United States v. Corson

• Citation: 449 F.2d 544
• Decision Date: 31 August 1971
• Docket Number: No. 18862.,18862.
• Parties: UNITED STATES of America v. Robert B. CORSON, Eugene J. McCullough, Eugene J. McCullough, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

449 F.2d 544 (1971)

UNITED STATES of America v. Robert B. CORSON, Eugene J. McCullough, Eugene J. McCullough, Appellant.

No. 18862.

United States Court of Appeals, Third Circuit.

Argued November 17, 1970.

Reargued May 11, 1971.

Decided August 31, 1971.

As Amended September 8, 1971.

David Rudovsky, Defender Ass'n of Philadelphia, Philadelphia, Pa., for appellant.

J. Clayton Undercofler, III, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.

Before HASTIE, Chief Judge, and McLAUGHLIN, SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.

Before SEITZ, Chief Judge, and McLAUGHLIN, HASTIE, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.

Argued Nov. 17, 1970.

Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.

Reargued May 11, 1971.

Before HASTIE, Chief Judge, and McLAUGHLIN, SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.

As Amended Sept. 8, 1971.

Before SEITZ, Chief Judge, and McLAUGHLIN, HASTIE, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The validity of sentencing is the issue on this appeal.

Appellant was convicted by a jury on three counts of an indictment, all based upon a single armed robbery of a bank. Following denial of appellant's post-trial motions, he was sentenced on May 9, 1967 as follows:

Count I, under 18 U.S.C. § 2113(a), charging entering a bank with intent to commit a felony — 10 years;

Count II, also under 18 U.S.C. § 2113 (a), charging robbery of the bank — 5 years, consecutive with the preceding sentence;

Count III, under 18 U.S.C. § 2113(d), charging bank robbery attended by jeopardizing life with a dangerous weapon — 5 years probation, to be served at the expiration of the sentence of Count II.

An appeal was taken, and this court affirmed the conviction in a per curiam opinion. United States v. Corson, 389 F.2d 563 (1968).

On August 31, 1969, while imprisoned, appellant sought to invoke the power of the district court under Rule 35, Federal Rules of Criminal Procedure, "to correct an illegal sentence at any time" by moving for vacation of the sentences imposed under Counts I and II. The court responded, however, by vacating the sentences under Counts II and III on October 21, 1969 and letting stand the heavier sentence under Count I.

I.

The sole question presented by this appeal is whether the district court's Order of October 21, 1969 constituted a proper and lawful implementation of the Supreme Court's holding in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). In Prince, the Court held that it was not Congress' intention, in establishing a series of greater and lesser offenses under the bank robbery statute, to pyramid the penalties therefor.¹ Accordingly, the Court held that it was error for the trial court to have sentenced Prince to consecutive terms of twenty years for robbery and fifteen years for unlawful entering, since the "mental element (intent to steal) merges into the completed crime if the robbery is consummated." 352 U.S. at 328, 77 S.Ct. at 407. The case was therefore remanded to the district court for resentencing "in accordance with this opinion." 352 U.S. at 329, 77 S.Ct. 403.

Even before Prince, it was generally agreed among the circuits that a defendant could not be given multiple sentences under the bank robbery statute as punishment for a single bank robbery.² The circuits have disagreed both before and after Prince, however, as to the theory upon which the correction of an erroneously cumulative sentence should rest. Basically two approaches have been taken — merger and the intention of the sentencing judge.³

1. The Merger theory. The above-quoted merger language in Prince has been read by several circuits, including our own, as requiring a holding that sentence may validly be imposed only upon that count which charges the most aggravated form of the offense since, in theory, the less aggravated offenses have "merged" into it and ceased to exist as separate, punishable offenses.⁴ This is the theory urged by appellant, who, if successful in urging a mechanical application of this rule, would be entitled to be released from prison and merely placed on probation for five years.

2. The court's intention. Other circuits, most notably the Eighth, have adopted a more flexible approach — that the sentence retained should be that which most clearly approximates the intention of the district judge at the time of the original sentencing. This theory assumes that the sentencing judge clearly intended to impose on the defendant at least as severe a penalty as that indicated for any single count. They have therefore permitted to stand the heaviest penalty, irrespective of whether it was imposed upon the most aggravated of the counts. They have therefore vacated all sentences but the longest.⁵ The Government urges this approach, which in this case would result in our affirming the lower court's retention of the ten-year prison term.

II.

A review of the cases using these two approaches reveals the striking fact that, regardless of the approach used, the result has almost invariably been to uphold the heaviest sentence and vacate the lighter sentences.⁶ One is also struck by the effect the rather convoluted penalty provisions of § 2113 have had upon the various courts' choice of approach.⁷

The most inclusive offense in § 2113 is aggravated robbery, which offense also carries the heaviest maximum penalty. In those cases in which the defendant has been convicted on aggravated robbery as well as the lesser included offenses, the "merger" theory has generally worked well to correct an erroneous pyramiding of sentences. Since the heaviest sentence has usually been imposed on the aggravated count, it has done little violence to the intention of the sentencing judge to uphold that sentence on the ground that the lesser offenses merged into the most inclusive offenses and no longer formed a proper basis for sentencing.⁸

Courts have had great difficulty with the merger theory, however, in cases in which the more severe sentence was not imposed on the most inclusive offense. Typically, such cases have involved two counts — one for entering with the intent to commit a felony and one for larceny.⁹ The problem arises because Congress has authorized a much heavier penalty for unlawful entering, the less inclusive of these two crimes, and therefore sentencing judges have often imposed correspondingly more severe sentences on this less inclusive offense. Were the merger theory to be applied to this sort of case, a defendant (1) would be penalized for having failed, after entering with the requisite intent (punishable by twenty years in prison and a fine), to have consummated the larceny, (2) would be rewarded for having actually committed the larency (punishable by no more than 10 years in prison and a fine), and (3) would be even more handsomely rewarded if, despite having committed the larceny, he was unsuccessful in garnering loot in excess of $100 (in which case, he could be sentenced to only one year in prison and a fine). Because of this anomaly, and because the merger theory, applied in this situation, would do great violence to the intention of the sentencing court, courts have been understandably reluctant to apply the merger theory to this sort of case.

There has been a common variation on this situation, arising (as in the instant case) when, despite a conviction on an aggravated count punishable by 25 years in prison and a fine, the trial judge has nonetheless imposed the heaviest sentence on one of the lesser counts. The courts have similarly refused to apply the merger theory to this sort of case.¹⁰

This court has had no reason, prior to this case, to question the wisdom of the merger theory, since Welty, Conway, McKenzie, and Chester all involved situations in which the application of that theory did not lead to the mischievous results outlined above. This case, however, reveals plainly the difficulties inherent in that approach. A defendant found guilty of aggravated bank robbery and upon whom the district judge intended to impose a sentence of no less than 15 years plus 5 years probation would incur a sanction of only 5 years probation because the district judge has erred. Therefore, we have been compelled to reexamine the underpinnings of the merger theory. Upon consideration of all the relevant authorities, we have concluded that the merger theory is inconsistent with sound judicial policy and ought not hereafter be followed.

III.

The merger theory stems from the Supreme Court's decision in Prince v. United States, supra. There, the Supreme Court was faced with a situation in which the district court had sentenced a defendant convicted of a single bank robbery to 20 years for robbery and 15 years for entering to be served consecutively. Interpreting the statutory scheme to resolve an ambiguity in favor of leniency the Supreme Court held that when it established lesser included offenses in the Bank Robbery Act, Congress did not intend to permit the pyramiding of penalties imposed for a single robbery. In 1937 Congress had amended the Bank Robbery Act of 1934 to plug a glaring loophole by making unlawful entry and larceny from a bank federal crimes. Prior to the amendment it was possible to enter a bank and steal money from the till during the distraction of the teller without violating federal law. It was in this context of interpreting Congressional intent to create lesser included offenses without increasing the maximum penalty for the most inclusive offense that the Court stated:

"The unlawful entry provision was inserted to cover the situation where a person enters a bank for the purpose of committing a crime but is frustrated for some reason before completing the crime. The gravamen of the offense is

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