United States v. Manes

• Citation: 420 F. Supp. 1013
• Decision Date: 22 April 1976
• Docket Number: No. CR 75-185.,CR 75-185.
• Parties: UNITED STATES of America, Plaintiff, v. Harold Wayne MANES, Defendant.
• Court: U.S. District Court — District of Oregon

420 F. Supp. 1013

UNITED STATES of America, Plaintiff, v. Harold Wayne MANES, Defendant.

No. CR 75-185.

United States District Court, D. Oregon.

April 22, 1976.

Sidney I. Lezak, U. S. Atty., Charles H. Turner, Asst. U. S. Atty., Dist. of Oregon, Portland, Or., for plaintiff.

David S. Teske, Federal Defender Section, Metropolitan Public Defender, Portland, Or., for defendant.

OPINION

SKOPIL, District Judge:

Billy Duwayne Garr and Harold Wayne Manes were indicted on five counts arising from the alleged theft of cedar from forest lands owned by the United States. Counts I through IV charged violations of 18 U.S.C. § 641, which applies to anyone who "embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of" any property of the United States.¹ Count V charged violation of 18 U.S.C. § 1361, which applies to anyone who "willfully injures or commits any depredation against" any property of the United States.²

Garr subsequently entered a plea of guilty to Count II pursuant to an agreement with the government for the dismissal of the remaining counts. Manes (hereafter "the defendant") waived jury trial and was tried to the court on October 31, 1975. A large portion of the evidence introduced was in the form of a stipulation. Garr testified against the defendant.

The defendant has in essence conceded that he is guilty of some offense arising from the alleged theft of cedar. However, he contends that the indictment is defective in various respects which were fully revealed only after the government's evidence was received. He moves for dismissal of some or all of the counts of the indictment.

To understand defendant's arguments, an analysis of the charges and of the evidence adduced is necessary. The indictment charged as follows:

"COUNT I: That on or about May 14, 1975, in Lane County, Oregon, in the District of Oregon, BILLY DUWAYNE GARR and HAROLD WAYNE MANES, defendants herein, did unlawfully, wilfully and knowingly convert to their own use certain property of the United States having a value in excess of $100.00, to-wit: timber owned by the United States; in violation of Section 641, Title 18, United States Code.

"COUNT II: That on or about May 29, 1975, in Lane County, Oregon, in the District of Oregon, BILLY DUWAYNE GARR and HAROLD WAYNE MANES, defendants herein, did unlawfully, wilfully and knowingly steal and purloin certain property of the United States having a value in excess of $100.00, to-wit: timber owned by the United States; in violation of Section 641, Title 18, United States Code.

"COUNT III: That on or about May 30, 1975, in Lane County, in the District of Oregon, BILLY DUWAYNE GARR and HAROLD WAYNE MANES, defendants herein, did unlawfully, wilfully and knowingly convert to their own use certain property of the United States having a value in excess of $100.00, to wit: timber owned by the United States; in violation of Section 641, Title 18, United States Code.

"COUNT IV: That in or about May, 1975, the exact dates to the Grand Jurors unknown, in Lane County, Oregon, in the District of Oregon, BILLY DUWAYNE GARR and HAROLD WAYNE MANES, defendants herein, did unlawfully, wilfully and knowingly and without authority, sell, convey and dispose of certain property of the United States having a value in excess of $100.00, to-wit: timber owned by the United States; in violation of Section 641, Title 18, United States Code.

"COUNT V: That on or about May 29, 1975, in Lane County, Oregon, in the District of Oregon, BILLY DUWAYNE GARR and HAROLD WAYNE MANES, defendants herein, did unlawfully, wilfully and knowingly injure and commit certain depredations against property of the United States, by cutting certain timber owned by the United States and managed by the United States Forest Service, thereby causing damage in excess of $100.00; all in violation of Section 1361, Title 18, United States Code." (emphasis added)

Count I of the indictment is based upon a theft of May 14, 1975. It involved two trees felled on Bureau of Land Management land located near Congdon Creek Road in Section 29, Township 15 South, Range 7 West, of the Willamette Meridian (Ex. 4-9). The value of this timber (including 3,000 board feet actually removed from the site and 4,000 feet left there) was estimated at $637 (Stipulation, at 9-10).

Count II is based upon the severance of trees on May 29, 1975. It involved two cedar trees on United States Forest Service land located near a spur road leading off Road No. 1901 and the North Fork Road in Section 29, Township 19 South, Range 5 East, of the Willamette Meridian (Ex. 10-13, 23, 24).

Count III is based upon the transportation of cedar away from the site of the severance on the following day, May 30, 1975. The value of this timber (including 3,420 board feet removed from and 3,740 board feet left at the scene) was estimated at $917.19 (Stipulation, at 13).

Count IV is based upon alleged sales to defendant's father during or about May, 1975, of cedar stolen from the above two sites and from two additional sites on United States Forest Service land. The first additional site was off Road No. 1553 in the vicinity of Blue River, Oregon, in Section 27, Township 15 South, Range 5 East, of the Willamette Meridian (Ex. 3, 23). Cedar of undetermined value was taken from one tree at this location on April 9, 1975. The second additional site was near Salmon Creek off Road No. 2042 in Section 33, Township 20 South, Range 4 East, of the Willamette Meridian (Stipulation, at 13; Ex. 23). Six trees were felled in this area prior to May 31, 1975, two of them by Garr and the defendant, and timber worth $1,300 (Stipulation, at 13-14) was removed by them.

Count V charges injury and depredations caused on May 29, 1975, by cutting the timber involved in Counts II and III.

The evidence establishes beyond a reasonable doubt that Garr and the defendant stole cedar from the four sites described above and later sold it to the defendant's father. The defendant raises four arguments, however, which he claims necessitate dismissal of some or all of the counts of the indictment.

MULTIPLICITOUS INDICTMENT

Defendant first argues that Counts III, IV, and V must be dismissed because the indictment multiplies two offenses (those charged in Counts I and II) into five, contrary to congressional intent. He cites two Supreme Court cases holding that Congress did not intend that a defendant charged with both larceny or robbery and receiving goods stolen in the same transaction be convicted of both offenses. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) (18 U.S.C. § 641); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (18 U.S.C. § 2113). In addition, he relies upon Morissette v. United States, 342 U.S. 246, 271-273, 72 S.Ct. 240, 96 L.Ed. 288 (1952), which discusses Congress' purpose in enacting § 641.³ The Court concluded:

"It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another's property. The codifiers wanted to reach all such instances." Id., at 271, 72 S.Ct. at 254.

From this language the defendant argues that Congress intended that the various common-law crimes grouped in § 641 be considered as mere definitional aspects of a single broadened offense of larceny.

The government replies, first, that Count V need not be dismissed because it charges a violation of § 1361,⁴ an entirely different offense with separate and distinct elements from § 641. Second, Count IV need not be dismissed because it involves all sales during May, 1975, and has an independent factual basis in sale of cedar from two sites in addition to those involved in Counts I and II. The only remaining question, then, is whether the defendant may be convicted of both Count II ("stealing and purloining" by severing two trees on May 29, 1975) and Count III ("knowingly converting to his own use" by transporting cedar away from the site on May 30, 1975). The government argues that Counts II and III constitute two separate offenses because the trees were cut on one occasion and the timber removed on another. Even if the defendant is correct that he may be convicted on only one of the two counts, he may be charged with both offenses to ensure that the indictment covers whatever criminal activity is proven by the evidence. If he is guilty of both offenses, the court must decide on which of the two counts the conviction should rest and must dismiss the remaining count.

Count V

Count V charges a violation of 18 U.S.C. § 1361, while Counts II and III (involving the same transaction) are based on 18 U.S.C. § 641. The government is correct that a single transaction may give rise to several infractions of the law, each of which may be the subject of a separate charge as well as consecutive sentences. A defendant may, for example, be convicted of burglary for entering a building and of larceny for a theft committed after entry. A defendant may not, however, be convicted of separate offenses unless each requires proof of a different element:

"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

In this case the alleged violations of § 641 and § 1361 involve...