Conerly v. United States
Decision Date | 21 August 1965 |
Docket Number | No. 19643.,19643. |
Parties | Melvin Joseph CONERLY, Appellant. v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Donald P. Newell, Los Angeles, Cal., for appellant.
Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Benjamin S. Farber, Barry Tarlow, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and ELY, Circuit Judges.
Appellant, appearing in propria persona, takes this appeal from the district court denial of his motion for relief under 28 U.S.C. § 2255.
Appellant entered a voluntary plea of guilty on September 17, 1963, in the United States District Court for the Southern District of California, Central Division,1 to Count II of an indictment, charging him with violating 18 U.S.C. § 641,2 by having "received, concealed and retained, with intent to convert to his own use 95 United States Postal Money Order sic, one validating stamp * * * one set of limitation stamps, one office rubber stamp having a value in excess of $100," knowing that such property had been stolen from the United States. He was convicted on said plea. Counts I and III of the said indictment were then dismissed.3
Previously, appellant had entered a not guilty plea to all three counts. Count I charged that appellant had forcibly broken into a building used as a United States Post Office, an alleged violation of 18 U.S.C. § 2115. Count III charged appellant with resisting and assaulting a federal officer (a postal inspector), an alleged violation of 18 U.S.C. § 111.4
Counsel was appointed, with appellant's consent, on August 19, 1963. Almost a month later, on September 17, 1963, appellant signed and filed a petition, as did his attorney, requesting leave to enter a plea of guilty to Count II only. In his petition to enter a plea of guilty, both he and his attorney signed the usual form used in the district court. It requires (and there was placed on it) information in five blank spaces, plus the date and signature of the appellant. The attorney signed the certificate recommending such plea, and the court granted it, accepting the plea of guilty.5
In a letter to the trial judge asking for a reduction of his ten year sentence (which request appellant states was denied), appellant stated his belief that his sentence reflected the mistaken notion on the court's part that he had participated in the burglary of the Post Office. He had been charged with breaking into a United States Post Office, but that charge had been dismissed. He had not pled guilty to any charge of theft or breaking into a Post Office. His sentence on what he did plead guilty to (and has as yet never denied, i. e., receiving, concealing and retaining property stolen from the United States) was not more than the statutory limit of ten years.
Appellant asserts on this appeal that he should not have been prosecuted under 18 U.S.C. § 641, but rather under 18 U.S.C. § 1707,6 which latter section, he asserts, preempted the field with respect to the criminal charge of stealing, possessing, etc., property "used by the Post Office Department."7 The short answer is that appellant could not have been charged under § 1707 with knowingly "receiving, concealing and retaining property stolen from the United States," for the three acts conjunctively charged do not fall within the definition of "stealing, purloining, embezzling, appropriating or conveying" property, the only actions mentioned in § 1707. And this is true even if we draw no distinction between property "owned" by the United States (§ 641) and property "used" by the United States (§ 1707).
"* * * the test of identity of offenses is generally stated to be `whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statute.\'" Thomas v. United States, 249 F.2d 429 (9th Cir. 1957), quoting from Rayborn v. United States, 234 F.2d 368 (6th Cir. 1956), which in turn quotes from Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 715, 59 L.Ed. 1153 (1915).
See also Milanovich v. United States, 365 U.S. 551, 555, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), and Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), which we do not believe to be in point.
In the court below, appellant had originally urged only three grounds as a basis for his relief under § 2255:
Relief was denied on all three grounds, and we hold such denial was proper. (Clk's Tr. 24-26.)
After entry of this original denial, petitioner then filed a petition for rehearing, wherein he raised for the first time his theory that when property is stolen from a Post Office, § 1707 preempts § 641, to-wit: one who "received, concealed and retained" such property, "with intent to convert it to his own use" (using the language of 18 U.S.C. § 641), can only be charged with "appropriating" such property to his own use, or "conveying it away to the hindrance or detriment of the public service," in the language of, and under, 18 U.S.C. § 1707.
We cannot agree. The two sections define different crimes. Section 641 in its second paragraph (the only portion here concerned) requires possession of property stolen from the United States plus a subjective intent to convert to the possessor's use or gain; section 1707 requires an actual conversion by stealing, purloining, embezzling or appropriating, or by the conveying away of property. Moreover, as indicated above, section 641 refers to property owned by the United States;8 § 1707 refers to property used by, but not necessarily owned by, the United States.
Knowledge that the property of the United States was stolen, plus mere possession thereof, together with an intent to knowingly possess are the three essentials of the second paragraph of § 641;9 possession is not required by § 1707 ( ); but more important, knowledge that the property was stolen is not an essential element of § 1707. Thus the two sections are not the same, nor do they relate necessarily to similar actions.
It could only be if both sections relate to the same criminal act that we can consider whether a statute making it a special offense to steal property from a Post Office controls over the more general offense of stealing any property that belongs to the United States.
Appellant relies largely upon Robinson v. United States, 142 F.2d 431 (8th Cir. 1944), but that case, unlike this, relates to a charge of larceny, i. e., a taking, from a Post Office. Appellant was not here charged with stealing from a Post Office. Such a charge was never made against this appellant.
Robinson v. United States, supra, disapproved of Morrison v. White, 34 F.2d 244 (10 Cir. 1929) and Dockter v. White, 25 F.2d 74 (8th Cir. 1928) and relied instead upon Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), cert. denied 274 U.S. 735, 47 S.Ct. 576, 71 L.Ed. 1311 (1927).
The dissent in Robinson v. United States, supra, stated that the issue already had been settled by the Supreme Court in Jolly v. United States, 170 U.S. 402, 18 S.Ct. 624, 42 L.Ed. 1085 (1898). There the Supreme Court affirmed a conviction under the then general section (18 U.S.C. § 99) for a larceny of postage stamps from a Post Office, though the special section (18 U.S.C. § 313) relating to stealing from a Post Office was on the statute books.
But Robinson v. United States failed to discuss an earlier eighth circuit case, Morgan v. Sylvester, 231 F. 886 (1916), where the court said:
Id. at 889.
The eighth circuit reaffirmed Morgan v. Sylvester, supra, in Dockter v. White, 25 F.2d 74 (8th Cir. 1928).
This circuit ruled in Palomino v. United States, 318 F.2d 613, 616, cert. denied 375 U.S. 932, 84 S.Ct. 335, 11 L.Ed.2d 264 (1963), reh. denied 375 U.S. 989, ...
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...relate to and grow out of one transaction does not make a single offense where two are defined by statute.' " Conerly v. United States, 350 F.2d 679, 681 (9th Cir. 1965), cert. denied, 382 U.S. 1018, 86 S.Ct. 638, 15 L.Ed.2d 534 (1966) (quoting Thomas v. United States, 249 F.2d 429, 431 (9t......
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