1350
Bank TheftMisrepresentations of Identity
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A recurring problem in bank robbery prosecutions concerns
transactions
involving misrepresentations of identity. This type of problem will occur
more
frequently as a result of computer related crimes directed at banking
institutions.
Prior to the Supreme Court's decision in Bell v. United
States,
462 U.S. 356 (1983), there had been a split in the circuits on the issue of
whether the bank theft statute, 18 U.S.C. § 2113(b), applied only to
the
offense of larceny as that crime is defined at common law, or whether the
statute
also encompassed the taking of bank funds by false pretenses. In
Bell,
supra, the Supreme Court held that 18 U.S.C. § 2113(b) is not
limited
to common law larceny, but that it also applies to cases of obtaining bank
property by false pretenses so long as there is a taking and carrying away.
The
term "any larceny" as used in the second paragraph of 18 U.S.C. §
2113(a)
also has been held to include a taking by false pretenses, United States
v.
Registe, 766 F.2d 408 (9th Cir. 1985).
It is important to note, however, that the Supreme Court's opinion
in
Bell, supra, expressly states that 18 U.S.C. § 2113(b)
may
not
cover the full range of theft offenses and that it does not apply to
check-kiting
schemes or other situations in which there is not a taking and carrying
away.
There is, however, some uncertainty as to whether the statute would apply to
check-kiting schemes or other situations in which the taking occurs by means
of
a negotiable instrument or electronic funds transfer. One reported court of
appeals case affirmed a conviction under 18 U.S.C. § 2113(b) based on
the
taking of bank funds by means of the check collection process after the
defendant
issued worthless checks to creditors. United States v. Sterley, 764
F.2d
530 (8th Cir.), cert. denied, 474 U.S. 1013 (1985).
[cited in USAM 9-61.600] | |