365 U.S. 551 (1961), 79, Milanovich v. United States

Docket Nº:No. 79
Citation:365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773
Party Name:Milanovich v. United States
Case Date:March 20, 1961
Court:United States Supreme Court
 
FREE EXCERPT

Page 551

365 U.S. 551 (1961)

81 S.Ct. 728, 5 L.Ed.2d 773

Milanovich

v.

United States

No. 79

United States Supreme Court

March 20, 1961

Argued February 20, 1961

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

Petitioners, husband and wife, were both convicted in a Federal District Court for stealing government property in violation of 18 U.S.C. § 641, and the wife was convicted also on a separate count for receiving and concealing part of the same property in violation of the same section. On the larceny conviction, the husband was sentenced to imprisonment for five years and the wife for ten years. In addition, the wife received a five-year concurrent sentence on the receiving count. The Court of Appeals sustained both convictions on the larceny count, but it reversed the wife's conviction on the receiving count. It set aside the wife's five-year sentence for receiving, but it let stand her ten-year sentence for larceny.

Held: the judgment as to the husband is affirmed, but the judgment as to the wife is set aside, and the cause is remanded to the District Court for a new trial. Pp. 552-556.

(a) The wife could not validly be convicted under 18 U.S.C. § 641 both for stealing government property and for receiving and concealing the same property. Hein v. United States, 358 U.S. 415. Pp. 553-554.

(b) The trial judge erred in not charging that the jury could convict the wife of either larceny or receiving, but not of both. Pp. 554-555.

(c) Since there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving or of neither, the mere setting aside of the shorter concurrent sentence for receiving did not suffice to cure any prejudice resulting from the judge's failure to instruct the jury properly. Pp. 555-556.

275 F.2d 716 affirmed in part and set aside in part.

Page 552

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioners are husband and wife. They were both convicted in a Federal District Court for stealing several thousand dollars in currency from a commissary store at a United States Naval Base. The wife was convicted also on a separate count for receiving and concealing the stolen currency.1 Both petitioners were sentenced to prison on the larceny [81 S.Ct. 729] conviction, the husband for a term of five years and the wife for a ten-year term. In addition, the wife received a five-year concurrent sentence on the receiving count.

Throughout the trial, counsel for the petitioners consistently maintained the position that a thief could not be convicted of receiving from himself.2 Although directing

Page 553

an acquittal on the receiving count in the husband's case, the trial judge overruled a similar motion on behalf of the wife. Counsel then clearly indicated his intention to request that the jury be instructed that it could not find the wife guilty of both stealing and receiving.3 The trial judge responded by pointing out that the Fourth Circuit had decided, in Aaronson v. United States, 175 F.2d 41, that it is possible that, as long as the person did not actually participate in the actual taking of the goods, that same person may be found guilty of receiving and concealing, and may also be found guilty as an accessory before the fact or as an aider and an abetter of the actual charge of theft. Faced with this controlling Fourth Circuit authority, counsel did not engage in the futile exercise of submitting a more formal request for such instructions.

When the case reached the Court of Appeals, that court put aside its decision in the Aaronson case, in the light of this Court's decision in Heflin v. United States, 358 U.S. 415, which had been announced in the meantime. In Heflin, we held that a defendant could not be convicted and cumulatively sentenced under 18 U.S.C. § 2113 for both robbing a bank and receiving the proceeds of the robbery. Relying on that decision, the court set aside the sentence imposed upon the wife for receiving. 275 F.2d 716. It was the court's view that,

in 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

Page 554

and also for receiving the same goods.

275 F.2d at 719. Although Heflin involved a different section of the criminal code, the court found

no differences between the two statutes or their legislative histories justifying divergent interpretations in respect to the issue before us.

In this view, we think that the Court of Appeals was correct. As the court recognized, the question is one of statutory construction, not of common law distinctions. Compare Metcalf v. State, 98 Fla. 457, 124 So. 427; Smith v. State, 59 Ohio St. 350, 52 N.E. 826; Jenkins v. State, 62 Wis. 49, 21 N.W. 232; Regina v. Hilton, Bell C.C. 20, 169 Eng.Rep. 1150, with Allen v. State, 76 Tex.Cr.R. 416, 175 S.W. 700; Regina v. Perkins, 2 Den.C.C. 458, 169 Eng.Rep. 582; Regina v. Coggins, 12 Cox C.C. 517. 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 420. We find nothing in the language or history of the present statute [81 S.Ct. 730] which leads to a different conclusion here. As in Heflin, the provision of the statute which makes receiving an offense came into the law later than the provision relating to robbery.4

It is now contended that setting aside the sentence on the receiving count was not enough -- that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that, although the evidence was sufficient to support a conviction for either larceny or receiving,5 the judge should have instructed

Page 555

the jury that a guilty verdict could be returned upon either count, but not both. It is urged that, since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F.2d at 721.

We think that the point is well taken. In Heflin, we were not concerned with the correctness of jury instructions, since that case arose out of a collateral proceeding to correct an illegal sentence where the petitioner was asking only that the cumulative punishment imposed for receiving be set aside. In this case, by contrast, a direct review of the conviction brings here the entire record of the trial. We hold, based on what has been said as to the scope of the applicable statute, that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.

Though setting aside the shorter concurrent sentence imposed upon the wife for receiving, the Court of Appeals left standing a ten-year prison term for larceny, double the punishment that had been imposed upon the husband for the identical offense. Yet there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus, we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice...

To continue reading

FREE SIGN UP