United States v. Robert Lester Trzcinski , 553 F.2d 851 ( 1977 )

OPINION OF THE COURT

WEIS, Circuit Judge.

The proper construction of a criminal statute, a query of the type that intrigues the legal mind but is a source of bafflement and some impatience to the average layman, is the stuff of this appeal. The question is whether a defendant may be convicted for the receipt and possession of stolen goods when the evidence discloses that he was in fact the thief. We opt for a literal, rather than a historical reading of the statute and answer in the affirmative.

Defendant Trzcinski and others were indicted on one count of receiving, concealing and retaining stolen government property, in violation of 18 U.S.C. § 641.¹ The evidence at trial showed that Trzcinski drove his codefendants to a repair facility in Philadelphia and remained in his automobile while the other men stole a government truck. Trzcinski followed in his car as the codefendants drove the truck to a lot owned by Trailmobile Company, where all were apprehended in the act of loading stolen tires onto the truck. The district judge, after a nonjury trial, found the defendants guilty of the offense charged. In discussing his findings, he stated:

“We could not have found that the defendants, beyond a reasonable doubt, exercised dominion over the vehicle if we had not first concluded that the defendants had stolen the truck. . . . [I]n the instant case the government needed to rely on the inference that the defendants stole the truck in order to secure their convictions for possession.”

Relying on Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), and Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), the defendant argues that since the trial court believed that he stole the truck, he cannot be convicted of unlawfully possessing it.

In Heflin v. United States, supra, the defendant was convicted of both bank robbery and receiving the stolen money in violation of 18 U.S.C. §§ 2113(d), (c). After reviewing the meager legislative history, the Court reasoned that subsection (c), the receiving offense, was designed not to increase the robber’s punishment but rather to provide punishment for those who received the loot from him. Accordingly, the Court held sentences on both counts impermissible.

In Milanovich v. United States, supra, guilty verdicts had been returned on a count of receiving and concealing government property, as well as one for stealing it, crimes proscribed by 18 U.S.C. § 641. The Court followed the Heflin reasoning, holding that when the indictment charges both theft and receiving stolen goods, the trial judge must instruct the jury that it can convict on either of the charges, but not on both.

Traditionally, receipt of stolen goods has been a crime distinct from the theft. Under the general view, a thief who actually carried away the goods could not “receive” them from himself. This principle is based either upon the theory of avoiding the infliction of a double penalty or upon the philosophic consideration that a single act may not constitute both the larceny and the receiving. An accessory, however, may be guilty of both larceny and receipt of stolen goods. See 2 F. Wharton, Criminal Law and Procedure § 576 (12th ed. 1957), and R. Perkins, Criminal Law 321 (1969). But these general observations are not controlling because, as the Supreme Court recognized in Milanovich, the question is one of statutory construction, not common law distinctions.

Milanovieh produced more confusion than clarity. The two conflicting interpretations of its holding were carefully summarized in United States v. Minchew, 417 F.2d 218, 219 (5th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970):

“The Court’s opinion in Milanovieh is less than precise, and allows differing interpretations of the exact holding. One interpretation is that Milanovieh holds that paragraph two of section 641 is uniformly inapplicable to the person who stole the Government property in question A second interpretation of Milanovieh, and we think the correct one, is that a person cannot be convicted and punished for both stealing Government property and for receiving the same property. The holding probably includes concealing and retaining the stolen property.”

The second view was also followed in United States v. Sharpe, 452 F.2d 1117 (1st Cir. 1971); Altom v. United States, 454 F.2d 289, 295 (7th Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1765, 32 L.Ed.2d 116 (1972), and Ortiz v. United States, 351 F.2d 933 (10th Cir. 1965). The first approach was adopted in United States v. Sellers, 520 F.2d 1281 (4th Cir.), remanded, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), modified on remand, 547 F.2d 785 (1976) and in Phillips v. United States, 518 F.2d 108 (4th Cir.) (en banc), remanded, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), and United States v. White, 440 F.2d 978 (5th Cir.), cert. denied, 404 U.S. 839, 92 S.Ct. 129, 30 L.Ed.2d 72 (1971) (dictum).

Recognizing the difficulties engendered by Milanovich, the Supreme Court clarified the situation in United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). In that case, 18 U.S.C. § 2113² was under scrutiny, rather than § 641. The difference between the statutes, however, has no significance insofar as the explication of Milanovich is concerned.

In Gaddis the trial judge had failed to charge the jury that if they found the defendant guilty on the robbery count, he could not be convicted on the possession count. The Court held that a new trial was not necessary since no evidence showed actual possession other than asportation during the robbery and, therefore, dismissal of that count was the proper disposition. Gad-dis reaffirmed Heflin v. United States, supra, but stated there would be no impropriety for a grand jury to return counts of both robbery and receipt where there was evidence of participation in the theft as well as knowing receipt. At trial in such a case, the jurors would be instructed that they should consider the receipt charge only if they first found insufficient proof of the defendant’s participation in the robbery. To that extent, the opinion was simply a reiteration of Heflin and Milanovich. However, in a footnote following immediately thereafter, the Court said:

“If, on the other hand, the indictment or information charges only a violation of § 2113(c) [the receiving and possessing subpart], 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 419 [79 S.Ct. (451), at 453-454], Heflin did not purport to, and did not, add to or alter the statutory elements of the offense under § 2113(c).” 424 U.S., at 550-551, 96 S.Ct., at 1027. (emphasis supplied)

As we read the footnote, the Court approved the second interpretation of Milanovich discussed in United States v. Minchew, supra. Therefore, in a case where only possession is charged, whether the defendant has committed the larceny is not the determinative fact — rather, it is whether he has been convicted of that crime.³ The underlying premise of the prohibition is penological — preventing pyramiding of punishment — not a philosophical dissection of the criminal activity itself.

The Court cautioned against a “mechanistic” reading of Heflin, stating that the identity of the robber is irrelevant and that the statutory elements of the crime remain unaltered. The second paragraph of § 641 requires for conviction:

1. receipt, possession, or concealment of,

2. stolen government property, with

3. intent to convert, and

4. knowledge that it is stolen.

It does not state that the theft must have been by someone other than the accused. Therefore, that “requirement” is not a statutory element. It follows that the thief’s identity does not affect the offense — it is, as the Supreme Court said, “irrelevant.”

We conclude that, based upon the Court’s opinion in Gaddis, the conviction here for receipt and possession of stolen goods must be affirmed.⁴

We have examined the legislative history of § 641 and find it inconclusive.⁵ The statute enacted in 1875, Act of March 3, 1875, ch. 144, § 2, 18 Stat. 479, provided, in part, that possession of goods which had been “stolen, or purloined from the United States by any other person” was an offense. In 1909, the statute was amended in part by deleting “from the United States” but retaining “by any other person.” Act of March 4, 1909, ch. 321, § 48, 35 Stat. 1098, 18 U.S.C. § 101. See 42 Cong.Rec. 785-787 (1908).

When the current provision was adopted in 1948, the phrase “by any other person” was deleted. Arguably, this revision evidences congressional intent to broaden the offense of receipt of stolen goods, but the legislative history is silent on the point. Rather than engage in the thrust and parry of statutory interpretation canons, see Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand.L.Rev. 395,401-05 (1950), reprinted in R. Aldisert, The Judicial Process 180 (1976), we choose to rely upon the Gaddis opinion.

The judgment of the district court will be affirmed.

1 . § 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, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzlfed, stolen, purloined or converted—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

2 . §2113. Bank robbery and incidental crimes

(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, or any savings and loan association; or

Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank 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.

(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, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, 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, 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.

(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.

3 . Thus, a conviction on a possession charge would be a bar to a subsequent prosecution for theft of the same goods.

4 . It is significant that when the Supreme Court vacated the judgment in Phillips v. United States, supra, it did so with directions for further consideration in light of Gaddis. In Phillips the Fourth Circuit had applied the interpretation of Hefíin and Milanovich which we have rejected here.

We are aware of the decision in United States v. Tyler, 466 F.2d 920 (9th Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972), where the Court of Appeals, in distinguishing between receipt and possession of stolen goods, allowed convictions for both larceny and possession to stand. While the holding in that case may be correct we need not rely upon it in view of the later Gaddis opinion.

5 . In Morissette v. United States, 342 U.S. 246, 269 n.28, 72 S.Ct. 240, 253, 96 L.Ed. 288, the Court said: “The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions.”