Baker v. United States

• Citation: 357 F.2d 11
• Decision Date: 25 February 1966
• Docket Number: No. 22395.,22395.
• Parties: Loy Lavator BAKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

357 F.2d 11 (1966)

Loy Lavator BAKER, Appellant, v. UNITED STATES of America, Appellee.

No. 22395.

United States Court of Appeals Fifth Circuit.

February 25, 1966.

Sydney B. Nelson, Shreveport, La., for appellant.

E. V. Boagni, Asst. U. S. Atty., Shreveport, La., Edward L. Shaheen, U. S. Atty., Q. L. Stewart, Asst. U. S. Atty., for appellee.

Before GEWIN and COLEMAN, Circuit Judges, and McRAE, District Judge.

COLEMAN, Circuit Judge:

This appellant stands convicted of bank robbery and receipt of stolen money, the proceeds of the robbery, in violation of 18 U.S.C., Section 2113. The first count of the two count indictment charged that on or about March 19, 1963, the appellant did knowingly aid, abet, counsel, and induce L. C. Evans and Larry Lee Bailey in the robbery of the Sarepta Branch of the Minden Bank and Trust Company, Sarepta, Louisiana, of the approximate sum of $11,245 in currency, the deposits of which were then insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C., Section 2113.

The second count charged that the appellant did receive, possess, and conceal said money, then well knowing that it belonged to and had been unlawfully taken from the said Bank in violation of 18 U.S.C., Section 2113(b) and (c).

The appellant was found guilty on both counts. He was sentenced to fifteen years imprisonment on the first count. On the second, sentence was suspended and five years probation was set to begin upon completion of the first sentence.

On this appeal, appellant urges reversible error on the following grounds: (1) Restricting the defendant to only five character witnesses; (2) extensive cross examination of the defendant by the trial court in a manner which probably led the jury to believe that the judge doubted the truthfulness of his testimony; (3) in allowing an F.B.I. Agent to testify that appellant indicated he wanted a lawyer when first questioned, (4) in an instruction defining the meaning of reasonable doubt; (5) in refusing to grant a motion for a new trial when it was shown that the jury was selected in a manner which took race into consideration; and, (6) that the court committed plain error when it failed to charge that the defendant could be convicted either of the robbery or of receiving the proceeds of the robbery, but not of both.

Upon careful consideration, we find no reversible error in limiting the number of character witnesses. Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. Nor do we perceive error in the charge defining reasonable doubt, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021.

The serious question is posed by the sixth ground, which brings us face to face with the decision of the Supreme Court in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. It was there held that a separate sentence under 18 U.S.C., Section 2113(c) for receiving stolen property was invalid, since that sub-section was not designed to increase the punishment for one who robs a bank, but only to provide punishment for those who receive the loot from the robbery. If the law stopped at that point, the conviction now on appeal would present no difficulty. The sentence for receipt of the stolen money, as stated in Heflin, could simply be set aside under Rule 35 of The Federal Rules of Criminal Procedure.

In 1961, however, the Supreme Court decided Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773. In that case the petitioners were husband and wife. They were both convicted in a federal district court for stealing 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. The prosecution was brought under 18 U.S.C. § 641.¹

The Supreme Court held that the wife could not validly be convicted both for stealing government property and for receiving and concealing the same property, that the trial judge erred in not charging the jury that it could convict the wife of either larceny or receiving, but not of both, and that since there was 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. The case was remanded to the district court for a new trial.

In the case now before us for decision, the appellant was indicted and prosecuted for aiding, abetting, counseling, and inducing Evans and Bailey to commit the actual robbery. Thus he was deemed a principal under 18 U.S.C.A., Section 2.² The proof on behalf of the government was to the effect that appellant personally transported the actual robbers to the scene, pointed out an automobile belonging to one of the bank employees for use as the get-away car, and shortly afterwards met the actual robbers at a previously designated place in the woods, where he received the loot. Obviously, this was all one continuous, uninterrupted transaction. Since appellant was a principal...