Milanovich v. United States

365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773, 1961 U.S. LEXIS 1495

• Court: Supreme Court of the United States
• Decided: March 20, 1961
• Docket: 79
• Status: Published

Opinions

Mr. Justice Stewart

delivered the opinion of the Court.

The petitioners are husband and wife. They were both convicted in a Federal District Court for stealing several thousand dollars in currency from a commissary store at a United States Naval Base. The wife was convicted also on a separate count for receiving and concealing the stolen currency.¹ Both petitioners were sentenced to prison on the larceny conviction, the husband for a term of five years, and the wife for a ten-year term. In addition, the wife received a five-year concurrent sentence on the receiving count.

Throughout the trial counsel for the petitioners consistently maintained the position that a thief could not be convicted of receiving from himself.² Although directing an acquittal on the receiving count in the husband’s case, the trial judge overruled a similar motion on behalf of the wife. Counsel then clearly indicated his intention to request that the jury be instructed that it could not find the wife guilty of both stealing and receiving.³ The trial judge responded by pointing out that the Fourth Circuit had decided, in Aaronson v. United States, 175 F. 2d 41, that “it is possible that as long as the person did not actually participate in the actual taking of the goods, that same person may be found guilty of receiving and concealing and may also be found guilty as an accessory before the fact or as an aider and an abetter of the actual charge of theft.” Faced with this controlling Fourth Circuit authority, counsel did not engage in the futile exercise of submitting a more formal request for such instructions.

When the case reached the Court of Appeals, that court put aside its decision in the Aaronson case, in the light of this Court’s decision in Heflin v. United States, 358 U. S. 415, which had been announced in the meantime. In Heflin we held that a defendant could not be convicted and cumulatively sentenced under 18 U. S. C. § 2113 for both robbing a bank and receiving the proceeds of the robbery. Relying on that decision, the court set aside the sentence imposed upon the wife for receiving. 275 F. 2d 716. It was the court’s view that “in the absence of a contrary indication by Congress, a defendant charged with offenses under statutes of this character may not be convicted and punished for stealing and also for receiving the same goods.” 275 F. 2d, at 719. Although Heflin involved a different section of the criminal code, the court found “no differences between the two statutes or their legislative histories justifying divergent interpretations in respect to the issue before us.”

In this view we think that the Court of Appeals was correct. As the court recognized, the question is one of statutory construction, not of common law distinctions. Compare Metcalf v. State, 98 Fla. 457, 124 So. 427; Smith v. State, 59 Ohio St. 350, 52 N. E. 826; Jenkins v. State, 62 Wis. 49, 21 N. W. 232; Regina v. Hilton, Bell C. C. 20, 169 Eng. Rep. 1150, with Allen v. State, 76 Tex. Cr. R. 416, 175 S. W. 700; Regina v. Perkins, 2 Den. C. C. 458, 169 Eng. Rep. 582; Regina v. Coggins, 12 Cox C. C. 517. 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 420. We find nothing in the language or history of the present statute which leads to a different conclusion here. As in Heflin, the provision of the statute which makes receiving an offense came into the law later than the provision relating to robbery.⁴

It is now contended that setting aside the sentence on the receiving count was not enough — that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that although the evidence was sufficient to support a conviction for either larceny or receiving,⁵ the judge should have instructed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F. 2d, at 721.

We think that the point is well taken. In Heflin we were not concerned with the correctness of jury instructions, since that case arose out of a collateral proceeding to correct an illegal sentence where the petitioner was asking only that the cumulative punishment imposed for receiving be set aside. In this case, by contrast, a direct review of the conviction brings here the entire record of the trial. We hold, based on what has been said as to the scope of the applicable statute, that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.

Though setting aside the shorter concurrent sentence imposed upon the wife for receiving, the Court of Appeals left standing a ten-year prison term for larceny, double the punishment that had been imposed upon the husband for the identical offense. Yet there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice resulting from the trial judge’s failure to instruct the jury properly. It may well be, as the Court of Appeals assumed, that the jury, if given the choice, would have rendered a verdict of guilty on the larceny count, and that the trial judge would have imposed the maximum ten-year sentence on that count alone. But for a reviewing court to make those assumptions is to usurp the functions of both the jury and the sentencing judge.

We find no merit in the petitioners' argument as to the trial court’s conduct with respect to cautionary instructions to the witnesses for the Government. Accordingly, the judgment as to Mike Milanovich is affirmed. For the reasons stated, the judgment as to Virginia Milanovich is set aside, and her case remanded to the District Court for proceedings consistent with this opinion.

It is so ordered.

1 The statute under which the petitioners were convicted is 18 U. S. C. § 641. It provides:

“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any propertymade or being made under contract for the United States or any department or agency thereof; or

“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

2 “[W]e feel, sir — for the jury to be considering both receiving and stealing — that both charges are inconsistent and if the evidence is to be believed that these people are participants, then they cannot be guilty of receiving, and if they are guilty of receiving, they cannot be guilty of participating.”

3 “Your Honor, we will ask the Court to instruct the jury that inasmuch as they are inconsistent counts that they can only come back, if they come back with a verdict of guilty, as to one or the other, but not both.”

4 The paragraph making it an offense to steal government property had its genesis in the Act of March 2, 1863, c. 67, 12 Stat. 696, 698. The paragraph as to receivers originated in the Act of March 3, 1875, c. 144, § 2, 18 Stat. 479.

5 It is acknowledged here that the evidence was sufficient to support a jury finding that both petitioners aided and abetted the larceny, and thus were guilty as principals under 18 U. S. C. § 2. It is also conceded that the evidence was sufficient to support the wife’s conviction for receiving and concealing the stolen property (a substantial amount of silver currency having been found in a suitcase in her home two weeks after the robbery).