U.S. v. Johnson, No. 86-3011

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT, GOODWIN and NELSON; NELSON
Citation804 F.2d 1078
Decision Date18 November 1986
Docket NumberNo. 86-3011
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Larry Bruce JOHNSON, Defendant-Appellee.

Page 1078

804 F.2d 1078
UNITED STATES of America, Plaintiff-Appellant,
v.
Larry Bruce JOHNSON, Defendant-Appellee.
No. 86-3011.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Sept. 2, 1986.
Decided Nov. 18, 1986.

Page 1079

Fred N. Weinhouse, Office of the U.S. Atty., Portland, Or., Rangeley Wallace, Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellant.

Stephen R. Sady, Federal Public Defenders Office, Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, GOODWIN and NELSON, Circuit Judges.

NELSON, Circuit Judge:

The United States appeals the district court's grant of Larry Bruce Johnson's motion for judgment of acquittal, 623 F.Supp. 579 (1985). A jury had acquitted Johnson

Page 1080

of violating 18 U.S.C. Sec. 2113(a)--bank robbery--and convicted him of violating 18 U.S.C. Sec. 2113(c)--knowing possession of stolen bank property. In granting the motion, the district court found insufficient evidence that Johnson knew the money he possessed was stolen. It reasoned that, as a matter of law, the theory upon which the Sec. 2113(c) conviction was based could not be that Johnson participated in the robbery and found that there was insufficient evidence to support any other theory of how Johnson knew the money was stolen. The district court also determined that the jury "rejected" eyewitness testimony concerning Johnson's alleged participation in the bank robbery when it acquitted Johnson on the Sec. 2113(a) charge and that, without this testimony, there was insufficient evidence that Johnson knew the money was stolen. In addition, Johnson argues that the theory that he "was not the bank robber, but was in knowing possession of bank loot is being presented for the first time on appeal" and that "reliance on a theory not presented at trial would violate due process." We disagree with the district court's interpretation of Sec. 2113(c) and its implicit contention that apparently inconsistent verdicts can serve as a basis for setting aside a jury's verdict. We also find no merit in Johnson's due process argument. Accordingly, we reverse the district court's grant of the motion for acquittal and remand for sentencing and a ruling on Johnson's motion that, because the indictment did not charge that Johnson possessed more than $100 in stolen bank property, the charge under Sec. 2113(c) is a misdemeanor.
FACTS

On August 5, 1985, two men entered the United States National Bank in Tigard, Oregon, and approached two adjoining teller windows. One man, wearing a blue wig, demanded and received money from the first teller. The first teller testified that he also demanded money from a second teller sitting behind the adjoining window, that the second teller passed the money to her and she gave it to the man in the blue wig, and that the second man did nothing but "stand there." She could not positively identify the second man as Johnson. The second teller testified that the second man had his hand inside a bag, apparently holding a weapon, and that he stated: "Don't any of you move. I want to see your hands." He then demanded money from her. She did not recall whether she passed the money to the first teller or handed it to the second man. At trial, she identified the second man as Johnson, even though soon after the robbery she was unable to identify Johnson from a photograph as one of the participants in the robbery.

Other eyewitnesses saw the man wearing the blue wig and another man, whom they identified as Johnson, leave the bank in a car. One of the witnesses further testified that the man identified as Johnson had nothing in his hands when he left the bank. One of the witnesses recorded the license plate number of the car.

On the afternoon of the day of the robbery, FBI agents traced the car to its owner's residence and followed the owner in a second car to a building on Insley Street. When the owner tried to leave the building agents stopped the car and searched it and its occupants, including Johnson. On Johnson's side of the car, they found a hat and shirt that matched a description of clothing worn by one of the two men seen in the bank. Johnson also had in his possession a large amount of cash, which included bait bills from the bank. At trial, Johnson claimed that he had received the money from a drug sale at the building on Insley Street and from his winnings at the race track and that he was given the clothing as he left the Insley Street building.

The jury acquitted Johnson of violating 18 U.S.C. Sec. 2113(a)--bank robbery--and convicted him of violating 18 U.S.C. Sec. 2113(c)--knowing possession of money stolen from a bank. Johnson moved for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. The district court reasoned that Congress did not intend Sec. 2113(a) and Sec. 2113(c) to be a "double-pronged attack" on suspected

Page 1081

bank robbers and that therefore a conviction under Sec. 2113(c) must be based on a theory other than that Johnson was one of the two men who committed the robbery. It set aside the jury's verdict and acquitted Johnson on the ground that there was insufficient evidence to support Johnson's conviction based on any other theory. It also determined that the jury "rejected" the eyewitness testimony concerning Johnson's participation in the robbery when it acquitted Johnson on the Sec. 2113(a) charge. We disagree with these contentions.
DISCUSSION

I. The Interpretation of 18 U.S.C. Sec. 2113(c)

Interpretation of a statute presents a question of law reviewable de novo. United States v. Wilson, 720 F.2d 608, 609 n. 2 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984); United States v. Moreno-Pulido, 695 F.2d 1141, 1143 (9th Cir.1983).

One is guilty under Sec. 2113(a) if one, "by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank." 18 U.S.C. Sec. 2113(a) (1982). One is guilty under Sec. 2113(c) if one "receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank, credit union, or savings and loan association in violation of subsection (b), knowing the same to be property which has been stolen." 1 18 U.S.C. Sec. 2113(c) (Supp. III 1985). A conviction under Sec. 2113(c) can thus be based on the following elements: (1) that the money was stolen from a federally insured bank, (2) that the defendant received or possessed the money, and (3) that he received or possessed it knowing it was stolen. See United States v. Scruggs, 549 F.2d 1097, 1103 (6th Cir.), cert. denied, 434 U.S. 824, 98 S.Ct. 70, 54 L.Ed.2d 81 (1977).

It is well established that one cannot be convicted under both Sec. 2113(a) and Sec. 2113(c). United States v. Gaddis, 424 U.S. 544, 547, 96 S.Ct. 1023, 1026, 47 L.Ed.2d 222 (1976); Heflin v. United States, 358 U.S. 415, 419, 79 S.Ct. 451, 453-54, 3 L.Ed.2d 407 (1959) ("We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery."). One, however, can be charged with both offenses. Gaddis, 424 U.S. at 550, 96 S.Ct. 1027 (stating that "there can be no impropriety ... for a prosecutor to file an information containing counts charging violations of 18 U.S.C. Sec. 2113(a), (b), or (d), as well as of Sec. 2113(c)"). When dual charges are made, the district court must instruct the members of the jury that they "must first consider the charges under Sec. 2113(a), (b), or (d), and should consider the charge under Sec. 2113(c) only if they find insufficient proof that the defendant himself was a participant in the robbery." Id. (emphasis added).

The district court relied on language from Heflin, 358 U.S. at 420, 79 S.Ct. at 454 (stating that "we think Congress was trying to reach a new group of wrongdoers [under Sec. 2113(c) ], not to multiply the offense of the bank robbers themselves"), and Gaddis, 424 U.S. at 548, 96 S.Ct. at 1026 (stating that "Sec. 2113(c) reaches a different 'group of wrongdoers,' i.e., 'those who receive the loot from the robber' "), in deciding that a...

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52 practice notes
  • State v. Fourtin, No. 18523.
    • United States
    • Supreme Court of Connecticut
    • 28 September 2012
    ...under § 53–21[1] when that act did not constitute factual basis of any charge against defendant); see also United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (describing Dunn and Cola as “involv[ing] a failure to charge the defendant in the indictment for the specific acts for whi......
  • Schad v. Schriro, No. CV-97-2577-PHX-ROS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 28 September 2006
    ...it may be sufficient to sustain a conviction." United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.1986); see United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir.1986) (the government is entitled to all reasonable inferences that may be drawn from the evidence). Moreover, "the governmen......
  • Gattis v. Snyder, No. Civ.A. 97-619-RRM.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 25 March 1999
    ...both involved a failure to charge the defendant in the indictment for the specific acts for which he was convicted. See U.S. v. Johnson, 804 F.2d 1078, 1084-85 (9th Cir.1986). In Dunn, the indictment charged that the defendant made false statements at a hearing held on a particular date but......
  • US v. Fitzgerald, No. CR-87-20060-WAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 24 September 1987
    ...all of the essential elements, expressed without uncertainty, are contained within the language of the statute. United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (citing Hamling, 418 U.S. at 117, 94 S.Ct. at 2907, 41 L.Ed.2d at 621); United States v. Normandeau, 800 F.2d 953, 954......
  • Request a trial to view additional results
52 cases
  • State v. Fourtin, No. 18523.
    • United States
    • Supreme Court of Connecticut
    • 28 September 2012
    ...under § 53–21[1] when that act did not constitute factual basis of any charge against defendant); see also United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (describing Dunn and Cola as “involv[ing] a failure to charge the defendant in the indictment for the specific acts for whi......
  • Schad v. Schriro, No. CV-97-2577-PHX-ROS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 28 September 2006
    ...it may be sufficient to sustain a conviction." United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.1986); see United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir.1986) (the government is entitled to all reasonable inferences that may be drawn from the evidence). Moreover, "the governmen......
  • Gattis v. Snyder, No. Civ.A. 97-619-RRM.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 25 March 1999
    ...both involved a failure to charge the defendant in the indictment for the specific acts for which he was convicted. See U.S. v. Johnson, 804 F.2d 1078, 1084-85 (9th Cir.1986). In Dunn, the indictment charged that the defendant made false statements at a hearing held on a particular date but......
  • US v. Fitzgerald, No. CR-87-20060-WAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 24 September 1987
    ...all of the essential elements, expressed without uncertainty, are contained within the language of the statute. United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (citing Hamling, 418 U.S. at 117, 94 S.Ct. at 2907, 41 L.Ed.2d at 621); United States v. Normandeau, 800 F.2d 953, 954......
  • Request a trial to view additional results

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