553 F.2d 851. As Amended January 14, 1977.
Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Chief Judge Seitz and Judge Adams and Judge Hunter would grant the Petition for rehearing. Adams, Circuit Judge, dissenting sur denial of petition for rehearing. Chief Judge Seitz and Judge Hunter join in this opinion.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
By THE COURT, JOSEPH F. WEIS, JR., Judge
ADAMS, Circuit Judge, dissenting sur denial of petition for rehearing:
I respectfully dissent from the order denying rehearing in this case because I believe that the appellant has tendered issues which merit the attention of the full Court.
First, rehearing would seem to be appropriate because this case requires a construction of an intricate provision of the federal criminal code, 18 U.S.C. § 641. Any interpretation of that crucial statute, which is rendered by this Court, surely will bear on the course of its nation-wide enforcement by federal authorities.
Second, the reliance of the panel majority on Milanovich v. United States*fn1 and United States v. Gaddis*fn2 - the cases upon which their opinion hinges - would appear to be misplaced. As I read Milanovich, it is addressed essentially to the problem of "pyramiding" - that is, whether a defendant simultaneously may be convicted of and punished for (a) theft of government property, and (b) receipt of the same stolen property. Similarly, Gaddis speaks to the problem of double convictions and double punishment, though that decision really turned on an absence of evidence that the defendants had received the proceeds of a bank robbery. By contrast, the present case raises the equally vexing but different issue of whether a defendant indicted only for receipt of stolen government property may be convicted of that offense when the finder of fact has made a specific determination that the defendant stole the property in the first instance.
More significantly, receipt of stolen goods traditionally has been a crime distinct from the theft of those goods. Neither the language of § 641 nor its legislative history suggests any intention to diverge from this elemental legal principle. Consequently, it is at least questionable whether Congress contemplated that the portion of § 641 dealing with the receipt of stolen government property would apply to a defendant who, in fact, stole the property. Rather, it would appear that the purpose of the "receipt" provision in the statute is to reach those individuals who, while not committing the actual theft of the government property, reaped some of the benefit of that crime. Such persons would include not only the "fence" but also any other recipient of the illegal booty.
The opinion of the panel majority would authorize the prosecution to proceed under either the "theft" or "receipt" clauses of § 641 against a person who allegedly stole United States property. The effect of such a ruling may be to alter the natural equilibrium of the criminal process, skewing the scales of justice against the defendant. Indeed, it is my understanding that the government indicated, at oral argument in the present appeal, that it had employed a "receipt" theory largely because of a concern that it could not obtain a conviction on a theft charge. I have some doubt whether such prosecutorial maneuvering was intended by the drafters of § 641, and that doubt is heightened by a silent legislative history.*fn3 Moreover, to sanction such a procedure would be to attribute to Congress an act of redundancy in its statutory design. For if the statutory provision penalizing receipt of stolen government property encompasses the initial theft of the property, then that portion of § 641 proscribing the theft may well be superfluous.
Accordingly, rehearing en banc would appear to be warranted so that the important questions raised by the present appeal may be ...