with dangerous weapons during the course of the robbery (Counts 4 to 8), in violation of 18 U. S. C. § 2113 (d).3 At the ensuing trial the Government's evidence showed that three armed men had on March 6, 1974, robbed the National Bank of Walton County in Loganville, Ga.,* and that the robbers in making their getaway had engaged in an exchange of gunfire with Loganville's lone police officer. The Government's evidence further showed that two of the three robbers had been Gaddis and Birt. The jury found the respondents guilty on all counts of the indictment, and the trial judge sentenced each of them to aggregate prison terms of 25 years. In imposing the prison sentences, the judge stated:

"[T]he Court realizes that twenty-five years is the maximum, and the cases say that there is a merger of all of those offenses. If there is any question as to the legality of that sentence, that's the Court's intention."

The Court of Appeals for the Fifth Circuit reversed the judgments of conviction and ordered a new trial upon the ground that the District Judge had been in error in permitting the jury to convict the respondents on all

3"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both."

4 Two of the men had entered the bank, brandishing pistols, while the third man had remained in the getaway car outside.

5 A third man indicted, Billy Wayne Davis, had pleaded guilty and was a principal witness for the Government at the respondents' trial. The judge imposed 20-year sentences for aggravated bank robbery (18 U. S. C. § 2113 (a)), 25-year sentences for assaults in the course of the bank robbery (§ 2113 (d)), and 10-year sentences for possession of the proceeds of the robbery (§ 2113 (c)), all of the sentences to run concurrently.

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eight counts of the indictment. Specifically, the appellate court held that this Court's decision in Heflin v. United States, 358 U. S. 415, had made it clear that "it is plain error to allow a jury to convict an accused of taking and possessing the same money obtained in the same bank robbery," and that under this Court's decision in Milanovich v. United States, 365 U. S. 551, "the proper appellate remedy is to remand for a new trial." 506 F. 2d 352, 354. We granted certiorari because of the discordant views in the Circuits regarding the proper application of the Heflin and Milanovich decisions. 421 U. S. 987.

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 proceeds of that robbery in violation of 18 U. S. C. § 2113 (c). This much was clearly settled in the Heflin case. The Court there held that "subsection (c) was not designed to increase the punishment for him who robs a bank but only to provide punishment for those who receive the loot from the robber." 358 U. S., at 419. In "subsection (c) ... Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves." Id., at 420. Thus, while there was in the present case a "merger" of the convictions under §§ 2113 (a) and (d), Prince v. United States, 352

7 See, e. g., United States v. Sharpe, 452 F. 2d 1117, 1119 (CA1); United States v. Ploof, 464 F. 2d 116, 119-120 (CA2); United States v. Roach, 321 F. 2d 1, 6 (CA3); Phillips v. United States, 518 F. 2d 108, 110 (CA4); United States v. Sellers, 520 F. 2d 1281, 1286 (CA4); United States v. Harris, 346 F. 2d 182, 184 (CA4); United States v. Abercrombie, 480 F. 2d 961, 964–965 (CA5); Ethridge v. United States, 494 F. 2d 351 (CA6); United States v. Dixon, 507 F. 2d 683 (CA8); United States v. Tyler, 466 F. 2d 920 (CA9); Keating v. United States, 413 F. 2d 1028 (CA9); Glass v. United States, 351 F.2d 678 (CA10).

U. S. 322, the merger could not include the conviction under § 2113 (c). Receipt or possession of the proceeds of a bank robbery in violation of § 2113 (c) is simply not a lesser included offense within the total framework of the bank robbery provisions of § 2113. Rather, § 2113 (c) reaches a different "group of wrongdoers," i. e., "those who receive the loot from the robber."

The Court of Appeals was mistaken, however, in supposing that our decision in Milanovich required the ordering of a new trial as the "proper appellate remedy" for the District Judge's error in this case. The very unusual facts in that case were wholly different from those presented here.

In Milanovich there was evidence that the petitioner and her husband, "as owners of an automobile, transported three others under an arrangement whereby the three were to break into a United States naval commissary building with a view to stealing government funds," that she and her husband "were to remain outside for the return of their accomplices after the accomplishment of the theft," but that they "drove off without awaiting the return of their friends." If believed by the jury, this evidence was clearly sufficient to support a verdict that the petitioner was guilty of robbing the naval commissary. There was also evidence in Milanovich, however, of other and different conduct on the part of the petitioner that about 17 days after the naval commissary robbery she had obtained and appropriated silver currency taken in the robbery and concealed the same in a suitcase in her home.10 If believed by the jury, this evidence was clearly sufficient to support a verdict that the petitioner was guilty of receiving and concealing the

8 365 U. S., at 557 (dissenting opinion).

918 U. S. C. §§ 641, 2.

10 365 U. S., at 554-555, n. 5.

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stolen property." The trial judge refused to instruct the jury that the petitioner could not be convicted for both stealing and receiving the same currency, and she was convicted and separately sentenced on both counts. This Court held that under Heflin the jury should have been instructed that the petitioner could not be separately convicted for stealing and receiving the proceeds of the same theft. Since it was impossible to say upon which count, if either, a properly instructed jury would have convicted the petitioner, and in view of the grossly disparate sentences imposed upon the petitioner and upon her husband (who was convicted only upon the larceny count), her convictions were set aside and the case was remanded for a new trial.

The present case is of a very different order. While the evidence was certainly sufficient to support a jury verdict that the respondents were guilty beyond a reasonable doubt of aggravated bank robbery, there was no evidence whatever that they were guilty of receiving the proceeds "from the robber." Indeed, except for the evidence of asportation during the robbery itself, there was nothing to show that the respondents had ever received or possessed the bank's funds. Their share of the loot was, in fact, never found. Accordingly, the trial judge should have dismissed Count 3 of the indictment. His error in not doing so can be fully corrected now by the simple expedient of vacating the convictions and sentences under that count.12

In many prosecutions under 18 U. S. C. § 2113 the evidence will not, of course, be so clearcut as in the

11 18 U. S. C. § 641.

12 In light of Prince v. United States, 352 U. S. 322, the concurrent sentences under Counts 1 and 2 should also be vacated, leaving the respondents under single 25-year prison sentences for violating 18 U. S. C. § 2113 (d).

14

present case. Situations will no doubt often exist where there is evidence before a grand jury or prosecutor that a certain person participated in a bank robbery and also evidence that that person, though not himself the robber, at least knowingly received the proceeds of the robbery.13 In such a case there can be no impropriety for a grand jury to return an indictment or for a prosecutor to file an information containing counts charging violations of 18 U. S. C. § 2113 (a), (b), or (d), as well as of § 2113 (c). If, upon the trial of the case the District Judge is satisfied that there is sufficient evidence to go to the jury upon both counts, he must, under Heflin and Milanovich, instruct the members of the jury that they may not convict the defendant both for robbing a bank and for receiving the proceeds of the robbery. He should instruct them that they must first consider the charges under § 2113 (a), (b), or (d), and should consider the charge under § 2113 (c) only if they find insufficient proof that the defendant himself was a participant in the robbery.15

13 Such a case is not hard to hypothesize. A grand jury or prosecutor may often possess clear evidence that the proceeds of a bank robbery were found in a certain person's possession, and less certain eyewitness or circumstantial evidence that that person was an actual participant in the robbery.

14 The statement to the contrary in a dissenting opinion in Milanovich, 365 U. S., at 558, is incorrect.

15 If, on the other hand, the indictment or information charges only a violation of § 2113 (c), it is incumbent upon the prosecution at trial to prove beyond a reasonable doubt only the elements of that offense, and the identity of the participant or participants in the robbery or theft is irrelevant to the issue of the defendant's guilt. While a mechanistic reading of Heflin's language might not wholly support this rule, it is to be remembered that Heflin ultimately held no more than that a person could not be convicted and separately sentenced under § 2113 (a), (b), or (d) and under § 2113 (c) because §2113 (c) could not be used to "pyramid penalties." 358