Eddie Lawrence Phillips v. United States , 518 F.2d 108 ( 1975 )

PER CURIAM:

A majority of the panel reversed Phillips’ conviction and remanded for a new trial. Phillips v. United States, 502 F.2d 227 (4th Cir. 1974). On rehearing en banc a majority of the court, although fragmented as to theory, also votes to reverse the conviction and remand for a new trial, but with additional instructions to the lower court.

The main disagreement is whether Phillips’ conviction at a second trial of knowing possession of stolen bank money, 18 U.S.C. § 2113(c), was invalid under the doctrine of collateral estoppel or under what may be termed the mutually-exclusive-offense rule laid down in Milanovich v. United States, 275 F.2d 716, 719 (4th Cir. 1960), aff’d in part, rev’d in part, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961).

Judges Winter, Russell, and Field would hold that for the reasons set forth in the majority panel opinion the doctrine of collateral estoppel applies: “[T]he jury’s decision in the first trial to acquit Phillips of bank robbery . effectively determined that Phillips was not in the bank at the time of the robbery.” Phillips v. United States, supra, 502 F.2d at 231. They find reversible error in permitting the government at the second trial to offer proof that Phillips was present at the bank during the robbery, even for the limited purpose of showing that Phillips possessed the money with knowledge that it had been stolen. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). If the government elects to try Phillips anew, it should therefore not be permitted to offer proof, for any purpose, that defendant was in the bank. Furthermore, Phillips should similarly be barred from defending against the charge of possession by offering proof that he was in the bank and therefore was a “thief” rather than a “receiver.” He, having benefited by the jury’s determination in the first trial, should be estopped from controverting the jury’s finding.

Chief Judge Haynsworth and Judges Craven, Butzner, and Widener would hold that on the facts as recited in the panel opinion the jury’s implicit acquittal of bank robbery in the first trial did not collaterally estop the government from showing guilty knowledge by proof of defendant’s presence and participation in the robbery. See Phillips v. United States, supra, 502 F.2d at 227 (Craven, J., dissenting). Judge Widener, however, in so rejecting Phillips’ collateral estoppel argument, concludes for the reasons stated in his concurring and dissenting opinion that the instant conviction is free of error, and would affirm.

Chief Judge Haynsworth and Judges Craven and Butzner on the other hand find plain and reversible error in the lower court’s failure to charge the jury in the second trial that if they believed Phillips was in the bank as a participant during the robbery they could not convict him of receiving and pbssessing stolen money. Since he had been acquitted in the first trial of bank robbery under § 2113(a), he was, as far as the combined effect of the two jury trials, either, guilty of receiving and possessing the stolen funds or wholly innocent. To permit the second jury to believe that Phillips participated as a thief in the bank robbery — for purposes of showing guilty knowledge in his capacity as a receiver— would implicitly violate the mutually-exclusive-offense rule:

“[I]n the absence of a contrary indication. by Congress, a defendant charged with offenses under statutes of this character may not be convicted and punished for stealing and also for receiving the same goods.”

Milanovich v. United States, 365 U.S. 551, 553-54, 81 S.Ct. 728, 729, 5 L.Ed.2d 773 (1961), quoting from Milanovich v. United States, 275 F.2d at 719. See Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959).

Thus, at any subsequent retrial, any proof by the government tending to show that Phillips was a bank robber would have to be accompanied by a Milanovich instruction. Thus, as a practical matter, the government could not show Phillips was in the bank to show guilty knowledge in receiving the stolen money for to do so would establish incapacity to be guilty as a receiver/possessor under Milanovich.

While under the view that it is Milanovich and not collateral estoppel that controls the government’s position at retrial, Chief Judge Haynsworth and Judge Butzner join Judges Winter, Russell, and Field in holding that Phillips is estopped at any new trial from offering evidence that he was a bank robber. They (Haynsworth and Butzner) do not think there is any collateral estoppel by judgment, but they think there is an equitable estoppel against a complete reversal of his position by Phillips. At the first trial he presented alibi witnesses in an effort to prove he was not in the bank, and his attorney, on his behalf, apparently succeeded in persuading the jurors that they could not unanimously find beyond a reasonable doubt that he was one of the robbers. It is their view that an equitable estoppel prevents his now offering himself, or other witnesses, in an effort to prove that he was one of the robbers.

Judge Craven and Judge Widener agree that Phillips is not estopped in a subsequent retrial.

Thus, four members agree that the doctrine of collateral estoppel did not apply against the government; six members agree that the government is at least in practice barred on retrial from presenting evidence of Phillips’ participation; and five members agree that Phillips is estopped on retrial from defending the possession charge by showing that he was a bank robber.

Accordingly, the court holds:

1. The panel decision is hereby vacated.

2. Possession of money stolen from a bank, made unlawful by 18 U.S.C. § 2113(c), is not a lesser included offense under 18 U.S.C. § 2113(a) (bank robbery).

3. One may not be convicted and punished for both bank robbery and possession of money stolen from a bank under 18 U.S.C. §§ 2113(a) and 2113(c) as a result of a single occurrence. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). But one who is not guilty of bank robbery may be validly convicted of possession, and vice versa.

4. On the facts of this case as recited in the prior panel opinions, Phillips v. United States, 502 F.2d 227 (4th Cir. 1974), the doctrine of collateral estoppel as set out in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), does not apply to foreclose any proof by the United States.

5. Phillips’ conviction under 18 U.S.C. § 2113(c) is reversed and the case is remanded to the district court for a new trial on the same charge within a reasonable time, if the government so chooses.

6. Since a majority are agreed that as a practical matter, although for different reasons, evidence of Phillips’ participation in the robbery should not be admitted, the district court should exclude it if offered by the United States.

7. Phillips is estopped from offering evidence that he was one of the bank robbers.

Reversed and remanded with instructions.