Respondents were indicated for entering a federally insured bank
with intent to rob it by force and violence (Count 1) and robbing
the bank by force and violence (Count 2), in violation of 18 U.S.C.
§ 2113(a), with possessing the funds stolen in the robbery (Count
3), in violation of § 2113(c), and with assaulting four people with
dangerous weapons during the robbery (Counts 4-8), in violation of
§ 2113(d), and thereafter found guilty and sentenced on all counts.
The Court of Appeals reversed, and ordered a new trial on the
ground that, as held in
Heflin v. United States,
358 U. S. 415, it
was plain error to allow a jury to convict the accused of receiving
and possessing the same money taken in the same bank robbery, and
that, under
Milanovich v. United States, 365 U.
S. 551, remanding the case for a new trial was the
appropriate appellate remedy.
Held:
1. A person convicted of violating 18 U.S.C. §§ 2113(a), (b),
and (d) cannot also be convicted of receiving or possessing the
robbery proceeds in violation of § 2113(c).
Heflin, supra
at
358 U. S.
419-420. Pp.
424 U. S.
547-548.
2. The Court of Appeals was mistaken in requiring a new trial as
the remedy for the trial court's not having dismissed Count 3 for
lack of proof, since the error can be corrected by vacating the
convictions and sentences under that count.
Milanovich,
supra, distinguished. Pp.
424 U. S.
548-549.
3. The sentences under Counts 1 and 2 should also be vacated.
Prince v. United States, 352 U. S. 322. P.
424 U. S. 549
n. 12.
506 F.2d 352, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which all
Members joined except STEVENS, J., who took no part in the
consideration or decision of the case. WHITE, J., filed a
concurring opinion, in which BURGER, C.J., joined,
post,
p.
424 U. S.
551.
Page 424 U. S. 545
MR. JUSTICE STEWART delivered the opinion of the Court.
A federal grand jury in Georgia returned an eight-count
indictment against the respondents Gaddis and Birt, charging them
with entering a federally insured bank with intent to rob it by
force and violence (Count 1) and robbing the bank by force and
violence (Count 2), in violation of 18 U.S.C. § 2113(a); [
Footnote 1] with possessing the funds
stolen in the robbery (Count 3), in violation of 18 U.S.C. §
2113(c); [
Footnote 2] and with
assaulting four people
Page 424 U. S. 546
with dangerous weapons during the course of the robbery (Counts
4 to 8), in violation of 18 U.S.C. § 2113(d). [
Footnote 3] At the ensuing trial, the Government's
evidence showed that three armed men had, on March 6, 1974, robbed
the National Bank of Walton County in Loganville, Ga., [
Footnote 4] and that the robbers, in
making their getaway, had engaged in an exchange of gunfire with
Loganville's lone police officer. The Government's evidence further
showed that two of the three robbers had been Gaddis and Birt.
[
Footnote 5] The jury found the
respondents guilty on all counts of the indictment, and the trial
judge sentenced each of them to aggregate prison terms of 25 years.
[
Footnote 6] In imposing the
prison sentences, the judge stated:
"[T]he Court realizes that twenty-five years is the maximum, and
the cases say that there is a merger of all of those offenses. If
there is any question as to the legality of that sentence, that's
the Court's intention."
The Court of Appeals for the Fifth Circuit reversed the
judgments of conviction and ordered a new trial upon the ground
that the District Judge had been in error in permitting the jury to
convict the respondents on all
Page 424 U. S. 547
eight counts of the indictment. Specifically, the appellate
court held that this Court's decision in
Heflin v. United
States, 358 U. S. 415, had
made it clear tat "it is plain error to allow a jury to convict an
accused of taking and possessing the same money obtained in the
same bank robbery," and that, under this Court's decision in
Milanovich v. United States, 365 U.
S. 551, "the proper appellate remedy is to remand for a
new trial." 506 F.2d 352, 354. We granted certiorari because of the
discordant views in the Circuits regarding the proper application
of the
Heflin and
Milanovich decisions. [
Footnote 7] 421 U.S. 987.
The Court of Appeals was correct in holding that a person
convicted of robbing a bank in violation of 18 U.S.C. §§ 2113(a),
(b), and (d), cannot also be convicted of receiving or possessing
the proceeds of that robbery in violation of 18 U.S.C. § 2113(c).
This much was clearly settled in the
Heflin case. The
Court there held that
"subsection (c) was not designed to increase the punishment for
him who robs a bank, but only to provide punishment for those who
receive the loot from the robber."
358 U.S. at
358 U. S. 419.
In "subsection (c) . . . , Congress was trying to reach a new group
of wrongdoers, not to multiply the offense of the bank robbers
themselves."
Id. at
358 U. S. 420.
Thus, while there was in the present case a "merger" of the
convictions under §§ 2113(a) and (d),
Prince v.
United States, 352
Page 424 U. S. 548
U.S. 322, the merger could not include the conviction under §
2113(c). Receipt or possession of the proceeds of a bank robbery in
violation of § 2113(c) is simply not a lesser included offense
within the total framework of the bank robbery provisions of §
2113. Rather, § 2113(c) reaches a different "group of wrongdoers,"
i.e., "those who receive the loot from the robber."
The Court of Appeals was mistaken, however, in supposing that
our decision in
Milanovich required the ordering of a new
trial as the "proper appellate remedy" for the District Judge's
error in this case. The very unusual facts in that case were wholly
different from those presented here.
In
Milanovich, there was evidence that the petitioner
and her husband, "as owners of an automobile, transported three
others under an arrangement whereby the three were to break into a
United States naval commissary building with a view to stealing
government funds," that she and her husband "were to remain outside
for the return of their accomplices after the accomplishment of the
theft," but that they "drove off without awaiting the return of
their friends." [
Footnote 8] If
believed by the jury, this evidence was clearly sufficient to
support a verdict that the petitioner was guilty of robbing the
naval commissary. [
Footnote 9]
There was also evidence in
Milanovich, however, of other
and different conduct on the part of the petitioner -- that, about
17 days after the naval commissary robbery, she had obtained and
appropriated silver currency taken in the robbery and concealed the
same in a suitcase in her home. [
Footnote 10] If believed by the jury, this evidence was
clearly sufficient to support a verdict that the petitioner was
guilty of receiving and concealing the
Page 424 U. S. 549
stolen property. [
Footnote
11] The trial judge refused to instruct the jury that the
petitioner could not be convicted for both stealing and receiving
the same currency, and she was convicted and separately sentenced
on both counts. This Court held that, under
Heflin, the
jury should have been instructed that the petitioner could not be
separately convicted for stealing and receiving the proceeds of the
same theft. Since it was impossible to say upon which count, if
either, a properly instructed jury would have convicted the
petitioner, and in view of the grossly disparate sentences imposed
upon the petitioner and upon her husband (who was convicted only
upon the larceny count), her convictions were set aside and the
case was remanded for a new trial.
The present case is of a very different order. While the
evidence was certainly sufficient to support a jury verdict that
the respondents were guilty beyond a reasonable doubt of aggravated
bank robbery, there was no evidence whatever that they were guilty
of receiving the proceeds "from the robber." Indeed, except for the
evidence of asportation during the robbery itself, there was
nothing to show that the respondents had ever received or possessed
the bank's funds. Their share of the loot was, in fact, never
found. Accordingly, the trial judge should have dismissed Count 3
of the indictment. His error in not doing so can be fully corrected
now by the simple expedient of vacating the convictions and
sentences under that count. [
Footnote 12]
In many prosecutions under 18 U.S.C. § 2113, the evidence will
not, of course, be so clear-cut as in the
Page 424 U. S. 550
present case. Situations will no doubt often exist where there
is evidence before a grand jury or prosecutor that a certain person
participated in a bank robbery and also evidence that that person,
though not himself the robber, at least knowingly received the
proceeds of the robbery. [
Footnote 13] In such a case, there can be no impropriety
for a grand jury to return an indictment or for a prosecutor to
file an information containing counts charging violations of 18
U.S.C. § 2113(a), (b), or (d), as well as of § 2113(c). [
Footnote 14] If, upon the trial of
the case, the District Judge is satisfied that there is sufficient
evidence to go to the jury upon both counts, he must, under
Heflin and
Milanovich, instruct the members of
the jury that they may not convict the defendant both for robbing a
bank and for receiving the proceeds of the robbery. He should
instruct them that they must first consider the charges under §
2113(a), (b), or (d), and should consider the charge under §
2113(c) only if they find insufficient proof that the defendant
himself was a participant in the robbery. [
Footnote 15]
Page 424 U. S. 551
For the reasons stated, the judgment of the Court of Appeals is
vacated, and the case is remanded to that court for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
"(a) Whoever, by force and violence, or by intimidation, takes,
or 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,
credit union, or any savings and loan association; or"
"Whoever enters or attempts to enter any bank, credit union, or
any savings and loan association, or any building used in whole or
in part as a bank, credit union, or as a savings and loan
association, with intent to commit in such bank, credit union, or
in such savings and loan association, or building, or part thereof,
so used, any felony affecting such bank, credit union, or such
savings and loan association and in violation of any statute of the
United States, or any larceny -- "
"Shall be fined not more than $5,000 or imprisoned not more than
twenty years, or both."
[
Footnote 2]
"(c) Whoever receives, possesses, conceals, stores, barters,
sells, or disposes of, any property or money or other thing of
value knowing the same to have been taken from a bank, credit
union, or a savings and loan association, in violation of
subsection (b) of this section shall be subject to the punishment
provided by said subsection (b) for the taker."
[
Footnote 3]
"(d) Whoever, in committing, or in attempting to commit, any
offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any person by
the use of a dangerous weapon or device, shall be fined not more
than $10,000 or imprisoned not more than twenty-five years, or
both."
[
Footnote 4]
Two of the men had entered the bank, brandishing pistols, while
the third man had remained in the getaway car outside.
[
Footnote 5]
A third man indicated, Billy Wayne Davis, had pleaded guilty,
and was a principal witness for the Government at the respondents'
trial.
[
Footnote 6]
The judge imposed 20-year sentences for aggravated bank robbery
(18 U.S.C. § 2113(a)), 25-year sentences for assaults in the course
of the bank robbery (§ 2113(d)), and 10-year sentences for
possession of the proceeds of the robbery (§ 2113(c)), all of the
sentences to run concurrently.
[
Footnote 7]
See, e.g., United States v. Sharpe, 452 F.2d 1117, 1119
(CA1);
United States v. Ploof, 464 F.2d 116, 119-120
(CA2);
United States v. Roach, 321 F.2d 1, 6 (CA3);
Phillips v. United States, 518 F.2d 108, 110 (CA4);
United States v. Sellers, 520 F.2d 1281, 1286 (CA4);
United States v. Harris, 346 F.2d 182, 184 (CA4);
United States v. Abercrombie, 480 F.2d 961, 964-965 (CA5);
Ethridge v. United States, 494 F.2d 351 (CA6);
United
States v. Dion, 507 F.2d 683 (CA8);
United States v.
Tyler, 466 F.2d 920 (CA9);
Keating v. United States,
413 F.2d 1028 (CA9);
Glass v. United States, 351 F.2d 678
(CA10).
[
Footnote 8]
365 U.S. at
365 U. S. 557
(dissenting opinion).
[
Footnote 9]
18 U.S.C. §§ 641, 2.
[
Footnote 10]
365 U.S. at
365 U. S.
554-555, n. 5.
[
Footnote 11]
18 U.S.C. § 641.
[
Footnote 12]
In light of
Prince v. United States, 352 U.
S. 322, the concurrent sentences under Counts 1 and 2
should also be vacated, leaving the respondents under single
25-year prison sentences for violating 18 U.S.C. § 2113(d).
[
Footnote 13]
Such a case is not hard to hypothesize. A grand jury or
prosecutor may often possess clear evidence that the proceeds of a
bank robbery were found in a certain person's possession, and less
certain eyewitness or circumstantial evidence that that person was
an actual participant in the robbery.
[
Footnote 14]
The statement to the contrary in a dissenting opinion in
Milanovich, 365 U.S. at
365 U. S. 558,
is incorrect.
[
Footnote 15]
If, on the other hand, the indictment or information charges
only a violation of § 2113(c), it is incumbent upon the prosecution
at trial to prove beyond a reasonable doubt only the elements of
that offense, and the identity of the participant or participants
in the robbery or theft is irrelevant to the issue of the
defendant's guilt. While a mechanistic reading of
Heflin's
language might not wholly support this rule, it is to be remembered
that
Heflin ultimately held no more than that a person
could not be convicted and separately sentenced under § 2113(a),
(b), or (d) and under § 2113(c), because § 2113(c) could not be
used to "pyramid penalties." 358 U.S. at
358 U. S. 419.
Heflin did not purport to, and did not, add to or alter
the statutory elements of the offense under § 2113(c).
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE joins,
concurring.
Because the Court deems this case distinguishable from
Milanovich v. United States, 365 U.
S. 551 (1961), it sees no occasion to consider the
continuing validity of that decision; and I do not read the Court's
opinion as reaffirming, in addition to describing, the
Milanovich rule that a new trial is required when (1) a
jury is erroneously permitted to convict a defendant both of bank
robbery, 18 U.S.C. § 2113(a), (b), or (d), and of knowing
possession of the proceeds of that robbery, 18 U.S.C. § 2113(c),
and (2) there is evidence to support both convictions.
As the Court states, a jury, having convicted on the robbery
count, should stop there without going on to consider the
possession count. If the jury is erroneously permitted, however, to
consider and convict on the possession count as well, such a
conviction casts absolutely no doubt on the validity of the robbery
conviction. Under such circumstances it is not impossible to say
upon which count, if either, a properly instructed jury would have
convicted the defendant. It may be concluded with satisfactory
certainty that the jury, having convicted for both offenses, would
have convicted of robbery if it had been properly instructed. The
verdict on the robbery count shows that the jury found each element
of that
Page 424 U. S. 552
offense to have been established beyond a reasonable doubt. That
the jury went on to find that the defendant also possessed the
proceeds of the robbery -- whether on a different date and on
different proof or not -- casts no doubt on the trustworthiness of
the findings on the robbery count. The problem of erroneously
permitting the jury to consider and convict on two counts -- on
each of which, considered separately, the jury was properly
instructed -- when they should have considered and convicted on
only one bears no relation to that presented in
Stromberg v.
California, 283 U. S. 359
(1931), in which the jury was permitted to convict on a single
count on both a valid and an invalid theory. In
Stromberg,
it was impossible to know whether a properly instructed jury would
have convicted the defendant of anything. In the class of cases
governed by
Milanovich, the robbery count is untainted by
the fact that, in addition to its finding of guilty on that count
the jury also made findings on the possession count, for those
findings are factually consistent with the findings on the robbery
count.
In all cases in which the court correctly instructs the jury on
the elements of the crime of robbery, any resulting conviction and
sentence should be sustained. In those cases in which the jury also
convicts of possession, that conviction and any sentence on it
should simply be vacated.
* A new trial on
the robbery count in any such
Page 424 U. S. 553
case would result in an expenditure of court resources and the
possibility of an acquittal -- through loss of evidence or other
causes -- of a reliably convicted defendant for no reason.
* If district judges instruct juries as the majority opinion
requires, this problem will not arise. However, since this Court's
decision in
Milanovich v. United States, 365 U.
S. 551 (1961), district judges should have been
instructing juries not to consider possession counts, if they
convict of robbery. As this case and others attest,
e.g.,
United States v. Sellers, 520 F.2d 1281 (CA4 1975),
cert.
pending, Nos. 74-1476 and 74-6503;
Phillips v. United
States, 518 F.2d 108 (CA4 1975) (en banc),
cert.
pending, Nos. 75-167 and 75-5457;
United States v.
Dixon, 507 F.2d 683 (CA8 1974),
cert. pending, No.
74-5869, district judges have nonetheless made mistakes, and there
is no reason to believe that the mistakes will completely cease
just because the Court today reiterates the correct
instructions.