NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 19, 2012*
Decided November 19, 2012
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐3362
MICKEY L. DOOLEY, Appeal from the United States District
Movant‐Appellant, Court for the Southern District of Illinois.
v. No. 10‐165‐GPM
UNITED STATES OF AMERICA, G. Patrick Murphy,
Respondent‐Appellee. Judge.
O R D E R
Mickey Dooley, a former police officer, appeals from the denial of his motion to
vacate his federal convictions arising from the thefts of money and other property from his
department’s evidence vault. See
28 U.S.C. § 2255. Dooley claims that his trial attorney
provided ineffective assistance and argues that the district court should have granted him
an evidentiary hearing to prove that claim. We affirm the district court’s decision.
*
After examining the briefs and the record, we have concluded that oral argument
is unnecessary. The appeal is thus submitted on the brief and the record. See Fed. R. App. P.
34(a)(2)(C).
No. 11‐3362 Page 2
Dooley worked as an evidence custodian for the police department in Alton, Illinois.
His responsibilities included securing evidence collected from crime scenes, and he
possessed one of the five access cards allowing entry to the vault area. He also was the only
employee with keys to the vault and a cash locker inside; the only other copy of each key
was kept in the administration wing of the building.
After robberies at two local banks, successful police work led to arrests and recovery
of part of the loot. Dooley took possession of the money, and when the FBI later asked for it
to use as evidence in a federal prosecution against the robbers, Dooley arranged the
transfer. But the FBI soon realized that $39,000 was missing, and Dooley quickly became the
focus of investigation when review of video from a vault surveillance camera confirmed
that he twice had entered the vault despite the police chief’s directive that all personnel stay
out while the loss of the money was being investigated. An audit of the vault’s contents
showed that additional items from other crime scenes, including a laptop computer, also
were missing. Investigators confronted Dooley, who at first denied but then admitted
stealing the laptop. He would not admit taking the robbery proceeds.
Dooley was charged with lying to investigators,
18 U.S.C. § 1001(a)(2); attempting to
conceal evidence,
id. § 1512(c)(1); disposing of money stolen from a bank, id. § 2113(c);
misapplication of property by an employee of a federally funded, local government agency,
id. § 666; wire fraud, id. § 1343; and failure to file an income tax return,
26 U.S.C. § 7203. At
trial the government established that all of the stolen property was under Dooley’s exclusive
control as evidence custodian, that his keys to the vault and cash locker were used in the
theft, and that the surveillance video showed him inside the vault handling the missing
items. The government contended that Dooley was stealing from the vault to fund a
gambling habit, and supported that theory with testimony from a casino manager who said
that Dooley had lost nearly $50,000 in a single year. The jury returned a guilty verdict on
each count, and after we upheld all but the conviction for wire fraud, United States v. Dooley,
578 F.3d 582 (7th Cir. 2009), the district court sentenced Dooley to a total of 120 months’
imprisonment, with concurrent sentences for the separate counts.
Dooley then filed his § 2255 motion. He principally claimed that his lawyer had been
deficient on several fronts, in particular for not arguing that his convictions under § 2113(c)
and § 666 were multiplicitous because both were premised on the thefts from the vault of
money belonging to the banks. Dooley also accused the government of doctoring the video
from the vault surveillance camera as well as misrepresenting his gambling losses. The
district court denied the motion without an evidentiary hearing and declined to grant a
certificate of appealability. Dooley then applied to this court for a certificate, which we
granted but only on the claim of ineffective assistance.
No. 11‐3362 Page 3
In that order we encouraged the parties to focus on whether counsel was deficient in
failing to argue “that Dooley could not be simultaneously convicted of stealing goods and
receiving the same stolen goods.” Dooley says the answer is yes, and he also contends that
his lawyer missed an opportunity to undermine the government’s evidence about the
amount of his gambling losses.
According to Dooley, his lawyer was deficient in failing to argue that the “bank
robbery statute does not authorize separate convictions for one person for feloniously
receiving and feloniously taking the same property.”1 When we granted Dooley’s
application for a certificate of appealability, we did so without benefit of the complete
record. And though Dooley’s description of his convictions under § 2113(c) and § 666
appeared to raise a question that warranted briefing, a closer look reveals that his
characterization of the charged crimes is inaccurate and his legal theory thus untenable.
In Milanovich v. United States,
365 U.S. 551 (1961), the decision on which Dooley
relies, the Supreme Court held that the defendant could not be twice convicted and
sentenced under
18 U.S.C. § 641 for helping to transport burglars to a military commissary
and then later receiving part of what they stole. The government theorized that the
defendant was guilty of the theft as an accessory, and also guilty of receiving and
concealing loot from that same theft. In rejecting this view, the Court concluded that
Congress had not intended § 641 to allow for separate sentences based on the conversion of
the same property. Id. at 551–54. That decision followed Heflin v. United States,
358 U.S. 415
(1959), which holds that a bank robber cannot be sentenced under § 2113(a) for committing
the robbery and then sentenced a second time under § 2113(c) for receiving the proceeds of
the same robbery. We have understood these decisions as relating to the doctrine of merger
and suggested that, as a norm of federal criminal law, “[n]o matter how many statutes a
person violates when preparing to commit a robbery, actually committing it, and handling
the loot, only one sentence is appropriate.” United States v. Loniello,
610 F.3d 488, 495–96 (7th
Cir. 2010) (explaining Milanovich and Heflin).
1
Dooley also asserts that counsel was deficient in failing to argue that his conviction
under § 1512(c)(1) for attempting to conceal evidence likewise is multiplicitous when
viewed alongside his convictions for disposing of the robbery proceeds and for
misapplication of property in the custody of the police department. But this claim was not
presented to the district court, and thus is waived. See Wyatt v. United States,
574 F.3d 455,
459 (7th Cir. 2009); Berkey v. United States,
318 F.3d 768, 774 (7th Cir. 2003). We note,
however, that the concealed evidence underlying the § 1512(c)(1) conviction is the laptop
computer, not the money stolen from the banks, so this claim would have failed even if
Dooley had preserved and developed it.
No. 11‐3362 Page 4
Dooley’s case is different. In Milanovich the defendant was convicted and separately
sentenced both for “stealing” from the commissary and also for “receiving” what was
stolen. In contrast, Dooley was convicted under § 2113(c) for “disposing” of money stolen
during bank robberies that were committed by others without his knowledge or
involvement, and under § 666 for misapplying funds in the care of his federally funded,
local employer. The former statute deals with receiving money that another person had
stolen from a bank, see United States v. Gaddis,
424 U.S. 544, 547–48 (1976); Loniello,
610 F.3d
at 495, whereas the latter concerns public corruption, see United States v. Thompson,
484 F.3d
877, 881 (7th Cir. 2007). Spending money from a bank heist does not merge into
misappropriating evidence from a police vault, even if that evidence happens to be the
bank’s missing money. So there is no basis to conclude that counsel’s performance was
deficient. In any event, Dooley’s sentences effectively do merge because he is serving them
concurrently; that his lawyer refrained from making a multiplicity claim thus caused no
prejudice, see Strickland v. Washington,
466 U.S. 668, 687 (1984); Pole v. Randolph,
570 F.3d 922,
934 (7th Cir. 2009).
Dooley’s other criticism of counsel is that he never objected to the use of casino
records which, according to the government, show losses of nearly $50,000. Dooley asserts
that those records also establish that he won over $57,000 in jackpots during that year, so he
could not have come out behind, and thus his lawyer missed an opportunity to disprove the
government’s theory of motive for the crimes. But Dooley misstates the evidence. The
casino’s accounting manager did not testify that Dooley lost $50,000 in individual bets.
Instead, she accounted for Dooley’s winnings by testifying that, “at the end of the day, the
casino was ahead $48,424.95.” Once again, there is no basis to conclude that counsel’s
performance was deficient, and neither was an evidentiary hearing needed before drawing
that conclusion. See Kafo v. United States,
467 F.3d 1063, 1067 (7th Cir. 2006).
Finally, Dooley argues that the district court erred by concluding that he failed to
substantiate his accusations that the government used fraudulent evidence to secure his
convictions. But this contention is outside the scope of our certificate of appealibility, and so
we decline to review it. See
28 U.S.C. § 2253(c)(3); Lavin v. Rednour,
641 F.3d 830, 832 (7th
Cir. 2011); Rodriguez v. Scillia,
193 F.3d 913, 920 (7th Cir. 1999).
AFFIRMED.
