Summary
In United States v. Gilbert, 553 F.2d 990 (5th Cir. 1977), the Fifth Circuit explicitly followed Solimine and held that under § 659 the defendant could not properly be convicted of both theft from interstate freight shipments and possession of the proceeds of the theft.
Summary of this case from United States v. GarberOpinion
No. 75-4379.
June 13, 1977.
Maxwell C. Wright, Houston, Tex., for defendant-appellant.
Edward B. McDonough, Jr., U.S. Atty., James R. Gough, George A. Kelt, Jr., Jack O'Donnell, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before AINSWORTH, CLARK and RONEY, Circuit Judges.
This Court's opinion is reported at 537 F.2d 118, in which we affirmed the conviction of appellant Gilbert.
The Supreme Court of the United States on February 28, 1977, ___ U.S. ___, 97 S.Ct. 1169, 51 L.Ed.2d 578 vacated the judgment and remanded the case to this Court for reconsideration "in light of the position presently asserted by the government." The government's position was based on the recent cases of Solimine v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) and United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976) to the effect that a jury verdict of guilty of both robbery and possession of the proceeds from that robbery was improper.
In the present case Gilbert was convicted on Count I of theft from an interstate freight shipment, on Count II of possession of the goods so stolen, on Count III theft from another interstate freight shipment, and on Count IV with possession of those goods in violation of 18 U.S.C. § 659. In our prior per curiam opinion, we determined the evidence to be sufficient to establish guilt as to possession of the stolen property as charged in Counts II and IV. That finding is reaffirmed. We did not pass on the sufficiency of evidence on Counts I and III relative to theft, finding it unnecessary to do so under the concurrent sentence doctrine.
It is now clear that the convictions on Counts I and III relative to theft must be vacated and set aside.
Accordingly, we remand this case to the District Court with directions to enter judgment vacating, annulling and setting aside the convictions heretofore adjudged as to Counts I and III; the judgment of conviction as to Counts II and IV, however, shall remain.
VACATED AND REMANDED.