filed as amended january 14 1977.: December 2, 1976.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE @EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-649).
Van Dusen, Hunter and Weis, Circuit Judges. Hunter, Circuit Judge.
The proper construction of a criminal statute, a query of the type that intrigues the legal mind but is a source of bafflement and some impatience to the average layman, is the stuff of this appeal. The question is whether a defendant may be convicted for the receipt and possession of stolen goods when the evidence discloses that he was in fact the thief. We opt for a literal, rather than a historical reading of the statute and answer in the affirmative.
Defendant Trzcinski and others were indicted on one count of receiving, concealing and retaining stolen government property, in violation of 18 U.S.C. § 641.*fn1 The evidence at trial showed that Trzcinski drove his codefendants to a repair facility in Philadelphia and remained in his automobile while the other men stole a government truck. Trzcinski followed in his car as the codefendants drove the truck to a lot owned by Trailmobile Company, where all were apprehended in the act of loading stolen tires onto the truck. The district judge, after a nonjury trial, found the defendants guilty of the offense charged. In discussing his findings, he stated:
"We could not have found that the defendants, beyond a reasonable doubt, exercised dominion over the vehicle if we had not first concluded that the defendants had stolen the truck. . . . In the instant case the government needed to rely on the inference that the defendants stole the truck in order to secure their convictions for possession."
Relying on Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 (1959), and Milanovich v. United States, 365 U.S. 551, 5 L. Ed. 2d 773, 81 S. Ct. 728 (1961), the defendant argues that since the trial court believed that he stole the truck, he cannot be convicted of unlawfully possessing it.
In Heflin v. United States, supra, the defendant was convicted of both bank robbery and receiving the stolen money in violation of 18 U.S.C. §§ 2113(d), (c). After reviewing the meager legislative history, the Court reasoned that subsection (c), the receiving offense, was designed not to increase the robber's punishment but rather to provide punishment for those who received the loot from him. Accordingly, the Court held sentences on both counts impermissible.
In Milanovich v. United States, supra, guilty verdicts had been returned on a count of receiving and concealing government property, as well as one for stealing it, crimes proscribed by 18 U.S.C. § 641. The Court followed the Heflin reasoning, holding that when the indictment charges both theft and receiving stolen goods, the trial judge must instruct the jury that it can convict on either of the charges, but not on both.
Traditionally, receipt of stolen goods has been a crime distinct from the theft. Under the general view, a thief who actually carried away the goods could not "receive" them from himself. This principle is based upon the theory of avoiding the infliction of a double penalty or upon the philosophic consideration that a single act may not constitute both the larceny and the receiving. An accessory, however, may be guilty of both larceny and receipt of stolen goods. See 2 F. WHARTON, CRIMINAL LAW AND PROCEDURE § 576 (12th ed. 1957), and R. PERKINS, CRIMINAL LAW, 321 (1969). But these general observations are not controlling because, as the Supreme Court recognized in Milanovich, the question is one of statutory construction, not common law distinctions.
Milanovich produced more confusion than clarity. The two conflicting interpretations of its holding were carefully summarized in United States v. Minchew, 417 F.2d 218, 219 (5th Cir. 1969), cert. denied, 397 U.S. 1014, 25 L. Ed. 2d 427, 90 S. Ct. 1246 (1970):
"The Court's opinion in Milanovich is less than precise, and allows differing interpretations of the exact holding. One interpretation is that Milanovich holds that paragraph 2 of § 641 is uniformly inapplicable to the person who stole the Government property in question . . . . A second interpretation of Milanovich, and we think the correct one, is that a person cannot be convicted and punished for both stealing Government property and for receiving the same property. The holding probably includes concealing and retaining the stolen property."
The second view was also followed in United States v. Sharpe, 452 F.2d 1117 (1st Cir. 1971); Altom v. United States, 454 F.2d 289, 295 (7th Cir. 1971), cert. denied, 406 U.S. 917, 32 L. Ed. 2d 116, 92 S. Ct. 1765 (1972), and Ortiz v. United States, 351 F.2d 933 (10th Cir. 1965). The first approach was adopted in United States v. Sellers, 520 F.2d 1281 (4th Cir.), remanded, 424 U.S. 961, 47 L. Ed. 2d 728, 96 S. Ct. 1453 (1976), modified on remand, 547 F.2d 785 (1976); and in Phillips v. United States, 518 F.2d 108 (1975), and United States v. White, 440 F.2d 978 (5th Cir.), cert. denied, 404 U.S. 839, 30 L. Ed. 2d 72, 92 S. Ct. 129 (1971) (dictum).
Recognizing the difficulties engendered by Milanovich, the Supreme Court clarified the situation in United States v. Gaddis, 424 U.S. 544, 47 L. Ed. 2d 222, 96 S. Ct. 1023 (1976). In that case, 18 U.S.C. § 2113*fn2 was under scrutiny, rather than § 641. The difference between the statutes, however, has no significance insofar as the explication of Milanovich is concerned.
In Gaddis the trial judge had failed to charge the jury that if they found the defendant guilty on the robbery count, he could not be convicted on the possession count. The Court held that a new trial was not necessary since no evidence showed actual possession other than asportation during the robbery and, therefore, dismissal of that count was the proper disposition. Gaddis reaffirmed Heflin v. United States, supra, but stated there would be no impropriety for a grand jury to return counts of both robbery and receipt where there was evidence of participation in the theft as well as knowing receipt. At trial in such a case, the jurors would be instructed that they should consider the receipt charge only if they first found insufficient proof of the defendant's participation in the robbery. To that extent, the opinion was simply a reiteration of Heflin and Milanovich. However, in a footnote following immediately thereafter, the Court said:
"If, on the other hand, the indictment or information charges only a violation of § 2113(c) [the receiving and possessing subpart], it is incumbent upon the prosecution at trial to prove beyond a reasonable doubt only the elements of that offense, and the identity of the participant or participants in the robbery or theft is irrelevant to the issue of the defendant's guilt. While a mechanistic reading of Heflin's language might not wholly support this rule, it is to be remembered that Heflin ultimately held no more than that a person could not be convicted and separately sentenced under § 2113(a), (b), or (d) and under § 2113(c) because § 2113(c) could not be used to 'pyramid ...