United States v. George Alvin Tyler , 466 F.2d 920 ( 1972 )

MURPHY, District Judge.

Tyler appeals from a judgment of the District Court of the Central District of California convicting him, after a jury trial, of (1) larceny and (2) possession of $4,510 in Bank of America traveler’s cheeks in violation of 18 U.S.C. § 2113(b) and (c). He received concurrent sentences of six years on each count.

The only issue¹ raised by appellant is whether all the traveler’s checks, at the time they were stolen or possessed, could possibly have had a value of more than $100 as is required by § 2113(b) and 2113(c).² His submission is that the checks had no or only a nominal value. It is undisputed that at the time the Bank of America traveler’s checks were stolen from that federally insured Bank they were neither signed nor countersigned but each had an imprinted denomination of $10, or $20, or $50 or $100 on its face.

We find the argument without merit. There was expert testimony as to the value of over $100 from two witnesses, thus creating a question of fact for the jury. There was additional evideuce that defendant in fact cashed almost all of them, that is, $4,490 worth. Similar arguments have been advanced and rejected with regard to stolen blank postal money orders and also blank traveler’s checks. United States v. Evans, 446 F.2d 998, 1001 (8th Cir. 1971); United States v. Carter, 448 F.2d 1245, 1247 (8th Cir. 1971); Churder v. United States, 387 F.2d 825, 833 (8th Cir. 1968); United States v. Kramer, 289 F.2d 909, 920-921 (2d Cir. 1961).

Although appellant did not raise the issue before the District Court or in this Court, we commend the United States Attorney for calling to our attention an underlying important legal issue, viz., did the .conviction of appellant violate the so-called rule of Milanovieh v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), “that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.” (p. 555). (Emphasis added.)

The Government did attempt to have the trial court charge the Milanovieh rule, but the court refused.³ Counsel for Tyler, although he was furnished a copy of the Government’s request and was present when the requested instruction was discussed, never asked for such an instruction and took no exception to the charge as given.

“I instruct you as a matter of law that you cannot convict the defendant of both offenses contained in Count One and Count Two. You may convict the defendant of the offense charged in Count One of Indictment or Count Two of Indictment. However, you may not convict the defendant of both of the offenses.” (citing Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961).

Whether or no the crime of possession (as charged in Count 2) as distinguished from the crime of receiving, which was not charged in that count, takes it out of the rule of Milanovich is therefore our first concern, since we have held that failure so to charge in a larceny-receiving case is plain error whether requested or not. Cf., United States v. O’Neil, 436 F.2d 571 (9th Cir. 1970); Keating v. United States, 413 F.2d 1028 (9th Cir. 1969).

We acknowledge the fact that Milanovich, although a 5-4 decision, is authority for the proposition that in any prosecution of a single wrongdoer for the crimes of larceny and receiving the same goods or money, the court must charge the jury that they may convict for either larceny or receiving but not both. We are not bound, however, by such a rule where the crimes charged under the Federal Bank Robbery Act are for larceny and possession (18 U.S.C. § 2113(b) and (c)) unless, of course, possession and receiving are synonymous.

Milanovich was .concerned with the statutory construction of 18 U.S.C. § 641⁴ insofar as it related to the crimes of larceny and receiving. It agreed with the Court of Appeals (Milanovich v. United States, 275 F.2d 716 (4th Cir. 1960)) that the Court of Appeals’ understanding of the Supreme Court’s construction of 18 U.S.C. § 2113(c) in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) was correct, and accordingly the Supreme Court, in Milanovich, could find no difference between the two statutes or the legislative histories to justify a different interpretation in respect to the issue before them. It held:

“With respect to the receiving statute before us in Heflin, we decided that ‘Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the . . . robbers themselves,’ 358 U.S. at [page] 420 [, 79 S.Ct., at page 454]. We find nothing in the language or history of the present statute which leads to a different conclusion here.” (365 U.S. 551, 554, 81 S.Ct. 728, 729)

In our view the most that Heflin decided was that Congress did not intend to pyramid the punishment of bank robbers merely because they received, possessed, concealed, etc. the proceeds of the robbery. It did not intend to, nor did it, state that Congress had no authority to make such acts criminal. After reviewing the legislative history, the Court, in Heflin, stated:

“This clue to the purpose of Congress argues strongly against the position of the Government. From these Reports it seems clear 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. We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery. It may be true that in logic those who divide up the loot following a robbery receive from robbers and thus multiply the offense. But in view of the legislative history of subsection (c) we think Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves.” (358 U.S. 415 pp. 419-420, 79 S.Ct. 451 p. 454)

Since 1961, when Milanovich was decided, the Supreme Court has cited it only once, although it has provided many courts of appeal with subject matter for endless discussion. Cf., United States v. White, 440 F.2d 978 (5th Cir. 1971); United States v. Corson, 449 F.2d 544 (3rd Cir. 1971, en banc); Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968, en banc); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967); Jenkins v. United States, 361 F.2d 615 (10th Cir. 1966).

In the one Supreme Court case, United States v. O’Brien, 391 U.S. 367, 380, 88 S.Ct. 1673, 1680, 20 L.Ed.2d 672 (1968), the court said:

“In the absence of a question as to multiple punishment, it has never been suggested that there is anything improper in Congress’ providing alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore v. United States, 357 U.S. 386 [, 78 S.Ct. 1280, 2 L.Ed.2d 1405] (1958).28

“28. Cf. Milanovich v. United States, 365 U.S. 551 [, 81 S.Ct. 728, 5 L.Ed.2d 773] (1961) ; Heflin v. United States, 358 U.S. 415 [, 79 S.Ct. 451, 3 L.Ed.2d 407] (1959) ; Prince v. United States, 352 U.S. 322 [, 77 S.Ct. 403, 1 L.Ed.2d 370] (1957).”

Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (most of the dissenters in Milanovich were the majority) reaffirmed the holding in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), namely, that Congress did have the power to outlaw and punish as separate offenses the severable ingredients of one compound transaction.

We, too, have had occasion to distinguish between the crimes of receiving and possession. In D’Argento v. United States, 353 F.2d 327, 334-335 (9th Cir. 1965), cert. denied 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966), the appeal was from a judgment convicting the defendant of theft from an interstate shipment and possession of the same goods (18 U.S.C. § 659). We distinguished Milanovich as follows:

“There [Milanovich] the defendant was charged with larceny and with receiving the same property taken. The distinction between that case and this one is that the second offense here is the possession of the stolen goods. The two offenses of larceny and the receiving of the stolen property would occur at the same time and would tend to merge. Here possession of the stolen property would be a continuing offense. No cases have been called to our attention holding that possession and receiving in this context are entitled to the same treatment. We do not consider Milanovich supra to be applicable here. There are two distinct offenses of theft and possession.

“There was no error in not requiring the Government to elect or in failing to instruct that there was only one offense.”

Our decision in D’Argento has been relied upon by the Second Circuit in United States v. Ploof, 464 F.2d 116 (2d Cir. 1972); United States v. Meduri, 457 F.2d 330, 331 (2d Cir. 1972); and United States v. Cusumano, 429 F.2d 378, 381 (2d Cir. 1970), cert. denied sub nom. Riggio v. United States, 400 U.S. 830, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970); in each case the court rejected the so-called rule of Milanovich in a larceny-possession situation.

In Ploof the court made the following observation relevant to the instant problem:

“Although appellants in the instant case were convicted of only one substantive offense — receiving and concealing a stolen motor vehicle — other Circuits uniformly have held that under the Dyer Act the offenses of transporting a stolen motor vehicle (§ 2312) and receiving and concealing it (§ 2313) are distinct offenses which can be committed at the same time, with the same property, by the same person, who can be sentenced to consecutive prison terms for such distinct offenses. United States v. Thompson, 442 F.2d 1333 (6 Cir. 1971); Linkenauger v. United States, 357 F.2d 925 (6 Cir. 1966); United States v. Lankford, 296 F.2d 34 (4 Cir. 1961); Woody v. United States, 258 F.2d 535, 536 (6 Cir. 1957), aff’d by an equally divided Court, 359 U.S. 118 [, 79 S.Ct. 721, 3 L.Ed.2d 673] (1959); Madsen v. United States, 165 F.2d 507, 510 (10 Cir. 1947). We would see no reason for not following the other Circuits on this issue even if appellants had been convicted of substantive offenses under both § 2312 and 2313.”

The First Circuit, in United States v. Sharpe, 452 F.2d 1117, 464 F.2d at 120. (1st Cir. 1971), was also concerned with a conviction of receiving or possessing certain goods stolen from an interstate railroad shipment in violation of 18 U.S. C. § 659. In answering the Milanovich argument the court stated, by way of dictum:

“Moreover, there is nothing inconsistent in being involved in the theft and being guilty of possession of stolen goods. Since the defendant was not indicted for theft and was convicted only of possession, we need not reach the more difficult question of whether convicting a person of both theft and possession would be impermissible because it would result in pyramiding penalties for a single act.” (452 F.2d at 1119) (Emphasis added.)

Since both words, stealing and possessing, are ingredients of one compound transaction, they are severable and connote entirely different meanings, including their dictionary meanings, and do not have, as Mr. Justice Frankfurter said in dissenting in Milanovich, the same merging quality as in stealing and receiving. He said there:

“In short, taking and receiving, as a contemporaneous — indeed a coincidental — phenomenon, constitute one transaction in life and, therefore, not two transactions in law.” 365 U.S. at 558, 81 S.Ct. at 732.

We had occasion also in United States v. Le Pera, 443 F.2d 810 (9th Cir. 1971), to distinguish the Milanovich rule on an appeal from a conviction of aiding and abetting counterfeiting and conspiring to commit counterfeiting, by saying:

“The appellant’s reliance upon Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), and Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), is misplaced, for they prohibit the pyramiding of punishment in the way of consecutive sentences on two or more convictions for the same act or transaction.” 443 F.2d at 813.

In sum, the construction of § 2113(c) in Heflin was not that receiving, possessing, etc. could not be separate crimes but rather that the penalties for such crimes could not be pyramided to the other crimes in § 2113.

Being satisfied, therefore, that we are not bound by the Milanovich rule in this case, we next approach the problem from another direction, viz., the concurrent sentence doctrine enunciated and approved in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1387, 87 L.Ed. 1774 (1943). In that case the Supreme Court said:

“The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since, as already stated, the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence.” 320 U.S. 105, 63 S.Ct. 1387.

The concurrent sentence doctrine of Hirabayashi has not been abolished by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (see United States v. Holman, 436 F.2d 863, 867 (9th Cir. 1970)), and does not deprive us of jurisdiction. We could, as a matter of discretion, decline to review the evidence on one count but we will not so decline. United States v. LaMont, 447 F.2d 1311 (9th Cir. 1971); United States v. Fishbein, 446 F.2d 1201 (9th Cir. 1971); United States v. Lucero, 443 F.2d 64 (9th Cir. 1971); United States v. Washabaugh, 442 F.2d 1127 (9th Cir. 1971); United States v. Crouch, 442 F.2d 427 (9th Cir. 1971); United States v. Ruiz, 441 F.2d 1120 (9th Cir. 1971); United States v. McKinney, 433 F.2d 921 (9th Cir. 1970); United States v. Martinez, 429 F.2d 971 (9th Cir. 1970); United States v. Tamayo, 427 F.2d 1072 (9th Cir. 1970); United States v. Lazaras, 425 F.2d 638 (9th Cir. 1970); and Jordan v. United States, 416 F.2d 338 (9th Cir. 1969).

We have reviewed all the evidence in detail, and although no motion was addressed to the sufficiency of the evidence other than the question of value previously discussed, we are satisfied that there was ample evidence to convict on both counts.

The testimony at trial showed that the Bank in question was being renovated. On the evening of April 18, 1969, a contractor with several men, including the defendant, who was known under the fictitious name of Craig Adams, worked at the Bank from the hours of 6:00 P.M. to 11:00 or 12:00 P.M. The $4,510 of traveler’s checks had been left by one of the tellers in a carriage when the Bank closed that day after business hours. The same men worked in the Bank the next day until noon. On Monday, April 21, 1969, the Bank employees discovered the checks missing. The uncontroverted proof showed that the checks were in different denominations printed on their face. 169 were $10 checks; 46 were $20 checks; 24 were $50 checks; and 7 were $100 checks, for a total of $4,510. $4,490 worth of these checks were signed, countersigned and cashed by someone using the fictitious name of George Teeter, in Las Vegas, Nevada, some time over that weekend, including Sunday, April 20th. At the trial there was expert testimony that the signatures “George Teeter” on each and every traveler’s check cashed were in the handwriting of the defendant. No question has been raised as to venue. Some time later, the F.B.I. interviewed the defendant Tyler in jail where, in addition to the giving of specimens of his handwriting, including the name George Teeter, he also told the agents that' he had purchased some $5,000 worth of Bank of America checks at a different branch of the Bank of America which, as was to be expected, turned out to be completely false. There was also testimony that on Monday, April 21st, Tyler paid his employer $100 with a $100 bill for some minor damage to a truck his employer had loaned him over the weekend, and that Tyler failed to work after that day for that employer. His salary when so employed varied between $125 and $150 a week.

Accordingly, we find that the evidence was more than sufficient to convict on both charges, larceny and possession, and that under the concurrent sentence doctrine sentences imposed and ordered to run concurrently vitiate any error caused by multiplicity.

Finding no error, we affirm.

1 . Appellant also briefed the alleged refusal of the trial court to give an instruction on the lesser included offense but did not press it on oral argument because the charge was in fact given.

2 . Ҥ 2113. Bank robbery and incidental crimes.

* * *

“(b) 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 * * * any bank * * * shall be fined not more than $5,000 or imprisoned not more than ten years, or both;

* * * * *

“(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 * * * in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.”

3 . The Government’s Proposed Instruction reads:

4 . Ҥ 641. Public money, property or records

“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

“Whoever receives,⁵ conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

. “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

5 . Possession is not made criminal.