Kitts v. United States, 15667.

• Citation: 243 F.2d 883
• Decision Date: 06 May 1957
• Docket Number: No. 15667.,15667.
• Parties: Kenneth Allen KITTS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

243 F.2d 883 (1957)

Kenneth Allen KITTS, Appellant, v. UNITED STATES of America, Appellee.

No. 15667.

United States Court of Appeals Eighth Circuit.

May 6, 1957.

Hugh J. Boyle, Omaha, Neb., filed brief for appellant.

F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, filed brief for appellee.

Before JOHNSEN, VOGEL, and VAN OOSTERHOUT, Circuit Judges.

PER CURIAM.

This is an appeal from final order denying defendant Kitts' motion, made pursuant to 28 U.S.C. § 2255, to vacate consecutive sentence previously imposed upon Count II of a three-count indictment.

It is defendant's contention that Counts I and II of the indictment, for the purpose of sentence, charged but one offense, and that only one sentence could legally be imposed. Counts I and II of the indictment were based on the federal bank robbery law, 18 U.S.C. § 2113. Count I, based upon the second paragraph of 2113(a), charged defendant entered the insured bank with intent to commit a felony affecting said bank, the felony being larceny of property of the bank exceeding $100 in value. Count II, based upon 2113(b), charged larceny of the bank's property exceeding $100 in value. After conviction upon all counts, defendant was sentenced to imprisonment for 20 years upon Count I and to imprisonment for 10 years upon Count II, said sentences to run consecutively.¹

The issue for determination is whether a person who has been convicted and given a maximum sentence for entering a bank with intent to commit the felony of larceny in violation of 2113(a) can also be given a consecutive sentence upon conviction of larceny from the bank in violation of 2113(b).

In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 407, 1 L.Ed.2d 370, the Supreme Court was confronted with the problem of whether defendant's conviction upon counts charging robbery and entering a bank with intent to commit a felony justified the imposition of separate consecutive sentences upon each count. To solve this problem the Supreme Court found it necessary to consider the legislative history of the amendment enlarging the bank robbery statute to its present form. As a result of such study, the Court concluded that Congress did not intend to pyramid penalties by authorizing the imposition of a separate penalty for the violation of each subsection of the bank robbery statute.

Our present case differs from the Prince case in that here no robbery is charged. The offenses before us are entering the bank with intent to commit a felony affecting the bank as defined in 2113(a) and larceny as defined in 2113 (b). It appears to us that in the Prince case the Supreme Court has determined that upon multiple convictions under the various subsections of the bank robbery statute only one sentence can be imposed. The Court states:

"We hold, therefore, that when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years, but that even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent.

"While reasonable minds might differ on this conclusion, we think it is consistent with our policy of not attributing to Congress, in the enactment of criminal statutes, an intention to punish more severely than the language of its laws clearly imports in the light of pertinent legislative history."

We believe that the foregoing language makes clear that the 20-year sentence provided in 2113(a) can be imposed for entering a bank with felonious intent, and that consequently defendant was...