United States v. Faleafine

• Citation: 492 F.2d 18
• Decision Date: 25 January 1974
• Docket Number: No. 73-1850.,73-1850.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eneliko Fatu FALEAFINE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

492 F.2d 18 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Eneliko Fatu FALEAFINE, Defendant-Appellant.

No. 73-1850.

United States Court of Appeals, Ninth Circuit.

January 25, 1974.

Eneliko Fatu Faleafine, in pro per.

James L. Browning, U. S. Atty., F. Steele Langford, Dennis Michael Nerney, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

OPINION

DUNIWAY, Circuit Judge:

Faleafine appeals from a judgment of conviction under a two-count indictment.

The indictment reads in pertinent part :

"COUNT ONE: (18 U.S.C. § 2113(a), (d))

1. On or about October 13, 1972, . . . defendants herein, did by force and intimidation take from the person and presence of manager Leonel Vargas, at the Union City Branch of the Bank of America, NT & SA . . . money in the sum of $52,000 belonging to and in the care, custody, control and possession of the aforesaid bank. . . .

2. In the commission of the offense alleged in the preceding paragraph of this Indictment, . . . defendants herein, did assault and did put in jeopardy the life of Leonel Vargas, by the use of a dangerous weapon, to wit: handguns."

"COUNT TWO: (18 U.S.C. § 2113(e))

In the commission of the offense alleged in Count One of this Indictment, the particulars of which are incorporated herein by reference as if fully set forth, . . . defendants herein, did force Clarence Baptista, a Loan Officer at said bank, to accompany said defendants to said bank without the consent of said Clarence Baptista."

The jury's verdict is set out in the margin.¹ Faleafine was sentenced to twenty-five years imprisonment under count one and fifty years imprisonment under count two, the sentences to be served consecutively.

In his brief, Faleafine, who is acting pro se, argues that the consecutive sentences imposed amount to cruel and unusual punishment, thus violating the Eighth Amendment to the Constitution: We do not reach this question, however, because another defect in the proceedings, apparent on the face of the record, requires that the judgment be reversed in part.

Section 2113, Title 18 U.S.C., now reads, in pertinent part:

"(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, . . .

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

* * * * *

(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.

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct."

The foregoing provisions, in almost identical language, have been in the statute from its inception. We quote the statute, as originally enacted, in the margin.² The statute has been repeatedly amended, to bring certain savings and loan associations and credit unions within its coverage and to cover: in subsection (a), the present second paragraph, entering a bank with intent to commit a felony or larceny; in new subsection (b), two degrees of stealing from a bank; in new subsection (c), receiving property taken from a bank. None of these amendments has changed the relationships between the part of subsection (a) and present subsections (d) and (e) that we have quoted above.

We are of the opinion that subsection (d) which deals with conduct "in committing . . . any offense defined in subsections (a) and (b)" and subsection (e) insofar as it deals with homicide or kidnaping occurring "in committing any offense defined in this section," each prescribes a more severe punishment for the substantive offense defined elsewhere in section 2113, but does not create a separate offense for which a separate sentence may be imposed. We are impelled to this conclusion by the language of the statute, by the rationale of certain decisions of the Supreme Court, and by the great weight of authority in the courts of appeals.

First, the language of the statute. So far as it is pertinent here, subsection (d) provides: "Whoever, in committing . . . any offense defined in subsection (a) . . . assaults any person," etc., "shall be fined not more than $10,000 or imprisoned not more than twenty-five years or both." This increases the subsection (a) penalty from up to $5,000 fine or twenty years, or both. So far as it is pertinent here, subsection (e) provides: "Whoever, in committing any offense defined in this section . . . kills any person or forces any person to accompany him without the consent of such person, shall be imprisoned for not less than ten years i.e., up to and including life, Carter v. Johnston, 9 Cir., 1944, 145 F.2d 882. or punished by death. . . ." This, too, increases the subsection (a) penalty and also if subsection (d) is involved, the subsection (d) penalty. We hold that the statutory language points to the creation of an enhanced penalty for the basic subsection (a) offense when certain conduct is involved in committing it, rather than to the creation of a new and separate offense.

Each of the offenses defined in the added subsection (b) and (c), like subsection (a), carries its own basic penalties. They are less than the subsection (a) penalties. It would be harsh indeed to permit consecutive sentences of twenty years under the first paragraph of subsection (a), which is here involved, of twenty years under the second paragraph of subsection (a), of ten years under the first paragraph of subsection (b), of ten years under subsection (c), of twenty-five years under subsection (d), and of, say fifty years under subsection (e). Yet if these subsections all define separate offenses that can occur in the course of one bank robbery, that could be the result. A lone bank robber, armed with a loaded gun, might accost a bank manager on the street when the bank was closed, force him to accompany him to the bank (subsection (e) ), put his life in jeopardy with the gun (subsection (d) ), enter the bank with intent to commit larceny (subsection (a), second paragraph) take money under threat of the gun (subsection (a), first paragraph), walk out with over $100 (subsection (b) ), and possess, conceal, store the money (subsection (c) ). For this, if all of these are separate offenses, he could get consecutive sentences totalling 135 years or more. We do not think that Congress intended such a result. This is particularly true of subsection (d) and the pertinent part of subsection (e), which refer to conduct, occurring "in committing or in attempting to commit, any offense defined" elsewhere in the section.

Decisions of the Supreme Court, although not squarely in point here, support our views. In 1937, the statute was amended by adding to the then subsection (a) of section 2 the present second paragraph of present subsection (a), dealing with entering a bank with felonious intent, and the present subsection (b), dealing with taking money or property from a bank (Act of August 24, 1937, ch. 747, 50 Stat. 749.) In Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, Prince had entered a bank, pulled a gun, and committed a robbery. He was indicted on two counts. One charged robbing a bank in violation of what are now the first paragraph of subsection (a) and subsection (d). The other charged entering the bank with intent to commit a felony in violation of the present second paragraph of subsection (a). Convicted on both counts, Prince was given consecutive sentences. His motion under Rule 35, F.R.Crim.P. to correct sentence was denied. The Supreme Court reversed. It reviewed the history of the Act and concluded that there was "no indication that Congress intended also to pyramid the penalties." (at 327, 77 S.Ct. at 406.) It held that the entry merged into the robbery, so that there was but one offense (at 328, 77 S.Ct. 403).

What the Court said about subsection (d) is particularly pertinent here, although it is dictum. Footnote 6, at 327, 77 S.Ct. at 406 reads:

"6. The Bank Robbery Act has, since it was passed in 1934, contained a special provision for increased punishment for aggravated offenses. One who, in committing robbery, assaults any person or puts the life of any person in jeopardy by the use of a dangerous weapon can be sentenced to 25 years in jail or fined $10,000 or both. When the Act was amended in 1937 to add larceny and unlawful entry, these were incorporated in the same paragraph with robbery and thus made subject to the increased penalty under aggravating circumstances. This provision currently is found in 18 U.S.C. § 2113(d)."

And in footnote 11, the Court points out that Prince was convicted of "robbery aggravated by assault with a deadly weapon" and thus subject to the subsection (d) penalty (at 329). We think that the Court's characterization of subsection (d) is equally applicable to the portion of subsection (e) that is here involved.

In 1940, the Act was amended by inserting subsection (c), which makes it an offense to "receive, possess, conceal, store, barter, sell or dispose of property . . . taken from a bank in violation of subsection (a)." Act of June 29, 1940, ch. 455, 54 Stat. 695. In Heflin v. United States, 1959, 358 U.S. 415, 79...