UNITED STATES v. GADDIS
Legal provision: 18 U.S.C. 2113
Argument of Frey
Chief Justice Warren E. Burger: We will hear arguments first this morning in United States against Gaddis and Birt.
Mr. Frey you may precede whenever you are ready.
Mr. Frey: Mr. Chief Justice and may it please the court.
This case is here on the Government’s petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit, which reversed respondents’ convictions for aggravated bank robbery and possession of the proceeds thereof, in violation of various subsections of 18 U.S.C 2113 and remanded the case for a new trial.
The facts maybe stated simply, respondents along with co-defendant Davis robbed the bank.
In the course of doing so, they assaulted several people in the bank, and in departing the scene of the robbery both respondents shot at and one at least hit a police officer who tried to intercept them.
After getting away with their loot, respondents and Davis split up the money.
For this event, respondents were indicted in an eight count indictment.
Seven of these counts charged robbery and assault and unlawful entry offenses under subsections (a) and (d) of Section 2113.
The eight count, thanks to which we are here today, charged respondents with possession of the proceeds of the robbery in violation of subsection (c).
The case was submitted to the Jury under instructions that allow the Jury to convict on all eight counts.
The Jury was not told that the possession count was inconsistent with all the others, or that it could not return a guilty verdict on that count, unless it refused to convict on the robbery and assault counts.
The defense made no objection to the failure to give this what I will call here after in the argument an either-or instruction.
The Jury convicted respondents on all counts.
And imposing sentence the District Court stated that, this is set forth at page six of our brief, the Court realizes the 25 years is the maximum.
And the cases say that there is a merger of all of these offenses.
If there is any question as to the legality of that sentence, that is the Court’s intention, and the judgment indicated maximum sentences on each of the counts all that are concurrent.
The maximum sentence for the (c) count would be ten years, had the defendants been convicted only on that count, however in effect they received the 25 year sentence.
On appeal the Court of Appeals relying upon this Court’s decisions in Heflin and Milanovich reversed.
Held that the failure to give the either-or instruction was plain error and the proper remedy for this error was a remand for new trial.
It explains this as follows, and this is at page 18 of our petition, there is no way of knowing what verdict to properly instruct the Jury would have returned in this case, and for a reviewing court to speculate on that subject would be to usurp the functions of both the Jury and the sentencing Judge, citing Milanovich.
Since the Jury’s verdict was inherently inconsistent, the proper remedy is to remand for a new trial.
Before beginning the argument portion, I would like to make one correction in our brief at page 17, the brief of the United States --
Unknown Speaker : On the merits?
Mr. Frey: The brief on the merits, yes.
I do not believe, we had a supplement to the petition, but we do not have a supplemental brief or reply brief.
We only have one brief on the merits.
Page 17 in footnote 4 in the second paragraph, there is a citation to a case called Ethridge versus United States.
Unknown Speaker : What page?
Mr. Frey: Page 17, footnote 4, the second paragraph CEG(ph).
That Ethridge case is mis-cited, it did not involve equal concurrent sentences, and that citation should be deleted and I suppose, the EG(ph) signals should also be deleted because I can not replace it with any other cases.
It is not pertinent to the main body of my argument but I did not want to --—I believe it does.
We have presented basically three arguments to the court in our brief.
First that the Milanovich decision is distinguishable on these facts.
Second, that the either-or instruction in the new trial remedy dictated by Milanovich were incorrect and that the case should be overruled.
And thirdly, failing those arguments that any retrial that might take place in this case, should be limited to a selection by the Jury between the possession and the theft offenses, that it should not detail a retrial of guilt or innocence.
We have not argued although, it was argued in the Court of Appeals and it is a point that may perhaps be kept in mind, the plain error issue, Milanovich did not deal with the question of whether it was plain error because there was an objection in Milanovich.
Here there was no objection and presumably, if the either-or instruction was correct then we hope the court will hold that no such instruction ought to be given.
But if it should be given, had defense council pointed out to the court, the error could have been rectified at that time.
Justice Potter Stewart: Mr. Frey, as I understand it, you do agree do you not, that the person cannot be convicted of both bank robbery and of receiving or possessing the proceeds of the robbery of the same robbery.
Mr. Frey: No, I do not that is correct.
What we do agree with, we do not dispute Heflin, and what we do agree with is that there could be no accumulation or pyramiding of punishments.
When it comes to the question of whether they can be convicted, I think that is not in a sense an important question, so long as they are not cumulatively punished.
We would have no objection to a rule which require the vacation of a possession--
Justice Potter Stewart: Which had a, an objection to an instruction in this case that had said if you find that these people were the robbers, beyond a reasonable doubt, then you should convict them of bank robbery.
But if they were the robbers, they were not guilty of receiving stolen goods?
Mr. Frey: On the facts of this particular case we would have had no objection, because on the facts of all—
Justice Potter Stewart: And all the evidence was in this case that they was a robbery—
Mr. Frey: On the facts of this particular case, I think there was simply no independent basis for convicting them of possession that would be completely irrational, that is right.
Chief Justice Warren E. Burger: Now in the Milanovich case there was a distinction of facts, wasn’t there?
Mr. Frey: Yes, we would distinguish Milanovich from this case, because in Milanovich there were separate evidence of a separate receipt transaction.However --
Justice Potter Stewart: 17 days apart, it had evidence of each one of them.
Mr. Frey: But the Courts of Appeals in applying Milanovich have rather consistently taken, extracted from Milanovich the principle that the two offenses being inconsistent in law, although of course they are not inconsistent in fact, this either-or instruction must be given to the Jury.
Normally, I believe it is important to submit both counts to the Jury.
Now on the facts of this case where there was absolutely no independent evidence of possession, I think it would have been quite proper for the District Court simply not to instruct the Jury on possession.
Normally, and I might mention that the court has before it two petitions, which I guess, it is holding for the time being in cases that raise related facets of this problem.
One is a case called United States against Sellers out of the Fourth Circuit.
Now Sellers was halfway between the facts of the present case and the facts of Milanovich and that, or little closer to Milanovich I would say, in Sellers he was found with the loot sometime later.
So that there was independent evidence of possession, that would have been logically possible for the Jury to convict the possession only and not of robbery.
That case might more squarely present the problem about which we are concerned.
There also is a case called Phillips, also out of the Fourth Circuit into which we have petitioned.
And there three of the Judges in the Fourth Circuit held that it was a defense to a possession charged to prove that you were the robber.
That also is to us a wooden and improper application of the principles that underlie Heflin.
I have mentioned those cases just to keep in mind that there is a broad spectrum of factual variance that can arise.
Now certainly in this case we have argued that these -- on the facts where all the evidence points to robbery where there is no independent evidence of possession.
At least in that case, there is no basis for ordering a new trial and at most it would simply be logical to vacate the possession, conviction and the concurrent sentence on that point.
Now, I will say that respondents have argued that this case is not distinguishable from Milanovich, and their argument is based on the fact that one of the respondents, the evidence suggests that it was respondent Gaddis who was the driver of the getaway car and not an actual entrant into the bank during the robbery.
The argument then is that he is similarly situated to Mrs. Milanovich because he was not a principle that is he did not take the money out of the bank drawers.
That argument would have a little more merit where it not for the fact that he was a principal in one of the assaults involved in this case that is that it is he who shot Officer Cody according to the evidence.
And so that, I think creates some difficulty in analogizing his situation to that of Mrs. Milanovich.
Justice Potter Stewart: Well there was no question to Milanovich case it had the Jury believe that Mrs. Milanovich and her husband had indeed been drivers of the getaway car, that they would have been themselves guilty of bank robbery.
If that was up for the Jury and there was wholly different and independent evidence indicating that some 17 days later she agreed, dug up some, made a hole in the ground and dug up the proceeds of a bank robbery, and those were two separate --
Mr. Frey: It was a theft, not robbery, yes --
Justice Potter Stewart: I am sorry, that from a commissary down below.
Mr. Frey: Yes, yes.
Well it is true that the evidence was far more separated than here, but logically one could perhaps suggests that after all the government’s witness was co-robber, Davis and his testimony was that, that Gaddis had waited outside in the getaway car and that after they had made their getaway they had divided the loot.
Logically, I suppose one could argue and I do not think it is an empirical possibility on this record that the Jury could have disbelieved that Gaddis -- portion of his testimony, that Gaddis was involved in the robbery but believed the portion that he divided the proceeds.
You shake your head Justice Stewart, I think it is obviously—
Unknown Speaker : Jury have done things like that sometimes --
Mr. Frey: Well they have done, they have done very strange things.
I do, we do submit that the cases are distinguishable but I also submit that at the heart of this whole problem is the either-or instruction that this court indicated in the Milanovich case was required.
And I believe that it is our submission to the court that that instruction has been the source of considerable problems in the administration of the bank robbery act, and that it is not justified upon close analysis.
And that this court ought now to indicate that the either-or instruction is improper and ought not to be given in the future.
The first defect --
Chief Justice Warren E. Burger: Do you mean that the problem of double punishments could be taken care of by the sentencing court --
Mr. Frey: By the sentencing court.
Chief Justice Warren E. Burger: Or if the Judge did indeed give cumulative sentences for both offenses, that could be readily corrected on a remand, on review.
Mr. Frey: Or even on subsequent attack later on that would be an illegal sentence under Heflin, yes but that is exactly our position.
Justice Potter Stewart: If all the evidence in the case for the prosecution is that the defendant, I should just simplify to say there is one, entered a bank, armed, held up the teller, left with the money.
Is there any ground at all upon which the Trial Judge had instructed the Jury with respect to the offense of possession or receipt of the proceeds of a bank robbery?
Mr. Frey: Well, I agree Justice Stewart—
Justice Potter Stewart: Now is that the question?
Given my case where all the evidence for the prosecution indicates that the defendant was a bank robber.
Mr. Frey: I think it would be proper not to submit the possession --
Justice Potter Stewart: It would be improper to submit it, wouldn’t it?
Mr. Frey: Well I am reluctant to say that because if you look at the --
Unknown Speaker : Lesser included isn't it?
Mr. Frey: Well, Heflin stands for the proposition that you cannot pyramid punishments of—
Justice Potter Stewart: Anymore than in a bank robbery case, it would have been --it would not be error for a Trial Judge to instruct the Jury on those, on a direct offense?
There is just no evidence of it.
Mr. Frey: Well, but that requires us to conclude before the Jury has decided the case what the evidence shows; I think it is true that there is no evidence and it ought not to be submitted but there are lesser included defense cases where there is virtually no evidence, and Courts of Appeals have nevertheless --
Justice Potter Stewart: Heflin said this was not lesser included offense, did it not?
Mr. Frey: I understand I cite that by analogy.
Justice Potter Stewart: But that is not an analogy, given Heflin.
This is not a lesser included offense, is it?
Mr. Frey: Well I fail to see the -- from the standpoint of safety, there is no conceivable prejudice to the defendant from submitting the possession count and it eliminates the possibility that an appellate court might later determine that perhaps the Jury could somehow if convicted of possession and acquitted -- under the either-or instruction acquitted of robbery.
I mean there would be out of a great abundance of caution that one would submit, and if I were the District Judge in this case I think would not have submitted it because I think it is clear on this evidence that it would have been unnecessary.
Justice Potter Stewart: Why do you say there is no evidence of possession?
Mr. Frey: Well there is evidence—
Justice Potter Stewart: Well certainly if he had stolen, had it, and he possessed it, but you certainly can argue very sensibly that was not what-- the Congress did not intend to, to make a separate crime out of possessing what you stole?
Mr. Frey: Well that is what Heflin suggests that Congress, and Milanovich where the possession is distinct in time and proved by the distinct evidence, suggests that even there congress did not intend to make it a separate offense.
Of course as a matter of fact, the person is guilty of possession, where he indicted only for possession and not for robbery, there would be no obstacle to convicting him of possession.
Chief Justice Warren E. Burger: Does the submission of both these questions to the Jury invite the bizarre result, I say bizarre, it would have been bizarre on this evidence to find him not guilty of bank robbery but guilty of possession.
Mr. Frey: Well, it would be bizarre and --
Chief Justice Warren E. Burger: But those things have happened?
Mr. Frey: Well it could, it could happen if there were, if there were an either-or instruction then there would be a considerable risk that something like that would happen.
And I would like to mention a case to show that my concern would be either-or instruction is not simply wild conjecture.
An individual attempted to buy a car and he used the hundred $5 dollar bills to make his down payment on the car.
And those bills were checked and turned out to contain to be bait money from a recent bank robbery.
He was arrested and he was indicted for bank robbery.
The prosecution’s theory being that his possession of these bills, his recent possession of these bills permitted the Jury to infer that he was involved in the robbery itself.
The evidence showed that he was not one of the robbers at the bank but it also showed that he had been in the vicinity of the bank shortly before the robbery.
The Jury accepted the prosecutions’ theory and convicted the defendant of robbery.
The case was appealed.
Now had there been an either-or instruction, unfortunately there was no possession charge in this case, the Jury would presumably have to acquit him of the possession charge of which he was clearly guilty pursuant to the Milanovich either-or instruction.
The case was appealed to the Court of Appeals, I think Justice Blackmun may remember this case because he sat on the panel in the Eight Circuit at that time, and the Court of appeals said the evidence is not sufficient to establish robbery.
It merely shows possession, the inference from possession to robbery is not strong enough where there is no evidence besides the guilty possession and therefore it reversed the conviction for robbery and in order the entry of a judgment of acquittal on the robbery charge.
Now this case, United States against Jones 418 F2 818, which is cited in our brief, had Jones been charged with possession as well as with robbery, had the Jury been given the either-or instruction, they very likely would have convicted him of robbery, acquitted him of the possession charge.
And on appeal, the Court of Appeals would have said, well this does not make out robbery and he would have gone scot-free.
Now that is a serious problem.
Justice Potter Stewart: Well that is you say undoubtedly and so on, that is a hypothetical case.
In the actual Jones case, he could have been indicted for possession, and there would have been no double jeopardy questions whatsoever because he had not been charged with that the first time around as you give it to us.
Mr. Frey: He could but this requires a degree of pressing and some prediction by the prosecutor in making an indictment by the Judge and submitting the case to the Jury and the question is why ought not the Jury be allowed to consider the facts?
That is did these defendants’ in fact—
Justice Potter Stewart: Well the Jury in the Jones case was not allowed to consider the alternatives, he was not charged with possession, you just told us—
Mr. Frey: No but had he been -- I am merely pointing out that the cases are numerous where the evidence of possession is stronger than the evidence of robbery and there is ample evidence of both, where the robbery conviction if one is obtained may fall for a variety of reasons on appeal, and—
Justice Thurgood Marshall: In Jones the charge being -- it is either the Grand Jury or the prosecutor?
Mr. Frey: That is correct.
Justice Thurgood Marshall: What would happen in this case if he had been found not guilty of possession in this very period?
Mr. Frey: Not, there would have been absolutely no difference had he been found not guilty of possession.
Justice Thurgood Marshall: That would have been an awful silly verdict, wouldn’t it?
Mr. Frey: Well it would have been a silly verdict, yes.
But the either-or instruction is, is—
Justice Thurgood Marshall: I don’t see why we have to make rules to let the prosecutor try anyway he wants to try, I think he should follow the rules?
Mr. Frey: Well—
Justice Thurgood Marshall: If he decides to try the man on possession, he is stuck with it.
If he decides to try him on robbery, he is stuck with it; he can have it both ways.
Do you agree with that?
Mr. Frey: Not really Mr. Justice Marshall, because even in Milanovich there was no question that the prosecutor was entitled to indictment on both charges, and everybody agreed that he was not required to elect between the charges.
The issue was when the case went to the Jury, was the Jury to be forced to select between the two charges, and that is what we are saying was the mistaken holding of Milanovich --
Justice Thurgood Marshall: Was it not brought it back by the prosecution, putting all four of these together?
When it gets to the Jury, doesn’t he have a duty of deciding which one should go to the Jury?
Mr. Frey: I do not believe that is the law Mr. Justice Marshall, it is not required --
Justice Thurgood Marshall: That he is required to --
Mr. Frey: I do not think he should be required to elect because—
Justice Thurgood Marshall: Well isn’t he required to read these two cases?
Mr. Frey: Well certainly he should be required to read, so should defense counsel.
I mean that, nobody points, so should the Judge but nobody pointed out, I mean apparently there was not an awareness of Milanovich but—
Justice Potter Stewart: Well Milanovich was a totally different case from this on its facts, isn’t it?
Mr. Frey: That is our contention, I—
Chief Justice Warren E. Burger: Well it is borne out by the opinion, the opinion indicates that one crime is committed and this woman -- the case against her for the bank robbery was dubious at best and probably could not be made out, but the case against her for the possession was perfectly clear two or three weeks later.Mr. Deputy Solicitor General Frey:
Mr. Frey: Well I think both cases were quite clear in Milanovich, and it is true that the cases are distinguishable but honestly I do not think I can say to you that Milanovich itself depended upon that distinction.
In fact Justice Frankfurter's dissent was based largely on the proposition in Milanovich that these were two distinct defenses, in fact and therefore the Milanovich ruling ought not to be held proper.
That is Justice Frankfurter's thought that she should be convictable of both offenses because of the degree of separation between the two.
Chief Justice Warren E. Burger: Well, assuming that the prosecutor on your view, should not be required to make an election before he starts, that is he is entitled to wait until his evidence is in to see what his case is, where the strengths and weakness of his case is.
Doesn’t the either-or instruction present a parallel to the idea of dismissing one charge at that time?
Mr. Frey: We would submit that either the dismissal of one charge at that time or the either-or instruction would be erroneous.
There is no harm --
Chief Justice Warren E. Burger: You are talking about what is required to do—
Mr. Frey: He is not required to elect, both counts can go to the Jury that much is clear.
That is, it is established that both counts can go to the Jury in the normal case.
Now I agree with Justice Stewart that in this case, there was really no occasion to submit the possession count because of the nature of the evidence.
And therefore, harmless error however in having done so, no certainly no basis for awarding a new truck.
Justice Potter Stewart: Do you know what the Jury convicted him?
Mr. Frey: We know that the Jury found --the Jury finds facts, that is—
Justice Potter Stewart: They just said guilty, didn’t they?
Mr. Frey: They said guilty on each count, eight counts.
Guilty as to count one, guilty as to count two, guilty as to count three, and so on that is the form of the verdict that is in the appendix.
They did not just say guilty, in other words they convicted him separately—
Justice Potter Stewart: Did they in Milanovich?
Mr. Frey: Nobody said anything about Milanovich, nobody said --
Justice Potter Stewart: No, but did they in Milanovich, was there just a general verdict on --
Mr. Frey: I am not sure that I recall, the case was treated, there were two separate counts.
I assume they were convicted on -- Mrs. Milanovich was convicted on each count.
On Mr. Milanovich, the larceny count, the possession count rather I think he received a directed verdict from the Trial Court—
Justice Potter Stewart: Why would the Government object to saying that the instruction was improper, and that at least -- and that the conviction for possession should be set aside as well as its sentence, but no new trial I should say?
Mr. Frey: I do not object to the second part, I object to the first part.
I think the instruction was --
Justice Potter Stewart: Well you would not object afterwards to saying, you cannot be convicted for both therefore we will set aside one count or the other?
Mr. Frey: I do not object so long as that count is subject to revival in the events something happens to the other count.
Yes, we have no --
Justice Potter Stewart: On appeal, on appeal, on appeal if the Court of Appeals says, it should not have been convicted of both counts.
We set aside the besides the conviction on the possession count and sentence—
Mr. Frey: We do not object to that.
In fact we believe that uniformly we --
Justice Potter Stewart: Because conviction on both counts is improper?
Mr. Frey: Because punishment on both counts is improper, conviction is a little bit like the concurrent sentence—
Justice Potter Stewart: Well I know but you would not object to setting aside the conviction?
Mr. Frey: That is right, we don’t.
Justice William H. Rehnquist: What if under 2255 then, they later come and attack the main sentence—
Mr. Frey: Then our view is that the conviction would be revivable at that point, but we want a Jury verdict as guilty in order to avoid that possibility.
Justice William H. Rehnquist: I had thought you could submit inconsistent verdicts to the Jury for the last 200 years that notions to the contrary went out with Blackstone.
Mr. Frey: That is true, that is verdicts that are inconsistent.
In fact, what we are dealing with in Milanovich is not inconsistent verdicts, the verdicts are completely consistent in this situation.
We are dealing with verdicts that are inconsistent in law.
But the either-or instruction --
Chief Justice Warren E. Burger: (Inaudible)
Mr. Frey: No, in fact they possessed --
Chief Justice Warren E. Burger: They are perfectly consistent—
Mr. Frey: Consistent, yes.
Chief Justice Warren E. Burger: They did rob the bank, they did posses the money.
Mr. Frey: Right.
Chief Justice Warren E. Burger: It is just a question of whether the rule of law is that that is in effect double punishment.
Mr. Frey: Well, this is a very technical area.
What the Court of Appeals held is, well they may have robbed the bank and they may have possessed the proceeds but they could not be convicted of both, and therefore although nobody doubts that they robbed the bank and possessed the proceeds, we are going to give them a new trial.
And the reason we are going to give them a new trial is because the Judge did not give an either-or instruction, which if I may give an analogy, it is a little bit like saying to the Jury; you are asked to find on, count one whether 140 equals 12 inches, and on count two whether three feet equals a yard, but you may not find both.
Justice Potter Stewart: Now in Milanovich, as you pointed out Justice Frankfurter dissented.
And in his dissent he said this, it is hornbook law that a thief cannot be charged with committing two offenses; that is stealing and receiving the goods he has stolen.
This is not a manner of inconsistent of the general rule of inconsistent offenses, this is a specific rule as to robbery and receiving stolen property.
This is the dissenting opinion, I am reading.
Mr. Frey: Yes, I do not agree with that portion of the opinion because we do not know until the Jury has returned its verdict, Justice Stewart, what has been done, we do not know whether the person is a thief, we have evidence suggesting that he is a thief, we have stronger evidence indicating possession.
Justice Potter Stewart: Not in this case, you do not.
You have nothing but evidence that he was a bank robber not a thief, a robber.
Mr. Frey: It is true that if this case falls within a subclass of the cases in which we have had these issues arise where I agree --it would have been better to indict these people in one count under (d) for aggravated bank robbery to treat the (a) and (b) as lesser offenses.
But it is clearly harmless error in the circumstances, it hardly warrants a new trial even if you were to hold that the prosecutor was in error in framing his indictment in that fashion and that the court was in error in submitting it to the Jury.
The problem will --that holding I think would be correct.
The problem I assume would be back before this court shortly because I do submit with all respect for the reasons I have indicated that it is a continuing problem in the administration of the Federal Theft Statutes.
Justice William H. Rehnquist: Do you think that failure to object to the instructions is open to the government to argue in this Court?
Mr. Frey: I do not see why not, it is within the questions presented, it was argued to the Court of Appeals.
We have mentioned it in our brief, but we have not argued it in our brief.
I mentioned it here at oral argument, I think it would be open be for this court to decide it on that basis.
I reserve the balance of my time for rebuttle.
Chief Justice Warren E. Burger: (Inaudible) if that is the case by remanding for reexamination of the sentence to see that double punishment is not imposed for both possession and bank robbery.
Argument of Tommy Day Wilcox
Mr. Tommy Day Wilcox: I will address myself to that question, Your Honor.
Chief Justice Warren E. Burger: Do it in your own time.
Mr. Tommy Day Wilcox: Mr. Chief Justice and may it please the Court.
Before I begin, I would also like to make a notation, a correction if you will in the respondents’ brief on the merits.
It is on page nine, and it comes from a quote by Judge Donahue in the Ninth Circuit in the case of United State v. Tyler.
About one-third way down the page the quote begins, and it begins by leaving all of the word “A”, it is a typographical error I assume.
But that particular quote should read, “A case”, it does not decide only the exact factual question that it presents and then it continues on as it is there.
Unknown Speaker : A case?
Mr. Tommy Day Wilcox: A case, Sir.
Page nine on the merits.
Before beginning my argument, let me say that my name is Tommy Day Wilcox and I am counsel for the respondents Gaddis and Birt.
In the trial of this particular case, I was trial counsel for Billy Sunday Birt.
Mr. Tony Mann of Megan Georgia was the attorney for Mr. Bobby Gene Gaddis.
At the conviction Mr. Mann and I, as co-counsel represented these two respondents on appeal, I now represent each, the two of them together of course.
Justice William H. Rehnquist: Why did you not object to the failure to give the instruction that you now say should have been given?
Mr. Tommy Day Wilcox: The two-two responses to that question.
Certainly, I accept responsibility for these respondents for not requesting that charge.
Our theory of that particular case of course, that interviewing these two defendants was one that they were not involved at all, either as possessing or robbery.
So from that standpoint that was one reason we did not request it.
Quite frankly, Your Honor, I was not aware of this line of cases and therefore I did not request this particular instruction.
Justice William H. Rehnquist: Isn’t that the whole point of objections in the Trial Court is so that the District Judge who maybe on the point of erring can have his attention called, and if you fail to object, you are presumably barred from raising that point?
Mr. Tommy Day Wilcox: Your Honor, unless it is plain error.
And certainly I would—
Justice William H. Rehnquist: Why was this plain error?
Mr. Tommy Day Wilcox: The reason this was plain error is it, for one thing whether or not an objection is made as plain error or not more times, and that goes to the facts in the case, so the courts that have considered have said that anyway, whether that evidence is overwhelming or not.
But to this particular point I would cite the Court’s attention to at least three appellate courts that were presented with this particular question and decided that it was plain error and the case not to give the particular instruction that should have been requested --
Justice William H. Rehnquist: Well why did they decide it was plain error?
Mr. Tommy Day Wilcox: The case of United States v. Roach and O’Neal v. United States, and those cases went off on the fact that, and also that, and Baker versus United States.
Almost the same thought that I am giving here, Your Honor.
One, the evidence was not overwhelming in those particular cases and the court concluded that it was plain error, and they went to certainly the merits of the defendants claim.
Justice William H. Rehnquist: Well that is true of almost any Jury exceptions.
If you say this is plain error, you are going to end up saying that counsel never has to object because you can always call it plain error.
The District Judge could have shaped his instructions to conform to your objection, you called his attention to the Milanovich case, I would think?
Frankly, that you didn’t know of it and he didn’t know of it.
I would think it is counsel's job to call his attention to that.
Mr. Tommy Day Wilcox: Certainly, we bear some of the responsibility.
But in this particular case and in this particular situation, the question here is how to avoid, I think Your Honor, the error that was committed by the lower court.
First of all the prosecution has all the facts of the case, they certainly did in this case and that Mr. Davis was arrested.
And after getting his statement, this particular indictment ensued the prosecution then as Mr. Justice, in his dissenting opinion Mr. Justice Clark in the Milanovich decision said it would better that be to have the prosecution elect.
Whether or not at the onset, they were going to indict for possession and for robbery.
And second of course, the prosecution could have dismissed this particular charge before it went to the Jury and the Judge of course has some duty to properly instruct the Jury.
But no, Your Honor, again we would say that certainly it was my responsibility and I did not request that particular charge in this case.
Chief Justice Warren E. Burger: In evaluating of plain error claim, is it of some consequence that the error wasn’t so plain that the counsel in the case didn’t see it?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
And as I say, in this particular situation, I can only speak from my experience in this particular case.
This was the very first case, I participated in as a trial attorney, and is this is the first case I participated in here, no excuse of course.
But our defense was, one; that we did not participate either as the robber or as the possessor, perhaps we still should have had the duty to request this particular charge.
Chief Justice Warren E. Burger: Then do you think in those circumstances the prosecutor should be required to elect before the case is tried which count, he is going to stand on?
Mr. Tommy Day Wilcox: Either before the case is tried or before the case is submitted to the Jury, yes Your Honor.
Chief Justice Warren E. Burger: Did you move for dismissal of all of the charges at the close of the evidence?
Mr. Tommy Day Wilcox: Yes we did, we have made the motion for judgment of acquittal -- conclusion of the prosecution’s case and also at the conclusion of the case as a whole.
If I might comment on the facts in this case, one brief comment before beginning my argument, that is the facts as stated by the counsel Frey.
Certainly we are clear in acquitting this case, but actual trial of this case, the only evidence it connected either Gaddis or Birt with the robbery of this bank in Loganville, Georgia, was a testimony this co-defendant Gaddis.
In other words, there was no independent evidence to otherwise connect them with the robbery of the bank.
Chief Justice Warren E. Burger: Where was the money found?
Mr. Tommy Day Wilcox: Interestingly enough the money was found in the possession of the wife of Mr. Davis, the co-defendant.
She took some of the marked money to the bank, the FBI discovered it there, went to her house and the remainder of the money or a portion of the money was found in her deep freezer.
If the Court will.
But none of the money, neither masked guns nor independent identification was ever given as to Gaddis and Birt at the trial of this particular case.
To the Court’s submission, I will present two arguments in support of respondents’ position before this case.
First, this Court’s decision in Milanovich v. United States, which is applicable to the case involved in our view, is an appropriate statement of the law where defendant is charged and convicted, both of taking and receiving the same property.
Second, any suggestion that an Appellate Court rendered the error that was committed in the Trial Court, by ordering the Trial Court to either dismiss the taking conviction or the possession conviction as improper, in our view; whether under the guise of some rule of priority, what has become known as the concurrent sentence doctrine.
Petitioner has properly stated the rule enunciated by this court in Milanovich, and again that rule simply says that where the Government chooses to indict both for robbery and for possession, then it is the duty or it is incumbent upon the Trial Judge to give an either-or instruction.
Further, given Heflin v. United States, the rationale of this Milanovich decision is appropriate to this case, where these particular defendants were charged and convicted on a federal bank robbery statute.
However, in his argument here today, the petitioner attempts to distinguish the case at bar on the facts, and thereby take it out from under the purview of Milanovich.
In our view, the factual pattern in these two cases is much the same, especially when viewed toward the activities of the driver of the getaway car.
To point up what happens in a case and in our opinion why the government would choose to indict, both for robbery and for possession, I cite this court’s attention to a recent Eighth Circuit case, Dixon versus United States, 507 Federal 2d. 683.
In that case, there were three robbers.
One drove the getaway car, he was indicted, and that was Dixon.
A mistrial was declared as to the robbery, but he was found guilty as to the possession.
That particular panel concluded that the no-charge was given, but it was harmless error given to verdict, and the comment was that the driver of the getaway car acted only as an aider and abettor to the robber.
And therefore it could be conceptualized as a separate offense.
This discussion of the distinction between the two, engenders, we think a consideration of whether or not this was a single transaction or two separate transactions.
Justice Potter Stewart: Did the driver of this car take a shot at the policeman?
Mr. Tommy Day Wilcox: The evidence adduced at the trial, given Davis’ testimony, was as I recall the driver of the getaway car did fire at the policeman when he arrived at the scene.
Justice Potter Stewart: Do you think that makes any difference as to whether he was participant in the robbery?
Mr. Tommy Day Wilcox: I do not, Your Honor.
Certainly if a separate charge of assault, as to the driver of the getaway car would have been proper.
Justice Potter Stewart: The man who guides the robbers inside the bank is not a party to the robbery?
Mr. Tommy Day Wilcox: Under an aiding and abetting charge where there had certainly a Jury could return that type of verdict, I have no quarrel with that.
But Juries do return verdict saying that drivers of getaway cars as evidenced by the Dixon case.
Chief Justice Warren E. Burger: That was the defense verdict, isn't it?
Mr. Tommy Day Wilcox: Not really, Your Honor.
Certainly, given the legislative history of 2113(c), the possession is only as a separated offense, it contemplates separate people.
Chief Justice Warren E. Burger: I am talking about the driver of the car.
Mr. Tommy Day Wilcox: That is correct.
Justice Thurgood Marshall: You mean the only people guilty in the robbery are those inside the bank?
Mr. Tommy Day Wilcox: No, Your Honor.
Justice Thurgood Marshall: Well what do you say?
Mr. Tommy Day Wilcox: I am not taking that position.
I am saying that under the facts in this case when looking at the driver of the getaway car, there really is not distinction between this particular case and the case of the Milanovich situation, where the lady there drove the getaway car to the scene—
Justice Thurgood Marshall: But she didn’t shoot anybody?
Mr. Tommy Day Wilcox: She did not shoot anybody, that is true.
And that, if in fact we consider that an assault charge then it would be proper to separate count.
Justice Thurgood Marshall: But were the men in this case charged with assault?
Mr. Tommy Day Wilcox: They were.
Justice Thurgood Marshall: Well he was guilty of that then, wasn’t he?
Mr. Tommy Day Wilcox: That is correct, given the facts.
Justice Thurgood Marshall: Well I have lost your point.
Mr. Tommy Day Wilcox: Well the point is simply this, that in our position whether or not it is a single transaction or two transactions is of no import.
And that the Milanovich situation and the rule of law there was a rule or rationale that is applicable to these types of cases whether or not it is a single transaction or two transactions.
I have mentioned the Dixon case, only to show the court if I might that the reason for the possession count oftentimes, is in fact Juries do return verdicts when a person is found guilty of possession and not robbery, even though he drove the getaway car and waited for the robbers to return.
Similar case, the Fifth Circuit case, Baker v. United States, where there are same facts.
The man drives the car, he waits for the robbers to go in, he identifies the car in the parking lot, steals it and drives the robbers away.
There, that particular case, no either-or instruction was given and the case was remanded for a new trial.
Unknown Speaker : Under the statue, it simply is not possible to break this into separate offenses of this kind, it is one offense.
And therefore you cannot indict on separate counts, one for the robbery and one for possession?
Mr. Tommy Day Wilcox: Yes, Your Honor.
You can indict, but the point is of course, that the Jury should be instructed before they retire, that given the history of this particular statute under which these men were charged, that they have the choice.
To first of all determine whether or not these folks are robbers.
And if they are, fine, they cannot also be convicted of possession, unless a separate person.
Justice Potter Stewart: No matter what maybe the length and time between the date of the robbery and the incident which led to the possession charged?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
Justice Potter Stewart: It is about the same person?
Mr. Tommy Day Wilcox: In this particular—
Justice Potter Stewart: The robber cannot be can't be convicted of possession, somebody else could be convicted of possession.
Mr. Tommy Day Wilcox: That is correct.
And of course under that particular factual situation then, the Jury could return a verdict—
Justice Potter Stewart: But this is a situation where Gaddis was convicted of robbery?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
Justice Potter Stewart: That being so, no matter what the interval may have been which led to the possession count.
Mr. Tommy Day Wilcox: He cannot be convicted, that is correct.
Justice Potter Stewart: As a matter of law?
Mr. Tommy Day Wilcox: As a matter of law.
Justice Potter Stewart: Under this statute?
Mr. Tommy Day Wilcox: Under this statute.
Justice Potter Stewart: That is what Heflin said.
Heflin said that the possession count was directed toward a wholly different kind of a defendant, the person who is not the robber, is that not what Heflin said?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
And certainly this Court relied on the legislative history of that statute, when they rendered that opinion.
And I might add, as far as the facts are concerned in this case on that particular point, while Mr. Davis chose to identify Mr. Gaddis as the driver of the car.
The evidence at the trial of the case was that Billy Sunday Birt had a very serious speech impediment, and had had to the testimony of a numerous—several people throughout his life.
And it is possible that that particular Jury decided that yes, these two men were involved, but may have decided that Birt was in fact driving the car.
This is on the conjunction on my part, but it is the real reason that we are here today is whether or not we want to look behind what the Jury decided.
These facts presented to this court in the coolness(ph) of this hour appears to be just open and close, this particular Jury was out for six and one-half hours, this appears to be a clear case.
But certainly in the State Courts of the State of Georgia, where a man cannot be convicted on the uncorroborated testimony of a co-defendant, this case may not have even gotten to the Jury.
Justice Potter Stewart: Well there is no question what the Jury decided as respect to the individual counts, isn’t it?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
My only point was there is—
Justice Potter Stewart: They made separate, in turn separate verdicts on the different counts, each count?
Mr. Tommy Day Wilcox: They did.
There is some concern in my mind whether or not the Jury decided it was Birt or Gaddis driving the car, that was my point, Your Honor.
Justice Potter Stewart: Well you point is in any event, the Jury under this statute could have convicted on these facts, of robbery or nothing?
Mr. Tommy Day Wilcox: That is correct, Your Honor.
The question is what remedies to be applied in this case, given the error committed.
We can see that the lower courts, during this interval between 1961 and today’s date, have attempted various methods to avoid the new trial mandate of Milanovich.
It is interesting to note the case pointed out by Mr. Frey, that Mr. Justice Clark set on in the Fourth Circuit.
There Sellers, the defendant, four counts of robbery and possession and he was convicted.
And when the instruction was not given, and the appellate court there decided that the remedy should be that the case would go back to the trial court and there the prosecution could elect whether or not they would let the possession or lesser sentence stand or whether or not they sought, would seek to have a new trial.
Chief Justice Warren E. Burger: Why do you think, or do you think that is not the proper solution?
Mr. Tommy Day Wilcox: It is not, Your Honor, because I have the feel that what has been done there is that an appellate court then has looked at the facts there really, I am almost arguing for fairness on behalf of the government, and that the appellate court has decided that this man was guilty of possession but was not guilty of robbery.
And my fear is of course, on balance, if it is sent back and said drop the possession there guilty of robbery there again in some way usurp the authority of the Jury, which is this case is all about in my opinion.
But the Sellers case also concerns me, but is one way appellate courts have looked at this problem.
And certainly the Tyler case in the Ninth Circuit, there the Appellate Court said, well we have a sentence stay of six years for possession and six years for robbery.
So under the concurrent sentence doctrine, we would not even look at this particular case.
Unknown Speaker : Why do you say concurrent sentence doctrine was not --
Mr. Tommy Day Wilcox: For number of reasons.
I have a real question and only this court can know after the Benton case, Benton v. Maryland, the real thrust of the concurrent sentence approach at this point.
But I think certainly here there was a general sentence, concurrent sentences cases had not gone to where there is a general sentence.
Second of all as in the recent case --
Unknown Speaker : (Inaudible)
Mr. Tommy Day Wilcox: Yes it is, Your Honor.
We could go back and have the Trial Judge breakdown the particular years on each statute.
That would be simple enough and would correct that objection.
Unknown Speaker : (Inaudible)
Mr. Tommy Day Wilcox: Not to bring it under concurrent sentence doctrine, Your Honor.
Because in this particular case, as in United States v. Belt, a very recent case in the Eighth Circuit, 516 Federal 2d. 873.
The court there concluded that the concurrent sentence doctrine lacks propriety, where the prime is charged of various and serious and differing in substance.
And the possibility of collateral affects is what that particular court went to.
And certainly the concurrent sentence doctrine concludes that there is one valid count, and of course the error here we say goes to both counts.
Justice Thurgood Marshall: (Inaudible) with the instructions that the court acquit on the possession charged.
Mr. Tommy Day Wilcox: The objection would be, Mr. Justice, that the same fear that this court had in Milanovich would be of course evidence and that is that an appellate court had decided which offense these particular men were guilty of.
And we still have the question of whether or not a correctly instructed Jury would have returned the verdict of possession --
Justice Thurgood Marshall: What more do you want in there?
Mr. Tommy Day Wilcox: We want a new trial in this particular case.
Justice Thurgood Marshall: Yes.
Mr. Tommy Day Wilcox: That is correct, Your Honor.
Justice Thurgood Marshall: You want a new trial.
You were satisfied with the trial at the time of the verdict weren’t you?
Except the verdict?
Mr. Tommy Day Wilcox: Well certainly, we made a motion for judgment of acquittal after the evidence was adduced to trial and then again—
Justice Thurgood Marshall: Did you cite the failure to give the either-or instruction in there?
Mr. Tommy Day Wilcox: No, we did not, Your Honor.
Justice Thurgood Marshall: So, so far that was concerned you were satisfied.
Mr. Tommy Day Wilcox: That is correct at that time.
Our main fear is of course, as I have already pointed out, that given the decision in Milanovich and given the decision in Heflin, we find nothing to take this case out from under the purview of those two decisions.
And by the same token, the majority of Appellate Courts and the interim have given this same set of facts, remanded the case for a new trial. In the Fifth Circuit alone there have been four or five cases in particular on the same facts that had been remanded for a new trial.
And certainly the proposition that the government offers, that in some way this case should be sent back to a Jury and the Jury be instructed that these two particular defendants are guilty of something, either possession or robbery.
And it is your duty to find either-or, that I find no precedent for that and—
Justice William H. Rehnquist: Well one can reject that is take it without necessarily feeling that the thing ought to be sent back for a new trial at all.
Do you think it makes much sense in the Administration of Justice when a Jury has found these clients of yours guilty on two separate counts, to simply say they are entitled to a new trial on both counts?
Mr. Tommy Day Wilcox: Yes I do, Your Honor.
Simply from the standpoint of a rule of law, because if in fact we decide or a court decides that there was a distinction to made here, robbery or possession and we will make that now given this record.
That this is a beginning of the usurpation of the Jury’s function, which was in fact finder.
Justice William H. Rehnquist: Well but all that Jury did was found facts, that seems to me that Heflin and Milanovich do not say anything more that, and as a matter of law, not as a matter of fact.
These two offenses can't subsist side by side.
And so your client is getting a good deal, if he is let off to hook on either one of them, that is what it boils down to.
Mr. Tommy Day Wilcox: Certainly, that is a hard proposition to argue with.
If in fact like -- as in the Sellers case, the case is returned as the government argued before the US Court of Appeals for the Fifth Circuit, there contingent there was dropped the robbery count and re-sentence these two particular defendants on the possession count.
I would not concede that point, but—
Unknown Speaker : (Inaudible)
Mr. Tommy Day Wilcox: That is correct, Your Honor.
Certainly we would rather have a return of the case and upholding the possession as opposed to dismissing the possession as the government now suggests would be proper and leaving intact the robbery conviction.
Justice Potter Stewart: Is there some suggestion that Davis now refuses to testify of any new trial?
Mr. Tommy Day Wilcox: Your Honor, let me respond to that question in this way.
Certainly, to give the court a new ratification about these particular parties as this remains our discussion here today.
There is not much question that Mr. Davis will testify against Mr. Birt and Mr. Gaddis in our opinion.
And that since the trial of this case, as to these two particular defendants, certainly I am here to discuss a rule of law.
Mr. Davis has testified in a trial—a murder trial, charging both Gaddis and Birt with a double murder, they were convicted in that trial and are now have been given a death sentence, two death sentences in the State of Georgia, and of course that case is on mandatory appeal in the State Courts.
Unknown Speaker : (Inaudible)
Mr. Tommy Day Wilcox: Yes it was, Your Honor.
And of course Mr. Davis participated in that particular trial, I know Your Honors concern with the footnotes that the government has put in several briefs before this court, Mr. Davis now had said that he would not testify.
But I can only give you my opinion on that, he had no reluctance to testify in the State Court.
As a matter of fact I am informed at this point now that the government seeks help from Gaddis to implicate Davis in some crimes in that general area, and this all goes to really of course who Mr. Davis really is.
Justice William H. Rehnquist: It sounds like a good part of Georgia to stay away from?
Mr. Tommy Day Wilcox: Well, (Laughter) Your Honor, Your Honor, began the discussion where the question might not object and are asking for the either-or instruction.
I might add in that vein, Mr. Davis’ Attorney at this particular trial, was also indicted for murder with Birt and Gaddis.
And subsequent to the, the District Attorney, I understand, has certainly decided not to prosecute and that there is nothing to connect of the attorney.
But Mr. Davis was dissatisfied with his representation, so yes, Your Honor, I have a reason to question Mr. Davis.
Justice William H. Rehnquist: Suppose the court does not agree with you that a new trial is required, but the that the defendant may be sentenced for only one of the crimes, do you make a separate point that there must be re-sentencing here or just cancellation of the one sentence?
Mr. Tommy Day Wilcox: The proper method, Your Honor, in my opinion if the court concluded that, that would be proper would be to remand this case to—
Justice William H. Rehnquist: Why the --the sentence was, the sentences were separate on each count?
Mr. Tommy Day Wilcox: In the end, the court concluded that this was a general sentence of 25 years and that all of these counts merged.
And of course—
Justice William H. Rehnquist: But he did say, he did sentence separately on that?
Mr. Tommy Day Wilcox: He did sentence separately, ten years to the possession and then had them merged.
I certainly can find no objection but—
Chief Justice Warren E. Burger: What is a (Inaudible) there are legal basis for that, is that just where they discuss sentences?
Mr. Tommy Day Wilcox: The courts had considered; of course, the legislative history of the statute says that it cannot run consecutive.
So several courts concluded after the passage of the statute, that subsections (a), (b) and (d) for purposes of sentencing were all merged into the sentence, the most severe sentence of 25 years was proper.
That is the terminology but of course the same court has said that subsection (c), a possession count will not merge.
And of course to completely answer the Justice’s question about retrial.
As to these two particular defendants, there is some doubt if in fact this court concluded that a new trial was warranted, given the two trials that I have just alluded to, whether or not these two particular defendants would be given a new trial.
My point here today is that we have an issue of law, and I am here to discuss some of that, I want to make that clear if I might.
In concluding, Milanovich v. United States is a sound decision and is appropriate in my opinion for consideration here.
We respectfully submit, that this court one should not overrule that decision.
And second of all should not in some way formulate a procedural cure for the error that was committed at the trial court, and that rather this case should be remanded for a new trial under the purview of Milanovich and Heflin.
Thank you, Your Honor.
Chief Justice Warren E. Burger: Do you have anything further Mr. Frey?
Rebuttal of Frey
Mr. Frey: Just one or two points.
With respect to Justice Brennan’s question about whether the statute did not indicate that there should be rather than this equal either-or instruction, perhaps a priority instruction that asks the Jury first to consider robbery --
Unknown Speaker : (Inaudible)
Mr. Frey: Right, well Heflin—
Unknown Speaker : That Heflin (Inaudible)
Mr. Frey: Yes, it certainly was a statutory construction.
What is not clear was whether the thrust of Heflin was to the pyramidal punishment that existed in Heflin or whether it was to the entry of dual convictions—
Unknown Speaker : (Inaudible)
Mr. Frey: He made both points that it was a separate class of offenders.
My point is that in effect counsel concedes away his case here to agree with your suggestion, because if it is true that the Jury ought first to consider robbery, and if it finds the defendant guilty of robbery, or admits its consideration of the possession or receipt offense, then the remedy surely is simply to vacate the possession.
Conviction, but not certainly to grant a new trial.
Justice Potter Stewart: If the government’s interest be adequately protective, if the Jury was instructed to return a verdict on only one of these counts?
Suppose that it was instructed that, if you find these people guilty of robbery, bank robbery, return no verdict on the possessions?
Mr. Frey: Well that would certainly be better than returning an acquittal on the possession count.
That would at least theoretically leave the possession count open, but the question is why is a matter of sound judicial administration should the Jury be told that?
Justice Potter Stewart: Well then, but, and then -- if you had both counts in the indictment you would just tell the Jury that you do not that, if you find, unless you find the person guilty of robbery you may convict him for possession if the evidence warrants it?
Mr. Frey: But, but the robbery conviction maybe ultimately overturned for reasons that would not infect a possession conviction.
And it seems to me as a matter of sound administration of Justice, you allow the Jury to return verdicts on both, and then it is the Judge who enters no judgment of conviction on the possession count but only on the robbery count.
Justice Potter Stewart: It seems to me then you are, you are disagreeing with the construction of the statute that the court has adopted in.
Well, it is namely that there isn’t any crime of possession on the part of one who robs?
Mr. Frey: No, all that I am saying is that-that one, that at law there is no crime of possession for one who robs—
Justice William H. Rehnquist: Well, that is what I am talking about the law.
That is what instructions do, they state the law?
Mr. Frey: No, I do not think that is correct in this case because whether or not somebody is one who robs has only determined at the conclusion of the litigation.
And possibly even amendable to collateral --
Justice Potter Stewart: Well, you tell me Mr. Frey, who should be held guilty?
Let us suppose you had an indictment that had separate robbery and possession counts in it.
Mr. Frey: Yes.
Justice Potter Stewart: And you instructed the Jury that if you find the person guilty of robbery, do not find him guilty of possession?
But you may find him guilty of possession if you do not find him guilty of robbery.
Now you tell me, what people do you think ought --the government ought to be able to hold guilty of possession who, wouldn’t be covered by the second count of possession?
Mr. Frey: I am not sure that I understand that—
Justice Potter Stewart: Well you are saying that there are three crimes involved now in this statute.
One, one a class of persons who just received, but then there are two crimes that maybe committed by another group of people, either they posses or they rob?
Mr. Frey: No, we do not challenge the ultimate conclusion that ultimately one who is convicted of robbery ought not to have a conviction on his record for possession.
But we are saying that as a matter of the Administration of Justice, you ought to let the Jury find the facts.
In most cases you will have quite separate evidence of possession independent of the evidence of robbery.
And if you do not have the Jury return a verdict with respect to that, you run the risk of having to have a later trial or of having double jeopardy objections if there is something wrong with the robbery conviction that would not taint the possession conviction.
If, it is only one who is convicted of robbery who is immune from possession.
It is not, not one who is a robber, it is only one who is convicted of robbery who is immune from the possession conviction.
That is we strenuously disagree and we have a petition pending before the court in the Phillips case that you cannot setup as a defense to a possession charge that you are robber.
It is only after conviction that the preclusion of the possession charge comes into play in our view.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.