U.S. v. Dixon, 74-1530

• Decision Date: 18 December 1974
• Docket Number: No. 74-1530,74-1530
• Citation: 507 F.2d 683
• Parties: UNITED STATES of America, Appellee, v. Ernest DIXON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 683

507 F.2d 683

UNITED STATES of America, Appellee, v. Ernest DIXON, Appellant.

No. 74-1530.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 13, 1974.

Decided Dec. 18, 1974.

Jack Nordby, St. Paul, Minn., for appellant.

Thorwald Anderson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before GIBSON, Chief Judge, CLARK, Associate Justice, ^* and WEBSTER, Circuit Judge.

PER CURIAM.

Appellant Ernest Dixon was indicted ¹ for the robbery of some $4,280.63 from the Produce State Bank of Hollandale, Minnesota, a village of 280 people. He was also charged with a second count of possession of that money, knowing it to have been stolen, in violation of 18 U.S.C. 2113(c). A mistrial was declared on the robbery count when the jury could not agree, but Dixon was convicted on the possession count.

Doxon asserts two errors: (1) that, under United States v. Jones, 418 F.2d 818 (8th Cir. 1969), the trial judge erred in failing to give an instruction that the jury could not find Dixon guilty of both robbery and possession; and (2) that the instructions as to presumption of innocence, burden of proof, reasonable doubt, etc., were erroneous and that other tendered instructions were not given, resulting in prejudice. We affirm, distinguishing Jones and finding the instructions as given quite sufficient.

The facts are clear and convincing. Dixon remained in a waiting car while two other participants robbed the bank. They returned to the car with the money, and were driven away by him. Earlier, Dixon was observed in the car by a local bar owner living nearby, who recognized the car as that of Francisco Hernandez, an acquaintance. Later, the bar owner observed the car bound out of town with Dixon driving and Hernandez and another man in the rear seat; he saw the car stop and Hernandez took the driver's seat. Local police radioed an alert; the car was stopped by police officers in a nearby town, Faribault; and the stolen cash and firearms were found under the front seat. Hernandez and Rivera pled guilty. Hernandez testified for the Government.

It is, of course, hornbook law taht where robbery and the lesser offense of possession are charged in the indictment, the jury must be told that the defendant cannot be guilty of both crimes. United States v. Jones, 418 F.2d 818 (8th Cir. 1969), relying upon Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). In Milanovich, a conviction was had on both counts, and the Court concluded that 'there (was) no way of knowing whether a properly instructed jury would have found the (defendant) guilty of larceny or of receiving (or, conceivably, of neither).' 365 U.S. at 555, 81 S.Ct. at 730.

Here, however, the jury convicted Dixon of possession and there was a mistrial on the robbery count. Since we know that the jury entered a guilty verdict on the possession count, no prejudice could result from an affirmance of that count. ² Cf. United States v. Tyler, 466 F.2d 920 (9th Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972), where the court found no prejudice when larceny and possession were charged in the same indictment on the same facts but...