In § 2(a) of the federal Bank Robbery Act, which provides
that
"whoever shall enter or attempt to enter any bank, or any
building used in whole or in part as a bank, with intent to commit
in such bank or building, or part thereof, so used, any felony or
larceny"
shall be subject to the penalty therein prescribed, the word
"felony" embraces only offenses which are felonies under federal
law and affect banks protected by the Act. P.
318 U. S.
108.
130 F.2d 514, reversed.
Certiorari, 317 U.S. 606, to review the affirmance of a
conviction for violation of the federal Bank Robbery Act.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Sec. 2(a) of the Bank Robbery Act (48 Stat. 783, 50 Stat. 749,
12 U.S.C. § 588b) provides in part that
"whoever shall enter or attempt to enter any bank, [
Footnote 1] or any building used in
whole or in part as a bank, with intent to commit in such bank or
building, or part thereof, so used, any felony or larceny, shall be
fined not more than $5,000 or imprisoned
Page 318 U. S. 102
not more than twenty years, or both."
Petitioner was indicted under that section for entering a
national bank in Vermont with intent to utter a forged promissory
note, and thereby to defraud the bank. He was convicted after trial
before a jury, and was sentenced to imprisonment for one year and a
day. The utterance of a forged promissory note is a felony under
the laws of Vermont (P.L.1933, 8485, 8750), but not under any
federal statute. The Circuit Court of Appeals affirmed the
conviction by a divided vote, holding that "felony" as used in §
2(a) includes offenses which are felonies under state law. 130 F.2d
514. We granted the petition for a writ of certiorari, 317 U.S.
606, because of the importance of the problem in the administration
of justice and because of the diversity of views which have
developed as respects the meaning of "felony" in § 2(a).
Compare with the decision below
Hudspeth v.
Melville, 127 F.2d 373;
Hudspeth v. Tornello, 128
F.2d 172.
Prior to 1934, banks organized or operating under federal law
were protected against embezzlement and like offenses by R.S. 5209,
40 Stat. 972, 12 U.S.C. § 592. But such crimes as robbery,
burglary, and larceny [
Footnote
2] directed against such banks were punishable only under state
law. By 1934, great concern had been expressed over interstate
operations by gangsters against banks -- activities with which
local authorities were frequently unable to cope. H.Rep. No. 1461,
73d Cong., 2d Sess., p. 2. The Attorney General, in response to
that concern, recommended legislation embracing certain new federal
offenses. S. 2841, 73d Cong., 2d Sess.
And see 78
Cong.Rec. 5738. Sec. 3 of that bill made it a federal crime to
break into or attempt to break into such banks with intent to
commit "any offense defined by this Act, or any felony under any
law
Page 318 U. S. 103
of the United States or under any law of the State, District,
Territory, or possession" in which the bank was located. Sec. 2
made it an offense to take or attempt to take money or property
belonging to or in the possession of such a bank without its
consent, or with its consent obtained "by any trick, artifice,
fraud, or false or fraudulent representation." This bill was
reported favorably by the Senate Judiciary Committee (S.Rep. No.
537, 73d Cong., 2d Sess.), and passed the Senate. 78 Cong.Rec.
5738. The House Judiciary Committee, however, struck out § 2,
dealing with larceny, and § 3, dealing with burglary. H.Rep. No.
1461,
supra, p. 1. And the bill was finally enacted
without them. But it retained the robbery provision [
Footnote 3] now contained in the first clause
of § 2(a) of the Bank Robbery Act.
In 1937, the Attorney General recommended the enlargement of the
Bank Robbery Act "to include larceny and burglary of the banks"
protected by it. H.Rep. No. 732, 75th Cong., 1st Sess., p. 1. The
fact that the 1934 statute was limited to robbery was said to have
produced "some incongruous results" -- a "striking instance" of
which was the case of a man who stole a large sum from a bank but
who was not guilty of robbery because he did not display force or
violence, and did not put anyone in fear.
Id., pp. 1-2.
The bill, as introduced (H.R. 5900, 75th Cong., 1st Sess., 81
Cong.Rec. 2731), added to § 2(a) two new clauses -- one defining
larceny, and the other making it a federal offense to enter or
attempt to enter any bank with intent to commit therein "any
larceny or other depredation." For reasons not disclosed in the
legislative history,
Page 318 U. S. 104
the House Judiciary Committee substituted "any felony or
larceny" for "any larceny or other depredation." H.Rep. No. 732,
supra, p. 2. With that change and with an amendment to the
larceny clause [
Footnote 4]
distinguishing between grand and petit larceny (81 Cong.Rec.
5376-5377), § 2(a) was enacted in its present form.
We disagree with the Circuit Court of Appeals. We do not think
that "felony," as used in § 2(a), incorporates state law.
At times, it has been inferred from the nature of the problem
with which Congress was dealing that the application of a federal
statute should be dependent on state law. Examples under federal
revenue acts are common.
Douglas v. Willcuts, 296 U. S.
1;
Helvering v. Stuart, 317 U.
S. 154, and cases cited. But we must generally assume,
in the absence of a plain indication to the contrary, that
Congress, when it enacts a statute, is not making the application
of the federal act dependent on state law. That assumption is based
on the fact that the application of federal legislation is
nationwide (
United States v. Pelzer, 312 U.
S. 399), and at times on the fact that the federal
program would be impaired if state law were to control.
Seaboard Air Line Ry. v. Horton, 233 U.
S. 492,
233 U. S. 503.
When it comes to federal criminal laws such as the present one,
there is a consideration in addition to the desirability of
uniformity in application which supports the general principle.
Since there is no common law offense against the United States
(
United States v.
Hudson,
Page 318 U. S. 105
7 Cranch 32;
United States v. Gradwell, 243 U.
S. 476,
243 U. S.
485), the administration of criminal justice under our
federal system has rested with the states, except as criminal
offenses have been explicitly prescribed by Congress. We should be
mindful of that tradition in determining the scope of federal
statutes defining offenses which duplicate or build upon state law.
In that connection, it should be noted that the double jeopardy
provision of the Fifth Amendment does not stand as a bar to federal
prosecution though a state conviction based on the same acts has
already been obtained.
See United States v. Lanza,
260 U. S. 377;
Hebert v. Louisiana, 272 U. S. 312.
That consideration gives additional weight to the view that, where
Congress is creating offenses which duplicate or build upon state
law, courts should be reluctant to expand the defined offenses
beyond the clear requirements of the terms of the statute.
There is no plain indication in the legislative history of §
2(a) that Congress used "felony" in a sense sufficiently broad to
include state offenses. Though the legislative data are meager, the
indications are to the contrary. In the first place, the 1934 bill
expressly provided, as we have noted, that state felonies were
included in the definition of the new federal offense of burglary.
That provision was stricken in the House. The 1934 bill also
defined larceny to include larceny by trick or fraud. That
provision was likewise eliminated in the House. The 1934 Act was
passed without either of them. The 1937 bill did not renew the
earlier proposals to include them, but substituted "any larceny or
other depredation." Larceny, like robbery, is defined in § 2(a).
And "depredation" is not devoid of meaning in such a setting
(
cf. Deal v. United States, 274 U.
S. 277,
274 U. S. 283)
apart from any special significance which it may have in local law.
It is difficult to conclude in the face of this history that
Congress, having rejected in 1934 an express provision making
Page 318 U. S. 106
state felonies federal offenses, reversed itself in 1937 and,
through the phrase "any felony or larceny," adopted the penal
provisions of forty-eight states with respect to acts committed in
national or insured banks. It is likewise difficult to believe that
Congress, through the same clause, adopted by indirection in 1937
much of the fraud provision which it rejected in 1934.
Cf.
United States v. Patton, 120 F.2d 73.
In the second place, Congress defined in § 2(a) robbery,
burglary, and larceny, but not felony. We can hardly believe that,
having defined three federal offenses, it went on in the same
section to import by implication a miscellaneous group of state
crimes as the definition of the fourth federal offense. In this
connection, it should be noted that, when Congress has desired to
incorporate state laws in other federal penal statutes, it has done
so by specific reference or adoption. [
Footnote 5] The omission of any such provision in this Act
is a strong indication that it had no such purpose here.
Cf.
United States v. Coppersmith, 4 F. 198, 207. The Act extends
protection to hundreds of banks located in every state. If state
laws are incorporated in § 2(a), Congress has gone far toward
putting these banks on a basis somewhat equivalent to "lands
reserved or acquired for the use of the United States," as
described in § 272 of the Criminal Code, 18 U.S.C. § 451. In such a
case, all violations of penal laws of the state within which the
lands are located become federal offenses. Criminal Code § 289, 18
U.S.C. § 468. Such an expansion of federal criminal jurisdiction
should hardly be left to implication and conjecture.
Moreover, the difficulty of giving "felony" in § 2(a) a state
law meaning is emphasized when we turn to the law
Page 318 U. S. 107
of such a state as New Jersey. There, we find crimes classified
as "misdemeanors" and "high misdemeanors." Rev.Stat. (1937)
2:103-5, 2:103-6.
See United States v. Slutzky, 79 F.2d
504, 505. Uttering a promissory note with a forged endorsement is a
"high misdemeanor." Rev.Stat. (1937) § 2:132-1(b). The inference is
strong that, if Congress had designed § 2(a) to include the more
serious state offenses committed in or against national or insured
banks or only such state offenses as affected those banks
(
Hudspeth v. Melville, supra, p. 376), it would have used
language which would have afforded that protection in all the
states.
Finally, the inclusion of state crimes in the word "felony"
neither comports with the scheme of the Act nor is necessary to
give the Act meaning and vitality. As we have noted, the purpose of
the 1934 Act was to supplement local law enforcement in certain
respects. And the 1937 amendments were designed "to include larceny
and burglary of the banks protected by this statute." H.Rep. No.
732,
supra, p. 1. But there is not the slightest
indication that the interstate activities of gangsters against
national and insured banks had broken down or rendered ineffective
enforcement of state laws covering all sorts of felonies. On the
contrary, the bill introduced in 1937 was much more selective, and
revealed no purpose to make a comprehensive classification of all
crimes against the banks. Moreover, the run of state felonies --
forgery, rape, adultery, and the like -- would seem to have little
or no relevancy to the need for protection of banks against the
wholesale activities of the gangsters of that day. A related
objection could, of course, be made if "felony," as used in § 2(a),
were taken to mean any federal felony, so as to bring within the
scope of the Bank Robbery Act miscellaneous federal felonies
ranging from the sale of narcotics
Page 318 U. S. 108
to white slave traffic. [
Footnote 6] But, as indicated by Judge Frank in his
dissenting opinion below, § 2(a) is not deprived of vitality if it
is interpreted to exclude state felonies and to include only those
federal felonies which affect the banks [
Footnote 7] protected by the Act. That is, in our
opinion, the correct construction.
Reversed.
[
Footnote 1]
The term "bank" is defined in § 1 of the Act, 12 U.S.C. § 588a,
to include
"any member bank of the 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 insured bank as defined in subsection (c) of Section
12B, of the Federal Reserve Act, as amended."
[
Footnote 2]
To the extent that acts constituting larceny would not also
constitute a federal crime under R.S. § 5209.
See United States
v. Northway, 120 U. S. 327,
120 U. S.
335.
[
Footnote 3]
"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."
[
Footnote 4]
". . . whoever shall take and carry away, with intent to steal
or purloin, any property or money or any other thing of value
exceeding $50 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; or whoever
shall take and carry away, with intent to steal or purloin, any
property or money or any other thing of value not exceeding $50
belonging to, or in the care, custody, control, management, or
possession of any bank, shall be fined not more than $1,000 or
imprisoned not more than one year, or both."
[
Footnote 5]
See e.g., Act of March 4, 1909, 35 Stat. 1137, 49 Stat.
380, 18 U.S.C. § 392; Act of May 18, 1934, 48 Stat. 782, 18 U.S.C.
§ 408e; Act of June 11, 1934, 47 Stat. 301, 18 U.S.C. § 662a; Act
of February 22, 1935, 49 Stat. 31, 15 U.S.C. § 715b; Act of June
25, 1936, 49 Stat. 1928, 27 U.S.C. § 223.
[
Footnote 6]
It has frequently been held that, when a federal statute uses a
term which it does not define but which was a common law offense,
it will be given its common law meaning.
United
States v. Palmer, 3 Wheat. 610,
16 U. S. 630;
United States v.
Smith, 5 Wheat. 153,
18 U. S. 160;
Harrison v. United States, 163 U.
S. 140,
163 U. S. 142. In
this case, however, Congress has not punished an offense by its
common law name. Moreover, at common law, murder, manslaughter,
arson, burglary, robbery, rape, sodomy, mayhem, and larceny were
felonies. Wharton, Criminal Law (12th ed.) § 26.
And see Bannon
v. United States, 156 U. S. 464,
156 U. S. 467.
Since those miscellaneous crimes, as a group, do not suggest on
their face that they constitute an appropriate base on which to
build a federal criminal code for protection of national and
insured banks, we will not readily infer that Congress used the
word "felony" in its common law meaning. That conclusion is
fortified by the further circumstance that Congress has defined
numerous offenses in other federal penal statutes, and has
classified such offenses as felonies or misdemeanors according to
the severity of the punishment. Criminal Code § 335, 18 U.S.C. §
541. Hence, we need not look elsewhere for the meaning of the term.
Cf. Reagan v. United States, 157 U.
S. 301,
157 U. S. 303.
As stated in
Adams v. McCann, 317 U.
S. 269, n. 2, the term "felony" is a "verbal survival
which has been emptied of its historic content." Thus, we conclude
that the word "felony," as used in § 2(a), takes its meaning from
federal statutes, rather than from the common law.
Forgery at common law was a misdemeanor. Wharton,
supra, § 861.
[
Footnote 7]
One such instance would be violation of the National Stolen
Property Act, 48 Stat. 794, 53 Stat. 1178, 18 U.S.C. § 413
et
seq., especially 18 U.S.C. § 416.