United States v. Gaddis, 424 U.S. 544 (1976)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

Respondents were indicated for entering a federally insured bank with intent to rob it by force and violence (Count 1) and robbing the bank by force and violence (Count 2), in violation of 18 U.S.C. § 2113(a), with possessing the funds stolen in the robbery (Count 3), in violation of § 2113(c), and with assaulting four people with dangerous weapons during the robbery (Counts 4-8), in violation of § 2113(d), and thereafter found guilty and sentenced on all counts. The Court of Appeals reversed, and ordered a new trial on the ground that, as held in Heflin v. United States, 358 U.S. 415, it was plain error to allow a jury to convict the accused of receiving and possessing the same money taken in the same bank robbery, and that, under Milanovich v. United States, 365 U.S. 551, remanding the case for a new trial was the appropriate appellate remedy.

Held:

1. A person convicted of violating 18 U.S.C. §§ 2113(a), (b), and (d) cannot also be convicted of receiving or possessing the robbery proceeds in violation of § 2113(c). Heflin, supra at 419-420. Pp. 547-548.

2. The Court of Appeals was mistaken in requiring a new trial as the remedy for the trial court’s not having dismissed Count 3 for lack of proof, since the error can be corrected by vacating the convictions and sentences under that count. Milanovich, supra, distinguished. Pp. 548-549.

3. The sentences under Counts 1 and 2 should also be vacated. Prince v. United States, 352 U.S. 322. P. 549 n. 12.

506 F.2d 352, vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case. WHITE, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 551.