United States v. Tyler

• Decision Date: 04 December 1972
• Docket Number: No. 71-2143.,71-2143.
• Citation: 466 F.2d 920
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Alvin TYLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.2d 920 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. George Alvin TYLER, Defendant-Appellant.

No. 71-2143.

United States Court of Appeals, Ninth Circuit.

August 22, 1972.

Certiorari Denied December 4, 1972.

Richard L. Knickerbocker (argued), Torrance, Cal., for defendant-appellant.

John F. Walters, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and KILKENNY, Circuit Judges and MURPHY,^* District Judge.

Certiorari Denied December 4, 1972. See 93 S.Ct. 544.

MURPHY, District Judge.

Tyler appeals from a judgment of the District Court of the Central District of California convicting him, after a jury trial, of (1) larceny and (2) possession of $4,510 in Bank of America traveler's checks in violation of 18 U.S.C. § 2113(b) and (c). He received concurrent sentences of six years on each count.

The only issue¹ raised by appellant is whether all the traveler's checks, at the time they were stolen or possessed, could possibly have had a value of more than $100 as is required by § 2113(b) and 2113(c).² His submission is that the checks had no or only a nominal value. It is undisputed that at the time the Bank of America traveler's checks were stolen from that federally insured Bank they were neither signed nor countersigned but each had an imprinted denomination of $10, or $20, or $50 or $100 on its face.

We find the argument without merit. There was expert testimony as to the value of over $100 from two witnesses, thus creating a question of fact for the jury. There was additional evidence that defendant in fact cashed almost all of them, that is, $4,490 worth. Similar arguments have been advanced and rejected with regard to stolen blank postal money orders and also blank traveler's checks. United States v. Evans, 446 F.2d 998, 1001 (8th Cir. 1971); United States v. Carter, 448 F.2d 1245, 1247 (8th Cir. 1971); Churder v. United States, 387 F.2d 825, 833 (8th Cir. 1968); United States v. Kramer, 289 F. 2d 909, 920-921 (2d Cir. 1961).

Although appellant did not raise the issue before the District Court or in this Court, we commend the United States Attorney for calling to our attention an underlying important legal issue, viz., did the conviction of appellant violate the so-called rule of Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), "that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both." (p. 555). (Emphasis added.)

The Government did attempt to have the trial court charge the Milanovich rule, but the court refused.³ Counsel for Tyler, although he was furnished a copy of the Government's request and was present when the requested instruction was discussed, never asked for such an instruction and took no exception to the charge as given.

Whether or no the crime of possession (as charged in Count 2) as distinguished from the crime of receiving, which was not charged in that count, takes it out of the rule of Milanovich is therefore our first concern, since we have held that failure so to charge in a larceny-receiving case is plain error whether requested or not. Cf., United States v. O'Neil, 436 F.2d 571 (9th Cir. 1970); Keating v. United States, 413 F.2d 1028 (9th Cir. 1969).

We acknowledge the fact that Milanovich, although a 5-4 decision, is authority for the proposition that in any prosecution of a single wrongdoer for the crimes of larceny and receiving the same goods or money, the court must charge the jury that they may convict for either larceny or receiving but not both. We are not bound, however, by such a rule where the crimes charged under the Federal Bank Robbery Act are for larceny and possession (18 U.S.C. § 2113(b) and (c)) unless, of course, possession and receiving are synonymous.

Milanovich was concerned with the statutory construction of 18 U.S.C. § 641⁴ insofar as it related to the crimes of larceny and receiving. It agreed with the Court of Appeals (Milanovich v. United States, 275 F.2d 716 (4th Cir. 1960)) that the Court of Appeals' understanding of the Supreme Court's construction of 18 U.S.C. § 2113(c) in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) was correct, and accordingly the Supreme Court, in Milanovich, could find no difference between the two statutes or the legislative histories to justify a different interpretation in respect to the issue before them. It held:

"With respect to the receiving statute before us in Heflin, we decided that `Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the . . . robbers themselves,\' 358 U.S. at page 420 , 79 S.Ct., at page 454. We find nothing in the language or history of the present statute which leads to a different conclusion here." (365 U.S. 551, 554, 81 S.Ct. 728, 729)

In our view the most that Heflin decided was that Congress did not intend to pyramid the punishment of bank robbers merely because they received, possessed, concealed, etc. the proceeds of the robbery. It did not intend to, nor did it, state that Congress had no authority to make such acts criminal. After reviewing the legislative history, the Court, in Heflin, stated:

"This clue to the purpose of Congress argues strongly against the position of the Government. From these Reports it seems clear that subsection (c) 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. It may be true that in logic those who divide up the loot following a robbery receive from robbers and thus multiply the offense. But in view of the legislative history of subsection (c) we think Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves." (358 U.S. 415 pp. 419-420, 79 S.Ct. 451 p. 454)

Since 1961, when Milanovich was decided, the Supreme Court has cited it only once, although it has provided many courts of appeal with subject matter for endless discussion. Cf., United States v. White, 440 F.2d 978 (5th Cir. 1971); United States v. Corson, 449 F.2d 544 (3rd Cir. 1971, en banc); Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968, en banc); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967); Jenkins v. United States, 361 F.2d 615 (10th Cir. 1966).

In the one Supreme Court case, United States v. O'Brien, 391 U.S. 367, 380, 88 S.Ct. 1673, 1680, 20 L.Ed.2d 672 (1968), the court said:

"In the absence of a question as to multiple punishment, it has never been suggested that there is anything improper in Congress\' providing alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore v. United States, 357 U.S. 386 , 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).28

"28 Cf. Milanovich v. United States, 365 U.S. 551 , 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Heflin v. United States, 358 U.S. 415 , 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322 , 77 S.Ct. 403, 1 L.Ed.2d 370 (1957)."

Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (most of the dissenters in Milanovich were the majority) reaffirmed the holding in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), namely, that Congress did have the power to outlaw and punish as separate offenses the severable ingredients of one compound transaction.

We, too, have had occasion to distinguish between the crimes of receiving and possession. In D'Argento v. United States, 353 F.2d 327, 334-335 (9th Cir. 1965), cert. denied 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966), the appeal was from a judgment convicting the defendant of theft from an interstate shipment and possession of the same goods (18 U.S.C. § 659). We distinguished Milanovich as follows:

"There Milanovich the defendant was charged with larceny and with receiving the same property taken. The distinction between that case and this one is that the second offense here is the possession of the stolen goods. The two offenses of larceny and the receiving of the stolen property would occur at the same time and would tend to merge. Here possession of the stolen property would be a continuing offense. No cases have been called to our attention holding that possession and receiving in this context are entitled to the same treatment. We do not consider Milanovich supra to be applicable here. There are two distinct offenses of theft and possession.

"There was no error in not requiring the Government to elect or in failing to instruct that there was only one offense."

Our decision in D'Argento has been relied upon by the Second Circuit in United States v. Ploof, 464 F.2d 116 (2d Cir. 1972); United States v. Meduri, 457 F.2d 330, 331 (2d Cir. 1972); and United States v. Cusumano, 429 F.2d 378, 381 (2d Cir. 1970), cert. denied sub nom. Riggio v. United States, 400 U.S. 830, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970); in each case the court rejected the so-called rule of Milanovich in a larceny-possession situation.

In Ploof the court made the following observation relevant to the instant problem:

"Although appellants in the instant case were convicted of only one substantive offense—receiving and concealing a stolen motor vehicle—other Circuits uniformly have held that under the Dyer Act the offenses of transporting a stolen motor vehicle (§ 2312) and receiving and concealing it (§ 2313) are distinct offenses which can be committed at the same time, with the same property, by the same person, who can be sentenced to consecutive prison terms for such distinct offenses. United States v. Thompson, 442 F.2d 1333 (6 Cir. 1971); Linkenauger v. United States, 357 F.2d 925 (6 Cir. 1966); United States v.

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