La Duke v. United States

• Decision Date: 31 March 1958
• Docket Number: No. 15946.,15946.
• Citation: 253 F.2d 387
• Parties: Richard LA DUKE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

253 F.2d 387 (1958)

Richard LA DUKE, Appellant, v. UNITED STATES of America, Appellee.

No. 15946.

United States Court of Appeals Eighth Circuit.

March 31, 1958.

Richard LaDuke, pro se.

Joseph P. Jenkins, Kansas City, Kan., for appellant.

George E. MacKinnon, U. S. Atty., St. Paul, Minn., for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

An indictment filed September 15, 1955, in the United States District Court, District of Minnesota, Fourth Division, charged that on December 26, 1954, Richard LaDuke wilfully and feloniously entered an insured bank with intent to commit in such bank a larceny of property and money having a value of more than $100, in violation of Title 18 U.S. C.A. § 2113(a).

With his counsel present, defendant entered a plea of guilty to the charge on November 28, 1955, and on November 29, 1955, received a sentence of imprisonment for a term of eight years, to be served concurrently with a prior four year term imposed by the same court for an unrelated offense.

On October 4, 1957, LaDuke filed motion under Title 28 U.S.C.A. § 2255, to "vacate Sentence and Judgment and/or Correct, same," on the ground that he was "erroneously, wrongfully, and unlawfully" indicted under Title 18 U.S. C.A. § 2113(a)¹, asserting that he should have been indicted under Title 18 U.S. C.A. § 2113(b)². After consideration, the court, on October 17, 1957, denied the motion, and from that order LaDuke has appealed to this Court.

Relying on Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, decided at October Term, 1956, opinion filed February 25, 1957, appellant urges with much insistence that the crime of entering the bank with intent to commit a felony or larceny, Title 18 U.S.C.A. § 2113(a), supra, could not form the basis for an indictment when in fact the intent was accomplished by the unlawful taking of money from the bank; that when the larceny became an accomplished act, the crime of entering for the unlawful purpose merged with the crime of larceny. Upon this premise, and contending that the amount he purloined was less than $100, appellant insists that he was subject to imprisonment for a term not to exceed one year.

At the outset we observe that the record affords meagre proof of the amount, if any, of the money stolen by appellant after the entry was made for the unlawful purpose. In detailing the events surrounding the burglary, appellant informed the Court that "I was in there and I was one that did some of the cutting on the safe in there, the doors of the safe, and pried it open. I believe I was the guy that picked up the change in there." This statement, with an allegation in his motion to vacate sentence and judgment that the amount carried away from the bank was less than $100, constitutes the factual support for the contention that a larceny was perpetrated. The Government takes the position that in view of the record in this case, regardless of what occurred after appellant made the entry for a purpose prohibited by the statute, he was properly prosecuted under Sec. 2113(a), supra, consequently, it has not challenged the correctness of the contention that a larceny was in fact committed.

Inasmuch as the history of the presently constituted Bank Robbery Act, Title 18 U.S.C.A. § 2113, received consideration in Prince v. United States, supra, and was exhaustively reviewed in Purdom v. United States, 10 Cir., 249 F.2d 822, a re-examination thereof would invite the charge of redundancy.

The substance of the point raised by appellant is that Prince v. United States, supra, holds that in all cases arising under the Bank Robbery Act, supra, Title 18 U.S.C.A. § 2113, the offense of entering the bank for an unlawful purpose merges into the offense of robbery or larceny when either of the latter offenses is committed, and that in such a situation, the offender cannot lawfully be prosecuted for the first offense. We are not persuaded to place this interpretation on the holding of the Supreme Court in the Prince case. There, the Court was dealing with a situation where the offender, in a two-count indictment, was charged first with robbery, and then with entering the bank for the purpose of committing a felony, which resulted in a penalty being inflicted for both offenses. In seeking to ascertain the intent of Congre...