United States v. Johnson, CR 85-137-RE.
| Decision Date | 17 December 1985 |
| Docket Number | No. CR 85-137-RE.,CR 85-137-RE. |
| Citation | 623 F. Supp. 579 |
| Parties | UNITED STATES of America, Plaintiff, v. Larry Bruce JOHNSON, Defendant. |
| Court | U.S. District Court — District of Oregon |
Charles H. Turner, U.S. Atty., Fredric N. Weinhouse, Asst. U.S. Atty., Portland, Or., for plaintiff.
Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for defendant.
Defendant was tried on a two count indictment charging bank robbery, 18 U.S.C. § 2113(a) and knowing possession of funds taken from a bank, 18 U.S.C. § 2113(c). The jury acquitted him of the robbery, but convicted him on the possession count. He now moves this court for acquittal on the knowing possession charge or, in the alternative, for a declaration that the knowing possession conviction was one for a misdemeanor. Defendant also seeks a new trial, again as an alternative.
Because I grant the motion for acquittal I decline to rule on the alternative motions to declare the conviction one of a misdemeanor. I deny the motion for new trial.
On August 5, 1985, the United States National Bank, Tigard, Oregon branch was robbed by two individuals. One robber appeared to be a black male, and the other appeared to be a white male, disguised as black. The government contends that Larry Bruce Johnson was the black male who was directly involved in the bank robbery.
Johnson was arrested during the afternoon of the day of the robbery. His arrest resulted from the observations of two witnesses who were outside of the bank when the robbers exited. Suspicious of the conduct and dress, the witnesses wrote down the license number of the Honda automobile which those two occupied. That license number was traced to one Eugene Marzolf who resided at a Southwest Corbett Street address. A similar Honda, with the same license number, was observed near that address and surveillance was instituted. Marzolf left the residence, entered the Honda and then left it in favor of a Subaru, in which he departed the Corbett Street address. Surveillance continued. Marzolf proceeded to a Southeast Insley address and entered that residence. He then left, accompanied by Johnson. Both left in the Subaru which was subsequently stopped by the police. Johnson was searched. A large amount of cash was found on his person, including bait bills from the earlier robbery in Tigard. A hat and shirt, similar to the ones worn during the robbery, were also found in the Subaru.
Johnson denied his participation in the bank robbery. He explained his possession of the particular funds by testifying that he had received the money for marijuana sold to individuals at the Insley Street address. His defense was that although he possessed the money, he did not do so knowing that it had been unlawfully taken from the bank.
Mr. Johnson moves for an order pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure granting acquittal on the knowing possession count. He argues that there was insufficient evidence offered for any rational trier of fact to find, beyond a reasonable doubt, that he knew the money in his possession had been stolen from a bank. Evidence was lacking and the legislative intent of 18 U.S.C. § 2113(c) does not comprehend the result.
The only evidence of Johnson's guilt on the possession charge was evidence that he robbed the bank and therefore must have known the source of the dollars. There was sufficient evidence for a rational trier of fact to conclude that Johnson was one of the bank robbers, but this jury did not find that the evidence proved Johnson's guilt beyond a reasonable doubt. They found him not guilty.
The eye witness who saw the robbers enter the Honda also identified a photo throwdown in court and subsequently identified the defendant in open court. A bank teller who did not succeed in picking defendant out of a throwdown was strong in her identification of him during both pre-trial proceedings and the trial itself. However, as indicated, the jury rejected this evidence in finding that the defendant was not one of the bank robbers. There was no other additional evidence that Johnson knowingly possessed the stolen funds. Having found him not guilty of the robbery, the jury necessarily relied upon speculation in concluding that he knew the funds were those which came from the bank robbery. Counts of robbery and possession can be brought in the same indictment. United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). However, a jury finding a defendant guilty of robbery must return their verdict without determining the guilt or innocence of that defendant on the possession charge. This is because the legislative intent and judicial history of § 2113(c) rejects the concept that prosecutors are given two opportunities to convict a defendant for a single criminal act.
Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) establishes that 18 U.S.C. § 2113 does not allow multiple punishment for a single action. In Heflin, the defendant had been convicted under both section (d) () and section (c) (knowing possession). He was sentenced consecutively on these charges. The United States Supreme Court disallowed the consecutive sentences, finding that pyramiding of penalties was not the intent of Congress. Rather, section (c) had been enacted to punish another class of wrongdoers: receivers. The Heflin Court concluded:
This clue to the purpose of Congress argues strongly against the position of the Government. From these Reports it seems clear...
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U.S. v. Johnson
...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...