United States v. Suel, 27958 Summary Calendar.

Decision Date21 December 1970
Docket NumberNo. 27958 Summary Calendar.,27958 Summary Calendar.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Billy Joe SUEL, Jerry Wayne Grammer and Larry Dean Grammer, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Thomas P. Moore, Jr., Waco, Tex., Court appointed, for Suel and Jerry Grammer and Larry Dean Grammer.

Larry Dean Grammer, pro se.

Jerry W. Grammer, pro se.

Billy Joe Suel, pro se.

Jeremiah Handy, Asst. U. S. Atty., Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

In this bank robbery case appellants Billy Joe Suel, Jerry Wayne Grammer, and Larry Wayne Grammer were indicted in 1968 in four counts: Count 1, conspiracy to commit larceny in violation of 18 U.S.C.A. § 371; Count 2, entering a bank insured by the Federal Deposit Insurance Corporation with intent to commit larceny in violation of 18 U.S.C.A. § 2113(a); Count 3, taking and carrying away of money in violation of 18 U.S.C. A. § 2113(b); Count 4, receiving, possessing, or concealing the same money in violation of 18 U.S.C.A. § 2113(c).1

The jury was instructed that it could find appellants guilty on all four counts, and the jury did so. Appellants were each sentenced to concurrent sentences on Counts 1 and 2. No sentences were imposed on Counts 3 and 4, the jury's findings of guilty on those counts being treated as surplusage.

This case is directly controlled by Thomas v. United States, 5 Cir.1969, 418 F.2d 567, which held it plain error under Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, for the trial court to instruct the jury that they might find defendants guilty both of larceny under § 2113(a) and (b) and receiving the proceeds of that larceny under § 2113(c).

The Government seeks to avoid the holding in Thomas by contending that appellants are here collaterally raising an issue of erroneous jury instructions, which issue is outside the scope of § 2255. But see Keating v. United States, 9 Cir.1969, 413 F.2d 1028. The record, however, reveals that the present case constitutes a direct appeal from the convictions below. While appellants failed to secure a timely appeal, they did subsequently file a § 2255 motion before the same trial judge. In that motion appellants contended that they were denied the right to file a timely appeal because of an agreement between defense attorneys and the prosecution whereby no appeal was to be pursued in return for the dropping of other pending charges. The court below granted relief on this point and permitted appellants to prosecute a direct appeal from their convictions. It is in this light that the instant case has reached this court.

Also without merit is the Government's argument that Thomas should not be accorded retroactive application so as to compel reversal in the present case. Thomas was premised upon the principles enunciated in Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, and Milanovich v. United States, supra, decisions which preceded appellants' trial by many years. Moreover, the precise issue decided in Thomas was considered by this court in Baker v. United States, 5 Cir.1966, 357 F.2d 11, where we reached the same result. Since Baker antedated...

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5 cases
  • United States v. White
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 12, 1971
    ...verdict of guilty for either robbery or receiving, but not both. We have of course followed this rule in cases such as United States v. Suel, 5 Cir. 1970, 435 F.2d 1272, Thomas v. United States, 5 Cir. 1969, 418 F.2d 567, and Baker v. United States, 5 Cir. 1966, 357 F.2d On the surface, it ......
  • Morrison v. United States, CA No. 1-521.
    • United States
    • U.S. District Court — Northern District of Texas
    • May 14, 1971
    ...States, 357 F.2d 11 (1969); Eakes v. United States, 391 F.2d 287 (1968); Thomas v. United States, 418 F.2d 567 (1969); and United States v. Suel, 435 F.2d 1272 (1970). The petitioner claims that both counts of the indictment were submitted to the jury with instructions that he could be foun......
  • United States v. Cheers, 30196 Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 19, 1971
    ...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 receivin......
  • United States v. Abercrombie
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 17, 1973
    ...imposition of a general sentence for a term within the limits applicable to only one of the counts, Milanovich, supra; United States v. Suel, 5 Cir., 1970, 435 F.2d 1272. An important appellate feature of the case, however, is that nowhere below did the defendant, represented by retained co......
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