United States v. Robert Lester Trzcinski

JAMES HUNTER, III, Circuit Judge

(dissenting):

I am unable to agree with the majority’s holding that a criminal defendant indicted only for receiving stolen property may be legitimately convicted of that offense when the conviction is bottomed on a finding that the defendant was in fact the thief.

The Gaddis footnote, United States v. Gaddis, 424 U.S. 544, 550 n.15, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976), relied upon by the majority must be analyzed in its context. In the body of the opinion the Court addressed a problem of sequence: when a defendant has been indicted for both theft and receiving, the jury can be charged on both but cannot convict on both, see Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), so the jury should be told which charge to consider first. Justice Stewart describes the manner in which the jury is to proceed; they are first to consider the theft charge; if they are satisfied that defendant was in fact the thief they stop there and convict only for theft. If, on the other hand, they are not convinced beyond a reasonable doubt that the defendant was guilty of theft, they go on to consider the receiving charge. In this way the jury will avoid returning convictions under both counts. The footnote, 424 U.S. at 550 n.15, 96 S.Ct. 1023, merely points out that if a defendant is not charged with both theft and receiving but only with receiving then of course the jury need not go through the above two-step process of considering *856first the theft charge and then, if doubtful of theft, the receiving charge. If there is just a receiving charge, the jury may consider only that charge. In terms of the receiving crime, the jury need not decide who the thieves were because their identity is “irrelevant” to a conviction for receiving.

The majority seizes upon the word “irrelevant” to buttress what to me is a startling conclusion — that a jury presented with someone who has been indicted not for theft but only for receiving could nevertheless be convicted of receiving based on the jury’s absolute persuasion that the defendant was in fact the thief.1 If this were so, the theft charge would become superfluous in all cases. It would be impossible to imagine a thief who was not also guilty of receiving, concealing or retaining stolen property. By exercising any dominion and control over the object of the theft the thief conceals or retains that property.2

I must emphasize that we are dealing not with an alleged thief or a mere accessory but with a person whom the trial court has found to be guilty of theft (although not charged with theft). Indeed, this case would be much less troublesome if the trial court had said that Trzcinski was a mere accessory to the theft, or that he seemed to be guilty of theft. See, e. g., 2 R. Anderson, Wharton’s Criminal Law and Procedure § 576 (1957) (offense of receiving stolen goods may be committed by anyone except the principal thief). Then we would not be faced with the majority’s awkward and in my view incorrect holding. But the trial court did not differentiate at all among the three participants in the theft. The judge was obviously troubled:

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. .
[T]he form of the government’s proof forces the court to confront the fact that it has convicted a person for receipt of stolen goods because it has found that he stole those same goods. . Although we do not understand why the defendants were not indicted both for theft and for receipt, we think that the congressional intent to reach a new group of wrongdoers is not inconsistent with convicting thieves under § 641 [for receiving], so long as they are not convicted for theft of the same goods . . .. Because the defendants were already on notice that their conduct was illegal, there is no reason not to enforce the statute in this case.

Appendix at A-8 to A-9.

Here the trial court found that the defendants were in fact the thieves. If defendants had been indicted for both theft and receiving, the court would have stopped there, finding defendants guilty of theft. The Supreme Court has not dealt with the issue before us: whether a defendant “found” to be the thief can be convicted for receiving that property.

The Heflin line of cases has dealt with the issue of convictions for both theft and receiving. See Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); and United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). In our case, however, there is no possibility of a pyramiding of penalties or of double convictions. We are faced simply with a wrongdoer who has been convicted of the “wrong” offense. That he received only one conviction is odd solace.3

*857The majority admits that “traditionally theft and receiving have been separate crimes. See e. g., Ing. v. United States, 278 F.2d 362, 366 (9th Cir. 1960); State v. Silva, 110 R.I. 290, 292 A.2d 228 (1972); 2 R. Anderson, Wharton’s Criminal Law and Procedure § 576 (1957). And, although the legislative history thrust is made, the majority rightly blocks my parry, and I will not dwell on the congressional silence that accompanied the 1948 deletion of “by any other person.”

The majority instead relies on the case law, saying that Milanovich, supra, spawned “two views," summarized in United States v. Minchew, 417 F.2d 218, 219 (5th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970) as: 1) “that paragraph two of section 641 [the receiving offense] is uniformly inapplicable to the person who stole the Government property in question,” and 2) “that a person cannot be convicted and punished for both . .” Id. Giving us a choice between those two views, the majority here concludes that the Gaddis Court “approved” the second view, in its footnote 15.

I, too, fully approve of the second view but I do not think that answers the issue before us. I am not sure that the first view 1) has been clearly stated or understood, or 2) is inconsistent with the second view in any event. The majority says the first view was adopted in three cases, United States v. Sellers, 520 F.2d 1281 (4th Cir. 1975) modified on remand, 547 F.2d 785 (1976); Phillips v. United States, 518 F.2d 108 (4th Cir. 1975) (en banc), remanded, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728, modified on remand, 538 F.2d 586 (4th Cir. 1976); and United States v. White, 440 F.2d 978 (5th Cir.), cert. denied, 404 U.S. 839, 92 S.Ct. 129, 30 L.Ed.2d 72 (1971) (dictum). I shall consider White first; of the three, it alone did not have the benefit of Gaddis.

In White, supra, the defendant was convicted of burglary and larceny relating to the same course of conduct. The Fifth Circuit held that defendant had been convicted for overlapping offenses and distinguished that from its view of Milanovich, supra. In its view, receipt was “inherently inconsistent” with theft:

The Supreme Court in Milanovich found that robbery and receiving are separate, distinct, and incompatible offenses; a single defendant cannot at once take and receive the same stolen money. The two crimes contemplate separate individuals performing entirely different roles.

White, 440 F.2d at 982. The court referred to cases from two other circuits, Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1223 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969) (dicta); and McMillen v. United States, 386 F.2d 29, 37 (1st Cir. 1967) cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968) (dicta). The Fuller court, en banc, discussed the circumstances under which the jury could not convict of two distinct offenses arising out of the same factual situation:

A familiar example of inconsistency is that of the common law offenses of larceny and receiving stolen goods. At common law a defendant could not be convicted at the same time for both larceny and receiving, because an element of the crime of receiving is that the goods be “received” from another person after they are stolen. A thief cannot receive from himself. This inconsistency precluded verdicts of guilty as to both offenses, and this bar was maintained when essentially these same offenses have been statutorily defined.

407 F.2d at 1223. (footnote omitted). Likewise, the McMillen court was giving an example of crimes that would be inherently inconsistent, when it referred to Milanovich “where a defendant was sentenced for both larceny of government property and receiving the same property. One cannot at once take and receive the same thing.” 386 F.2d at 37.

I now turn to the two cases that were remanded by the Supreme Court, Sellers, supra, and Phillips, supra (remanded specifically to consider Gaddis). Sellers was a rather simple case: the defendant had been convicted of both theft and possession; on *858remand, the Fourth Circuit held it error to have considered the possession charge after a finding of guilt for the theft, citing Gad-dis. The court did not alter its original statement that “[the receiving section] was not enacted to enhance the punishment for one who robs a bank but only to provide punishment for a separate and distinct class, those who receive the loot from the robber.” 520 F.2d at 1286.

The Phillips court has now modified its opinion in light of Gaddis, so we can face the significance of its remand by the Supreme Court. The Fourth Circuit (en banc) (per curiam) changed its reversal of the trial court’s conviction to an affirmance with no discussion (Winter, J. dissenting). The reasoning given in its first rehearing is nearly impossible to pigeonhole, or ascribe to the “first view” of Milanovich : although a majority (en banc) did vote to reverse the conviction, the court was badly fragmented as to theory. At issue was the admissibility during a “receiving” trial of evidence from the prior “theft” trial in which the defendant had been acquitted. In light of the number of conflicting theories offered for the original en banc reversal, we are unable to appreciate the “significance” of the court’s unexplained modification on rehearing.

The Sixth Circuit has also had occasion to consider Gaddis, in United States v. Solimine, 536 F.2d 703 (6th Cir. 1976). There two defendants were convicted of theft and receipt of the same goods under 18 U.S.C. § 659. The court understood Gaddis to mandate a reversal of the possession conviction. Throughout its opinion the Solimine court relies on an underlying premise that a “receiving” charge is directed at an entirely separate group of wrongdoers than is a “theft” charge:

In United States v. Gaddis, the Supreme Court held that where there is insufficient evidence to convict the robber of possession, because the possession offense applies to those who have received the proceeds “from the robber” and not to the robber himself, the trial court should dismiss the possession count against the robber. .
The same reasoning is applicable to [defendant’s] convictions. We have held that the receipt and possession provision of section 659 is not directed to the thief, but to those who receive the stolen goods from the thief.

536 F.2d at 711.

In my view, much of the confusion about these cases comes from a failure to define “thief.” In all the above cases, the courts were using “thief” to mean someone convicted of theft, not a “thief-in-fact.”4 The Heflin line, including Gaddis, provides simply that one convicted of theft cannot also be convicted of receiving. To decide the issue before us, we need to refer to cases where the defendant has been charged only with receiving. The Gaddis footnote tells us only that then the jury is excused from the two-step process of considering first the evidence on theft and then, if unpersuaded as to guilt of theft, the evidence on the receiving charge — the jury may only consider evidence relating to receiving.5

Our case is unusual: the judge, sitting as the trier of fact, not only considered evidence relating to the identity of the thieves, he candidly based a conviction for receiving on his finding that defendants were the thieves, an issue that is admittedly “irrelevant” in the sense that it is not an element of the crime, but is not irrelevant once proven :

[C]onviction for receiving, concealing and retaining stolen goods in violation of 18 U.S.C. § 641 would require proof of something other than participation in the theft *859—indeed, proof of that would be fatal to a conviction for receiving.

United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961) (per Friendly, J.). So, while I do agree with the majority that “in a case where only possession is charged, whether the defendant has committed the larceny is not the determinative fact,” I cannot approve a conviction for receiving stolen property when the judge admits that it is based on his clear finding that defendants were the thieves. I must respectfully dissent.

. In the case sub judice there was in fact no jury; the judge acted as fact-finder.

. The statute, 18 U.S.C. § 641 (reprinted in opinion of majority, supra at n.1) speaks of “[wjhoever receives, conceals, or retains ..” Because the disjunctive is used, the majority is able to avoid saying that a thief can receive from itself, even though we have held that “[tjhis is a distinction without a difference.” United States v. Roach, 321 F.2d 1 (3d Cir. 1963).

. The trial court’s statement that “defendants were already on notice that their conduct was illegal” is certainly no justification for convicting them of the incorrect offense.

. A thief-in-fact defendant can obviously be found “not guilty” of theft, and then properly be convicted for receiving.

. There have been cases where the court considered whether in a receiving trial the jury must first determine who the actual thieves were. See, e. g., Alton v. United States, 454 F.2d 289 (7th Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1765, 32 L.Ed.2d 116 (1972) (holding “no”); Ortiz v. United States, 351 F.2d 933 (10th Cir. 1965) (defendant, not Government, attempted to introduce evidence of theft in his receiving trial; jury’s conviction affirmed).