They specifically eliminated it in 1934.

If they had intended and if it had been a problem as the burglary and larceny aspects, the original statute was inadequate to cover the immediate taking and nonconsensual carrying away type thing, so in '37 they amended it.

They changed it.

But they did not go back to section 2 which they eliminated in 1934 and say this shall include either by implication and interpretation the trick, false pretense.

False pretense was not larceny ever under definition in common law.

False pretense was a separate crime primarily because they got possession and title.

The larceny thing they got possession with the consent.

In this case the bank intended him to have the money.

They thought it was his money.

They had made a mistake.

He had involved the bank in a crime but not the crime under 2113(b) because there was no nonconsensual taking away.

There was a consensual tricking of the bank not covered by this statute.

The legislative history is specific on that.

They could have put it in.

They did not.

In Williams this Court absent support in legislative history for the design of a statute to apply to the specific conduct, this Court, the Supreme Court holds it is not proscribed.

That is not the conduct approached in this statute.

That was the conclusion in Williams in 18 U.S.C. 1014.

We have an analogous situation.

Just recently the Supreme Court again said consistent with the approach of lenity the construction of a criminal statute shall be specific.

They shall not be presumed to take over the state's role in prosecuting crimes.

The federal bank robbery statute approaches and addresses itself specifically according to legislative history the nonconsensual, violent or active taking away from a bank not false pretense which was contemplated and rejected.

This is my whole problem with 2113(b) in this case.

Unidentified Justice: Am I correct that if you win your man goes free and that the statute is wrong in the state case?

Am I right?

Mr. Allman: No, sir.

The statute is not wrong in the state case--

Unidentified Justice: It has not?

Mr. Allman: --and I think ultimately that is what the courts are doing.

They are making sure that somebody who does something that is wrong is punished.

I think what is happening is they are stretching the statutes to far when the congressional intent was specific not to stretch it to this crime.

I think what really happened and basically what we are talking about is the prosecutor charged him with the wrong statute.

He could have turned it over the the state.

The man would have been punished.

He made a mistake.

In the dissent they admit he committed a crime.

He did something wrong.

There is no question about that.

The problem is is it going to be punished or are we going to let him go because he was charged with the wrong statute.

Unfortunately, under the law a few guilty men must escape so that the law maintains its integrity.

I have reserved some time for rebuttal if I might.

Chief Justice Burger: We will resume at 1:00.

Mr. Giuliani.

ORAL ARGUMENT OF RUDOLPH W. GIULIANI, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Giuliani: Mr. Chief Justice, and may it please the Court.

The Petitioner in this case obtained possession of a $10,000 check that did not belong to him to be deposited into a savings account at the Dade County Savings and Loan Association.

Petitioner opened an account at the Dade County Bank using a false address, birthdate and social security number.

He then deposited the stolen check into this new account at another branch of the Dade Bank using a second false address and having altered the account number on the check to state his own new account number.

After a 20-day holding period, Petitioner withdrew $10,000 plus interest from this account.

In plain every day English, Petitioner stole $10,000 plus interest that at the time belonged to the Dade County Bank, a bank insured by the Federal Deposit Insurance Corporation.

The bank theft statute, 18, U.S.C. section 2113(b) prohibits anyone from taking and carrying away with intent to steal or purloin money belonging to a bank insured by the FDIC.

In plain--

Unidentified Justice: Mr. Giuliani, did he take cash?

Mr. Giuliani: --Yes, Your Honor, I believe he did.

In plain English that is precisely what Petitioner did.

He stole $10,000.

In order to avoid the express language of this prohibition, Petitioner urges that the words do not mean what they say but instead should be read to mean that Congress in 1937 meant to prohibit solely larceny at common law.

That is trespassory taking or taking without consent.

Unidentified Justice: Was there any other federal statute which conceivably could have covered his action here?

Mr. Giuliani: I do not believe so, Your Honor.

Unidentified Justice: Not 1014?

Mr. Giuliani: Ten fourteen would not because this would under your own decision in 1014 this would not have amounted to an extension of credit.

Unidentified Justice: The Court's decision.

Mr. Giuliani: Yes, Your Honor.

Crucial to the crime of larceny at common law was a trespass really a physical invasion because primitive criminal law was concerned only with protection against force or violence.

A trespass was necessary for any crime to be felonious.

As the criminal law developed, however, and expanded to protect other interests including property rather than acknowledging the changing nature of the law, the Courts in England engaged in fiction to avoid the reality of reversing prior precedents.

So crimes such as larceny by trick an unilateral mistake developed so that it was larceny to trick someone out of possession of that money, but it would not constitute larceny if the owner of the money had also turned over title.

If Petitioner's argument is accepted and these ancient distinctions are revived, it would be a violation of section 2113(b) if a person cashing a check for $100 mistakenly received $1,000 from the teller, realized that mistake and decided to keep it and walked out of the bank because that at common law would have amounted to larceny by trick in the sense that according to the fiction only possession had been turned over, not title.

If, however, that same--

Unidentified Justice: Is the same true that that would have been a violation of state law?

Mr. Giuliani: --Pardon me, Your Honor?

Unidentified Justice: That would be a violation of state law, I assume?

Mr. Giuliani: I assume it would be.

Unidentified Justice: Just in a broader sense, what is the reason why these cases ought to be in the federal court rather than the state court?

Mr. Giuliani: Well, Your Honor, the banks--

Unidentified Justice: I understand it is a federal insurance at a bank, but nevertheless it is a state crime as well.

Just in terms of allocating law enforcement resources, why would this not be a good category to leave to the states?

Mr. Giuliani: --Well, first of all there is potential federal lability in the sense of all of these banks are insured by the Federal Deposit Insurance Corporation--

Unidentified Justice: I understand.

Mr. Giuliani: --and it is our view that this is precisely--

Unidentified Justice: I am not too sure that the statute does not limit it to those.

It says any bank.

The statute says any bank, those insured or not would it not?

Mr. Giuliani: --No, Your Honor, it would have to be either a--

Unidentified Justice: Are all banks insured?

Mr. Giuliani: --I do not believe all banks are insured, Your Honor, it would have to be--

Unidentified Justice: Well, the statute says all banks.

Does it not?

Mr. Giuliani: --Well, it should be--

Unidentified Justice: Or any bank, credit union, or any savings and loan association, so it applies to all banks.

Mr. Giuliani: --Now it does.

At the time that this amendment was passed in 1937 it was passed specifically to apply to banks that were insured by the Federal Deposit Insurance Corporation.

Unidentified Justice: But the statute we are operating under says all banks.

Mr. Giuliani: It has been expanded since then.

That is correct, Your Honor.

Unidentified Justice: It says all banks.

That is the one we are operating under?

Mr. Giuliani: That is correct.

Unidentified Justice: I join Justice Stevens.

I do not see what the federal government's interest is in any bank.

An uninsured bank, what interest would the federal government have?

In stealing money from an unfederally uninsured bank?

Mr. Giuliani: First of all, Your Honor, this particular bank was not an uninsured bank.

This bank was insured by the Federal Deposit Insurance Corporation.

The statute that we are construing here was passed in order to protect the assets of federally insured banks and that is one of the reasons why we argue for an interpretation that would include all forms of theft.

Unidentified Justice: Is it not true that it was passed in response to a specific problem.

John Dillinger and some of his friends were running around the country crossing state lines holding up banks all over the place.

Was that not what caused this statute to be enacted?

Mr. Giuliani: No, Your Honor, that is what caused the 1934 Act to pass.

Unidentified Justice: Right, and then they picked it up to take care of the fellow who walks in and finds the money on the counter.

Mr. Giuliani: But I think there is a very big difference between the 1934 Act and the 1937 Act.

The 1934 Act when it originally was proposed by the Attorney General would have covered all forms of taking.

It would have covered robbery, burglary, and larceny both with and without consent.

Unidentified Justice: I suppose one explanation on the policy issue is that that is the way Congress decided it should be.

Congress enacted the statute.

Mr. Giuliani: But, Your Honor, I do not believe that that gives effect to what the 1937 Congress did.

Unidentified Justice: No, my point is only with respect to the policy question that was suggested that why does the federal government get into it.

The answer is because Congress says.

Mr. Giuliani: That is precisely correct.

Unidentified Justice: Why didn't you read the statute correctly?

If it did not say that you would make precisely the same argument to the contrary.

Mr. Giuliani: Well, our argument is simply that the plain language of the statute if you put aside distinctions that are 200 and 300 years old and have been criticized for 200 or 300 years as just introducing technicalities into the law that have no equity.

If you read the plain language of the statute it certainly covers the conduct of this Petitioner taking and carrying away $10,000.

Then when you look at the legislative history of the 1937 Act and what Petitioner has done is to confuse the legislative history of the 1934 Act with the legislative history of the 1937 Act.

There is no doubt that the 1934 Act was limited to bank robberies.

The House so limited it.

Their concern was the Bonnie and Clyde gangster bank robbers who moved around state to state.

Unidentified Justice: Not just burglaries but robberies.

Mr. Giuliani: Only robberies in 1934.

In 1935, however, a significant fact occurred.

Congress expanded the coverage of the bank robbery statute to cover not only federal reserve banks and banks chartered by the federal government, but in 1935 Congress expanded it to cover all banks insured by the Federal Deposit Insurance Corporation, a much larger and greater area now of potential federal liability.

So that in 1937 when the Attorney General went back to Congress, he asked the Congress to expand the coverage of the 1934 Act to include burglary and larceny and he used new words to define larceny, not the old words that we used in '34 but new words.

The words that he used were

"taking and carrying away with intent to steal or purloin. "

so that the purpose of the '37 Congress cannot be the same as the limited purpose of the '34 Congress.

The purpose of the '37 Congress goes beyond merely being concerned about taking by force and violence.

Unidentified Justice: Mr. Giuliani, what if Mr. Bell instead of being an outsider here had been a teller in the Dade Federal Savings and Loan Association and had simply embezzled $10,000?

Mr. Giuliani: That would be covered by a separate statute that had a federal embezzlement statute that applies to agents and employees of the bank.

That, in fact, had already been a violation of federal criminal law, I believe, at the time these statutes were passed.

Unidentified Justice: Would you say it was covered also by this statute?

Mr. Giuliani: It could be covered by this statute as well.

Unidentified Justice: Does that mean you think it might be but you are not sure?

Mr. Giuliani: No, I believe that the purpose of the Congress in 1937 was to broadly prohibit theft from a federal bank.

That term was defined then as a generic term.

Unidentified Justice: So the taking away requirement is really almost done away with because in the facts of this case you have Bell actually taking $10,000 that did not belong to him, dollar bills, so to speak, or tens or hundreds, but in the embezzlement thing it is just basically a credit or a ledger transaction.

You say that is covered, too?

Mr. Giuliani: No.

It does not have to be covered, Your Honor.

You do not have to go that far because at the time that this statute was passed embezzlement was already a crime.

Unidentified Justice: But I am not trying to strike a bargain.

I am just trying to find out how high you think the statute should be interpreted.

Mr. Giuliani: The statute should be interpreted to reach theft offenses, larceny, larceny by trick, and taking by false pretenses.

Unidentified Justice: How about embezzlement?

Mr. Giuliani: It does not have to be read and should not be read to reach embezzlement.

Embezzlement is already covered by another federal statute.

Unidentified Justice: Do you think embezzlement is a taking away?

At least there is a taking away here, is there not?

Mr. Giuliani: Yes, Your Honor, there clearly is.

Unidentified Justice: If there was an embezzlement, why would the statute not cover it?

Mr. Giuliani: Well--

Unidentified Justice: We have other instances where an act we have already recognized it that, I think it is in the bank field, where the same act violates two different criminal statutes.

Mr. Giuliani: --You could interpret... The statutes could cover the same ground.

There is no doubt about that.

Unidentified Justice: What about the false application on a loan application?

A false statement on a loan application, that is covered in another section.

Mr. Giuliani: That is covered in 1014.

Unidentified Justice: Was that on the books in '37?

Mr. Giuliani: I do not know if it was or not, if it was on the books in '37 or not, Your Honor.

The embezzlement statute was a crime prior to 1934.

I do not know about section 1014.

To assume that Congress in 1937 had reintroduced these distinctions would mean that it would be a violation of this statute if someone mistakenly received $1,000 as I said before and decided to keep it.

But it would not be a violation of this statute if he stole checks, forged those checks, presented those checks to a bank and over a period of time depleted the bank of unlimited amounts of money because at common law one would constitute larceny by trick because there had only been a cheating of possession and the other would constitute taking by false pretenses.

Petitioner and the few Circuits supporting his view in our view confused the purpose of the 1934 Congress with the purpose of the 1937 Congress and interpret those purposes as being exactly the same.

The 1934 bill as presented by the Attorney General and passed by the Senate would originally have prohibited robbery, burglary, and larceny defined actually as both taking by false pretenses and larceny at common law.

The House Judiciary Committee struck the burglary and the larceny provision not as Petitioner would have it because of some concern over the reach of common law larceny.

There was no discussion of common law.

There was no discussion of common law distinctions.

The word never even came up in the legislative history.

That Congress, the 1934 Congress was concerned with limiting the crime to reach the situation of interstate gangster bank robbers and wanted to limit the crime just to robbery and not to embrace burglary or any form of larceny.

The 1937 Congress when it took up this subject again clearly had a different purpose than the 1934 Congress.

The 1937 bill was intended to broaden coverage beyond robbery, beyond just merely taking by force and violence to cover burglary and larceny.

Concededly under everyone's interpretation of this statute, it would cover crimes such as taking money mistakenly given by the bank or larceny by trick, scarcely crimes that are committed by the Bonnie and Clyde interstate bank robbers.

Once Congress removed the force and violence limitation and expanded the statute to reach nonviolent theft as well as fraudulent theft, it cannot be logical to ascribe to the 1937 Congress the same intent as the 1934 Congress.

Rather the more logical and sensible conclusion is that in expanding the statute the intent of the 1937 Congress was to give broad protection to banks whose assets were insured by the Federal Deposit Insurance Corporation.

Now the choice of words that Congress used, I believe, is very important.

The Petitioner relies very heavily on the fact that Congress selected the words "take and carry away" and the title larceny as if those two formulations are code words for all of the ancient distinctions of common law larceny.

By 1937, however, the words "take and carry away" as well as the term "larceny" no longer were limited solely to describing common law larceny.

In fact, in the 1934 bill which passed the Senate it used the words "take and carry away" to go on and define takings without consent which would have been common law larceny and then taking and carrying away with consent which at ancient common law would have been a false pretenses.

As this Court has noted in the Turley decision, by 1919 the law of many states had developed to include not only common law larceny but larceny by trick and false pretenses in their prohibition of generic larceny and theft offenses.

This Court, in fact, in the Jerome case twice used the label larceny for a description of crimes including false pretenses and pointed out that Congress did so in the legislative history to the 1934 Act.

Thus, by 1937 to conclude mechanically and dogmatically that larceny means solely common law larceny and that takes and carries away means the same thing that it meant in the 18th century is to ignore the contemporary use of those words both common use and use as words of art.

Unidentified Justice: Mr. Giuliani, speaking of the Jerome case, in Jerome the Court held the burglary prohibition of section 2113(a) did not cover this act and the underlying act in Jerome was, I think, uttering a forged check.

Under your theory, could the government have brought that action under subsection (b) then?

Mr. Giuliani: No, Your Honor, because actually it was an incomplete crime.

The crime was never completed in Jerome in the sense of a taking and carrying away.

The Jerome case does contain dicta--

Unidentified Justice: That is contrary to your position.

Mr. Giuliani: --That is contrary to the position that the government is now arguing.

At the same time the Prince case contains dicta that supports precisely what the government is arguing.

The Jerome case really involves in our view a very different issue.

It involved a question of whether in determining whether Congress meant to cover in the burglary section a situation where a person enters a bank with intent to commit a felony.

Did Congress mean by felony, felony under the laws of all the states in which case what it would have read into the federal statute all the differing interpretations and definitions of felony, high misdemeanors and misdemeanors that vary in the 48 states or not.

It came to the conclusion actually which is supportive of our position that you should not read felony to mean what felony meant at common law and that you should give it an interpretation consistent with the purpose of the 1937 amendment which is precisely the--

Unidentified Justice: If the act had been completed in the Jerome situation, could the government have prosecuted under subsection (b)?

Mr. Giuliani: --Yes, I believe so.

It would actually be a taking of the money.

Unidentified Justice: Could the government in the case that we had last term in Williams have prosecuted for the check kiting scheme under this subsection?

Mr. Giuliani: If the scheme had actually been completed in the sense that check kiting you have the ambiguity as to whether or not the person intends to make good on the check in the period of time between the time that they write the check and the time that the check is actually finally negotiated.

If, in fact, the person goes through with the check kiting scheme and takes away the money then you really move out of the strict definition of check kiting and you have an actual theft of the money.

In looking at the language that was struck by the 1934 Act, the Petitioner ignores several crucial points, and I think makes more of that than the legislative history can sustain.

The 1934 Congress as I said before was concerned with a situation of robberies and limited the language to robberies.

It was not in any way, didn't evince any concern at all with the coverage of larceny as either being common law larceny or false pretenses so there was not a specific striking of the language because Congress was concerned with any of these distinctions as between common law larceny and false pretenses.

In 1937 the new language that was presented was significantly different.

It deleted the words Mr. Justice Stevens noted before it also deleted the words "without consent" which would have clearly defined solely common law larceny.

So the words that it used

"with intent to steal or purloin. "

in our view created or evinced a concern with a broad interpretation or at least as broad as the matter that they were concerned about, the assets of federally insured banks.

Unidentified Justice: Let's get back to the other question that you made.

What is there in the legislative history or the rules of the department that delineate a line between state and federal crime on a particular alleged crime?

Mr. Giuliani: Well, in this particular case, Your Honor, the line would be with this particular bank a bank whose actual funds were insured by the Federal Deposit Insurance Corporation so that I--

Unidentified Justice: You mean the state law would not cover that?

Mr. Giuliani: --No, state law does cover it.

This is one of--

Unidentified Justice: Mine is what line says that this is a state crime and this is a federal crime?

Mr. Giuliani: --In this particular case it would be the federal insurance in federally insured banks, the necessary and proper clause of the constitution.

Unidentified Justice: You say it was two crimes.

This is two crimes, a federal crime and a state crime.

Mr. Giuliani: Yes, Your Honor.

Unidentified Justice: Is there any procedure in the Department of Justice that says who should prosecute an instance of double crime when it is a crime against two sovereigns?

Mr. Giuliani: There is a formal procedure that exists if a person is prosecuted in one place and then there is the possibility of prosecuting him again because of the possible double jeopardy concerns involved in that.

But there is no formal process that takes place in making that decision in advance.

Most United States Attorneys have policies that they work out with District Attorneys as to what cases they will take and what cases would be turned over to the Department--

Unidentified Justice: There is nothing in the record to show why this was brought in the federal rather than the state court?

Mr. Giuliani: --In most--

Unidentified Justice: No, sir, in this one.

There is nothing in this one.

Mr. Giuliani: --No, Your Honor.

In most urban areas the local prosecutor is anxious for the federal government to take as many of these cases as the federal government can take because of the tremendous burden on the administration of justice.

Unidentified Justice: And there is no burden on the federal department?

Mr. Giuliani: Yes, there is, Your Honor, but--

Unidentified Justice: I thought so.

Mr. Giuliani: --there is a sharing.

There is a kind of attempt to share the responsibility and to share the burden.

This would be one that would easily fall within a matter of federal interest.

The amount of money was $10,000.

It was not de minimis.

In some of the drug cases there are guidelines that are worked out so that it has to be either a conspiracy case or a case involving a certain amount of drugs for it to involve the federal government and in some of the embezzlement cases U.S. Attorneys have dollar figures that they use to try to delineate the difference between whether the federal government will take the case or the state government.

But by any standard that I know of a theft of $10,000 would certainly be enough for a United States Attorney to prosecute it anywhere.

Unidentified Justice: If this savings and loan association had not been federally insured, could there have been a prosecution under this statute?

Mr. Giuliani: I do not... The statute was expanded in 1950, Your Honor, to cover additional institutions, and it is not limited just to institutions insured by the FDIC.

There are a certain number of banks that are not covered.

I am not exactly certain what the additional criteria would have to be.

Unidentified Justice: Not all banks but some savings and loans institutions, I think, are purely state institutions--

Mr. Giuliani: That is correct.

Unidentified Justice: --without any federal insurance.

I just wondered on the face of the statute any bank would seem to mean that you could answer my question yes, but I wondered--

Mr. Giuliani: I think that is further defined, Your Honor, to include only banks that are federal reserve banks, federally charted banks or banks that are insured by the federal government in some way.

There are very few banks left that--

Unidentified Justice: --Any bank in this statute has been so limited?

Mr. Giuliani: --I think it has been, yes, Your Honor.

Unidentified Justice: How has it been limited?

It has not been limited by a amendment of the statute, is it?

There has been a construction?

By a definition somewhere?

Mr. Giuliani: Yes, further on in the statute, Your Honor, 2113(f) as used in this section the term bank means any member bank, federal reserve system and any bank, banking association, trust company, savings bank or other banking institution organized or operating under the laws of the United States and any bank the deposits of which are insured by the FDIC.

So it would not be... There are very few banks left in that category.

Unidentified Justice: Well, if that were not the case, why it would apply to any bank and it would not make any difference how this case came out.

Whatever the reach of this statute it would reach any bank.

Mr. Giuliani: That is correct.

Your Honors, there are four principle reasons why we urge this Court to affirm the decision of the Fifth Circuit.

First of all the plain language of this statute clearly reaches this conduct.

Any ordinary person reading this statute would assume that this person's misconduct was covered by it, and there is no issue here of fair notice or in some way the Petitioner's being treated unfairly because he might have misunderstood what the statute meant.

Secondly, the legislative purpose evinced by the 1937 Congress clearly covers all forms of taking from a federally insured bank.

That is exactly what happened here and that interpretation, the government's interpretation is in line with that purpose.

Third--

Unidentified Justice: May I interrupt right on that point?

The footnote your brief quotes, I guess it is a note which I have not read but points out that Chairman Sumners of the House Judiciary Committee in 1934 sought to limit the expansion of federal power just to those situations where there was not really a strong showing of need.

I am curious to know and perhaps I should not take your time, but was he still chairman of the committee in 1937?

Mr. Giuliani: --I believe he was.

I will check that but I believe he introduced the '37 legislation as well.

Unidentified Justice: That is why it would seem to me... I wonder if he thought it was as expansive as the government's argument would make.

Is that consistent with the views he seemed to be espousing in '34?

Do you think maybe he changed his mind?

Mr. Giuliani: Well, I actually do not think you have to say that in '37 you need an expansive interpretation of the language of either the statute or the legislative history, just a common sense interpretation of it.

The plain meaning of the language clearly covers the misconduct and the '37 Congress was clearly intending to protect banks, federally insured banks, broadly against theft.

So I don't think--

Unidentified Justice: And more broadly than '34?

Mr. Giuliani: --That is right.

Unidentified Justice: The only example that was given, and am I correct, and it is the only example that was given was the larceny example?

Mr. Giuliani: It was an example that would have constituted if you use the common law distinctions of common law larceny.

However, Your Honor, Chairman Sumners never displayed any interest at all or any concern about whether larceny was defined as common law larceny or taking by false pretenses.

He was concerned about in '34 limiting it just to robbery.

Unidentified Justice: Right.

Mr. Giuliani: But in '34 or '37 there is absolutely no concern at all evidenced as to whether it should be common law larceny or larceny by false pretenses.

In summation, the views have now been... This question has been passed on by just about every Circuit.

I believe nine Circuits have either held or expressed their viewpoint on this, and the split for whatever it is worth is six to three for the government's view.

But also the most recent decision and I believe the best considered decision is the Hinton case which was decided after our brief in the Second Circuit and the Simmons case lay out the legislative history very clearly.

Finally, to reintroduce these distinctions would just create unnecessary, needless distinctions that have no purpose any longer.

It would become difficult to charge under this statute in the sense of bringing an indictment.

It would be difficult to charge a jury as to the distinction between possession and title.

It would also raise unnecessary issues on appeal that have nothing to do with the underlying equities of why theft or why protection of federally insured banks should be a federal crime.

For all those reasons and for the others that we mentioned in our brief, we ask this Court to affirm.

Thank you very much.

Chief Justice Burger: Very well.

Do you have anything further counsel?

ORAL ARGUMENT OF ROY W. ALLMAN, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Allman: May it please the Court.

Everything he said was true.

The government is arguing what the statute should say and maybe what the law should be, but I am arguing what the law is and what Congress intended the law to be specifically in the development of this law.

This law has been specifically expanded and amended and nowhere in all this time since 1934 has Congress taken upon itself to say it covers the crime of false pretenses.

It has added larceny and burglary.

The government used to argue in Jerome in 1943 it applied to common law larceny specifically.

There is no question about that but the definitions are not important.

What we have to decide here is the ambiguity of steal and purloin.

Is it expansive to the point where it covers crime by false pretenses and the answer is no.

Sumner specifically addressed that issue saying he wanted to confine the extension of federal power to those situations where the need to supplement state and local law enforcing agencies had become imperative.

It was an emergency-type statute to eliminate bank robberies.

It is the bank robbery statute, not the thing that is covered by state law and the statute has not run on a state law in this case with regard to the fact that a man did commit a crime by false pretenses.

That is my whole point in this case.

2113(b) is not an expansive statute.

It is a narrowly defined and specifically drawn federal statute that does not approach and control for that crime.

Thank you.

Chief Justice Burger: Thank you gentlemen.

The case is submitted.