U.S. v. Stracener ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-4433
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MONDEE STRACENER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
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Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY,*
District Judge.
JERRY E. SMITH, Circuit Judge:
I.
Mondee Stracener was charged in six counts of a twelve-count
indictment and was convicted of all six counts, and this court
affirmed his convictions. United States v. Dean, No. 86-2620
(Feb. 17, 1987) (per curiam) (unpublished). Stracener then
presented a petition for writ of habeas corpus pursuant to 28
*
District Judge of the Southern District of Texas, sitting by designa-
tion.
U.S.C. § 2255, arguing, inter alia, that he had received ineffec-
tive assistance of counsel, that the prosecutor's improper comments
warranted reversal, and that the government had failed to inform
him that the main witness against him had been temporarily
committed to a mental institution. A magistrate recommended
partial relief, and the district court held that Stracener had
received ineffective assistance of counsel when his trial attorney
failed to object to jury instructions that allowed convictions for
aiding and abetting aggravated bank robbery without requiring the
jury to find that Stracener had specifically aided and abetted the
aggravating element, in this case, use of a gun and kidnapping.
The district court vacated Stracener's convictions on three counts
and resentenced him on the lesser included offense of simple bank
robbery.1
The district court adopted the magistrate's findings that the
prosecutor's comments did not violate his constitutional rights or
deprive him of a fair trial and that Stracener's allegations
concerning the witness's mental illness were unsupported by the
record. Stracener appeals the disposition of these three issues.
Finding no error, we affirm.
1
The district court vacated the following three convictions: (1) aiding
and abetting armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d)
and 18 U.S.C. § 2 (count 6); (2) aiding and abetting kidnapping in the course
of a bank robbery in violation of 18 U.S.C. §§ 2113(a) and (e) and 18 U.S.C.
§ 2 (count 7); and (3) aiding and abetting carrying a weapon during the
commission of a crime of violence in violation of 18 U.S.C. § 924(c) and 18
U.S.C. § 2. These convictions could not stand because the jury was not
instructed to determine whether Stracener had the intent that a weapon be used
or that a kidnapping take place.
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II.
Relying upon United States v. Milanovich, 365 U.S. 551 (1961),
Stracener contends that the resentencing procedure put him twice in
jeopardy. The defendant in Milanovich was convicted of both
larceny and receiving stolen property. The Court held that these
verdicts were inconsistent and reversed both convictions on the
ground that "there is no way of knowing whether a properly
instructed jury would have found the [defendant] guilty of larceny
or of receiving (or, conceivably, of neither)." Id. at 555.
Stracener relies upon the Court's dicta to suggest that a correctly
instructed jury might have acquitted him, rather than finding him
guilty of simple robbery. As pure dicta, the Court's parenthetical
comment does not have binding force. Moreover, its reasoning has
been undermined by subsequent cases.
This court consistently has held that Milanovich does not
require a new trial when multiple overlapping convictions create
double jeopardy. United States v. White, 440 F.2d 978 (5th Cir.),
cert. denied, 404 U.S. 839 (1971). Moreover, when one of two
inconsistent verdicts must be struck for other reasons, the Supreme
Court has held that resentencing, not a new trial, is the proper
remedy. United States v. Gaddis, 424 U.S. 544 (1975).
Milanovich applies only to inconsistent verdicts, not
overlapping ones. In White, the defendant was convicted of
violating section 2113(a) (entering bank with intent to rob) and
section 2113(b) (larceny of bank). Since section 2113(b) was a
lesser included offense of section 2113(a), the counts overlapped
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but were not inconsistent. This court held that therefore
Milanovich did not apply and that resentencing on one conviction
only was the proper remedy. See also United States v. Mori, 444
F.2d 240, 245-46 (5th Cir.), cert. denied, 404 U.S. 913 (1971)
(resentencing appropriate where defendant was convicted of two
conspiracies that were found on appeal to be one).
In White, the defendant was convicted and sentenced separately
for two offenses, one of which was a lesser-included of the other.
In the instant case, Stracener was convicted of three aggravated
offenses, which of necessity encompassed any lesser-included
offenses. Since the convictions on the aggravated offenses, but
not the lesser-included offense, were flawed, the district court
properly vacated the flawed convictions, entered judgment on the
lesser-included offense, and resentenced the defendant. See Tapp
v. Lucas, 658 F.2d 383, 386 (5th Cir. Unit A Oct. 1981), cert.
denied, 456 U.S. 972 (1982).
When one of two inconsistent verdicts must be struck for other
reasons, resentencing is the proper remedy. In Gaddis, the
defendants were convicted of robbery and receiving stolen property.
No evidence was presented that the defendants received stolen
property, however. Although the verdicts were inconsistent, the
Court did not reverse both convictions. Instead, it simply vacated
the conviction that was not supported by the evidence and the
sentence under that count.
The Court in Gaddis found that resentencing did not usurp the
jury's role, because, in light of the insufficient proof, the jury
4
properly could have convicted the defendants on only one count. See
also United States v. Nelson, 574 F.2d 277, 282-83 (5th Cir.),
cert. denied, 439 U.S. 956 (1978) (resentencing appropriate where
verdicts inconsistent but jury note indicated jury's intent).
Similarly, resentencing Stracener did not usurp the jury's role,
because, in light of the faulty instructions, the jury properly
could have convicted Stracener only for simple robbery in violation
of section 2113(a).
Stracener was convicted under count 6 of violating sections
2113(a) and 2113(d). The jury instructions describing a violation
of section 2113(d) were inaccurate, but the instructions describing
a violation of section 2113(a) were correct. Under White and
Gaddis, the proper remedy is resentencing, not a new trial.
III.
After examining the record, we agree with the district court
that the prosecutor's comments, in light of the admonitions by the
trial court, did not deny Stracener a fair trial. Finally,
Stracener's allegations concerning the witness's mental illness are
conclusory allegations not supported in the record and thus do not
raise a constitutional issue. See Ross v. Estelle, 694 F.2d 1008,
1012 (5th Cir. 1983).
AFFIRMED.
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