United States v. Cheers, No. 30196 Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation439 F.2d 1097
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mark CHEERS, Jr., Defendant-Appellant.
Decision Date19 March 1971
Docket NumberNo. 30196 Summary Calendar.

439 F.2d 1097 (1971)

UNITED STATES of America, Plaintiff-Appellee,
v.
Mark CHEERS, Jr., Defendant-Appellant.

No. 30196 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

February 8, 1971.

Rehearing Denied and Rehearing Denied March 19, 1971.


Lester F. Sumners, (Court-appointed) New Albany, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Norman L. Gillespie, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied March 19, 1971.

PER CURIAM:

Appellant, Mark Cheers Jr., was indicted in 1969 on two counts: Count 1, conspiracy to rob a bank insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C.A. § 371; and Count 3, receiving stolen money from the bank in violation of 18 U.S.C.A. §§ 2, 2113(c).1

439 F.2d 1098

The jury was instructed that it could find appellant guilty on both the conspiracy and the substantive counts, and the jury did so. Appellant was subsequently sentenced to three years on Count 1 and five years on Count 3, the sentences to run consecutively.

Appellant first contends that under the principles of Milanovich v. United States, 1960, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, and Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, he cannot be convicted both of conspiracy to commit bank robbery and receiving stolen money from the bank. In those two cases the Supreme Court held that the separate sentence for receiving stolen money provided under the federal bank robbery statute was not designed to increase punishment for one who robs a bank; rather, it was simply designed to provide punishment for those who receive the loot from the robber. See also United States v. Suel, 5 Cir. 1970, 435 F.2d 1272; Thomas v. United States, 5 Cir. 1969, 418 F.2d 567. Under the federal statute, therefore, the acts of robbing and receiving when performed by the same individual become merged into a single substantive offense.

Seizing upon the logic of these cases, appellant contends that

"If Mark Cheers, Jr. was guilty of a conspiracy it was to rob the Grenada Bank. The robbery was consummated as an overt act by one of the conspirators and therefore became the act of Cheers. Cheers cannot be convicted of robbery and receiving * * *."

Appellant's syllogistic reasoning, however, ignores the well-established principle that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses." Pinkerton v. United States, 1946, ...

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9 practice notes
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; Fimara v. Garner, 86 Conn. 434, 437, 85 A. 670; United States v. Cheers, 439 F.2d 1097, 1098 (5th Cir.). The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from a......
  • U.S. v. York, No. 77-5633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 23, 1978
    ...Jacobs, 5 Cir. 1971, 451 F.2d 530, Cert. denied, 1972, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231; United States v. Cheers, 5 Cir. 1971, 439 F.2d 1097; United States v. Mayes, 6 Cir. 1975, 512 F.2d 637, Cert. denied, 1975, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670; United States v. Loza......
  • Davis v. State, No. 56140
    • United States
    • United States State Supreme Court of Mississippi
    • March 12, 1986
    ...(Miss.1974), U.S. v. York, 578 F.2d 1036 (5th Cir.1978), cert. den. 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U.S. v. Cheers, 439 F.2d 1097 (5th The offense is complete without showing an overt act in furtherance of the conspiracy. Griffin v. State, 480 So.2d 1124, 1127 (Miss.1985......
  • State v. Thomas, No. 92-KA-00401
    • United States
    • United States State Supreme Court of Mississippi
    • November 17, 1994
    ...(Miss.1974), U.S. v. York, 578 F.2d 1036 (5th Cir.1978), cert. den. 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U.S. v. Cheers, 439 F.2d 1097 (5th The offense is complete without showing an overt act in furtherance of the conspiracy. (citations omitted). Davis, 485 So.2d at 1057-58.......
  • Request a trial to view additional results
9 cases
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; Fimara v. Garner, 86 Conn. 434, 437, 85 A. 670; United States v. Cheers, 439 F.2d 1097, 1098 (5th Cir.). The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from a......
  • U.S. v. York, No. 77-5633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 23, 1978
    ...Jacobs, 5 Cir. 1971, 451 F.2d 530, Cert. denied, 1972, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231; United States v. Cheers, 5 Cir. 1971, 439 F.2d 1097; United States v. Mayes, 6 Cir. 1975, 512 F.2d 637, Cert. denied, 1975, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670; United States v. Loza......
  • Davis v. State, No. 56140
    • United States
    • United States State Supreme Court of Mississippi
    • March 12, 1986
    ...(Miss.1974), U.S. v. York, 578 F.2d 1036 (5th Cir.1978), cert. den. 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U.S. v. Cheers, 439 F.2d 1097 (5th The offense is complete without showing an overt act in furtherance of the conspiracy. Griffin v. State, 480 So.2d 1124, 1127 (Miss.1985......
  • State v. Thomas, No. 92-KA-00401
    • United States
    • United States State Supreme Court of Mississippi
    • November 17, 1994
    ...(Miss.1974), U.S. v. York, 578 F.2d 1036 (5th Cir.1978), cert. den. 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U.S. v. Cheers, 439 F.2d 1097 (5th The offense is complete without showing an overt act in furtherance of the conspiracy. (citations omitted). Davis, 485 So.2d at 1057-58.......
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