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 JM 9-61.600]