Opinion · Court of Appeals for the Fifth Circuit

United States v. Alvin Olanda Gilbert

553 F.2d 990

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1977-06-13
Topic: bankruptcy

How later courts describe this case

charges under 18 U.S.C. § 659 for both theft and possession

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Cited by: 10 opinions

UNITED STATES v. GILBERT,553 F.2d 990(5th Cir. 1977)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ALVIN OLANDA GILBERT,

DEFENDANT-APPELLANT.

No. 75-4379.

United States Court of Appeals, Fifth Circuit.

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.

PER CURIAM:

[1] This Court's opinion is reported at537 F.2d 118, in which we affirmed the conviction of appellant Gilbert.

[2] The Supreme Court of the United States on February 28, 1977, ___ U.S. ___,97 S.Ct. 1169,51 L.Ed.2d 578vacated 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 ofSoliminev. United States,429 U.S. 990,97 S.Ct. 517,50 L.Ed.2d 603(1976) andUnited 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.

[3] 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 of18 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.

[4] It is now clear that the convictions on Counts I and III relative to theft must be vacated and set aside.

[5] 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.

[6] VACATED AND REMANDED.Page 991