538 F2d 695 United States v. Sanders

538 F.2d 695

UNITED STATES of America, Plaintiff-Appellee,
Carrol Edward SANDERS and Sally Lee Clasen, Defendants-Appellants.

No. 76-1574

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Sept. 13, 1976.

Joe Ray Langston, Booneville, Miss., Ed W. Jenkins, Booneville, Miss. (Court-appointed), for defendants-appellants.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Sam Knowlton, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.



Both of the appellants were convicted for Dyer Act violations under both counts of a two count indictment charging them in Count One with transporting a stolen motor vehicle in interstate commerce,1 and in Count Two with concealing the same stolen motor vehicle.2 Appellants were sentenced to concurrent three-year terms on each count. Their sole contentions on this appeal challenge only their convictions under Count Two.3 Appellants do not challenge their convictions under Count One.


It is well settled that the transportation offense codified in Section 2312 is a separate and distinct offense from the concealment transgression codified in Section 2313, even though the same vehicle is involved in both crimes. Woody v. United States, 258 F.2d 535 (6th Cir. 1957), aff'd, 359 U.S. 118, 79 S.Ct. 721, 3 L.Ed.2d 673 (1959) (by equally divided court); United States v. Marvel, 493 F.2d 15, 16 (5th Cir.), rehearing denied, 496 F.2d 1170 (1974); United States v. Ploof, 464 F.2d 116, 119-20 (2d Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972) (several cases cited); United States v. Thompson, 422 F.2d 1104, 1109-10 (6th Cir. 1970), aff'd after remand, 442 F.2d 1333 (6th Cir. 1971); see United States v. Rice, 428 F.2d 923, 925-26 (5th Cir. 1970). Accordingly, since appellants were sentenced concurrently under Count II (the concealment count), and do not challenge their convictions under Count I (the transportation count), pursuant to the concurrent sentence doctrine we need not and do not reach the merits of their attack on Count II. Barnes v. United States, 412 U.S. 837, 848 & n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Works, 526 F.2d 940, 948 (5th Cir. 1976).




Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


In violation of 18 U.S.C. §§ 2 & 2312


In violation of 18 U.S.C. §§ 2 & 2313


They assert that the trial court gave an erroneous jury instruction and that the evidence is insufficient to support their convictions