Forrester v. United States

• Decision Date: 25 February 1972
• Docket Number: No. 71-2569. Summary Calendar.,71-2569. Summary Calendar.
• Citation: 456 F.2d 905
• Parties: Donald Lee FORRESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 905 (1972)

Donald Lee FORRESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 71-2569. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 5, 1972.

Rehearing Denied February 25, 1972.

Donald L. Forrester, pro se.

William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for respondent-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

Donald Lee Forrester, proceeding pro se, filed a motion in the district court to vacate a sentence¹ rendered upon his convictions for violations of the Federal Bank Robbery Act, 18 U.S.C. § 2113. The court below held that he was entitled to no relief. We agree and affirm.

After trial by jury, Forrester was convicted of taking money from a federally insured bank by force and intimidation of one of its employees, a violation of 18 U.S.C. § 2113(a); assaulting certain bank employees by the use of a dangerous weapon while committing the bank robbery, a violation of 18 U.S.C. § 2113(d); and avoiding or attempting to avoid apprehension for the commission of the above-mentioned offenses by forcing a bank employee to accompany him without consent, in violation of 18 U.S.C. § 2113(e).² Following the dictates of Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, and its progeny, the trial court sentenced him to serve fifty years under § 2113(e); and treating his convictions under §§ 2113(a) and 2113(d) as surplusage, imposed no sentences thereon.

The basic issue involved in these proceedings, and to which all of the appellant's contentions are directed, is whether separate convictions under subsections (a), (d), and (e) of § 2113 are invalid, as are separate punishments under those sections of the statute. First, Forrester contends that at his original trial, the court should have instructed the jury that a verdict of guilty could have been returned on any one of the counts in the indictment, but not on all. He cites Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 and Thomas v. United States, 5 Cir. 1969, 418 F.2d 567, as authority for this proposition. But Forrester's reliance on Milanovich and Thomas is misplaced. Those decisions held that a defendant cannot be found guilty of both bank robbery § 2113(a) and (b) and receiving the proceeds of the robbery § 2113(c). The rationale, however, was not that there is any special aspect of the federal bank robbery statute which rules out multiple indictments and convictions on more than one count. The principle underlying Milanovich and Thomas is far more limited, and bars conviction only for some combination of a count under subsection (c) and a count under subsection (a), (b), or (d). As we stated in United States v. White, 5 Cir. 1971, 440 F.2d 978, 982,

"* * * The various subsections of sections (a), (b), and (d) simply describe lesser or more aggravated forms of the same basic offense—stealing from a federally-insured institution. Multiple convictions rendered against a single defendant under these subsections are not inherently inconsistent, either factually or legally, although cumulative penalties, as a matter of statutory construction, are impermissible. Section (c), on the other hand, is inherently inconsistent with the other sections since it involves the offense of receiving. The Supreme Court in Milanovich found that robbery and receiving are separate, distinct, and incompatible offenses; a single defendant cannot at once take and receive the same stolen money. The two crimes contemplate separate individuals performing entirely different roles."

See also Matlock v. United States, W.D. Tenn.1970, 309 F.Supp. 398, 401. Because there is no inconsistency between conviction under § 2113(a) robbery, § 2113(d) assault with dangerous weapon in course of robbery, and § 2113(e) killing or forcing any person to accompany in course of committing or avoiding apprehension for robbery, Forrester's appeal based on Milanovich and Thomas has no merit.

Forrester also argues that the trial court erred when it treated the jury's verdicts of guilty upon the counts charging violations of § 2113(a) and (d) as surplusage, and sentenced him only upon his conviction on the count charging a violation of § 2113(e). He reasons that his convictions under (a) and (d) were constructively set aside by that action, and argues that proof of one of these violations was an essential element to his conviction under (e). He concludes that his sentence and conviction under the latter subsection are therefore void.

This contention lacks merit since it is based on the false assumption that the court's failure to sentence him under § 2113(a) and (d) amounted to a constructive acquittal of those counts. By sentencing Forrester under § 2113(e) only, the trial court was merely complying with the plethora of cases prohibiting the pyramiding of sentences for overlapping offenses under 18 U.S.C. § 2113. As this Court recently held in Thomas v. United States, 5 Cir. 1971, 450 F.2d 317, "so long as a defendant is not sentenced to concurrent or consecutive terms for overlapping offenses, it is within the discretion of the trial court to sentence a defendant on `whichever of the counts the trial court determines is the appropriate vehicle for carrying into effect the jury's verdict . . ..' White v. United States, 5 Cir. 1969, 419 F.2d 374, 376."

Accordingly, the judgment appealed from is affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

Forrester raises two contentions on this petition for rehearing. Neither contention persuades us that we must reverse our decision affirming the district court's denial, without an evidentiary hearing, of Forrester's motion to set aside and vacate his sentence under 28 U.S.C. § 2255.

First, Forrester objects to the failure of the district court to provide him with an evidentiary hearing on his § 2255 motion. § 2255...