Thе principal question in this appeal is whether an offender may be convicted of both robbing a mail employee under 18 U.S.C. § 2114 and of possessing the same stolen mail shortly thereafter under § 1708.
Í
The defendant was charged by an information with twо counts, one charging violation of 18 U.S.C. § 2114 and the second charging violation of 18 U.S.C. § 1708, but both relating to the same “four bundles of United States mail containing approximately three hundred and thirteen (313) pieces of mixed-class United States mail” and both dealing with offenses pertaining to that mail on January 2,1976. Section 2114, provides that “[wjhoever assaults any person having lawful charge, control, or custody of any mail matter . . ,, with intent to rob, steal or purloin such mail matter . or robs any such person of mail matter . . . shall, for the first offense, be imprisoned not more than ten years . . . .” 1 Section 1708 provides *27 in the part pertinent to the indictment that “[w]hoever . . . unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been stolen, taken, embezzled, or abstracted ., knowing the same to have been stolen, taken, embezzled, or abstracted [sjhall be fined not more than $2,000 or imprisoned not more than five years, or both.”
The defendant and his attorney and the United States Attorney signed and filed with the district court a plea agreement which provided that the defendant would plead guilty to Counts I and II, that the United States and defendant agreed that a sentence оf five years on each count to run consecutively “is the appropriate disposition of the case,” and that the United States would recommend that the defendant not be sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq.
A plea of guilty to both counts was accepted by the court. At the hearing prior to sentencing, the government prosecutor stated that the defendant had committed an armed robbery of a postal carrier, had threatеned the life of the carrier on two occasions while pointing a loaded automatic weapon at the carrier, and that the statute provided a mandatory sentence of twenty-five years for such a crime. 2 The prоsecutor then stated the provisions of the plea agreement which specified a sentence of five years on each of the two counts to be served consecutively.
The district court sentenced the defendant to five years on Count I and to two years on Count II, to run consecutively. Upon appeal the defendant presents a single issue: whether defendant’s conviction and consecutive sentencing for stealing and possessing the same bundlеs of mail is an impermissible pyramiding of punishment and hence invalid, thus requiring the setting aside of defendant’s conviction and sentence for possession of the stolen mail only? No issue is raised by the defendant as to the conviction and sentence of five years for the stealing of the mail. The government has argued, however, that if part of the plea bargain is repudiated by the defendant and acquiesced in by this court, then the entire plea bargain, guilty plea and the sentences and convictions on both counts should be vacated and the cause remanded for trial.
II
In
Heflin v. United States,
We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery. It may be true that in logic those who divide up the loot following a robbery receive from robbers and thus multiply the offense. But in view of the legislative history of subseсtion (c) we think Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves.
A few years later in
Milanovich v. United States,
We find nothing in the language or history of the present statute which leads to a different conclusion [from that in Heflin ] here. As in Heflin, the provision of the statute which makes receiving an offense came into the law later than the provision relating tо robbery.
Milanovich, was decided by a 5 to 4 court and Mr. Justice Frankfurter, writing for the dissenters, expressed the basis for the dissent:
It is hornbook law that a thief cannot be charged with committing two offenses — -that is, stealing and receiving the goods he has stolen. .
# $ * # # >H
The case before us presents a totally different situation — not a coincidental or even a contemporaneous transaction, in the loosest conception of contemporaneity. . . The intervening seventeen dаys between defendant’s accessorial share in the theft and her conduct as a recipient [created two separated offenses]
In
United States v. Gaddis,
The Court of Appeals was correct in holding that a person convicted of robbing a bank in violation of 18 U.S.C. §§ 2113(a), (b), and (d), cannot also be convicted of receiving or possessing the рroceeds of that robbery in violation of 18 U.S.C. § 2113(c). This much was clearly settled in the Heflin case.
Mr. Justice White, concurring in Gaddis noted:
However, since this Court’s decision in Milanovich . . ., district judges should have been instructing juries not to consider possession counts, if they convict of robbery.
In this case, the information charged that the robbery and possession were contemporaneous, both having occurred on January 2, 1976. During the pre-sentence hearing defendant’s counsel represented to the court without objection by the government that the robbery occurred аt 11:00 a.m. in the morning and that the arrest resulting in the possession count occurred ten minutes later at 11:10 a.m. Therefore, we are not confronted with the seventeen-day interval between the two offenses which troubled the four dissenters in Milanovich,
Furthermore, there is no problem as to the relative time when the two offenses became the law in satisfaction of the
Heflin
and
Milanovich
references to the possession offense having been created by Congress later than the robbery offense. Sеction 2114, the robbery offense, was first enacted in 1810. Act of April 30, 1810, ch. 37, 2 Stat. 598;
see Costner v. United States,
The government would distinguish Heflin, Milanovich and Gaddis on the ground that “a single statutory seсtion was involved, which section included violations for both robbery or theft and for possession *29 ‘whereas’ [b]y contrast two statutory sections are involved in the instant case.” 3
In
United States v. O’Neil,
It would be a remarkable feat of statutory construction indeed to hold that these very words in this same statute have exactly the opposite meaning when applied to thieves charged under section 2114. At the very least, such an interpretation would require some evidence to support it, and the government has offered none.
We conclude that, under Milanovich, the jury should have been instructed that O’Neil could be convicted of robbery or receiving but not of both.
The government would distinguish O’Neil on the basis that “the possession provision of Section 641 was designed to punish a new class of wrongdoers other than the thieves,” relying on Milanovich, whereas § 1708 has not yet been so interpreted.
As we have noted above, Milanovich did not find the same affirmative legislative history which supported the result in Heflin but merely found “nothing in the language or history of the present statute [§ 641] which leads to a different conclusion” than in Heflin. In interpreting § 2114, we assume that the Ninth Circuit in O’Neil, when requiring some “evidence” from the government, meant some legislative history permitting the trying of one offender for the two offenses. In both Milanovich and O’Neil, the legislative history can be assumed tо have been silent on the question as applied to § 641 and § 2114. Only in regard to § 2113 was the legislative history affirmative in preventing two convictions for one offense, as demonstrated in Heflin.
Here in regard to § 1708, we are advised by both parties that the legislative history is silent upon this issue and our own examination supports that conclusion. Thus Heflin, Milanovich, Gaddis and O’Neil lead us to conclude that the rationale of those cases must be applied here to prevent the attempt to impose cumulative сonvictions and sentences under § 2114 and § 1708.
Ill
The government contends, however, that by signing the plea agreement, by agreeing to be sentenced for five years on each count, to run consecutively, and by pleading guilty and receiving only twо years on the possession count, the defendant waived whatever right he might have had not to be sentenced for both robbery and possession.
In
McFarland v. Pickett,
However, because the defendant has in fact repudiated the plea agreement, we must avoid encouraging “gamesmanship of a most offensive nature” by allowing him to benefit from the same agreement.
United States v. McMann,
VACATED AND REMANDED.
Notes
. Section 2114 continues: “[I]f in effecting or attempting to effect such robbery he wounds the person having custody of such mail . . or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.”
. The defendant was originally charged in a two-count indictment, the first count charging armed robbery of mail from a postal carrier in violation of 18 U.S.C. § 2114, which offense carries the 25-year mandatory sentence. As part of the plea bargain, the indictment was dismissed and the information charging the lesser crime under § 2114, with a ten-year maximum sentence, was substituted for the indictment.
. The government would also find two offenses in the fact that “[t]he clear legislative purpose of Section 2114 was the protection of the postal employee” and that of Section 1708 “was the protection of the mail itself.” We find this distinction too tenuous to override the strong policy manifested by Heflin and Milanovich not to convict upon two offenses when the robber is found in possession of the same goods he has stolen.