Milanovich v. United States

• Citation: 5 L.Ed.2d 773,81 S.Ct. 728,365 U.S. 551
• Decision Date: 20 March 1961
• Docket Number: No. 79,79
• Parties: Mike MILANOVICH et al., Petitioners, v. UNITED STATES of America
• Court: United States Supreme Court

365 U.S. 551

81 S.Ct. 728

5 L.Ed.2d 773

Mike MILANOVICH et al., Petitioners,

v UNITED STATES of America.

No. 79.

Argued Feb. 20, 1961.

Decided March 20, 1961.

Messrs. J. Hubbard Davis, Norfolk, Va., and Raymond W. Bergan, Washington, D.C., for petitioners.

Mr. J. F. Bishop, Washington, D.C., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The petitioners ars husband and wife. They were both convicted in a Federal District Court for stealing several thousand dollars in 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.¹ Both petitioners were sentenced to prison on the larceny conviction, the husband for a term of five years, and the wife for a ten-year term. In addition, the wife received a five-year concurrent sentence on the receiving count.

Throughout the trial counsel for the petitioners consistently maintained the position that a thief could not be convicted of receiving from himself.² Although direct- ing an acquittal on the receiving count in the husband's case, the trial judge overruled a similar motion on behalf of the wife. Counsel then clearly indicated his intention to request that the jury be instructed that it could not find the wife guilty of both stealing and receiving.³ The trial judge responded by pointing out that the Fourth Circuit had decided, in Aaronson v. United States, 175 F.2d 41, that it is possible that as long as the person did not actually participate in the actual taking of the goods, that same person may be found guilty of receiving and concealing and may also be found guilty as an accessory before the fact or as an aider and an abetter of the actual charge of theft. Faced with this controlling Fourth Circuit authority, counsel did not engage in the futile exercise of submitting a more formal request for such instructions.

When the case reached the Court of Appeals, that court put aside its decision in the Aaronson case, in the light of this Court's decision in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, which had been announced in the meantime. In Heflin we held that a defendant could not be convicted and cumulatively sentenced under 18 U.S.C. § 2113, 18 U.S.C.A. § 2113, for both robbing a bank and receiving the proceeds of the robbery. Relying on that decision, the court set aside the sentence imposed upon the wife for receiving. 275 F.2d 716. It was the court's view that 'in the absence of a contrary indication by Congress, a defendant charged with offenses under statutes of this character may not be convicted and punished for steal- ing and also for receiving the same goods.' 275 F.2d at page 719. Although Heflin involved a different section of the criminal code, the court found 'no differences between the two statutes or their legislative histories justifying divergent interpretations in respect to the issue before us.'

In this view we think that the Court of Appeals was correct. As the court recognized, the question is one of statutory construction, not of common law distinctions. Compare Metcalf v. State, 98 Fla. 457, 124 So. 427; Smith v. State, 59 Ohio St. 350, 52 N.E. 826; Jenkins v. State, 62 Wis. 49, 21 N.W. 232; Regina v. Hilton, Bell C.C. 20, 169 Eng.Rep. 1150, with Allen v. State, 76 Tex.Cr.R. 416, 175 S.W. 700; Regina v. Perkins, 2 Den.C.C. 458, 169 Eng.Rep. 582; Regina v. Coggins, 12 Cox C.C. 517. With respect to the receiving statute before us in Heflin, we decided that 'Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the * * * robbers themselves,' 358 U.S. at page 420, 79 S.Ct. at page 454. We find nothing in the language or history of the present statute which leads to a different conclusion here. As in Heflin, the provision of the statute which makes receiving an offense came into the law later than the provision relating to robbery.⁴

It is now contended that setting aside the sentence on the receiving count was not enough—that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that although the evidence was sufficient to support a conviction for either larceny or reciving,⁵ the judge should have in- structed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F.2d at page 721.

We think that the point is well taken. In Heflin we were nt concerned with the correctness of jury instructions, since that case arose out of a collateral proceeding to correct an illegal sentence where the petitioner was asking only that the cumulative punishment imposed for receiving be set aside. In this case, by contrast, a direct review of the conviction brings here the entire record of the trial. We hold, based on what has been said as to the scope of the applicable statute, that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.

Though setting aside the shorter concurrent sentence imposed upon the wife for receiving, the Court of Appeals left standing a ten-year prison term for larceny, double the punishment that had been imposed upon the husband for the identical offense. Yet there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice resulting from the trial judge's failure to instruct the jury properly. It may well be, as the Court of Appeals assumed, that the jury, if given the choice, would have rendered a verdict of guilty on the larceny count, and that the trial judge would have imposed the maximum ten-year sentence on that count alone. But for a reviewing court to make those assumptions is to usurp the functions of both the jury and the sentencing judge.

We find no merit in the petitioenrs' argument as to the trial court's conduct with respect to cautionary instructions to the witnesses for the Government. Accordingly, the judgment as to Mike Milanovich is affirmed. For the Mreasons stated, the judgment as to Virginia Milanovich is set aside, and her case remanded to the District Court for proceedings consistent with this opinion.

It is so ordered.

Judgment as to Mike Milanovich affirmed; judgment as to Virginia Milanovich set aside and her case remanded.

Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.

This is a prosecution brought under 18 U.S.C. § 641, 18 U.S.C.A. § 641,¹ upon an indictment containing several counts. One charged the defendant Virginia Milanovich, petitioner herein, with the theft of government property; another charged her with receiving the stolen property with an intent to convert it to her own use. Both counts were allowed to go to the jury which explicitly found the defendant guilty on each of the two counts.

This was the evidence on which the jury must have based their verdict against the defendant. She and her husband, as owners of an automobile, transported three others under an arrangement whereby the three were to break into a United States naval commissary building with a view to stealing government funds. Defendant and her husband were to remain outside for the return of their accomplices after the accomplishment of the theft. In fact, for one reason or another, husband and wife drove off without awaiting the return of their friends. Not finding the automobile where they had left it, the thieves buried the booty. No share of the stolen money ever touched the hand of petitioner or was in any sense received by her until seventeen days later when, after she had removed some of the booty from the base, it was soon after discovered by FBI agents during a legal search of the premises. Since she herself was not an active participant in the breaking in and thieving, she was amenable to § 641 because she, as an accessory, was legally deemed a principal under 18 U.S.C. § 2, 18 U.S.C.A. § 2.² On this basis the trial judge submitted the case to the jury and the jury was enabled to find her guilty of the substantive offense of stealing government property, as well as to return a verdict of guilty on the receiving charge. The trial judge then sentenced the defendant on each of the counts. Because of the extensive criminal record of the defendant he imposed a sentence of ten years on the thieving count and five years on the receiving count, the sentences to run concurrently.

The Court of Appeals, drawing on our decision in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, deemed it necessary to set aside the sentence imposed on the receiving count. It read Heflin as holding that the crime of receiving was solely directed to those who were not convicted of stealing; the latter conviction was therefore invalidated. The Court, likewise relying on Heflin, today holds that since the jury should have been instructed that they had power to return a verdict of guilty on only one count, the proceedings against the defendant must start all over again, since a reviewing court cannot predict what the jury would have done under proper instructions.

Both of these conclusions rest, I believe, on a wholly unwarranted reliance on Heflin. They disregard the only issue that was before the Court in that case, and thereby misconceive its holding. Today's decision reflects the common-law doctrine of merger and the consequences of such merger on the requirements of criminal procedure—specifically, what separate counts may be laid in an...