MacKINNON, Circuit Judge:
Appellant was convicted of various offenses arising out of his robbery of the Columbia Heights Branch of the United States Post Office in the District of Columbia. In Count I of the six-count indictment he was charged under the Federal Mail Robbery Statute
with assaulting and placing in jeopardy the life of Clarence W. Smith, a custodian of the United States mail, with the intent to rob him.
In Count II he was charged under the District of Columbia robbery
and crime of violence statutes
with robbing Smith of money belonging to the United States while armed with a dangerous weapon.
He was also charged with three counts of assault with a dangerous weapon and one count of carrying a dangerous weapon. The jury returned a verdict of guilty on both Counts I and II and appellant was sentenced to concurrent terms in prison of from eight and one-half to twenty-five years on each of said counts. In addition, while not materially relevant to our discussion, he was convicted and sentenced on two counts of assault with a dangerous weapon and on one count of carrying a dangerous weapon.
I
The two convictions of robbery and of assault with intent to rob
Appellant’s first contention is that it was improper for him to be convicted and sentenced on both Counts I and II because the assault charged in Count I “merged” with the completed robbery charged in Count II permitting only one conviction and one sentence.
In opposition to this contention, the Government argues that the offenses charged in Counts I and II were violations of two different statutes and each had different elements thus permitting separate convictions and separate sentences. Specifically, the Government argues that the evidence necessary to support a conviction under Count I would not support a conviction under Count II because the former did not require proof of a completed robbery. Likewise, the evidence necessary to support a conviction under Count II would not support a conviction under Count I because the latter did not require proof that a life had been placed in jeopardy.
Before considering the merits of these arguments, we note that we are not precluded from considering appellant’s claims by the fact that he received concurrent sentences. While this court has followed frequently the statement in Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), that one valid conviction precludes review of others when concurrent sentences have been given,
Benton v. Maryland, 395 U.S. 784, 789-790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) makes it clear that the rule is a discretionary one. This discretion has been exercised in favor of review in the past by this
court.
Chiefly because of the possible harmful effect on appellant of the myriad collateral consequences of an improper double felony conviction
and the desirability of having this issue settled, we have again decided to exercise it in favor of review.
In turning to the merits, we note first that the assault with intent to rob is charged under the Federal Mail Robbery Statute
and that the robbery is charged under statutes of the District of Columbia.
While one might question, on various grounds, the advisability of charging the assault and the completed robbery under different criminal codes, especially when the specific federal statute under which the assault was charged also made it a crime to commit the completed robbery, still it is not questioned here that both statutes are generally applicable throughout the District of Columbia. Thus, both 18 U.S.C. § 2114 and D.C.Code §§ 22-2901, 3202 each are applicable to the crime committed by appellant,
and since we vacate the conviction on the assault charge, the fact that it was charged under the federal law, while the robbery was charged under the District law, is immaterial.
In many cases, when separate statutes are applicable to a single act, the test enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) determines whether Congress intended the act to be punished as one crime or two.
In
Blockburger,
the petitioner was convicted of (a) selling morphine not in or from the original stamped package
and (b) with respect to the same sale of selling morphine not pur
suant to a written order of the purchaser.
In rejecting petitioner’s argument that the two charges permitted but one conviction, the Court said that Congress had not manifested an intent to prohibit all sales of morphine when it enacted the two statutes but had manifested an intent to prohibit certain practices in connection with sales of morphine. The single sale made by petitioner involved two forbidden practices for which he could be convicted and punished twice. In the absence of congressional intent to the contrary, the Court held that
[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
The test prescribed in
Blockburger,
though criticized by some as being too broad,
has been followed in this jurisdiction
and in others.
It has not been followed blindly, however, and statutory schemes which, on their face, permit multiple convictions under the
Blockburger
test have been held to permit only one where the intent of Congress was manifest that only one conviction should result.
Because there appears in the legislative history of 18 U. S.C.
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MacKINNON, Circuit Judge:
Appellant was convicted of various offenses arising out of his robbery of the Columbia Heights Branch of the United States Post Office in the District of Columbia. In Count I of the six-count indictment he was charged under the Federal Mail Robbery Statute
with assaulting and placing in jeopardy the life of Clarence W. Smith, a custodian of the United States mail, with the intent to rob him.
In Count II he was charged under the District of Columbia robbery
and crime of violence statutes
with robbing Smith of money belonging to the United States while armed with a dangerous weapon.
He was also charged with three counts of assault with a dangerous weapon and one count of carrying a dangerous weapon. The jury returned a verdict of guilty on both Counts I and II and appellant was sentenced to concurrent terms in prison of from eight and one-half to twenty-five years on each of said counts. In addition, while not materially relevant to our discussion, he was convicted and sentenced on two counts of assault with a dangerous weapon and on one count of carrying a dangerous weapon.
I
The two convictions of robbery and of assault with intent to rob
Appellant’s first contention is that it was improper for him to be convicted and sentenced on both Counts I and II because the assault charged in Count I “merged” with the completed robbery charged in Count II permitting only one conviction and one sentence.
In opposition to this contention, the Government argues that the offenses charged in Counts I and II were violations of two different statutes and each had different elements thus permitting separate convictions and separate sentences. Specifically, the Government argues that the evidence necessary to support a conviction under Count I would not support a conviction under Count II because the former did not require proof of a completed robbery. Likewise, the evidence necessary to support a conviction under Count II would not support a conviction under Count I because the latter did not require proof that a life had been placed in jeopardy.
Before considering the merits of these arguments, we note that we are not precluded from considering appellant’s claims by the fact that he received concurrent sentences. While this court has followed frequently the statement in Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), that one valid conviction precludes review of others when concurrent sentences have been given,
Benton v. Maryland, 395 U.S. 784, 789-790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) makes it clear that the rule is a discretionary one. This discretion has been exercised in favor of review in the past by this
court.
Chiefly because of the possible harmful effect on appellant of the myriad collateral consequences of an improper double felony conviction
and the desirability of having this issue settled, we have again decided to exercise it in favor of review.
In turning to the merits, we note first that the assault with intent to rob is charged under the Federal Mail Robbery Statute
and that the robbery is charged under statutes of the District of Columbia.
While one might question, on various grounds, the advisability of charging the assault and the completed robbery under different criminal codes, especially when the specific federal statute under which the assault was charged also made it a crime to commit the completed robbery, still it is not questioned here that both statutes are generally applicable throughout the District of Columbia. Thus, both 18 U.S.C. § 2114 and D.C.Code §§ 22-2901, 3202 each are applicable to the crime committed by appellant,
and since we vacate the conviction on the assault charge, the fact that it was charged under the federal law, while the robbery was charged under the District law, is immaterial.
In many cases, when separate statutes are applicable to a single act, the test enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) determines whether Congress intended the act to be punished as one crime or two.
In
Blockburger,
the petitioner was convicted of (a) selling morphine not in or from the original stamped package
and (b) with respect to the same sale of selling morphine not pur
suant to a written order of the purchaser.
In rejecting petitioner’s argument that the two charges permitted but one conviction, the Court said that Congress had not manifested an intent to prohibit all sales of morphine when it enacted the two statutes but had manifested an intent to prohibit certain practices in connection with sales of morphine. The single sale made by petitioner involved two forbidden practices for which he could be convicted and punished twice. In the absence of congressional intent to the contrary, the Court held that
[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
The test prescribed in
Blockburger,
though criticized by some as being too broad,
has been followed in this jurisdiction
and in others.
It has not been followed blindly, however, and statutory schemes which, on their face, permit multiple convictions under the
Blockburger
test have been held to permit only one where the intent of Congress was manifest that only one conviction should result.
Because there appears in the legislative history of 18 U. S.C. § 2114 substantial evidence that Congress did not intend a person to be convicted of assault with intent to rob and with the completed robbery, we think that the
Blockburger
test is inapplicable to the case at bar. It is the intent of Congress that controls.
18 U.S.C. § 2114, the mail robbery statute here under consideration, is derived from a statute of considerable age. Pursuant to its powers over the post office,
Congress, in 1792, established a number of post roads and made provisions governing the carriers who were to use the roads in delivering the mail.
In the same statute, larceny of the mail and robbery of the mail from a carrier were made offenses punishable by death.
In 1794, Congress greatly reduced the penalty for larceny of the mail but left unaltered the penalty for rob
bery of a mail carrier.
Several years later, aiding and abetting the commission of the two offenses was made punishable in the same manner as was the commission of the offenses themselves.
At that time there was no statute specifically proscribing
attempts
to rob a mail carrier. In 1799, however, in a statute which for the first time formally organized the Post Office Department, an
attempt
amounting to an unconsummated robbery of a mail carrier was made punishable by imprisonment for not more than two years. At the same time, the penalty for simple robbery of a mail carrier was reduced to public whipping and ten years’ imprisonment for a first offense. For subsequent offenses, and for wounding or placing the life of the carrier in jeopardy while robbing or attempting to rob him, the death penalty was authorized.
By 1799, then, the essential elements of the offenses now codified in 18 U.S.C. § 2114 had been enacted.
Except for the penalties involved, the elements have been little changed from that time until the present.
The “attempt” portion of the 1799 statute is of particular importance in this ease. Though it has been modified several times over the years, the changes have been essentially in form and not in substance. To begin with, the 1799 statute did not proscribe all attempts to rob mail carriers; rather it said that
if any person shall attempt to rob the mail of the United States, by falling on the person having custody thereof, shooting at him or his horses, or threatening him with dangerous weapons,
and the robbery is not effected * * *
[he] shall be punished * *
In the general revision, consolidation and amendment of the postal laws in 1872,
the section dealing with attempts to rob was slightly altered to provide:
[A]ny person who shall attempt to rob the mail by
assaulting
the person having custody thereof, shooting at him or his horse, or threatening him with dangerous weapons,
and shall not
effect such robbery,
shall * * * be imprisoned * * *.
The words “any person who attempts to rob the mail by assaulting the person having custody thereof” thus replaced the words “if any person shall attempt to rob the mail of the United States, by falling on the person having custody thereof.” Under the 1799 statute, however, the prohibited attempts amounted, in essence, to assaults and the 1872 revision did not change the nature of the acts made punishable in any material respect. The only assaults coming within the statutory ban remained those in which the accused attempted, but failed to commit, the robbery of a mail carrier.
In this general form, the offense was carried into the Revised Statutes of 1878.
When the entire United States penal code was codified, revised and amended in 1909, the language of the above mail robbery attempt statute was again changed. This time, the words “ [whoever shall assault any person having lawful * * * custody of any mail matter with intent to rob such mail matter” replaced the words “[a]ny person who shall attempt to rob the mail by assaulting the person having custody thereof.”
The explicit reference to the robbery not being effected was deleted, but as the legislative history of the passage of the 1909 Code through Congress makes clear, the only assault the statute sought to punish as such remained one which was part of an uncompleted attempt to rob a mail carrier.
Prior to the 1909 codification, the Revised Statutes set forth the offenses of attempted robbery and robbery in two separate sections
but when the bill to accomplish the 1909 codification was drafted by a joint committee of Congress the two sections were consolidated. In effecting the consolidation, the committee eliminated all mention of the use of a dangerous weapon and of placing the life of the carrier in jeopardy and it changed the punishment for both assault and for robbery to imprisonment for not more than ten years for a first offense.
These changes were unsatisfactory-some members of Congress who opposed changing any of the elements of the two offenses contained in the Revised Statutes.
Accordingly the bill was redrafted to the form in which it passed both houses. The Conference Report which accompanied the redrafted bill to the floor of Congress made it clear that the committee intended no substantive changes by its merger of the two sections of the Revised Statutes: to
The amendment to [the bill as originally drafted] in effect
restores existing law upon this subject.
The House amendment consolidated two sections of existing law, to wit, sections 5472 and 5473, Revised Statutes. The effect of the amendment is to divide the offense denounced, one being an assault of a person having lawful control of the mail with the intent to rob * * * such mail or the robbing of such person of such mail, the second being the effecting or
attempting
to effect such robbery by the use of a dangerous weapon.
An amendment to the statute in 1935 broadened the act to include money and other property of the United States within its coverage,
but Congress again indicated its intent to cover robberies and attempts thereat by the language of the title:
AN ACT
providing for punishment for the crime of robbing or
attempting
to rob custodians of Government money or property.
Finally, the 1948 revision and codification of the federal laws relating to crimes and criminal procedure was en
acted by the 80th Congress into positive law
with only minor changes in phraseology from the language of the statute as last amended in 1935.
The derivation, codification, revision and explanation of what is now 18 U.S.C. § 2114 thus all clearly indicate that the assault proscribed by that section is an assault which forms an integral part of an unsuccessful attempt to rob a mail carrier.
As such, under conventional doctrines, the section is not intended to form the basis of an independent conviction when a person is convicted of the completed robbery.
That the robbery of which appellant was convicted was not the robbery proscribed by 18 U.S.C. § 2114 but by D.C.Code §§ 22-2901, 3202 does not alter the above conclusion. It is undisputed that the evidence introduced at trial in proof of Count II showed that appellant actually consummated the same robbery he was charged with intending in Count I. He thus robbed the same thing the evidence showed he attempted to rob.
For reasons above stated, we do not consider that Congress intended that a statute drawn to proscribe attempts should also support a separate conviction for the completed offense when the defendant is charged with and convicted of substantially the same crime he is charged with attempting.
It is true, of course, that the crime of robbery under D.C.Code §§ 22-2901, 3202 does not require proof that the life of a custodian of the mail was placed in jeopardy.
However, it also appears that placing the life of a mail carrier in jeopardy is not itself an independent crime under 18 U.S.C. § 2114, but is an integral part of either the robbery or the assault in connection with the attempted robbery which the section proscribes. When a person is charged with and convicted of the completed robbery, we conclude that Congress did not intend that any of the elements of the attempt, singly or in the aggregate, should form the basis for an independent conviction. This does not mean that separate convictions are impermissible when the defendant is charged with attempting to rob a carrier of mail or postal money under 18 U.S.C. § 2114 and with robbing him of something else,
e. g„
his watch, wallet, car, ring, money,
etc. We hold simply that the part of 18 U.S.C. § 2114 prohibiting assaults was intended by Congress to prohibit certain kinds of attempts to rob and thus cannot support an independent conviction when a defendant is charged with and convicted of committing, in violation of the robbery statute applicable in the District of Columbia, the same crime he is charged with attempting. Appellant’s conviction on Count I must therefore be vacated and because we do not know whether the conviction on that count had any effect upon the other sentences adjudged, we remand to the trial court for resentencing on the other counts, the convictions under which we affirm. Coleman v. United States, 137 U.S.App. D.C. 48, 58, 420 F.2d 616, 626 (1969); Bryant v. United States, 135 U.S.App. D.C. 138, 141-142, 417 F.2d 555, 558 (1969).
II
The Claim of Variance
Appellant’s second contention is that there was a fatal variance between the crime with which he was charged in Count II and the evidence produced at trial. Specifically, appellant contends that Count II charged him with taking money from the “immediate actual possession of Clarence W. Smith” while the proof showed that the money he took was taken from other persons in the post office who were postal employees. Thus, he argues, the evidence cannot support his conviction under Count II.
We think that appellant’s second contention is without merit. The evidence showed that Clarence W. Smith was the foreman of station operations at the Columbia Heights post office. As such, Mr. Smith was in charge of the money located at the station and had control thereof by virtue of his general authority to supervise the postal clerks at the various windows. The evidence also showed that the money in question was taken from the drawers behind the windows at which the clerks stood to dispense postage stamps and other postal supplies. In addition, it showed that appellant tried, without success, to get Mr. Smith to open a safe in which there was presumably more money, and that appellant, loot in hand, pointed a shotgun at Mr. Smith while using him as a hostage to get past the police who had arrived at the scene while the robbery was in progress.
In Neufield v. United States, 73 App. D.C. 174, 187, 118 F.2d 375, 388 (1941), cert. denied, Ruben v. United States, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942), we noted that satisfaction of the “possession” requirement of the robbery statute there under consideration did not depend on the niceties of property law. Possession, we held, meant “nothing more than custody or control.”
See generally
United States v. Mann, 119 F. Supp. 406, 407 (D.D.C.1954). We have also held that the words “immediate actual possession” mean “an area within which the victim could reasonably be expected to exercise some physical control” over the property in question. Spencer v. United States, 73 App.D.C. 98, 99, 116 F.2d 801, 802 (1940).
See also
Barringer v. United States, 130 U.S.App.D.C. 186, 187, 399 F.2d 557, 558 (1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 697, 21 L.Ed.2d 698 (1969). The evidence in this case indicates that Mr. Smith had control and custody of the money taken by the appellant, that the appellant took money from an area within which Mr. Smith reasonably could have been expected to exercise some physical control over it, and that appellant did so by force directed at Mr. Smith personally. Therefore, we find that there was no variance between the crime charged and the one proved. Appellant’s conviction on Count II should be affirmed.
The case is remanded to the District Court with directions to vacate and set aside the sentence adjudged on Count I and, since appellant now stands convicted of one less felony, to consider resen-tencing as to the remaining counts.
So ordered.