United States v. Eli Crawford, United States of America v. Ernest Barrow Biard

Appellants Crawford and Biard appeal from their convictions for armed robbery of United States Postal Service employees in violation of 18 U.S.C. § 2114 . We affirm.

The evidence indicates that at approximately 2:00 p. m. on May 17, 1977, two men entered U.S. Post Office Station A on Steiner Street in San Francisco. One of the men, later identified as appellant Crawford, approached postal clerk Elbert Hicks, pointed a gun and demanded cash and money orders. Hicks complied, handing over both currency and blank postal money orders. A postal supervisor who happened to come within Crawford’s view was ordered to stop or be killed.

During this time, Mrs. Lillie Freightman, the other postal clerk on duty, was approached at her window by a second man who also showed a gun and demanded money. Mrs. Freightman complied with the gunman’s demand and managed to push a button activating a surveillance camera. The gunman, later identified as appellant Biard, briefly left the post office at one point to retrieve a customer who had observed the situation and fled. After relieving the anxious customer of the contents of his wallet, Biard and Crawford left the post office.

Shortly after the…

concurring.

I concur in the result, but I do not agree that United States v. Gaddis, 424 U.S. 544 , 96 S.Ct. 1023 , 47 L.Ed.2d 222 (1976), affects the rule of Milanovich v. United States, 365 U.S. 551 , 81 S.Ct. 728 , 5 L.Ed.2d 773 (1961).

The Milanovich Court held that a new trial is required when (1) there is sufficient evidence to go to the jury on both larceny and receiving counts, (2) the trial judge fails to instruct the jury that it may not convict on both counts, and (3) the jury convicts on both counts. The Court so held because, under the circumstances, “there [was] no way of knowing whether a properly instructed jury would have found the [defendant] guilty of larceny or of receiving (or, conceivably, of neither).” 365 U.S. at 555 , 81 S.Ct. at 730 .

I find this situation factually distinguishable. Here, unlike in Milanovich , the evidence of guilt is overwhelming on each of the charges. It is therefore clear that a properly instructed jury would have eon *802 victed only on the robbery count. Dismissal of the possession count cured the error.

. The Gaddis majority distinguishes Milanovich , and Justice White’s concurrence explicitly recognizes the Milanovich rule,…

576 F.2d 794 UNITED STATES of America, Appellee, v. Eli CRAWFORD, Appellant. UNITED STATES of America, Appellee, v. Ernest Barrow BIARD, Appellant. Nos. 77-3193 and 77-3192. United States Court of Appeals, Ninth Circuit. May 12, 1978. Rehearing Denied June 14, 1978. Paul Mike Goorjian, Fred Baker, San Francisco, Cal., for appellants. Malcolm Segal, Asst. U. S. Atty., San Francisco, Cal., for appellee. On Appeal from the United States District Court for the Northern District of California. Before BROWNING and WRIGHT, Circuit Judges, and TAYLOR, District judge. * PER CURIAM: 1 Appellants Crawford and Biard appeal from their convictions for armed robbery of United States Postal Service employees in violation of 18 U.S.C. § 2114 . We affirm. 2 The evidence indicates that at approximately 2:00 p. m. on May 17, 1977, two men entered U.S. Post Office Station A on Steiner Street in San Francisco. One of the men, later identified as appellant Crawford, approached postal clerk Elbert Hicks, pointed a gun and demanded cash and money orders. Hicks complied, handing over both currency and blank postal money orders. A postal supervisor who happened to come within Crawford's view was…