The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
Prior to and during the trial of this case, the Court had reserved decision upon defendant's motion to dismiss, as a matter of law, count four of the instant indictment which charges a violation of 18 U.S.C. § 2113(a). In advance of submitting the case to the jury, the Court granted the motion.* This memorandum serves to express the rationale for the Court's decision on the motion.
In count four of the indictment it is alleged that:
On or about the 9th day of September, 1974, in the Southern District of New York, JAMES HENRY ROLLINS, a/k/a Lee Evans, the defendant, acting under the name of Robert Cody, unlawfully, willfully and knowingly did enter a bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, to wit, Manufacturers Hanover Trust Company, 37 Avenue B, New York, New York, with the intent to commit a larceny and felony in and affecting such bank, to wit, the theft of approximately $650,000.
The three other counts of the indictment charge the defendant with violations of the federal mail fraud laws, 18 U.S.C. §§ 1341 and 1342, alleging that he participated in a scheme to defraud the Manufacturers Hanover Trust Company and the Standard Bank Limited, a bank incorporated in the United Kingdom and having a branch office in Nairobi, Kenya, by means of allegedly false and fraudulent mail transfer forms. These forms, if in proper form and bearing valid signatures, would have authorized the Manufacturers Hanover Trust Company to transfer $650,000 from the account of the Standard Bank to the account of the defendant, an account which stood in the name of Kodi's Domestic and International Enterprises. The indictment further accuses the defendant of having used an assumed or fictitious name for the purpose of carrying on the alleged scheme to defraud.
In charging the defendant under the federal bank "burglary" statute, 18 U.S.C. § 2113(a), which states in pertinent part,
[whoever] enters or attempts to enter any bank . . . with intent to commit in such bank . . . any felony affecting such bank . . . or any larceny [shall be guilty of a crime],
the Government places reliance upon the terms of § 2113(b). That statute in turn provides that:
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank . . . shall be [guilty of a crime].
In attempting to bootstrap the defendant's alleged mail fraud activities into a violation of § 2113(a), within the purview of which an intended violation of § 2113(b) might properly fall, the Government places primary reliance upon the Second Circuit's decision in United States v. Fistel, 460 F.2d 157 (1972).
In Fistel, the Court held that the crimes embraced by § 2113(b) were not limited to larcenies known to the common law, but rather that "this section covers embezzlement by a bank official or employee and other takings with intent to deprive the owner of permanent use of the property taken." Id. at 163. In so concluding, the Second Circuit stated:
We recognize that it was held in United States v. Rogers, 289 F.2d 433, 437 (4 Cir. 1961), that § 2113(b) "reaches only the offense of larceny as that crime has been defined by the common law", and in LeMasters v. United States, 378 F.2d 262 (9 Cir. 1967), that ...