U.S. v. Moore, 79-1333

• Decision Date: 14 March 1980
• Docket Number: No. 79-1333,79-1333
• Citation: 616 F.2d 1030
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1030

616 F.2d 1030

UNITED STATES of America, Plaintiff-Appellee, v. Johnny MOORE, Defendant-Appellant.

No. 79-1333.

United States Court of Appeals Seventh Circuit.

Argued Dec. 11, 1979.

Decided March 14, 1980.

T. Lee Boyd, Jr., Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Douglas J. Miller, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and TONE and CUDAHY, Circuit Judges.

TONE, Circuit Judge.

The principal issue before us is the relief that should be afforded to a defendant who has been convicted of both robbery and possession, when the cumulation of the two offenses was legally impermissible. We hold that a new trial is unnecessary, and that the conviction and sentence for possession should be vacated and the conviction and the sentence for robbery should be affirmed.

Defendant Johnny Moore was found guilty in a jury trial on one count charging violent robbery of a postal employee, in violation of 18 U.S.C. § 2114, and on four counts charging possession of pieces of mail stolen in the robbery, in violation of 18 U.S.C. § 1708. The evidence was ample to sustain the conviction under each of the counts. ¹ The problem before us arises from the rule prohibiting "cumulative convictions and sentences under § 2114 and § 1708," United States v. Seals, 545 F.2d 26, 29 (7th Cir. 1976), which the government concedes makes it impossible to defend the judgment in its entirety.

I.

Before reaching the merits, we are required to decide a jurisdictional question, which we have raised sua sponte. That question is whether a notice of appeal filed before the sentencing and the entry of final judgment effectively perfected an appeal from that judgment. We hold that it did, in the circumstances of this case.

The sequence of events was this: The guilty verdicts on the several counts were returned on Friday, March 9, 1979 and are reflected in the clerk's minute order of that date reciting the verdicts, entering judgment thereon, and setting the sentencing for April 16, 1979. On March 21 Moore filed a written motion for new trial, which he amended on April 3 and which, as amended, the court denied on that date. On March 27, Moore filed a notice of appeal, stating that he was appealing "from the judgment of conviction entered on March 9, 1979, the sentence to be imposed therein (sic) on April 16, 1979, and from the Order entered on March 9, 1979, denying the Defendant('s) . . . Post Trial Motions." (The last reference is apparently to oral post-trial motions presented when the verdict was returned.)

The fact that the notice of appeal, although filed on March 27, 1979, appeals from "the sentence to be imposed therein on April 16, 1979" distinguishes this case from United States v. Mathews, 462 F.2d 182 (3d Cir. 1972), in which a notice of appeal filed before sentencing from an order denying post-trial motions was held not to effect an appeal. In Mathews the court relied upon the dictum in Corey v. United States, 375 U.S. 169, 172, 84 S.Ct. 298, 301, 11 L.Ed.2d 229 (1963), that "(a)n appeal may not be taken until after the pronouncement of sentence, and must be taken promptly after sentence is imposed." The Mathews court also noted the inapplicability of the second sentence of Rule 4(b), Fed.R.App.P., which reads,

A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof.

That sentence, said the court, covers the situation found in Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953), where the Court held effective a notice of appeal filed after sentencing but before the formal entry of judgment. 462 F.2d at 184 n.2.

The reasoning of the Lemke decision, however, supports our jurisdiction under the circumstances present in the case at bar. There the Court said,

The notice of appeal filed on March 11 was, however, still on file on March 14 (when the formal judgment was entered) and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged. We think the irregularity is governed by Rule 52(a) which reads "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

346 U.S. at 326, 74 S.Ct. at 1. Here, as in Lemke, the notice of appeal was on file when the formal final judgment was entered and "gave full notice after that date, as well as before, of the sentence and judgment which (defendant) challenged." The filing of the otherwise adequate notice of appeal before rather than after the sentence and judgment was an irregularity governed by Rule 52(a). ²

II.

There is no reason to require a new trial under the circumstances present in this case. By its verdict the jury found on the basis of adequate evidence that Moore robbed the postal employee and later had pieces of mail from the robbery in his possession. ³ These findings are of course perfectly consistent with one another. The reason they will not support convictions for both robbery and possession is a legal one: we will not impute to Congress an intention to punish the thief twice. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); United States v. Seals, 545 F.2d at 28-29; see United States v. Makres, 598 F.2d 1072, 1074-77 (7th Cir. 1979) (analyzing the cumulative punishment cases). This, obviously, is a reason for vacating the conviction for the possession that inevitably follows the robbery but, equally obviously, not for requiring a new trial.

Moore relies upon Milanovich v. United States, supra, in which the Supreme Court did order a new trial after holding that robbery and possession offenses could not be cumulated. 365 U.S. at 554-56, 81 S.Ct. at 729-30. In his opinion for the Court in United States v. Gaddis, 424 U.S. 544, 548-49, 96 S.Ct. 1023, 1026-1027, 47 L.Ed.2d 222 (1976), the author of Milanovich, Justice Stewart, described it as having "very unusual facts" and distinguished it. In a concurring opinion, Justice White, joined by the Chief Justice, stated that he did "not read the Court's opinion as reaffirming, in addition to describing, the Milanovich rule that a new trial is required when (1) a jury is erroneously permitted to convict a defendant both of bank robbery, 18 U.S.C. § 2113(a), (b), or (d), and of knowing possession of the proceeds of that robbery, 18 U.S.C. § 2113(c), and (2) there is evidence to support both convictions." Id. at 551, 96 S.Ct. at 1028. He also pointed out that if the jury is erroneously allowed to consider and convict on the possession count after having decided to convict on the robbery count, the conviction for possession "casts absolutely no doubt on the validity of the robbery conviction," and a new trial should not be required. Id. at 551-53, 96 S.Ct. at 1028. Justice Stewart did not disclaim Justice White's interpretation of the majority opinion.

A further indication of the Supreme Court's position on the issue before us appears from the history of another case. In United States v. Sellers, 520 F.2d 1281 (1975), the Fourth Circuit, in an opinion by Mr. Justice Clark, ⁴ sitting by designation, held that convictions for both theft of bank funds and possession of stolen bank funds under 18 U.S.C. § 2113 could not stand. The relief granted was conditional: If the government would stipulate to vacating the theft counts, the possession count would be allowed to stand; but if the government refused to so stipulate, the conviction on all counts would be vacated and the defendant would receive a new trial. In an order entered nineteen days after deciding Gaddis, the Supreme Court granted certiorari, vacated the judgment of the court of appeals, and remanded the case for further consideration in light of Gaddis. On remand, the court of appeals, in another opinion by Mr. Justice Clark, modified its judgment as follows:

In view of the Gaddis decision and its effect upon our prior decision in this case, our prior order is modified as follows: The conviction on the possession of stolen money under 18 U.S.C. § 2113(c) is hereby reversed, and the remaining convictions (for theft) under 18 U.S.C. § 2113(a), (b), and (d) are affirmed.

547 F.2d 785, 786 (1976). This time the Supreme Court denied certiorari, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). A different panel of the Fourth Circuit followed the same course without mentioning Sellers in Proffitt v. United States, 549 F.2d 910 (4th Cir. 1976), cert. denied, 429 U.S. 1076, 97 S.Ct. 818, 50 L.Ed.2d 795 (1977). ⁵ The court said in Proffitt : "We follow the concurring opinion of Mr. Justice White in United States v. Gaddis " in setting aside only the possession conviction.

Other circuits faced with the issue before us have done likewise. United States v. DiGeronimo, 598 F.2d 746, 752-53 (2d Cir. 1979); United States v. Crawford, 576 F.2d 794, 800-01 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978); cf. Gentry v. United States, 533 F.2d 998, 999-1000 (6th Cir. 1976) (distinguishing Milanovich on the ground that no evidence of the receipt of proceeds of the robbery was presented).

Like the other circuits that have addressed the issue, we read Gaddis as indicating that the appropriate procedure is affirmance of the robbery conviction and vacation of the conviction and sentence under the possession counts. Sellers confirms this conclusion.

III.

Moore makes two other arguments, neither of which requires much discussion.

He argues in his brief that the evidence was insufficient on the possession counts, but on oral argument he seemed to withdraw that argument as incompatible with his argument that a new trial is required. Cf. United States...