United States v. Leather

• Decision Date: 20 October 1959
• Docket Number: No. 12614.,12614.
• Citation: 271 F.2d 80
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Joseph LEATHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

271 F.2d 80 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. James Joseph LEATHER, Defendant-Appellant.

No. 12614.

United States Court of Appeals Seventh Circuit.

October 20, 1959.

Jack L. Goodsitt, Milwaukee, Wis., for appellant.

Edward G. Minor, U. S. Atty., Howard C. Equitz, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

James Joseph Leather was indicted for violations of Sections 2113(a) and 2113 (d) of Title 18, U.S.C., the federal bank robbery statute.

On defendant's plea of guilty, the District Judge sentenced him to fifteen years' imprisonment on Count I of the indictment, predicated on Section 2113 (a), and to five years' imprisonment, to be served concurrently, on Count 2 of the indictment, predicated on Section 2113(d). Defendant began serving the sentences May 23, 1952. On December 2, 1958, he moved to vacate the sentence on Count I. The District Judge denied the defendant's motion, but, on the Court's own motion, vacated the sentence on Count 2. Defendant appealed. Defendant states the contested issues to be:

"1. Did the U. S. District Court Judge for the Eastern District of Wisconsin err in vacating and setting aside on his own motion a sentence and judgment of five years imposed as to Count 2 of an indictment charging violations of Section 2113 (a) (d) Title 18, U.S.C. after said sentence and judgment had been legally satisfied, i. e., by defendant\'s incarceration, pursuant to said sentence from May 23, 1952 to date?

"2. Did the U. S. District Court Judge for the Eastern District of Wisconsin err in denying Defendant\'s motion to vacate the sentence and judgment of fifteen years imposed for Count I of an indictment charging violations of 2113(a) (d) Title 18, U.S.C. where Count I charged an offense clearly included and thereby merged in Count 2, and further, where the defendant had already satisfied the sentence and judgment imposed as to Count 2?"

Count I charges that defendant "did * * * by force and violence and by intimidation, take from the presence of * * * money in the sum of $93,569.00 belonging to * * * First Wisconsin National Bank." Count 2 charges that defendant, in addition to the facts charged in Count I, "did assault and put in jeopardy the life and lives of * * by the use of dangerous weapons, to-wit: a loaded 30-30 Caliber Rifle, a loaded sawed-off Shot-gun and a loaded Revolver; * * *."

Defendant argues that the offense stated in Count I was merged with the more serious crime stated in Count 2 and that upon multiple convictions under the various subsections of the bank robbery statute only one sentence can be imposed.

In support of his argument, defendant cites Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 and Kitts v. United States, 8 Cir., 1957, 243 F.2d 883, wherein the Eighth Circuit discussed and applied the Prince doctrine. Prince, under the federal bank robbery statute, had received consecutive sentences of twenty years for robbery of the bank and fifteen years for entering with intent to commit a felony. The Supreme Court said (352 U.S. at page 324, 77 S.Ct. at page 404):

"We must decide here whether unlawful entry and robbery are two offenses consecutively punishable in a typical bank robbery situation."

(352 U.S. at page 328, 77 S.Ct. at page 407):

"* * * the heart of the crime is the intent to steal. This mental element merges into the completed crime if the robbery is consummated. To go beyond this reasoning would compel us to find that Congress intended * * * to make drastic changes in authorized punishments. This we cannot do. If Congress had so intended, the result could have been accomplished easily with certainty rather than by indirection."

and (352 U.S. at page 329, 77 S.Ct. at page 407):

"We hold, therefore, that when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years,11 but that, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent."

Footnote 11 reads:

"11. In this case, petitioner was convicted of robbery aggravated by assault with a deadly weapon and was subject to the maximum of 25 years provided in 18 U.S.C. § 2113 (d)".

The cause was remanded to the District Court to resentence the defendant in accordance with the Supreme Court opinion.

Kitts received consecutive sentences of twenty years, for entering with intent to commit a felony, and ten years, for larceny. The Kitts case differed from Prince in that robbery was not charged. It was the Eighth Circuit's conclusion (243 F.2d at page 884) that in the Prince case, the Supreme Court determined that upon multiple convictions under various sub-sections of the bank robbery statute only one sentence could be imposed.

The Court in the Kitts case inferred an intention on the part of the Trial Court to subject Kitts to the maximum term of imprisonment for which the statute provided. The maximum penalty in the Kitts case was the twenty-year penalty imposed for entering with intent to commit a felony. The Court, therefore, reversed the judgment as to the additional ten-year sentence imposed for larceny.

The holding in the Prince case was analyzed in Williamson v. United States, 5 Cir., 1959, 265 F.2d 236. Williamson had been sentenced in 1954 to twenty years for entry with intent to commit a felony, under 2113(a); to eight years for larceny of specified property under 2113(b); and to eight years for larceny of other specified property under 2113 (b). The two eight-year sentences were to run concurrently, on completion of the twenty-year sentence. After the Prince decision, Williamson filed a motion to vacate the sentence. The District Court, concluding that under the Prince doctrine entry of the bank with intent to commit a felony merged into larceny of the bank's property, vacated the twenty-year sentence, leaving the two concurrent eight-year sentences. The government appealed. On reversal and remand, the District Court reinstated the twenty-year sentence and vacated the two eight-year sentences. Williamson appealed. The Fifth Circuit held that Prince did not require a holding that there was merger; that it was the pyramiding of penalties which was proscribed. The Fifth Circuit opinion states (265 F.2d at page 238):

"It may be that the two offenses defined by 18 U.S.C.A. § 2113(a), of entering a bank with the intent to commit a felony, for which the penalty is twenty years, and the completed offense of robbing the bank, for which the penalty is twenty years, are merged. The opinion in the Prince case so indicates and its language is quoted in the opinion in the recent case of Heflin v. United States 358 U.S. 415, 79 S.Ct. 451 3 L.Ed.2d 407. However, the opinion in the Heflin case restates the principle that Congress intended to prohibit the pyramiding of sentences. We do not think it was the purpose of the Congress to impose a greater penalty for entering a bank with the intent to commit a felony where no felony was in fact committed than could be imposed where the unlawful entry was followed by the larceny of the property of the bank. We think this view is in harmony with both the Prince case and the Heflin case. See Counts v. United States, 5 Cir., 263 F.2d 603."

The cause was again remanded because the original remand had been to re-sentence within the twenty-year maximum rather than merely to vacate one or the other sentence, and the defendant's presence was, therefore, necessary. Williamson had been denied an opportunity to be before the District Court when his sentence had been changed.

In Heflin, 1959, 358 U.S. 415, 79 S.Ct. 451, 452, 3 L.Ed.2d 407, the defendant had been sentenced to ten years on one count, which charged taking property by force, and assaulting and jeopardizing lives of several persons in the taking; one year and one day on a second count charging that defendant and two others did "receive, possess, conceal, store and dispose" of the stolen property under 2113(c); and three years on a third count charging conspiracy. The three-year sentence was to run on expiration of the ten-year term, and the one year and one day to begin on expiration of the three-year term. Referring to Prince, the Supreme Court says (358 U.S. at page 419, 79 S.Ct. at page 453):

"We gave the Act that construction because we resolve an ambiguity in favor of lenity when required to determine the intent of Congress in punishing multiple aspects of the same criminal act."

The Supreme Court then indicates that the legislative history of 2113(c) indicates that it "was not designed to increase the punishment for him who robs a bank but only to provide punishment for those who receive the loot from the robber. We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery." The Court also noted that the ten-year sentence was admittedly valid.

Counts, 5 Cir., 1959, 263 F.2d 603, was sentenced to serve fifteen years each, concurrently, under 2113(a) and 2113(b). The sentence under 2113(b) was corrected to ten years, as in excess of the maximum, but the fifteen-year sentence on 2113(a), being within the twenty-year maximum, was allowed to stand. The Court said (263 F.2d at page 604):

"As have so many others, appellant now urges, on the basis of Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, that, since a larceny actually took place, the entry with felonious intent, Section 2113(a), merged into the larceny, Section 2113(b), so that the maximum sentence was 10 years. For the reasons pointed out in United States v. Williamson, 5 Cir., 1958, 255 F.2d 512, we disagree. To this may be added Purdon v. United States, 10 Cir., 1957, 249 F.2d 822, certiorari denied 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed.2d 273; * * *" (citing other cases).

In the...