* District Judge of the Southern District of Texas, sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-4433

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MONDEE STRACENER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

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Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY,*

District Judge.

JERRY E. SMITH, Circuit Judge:

I.

Mondee Stracener was charged in six counts of a twelve-count

indictment and was convicted of all six counts, and this court

affirmed his convictions. United States v. Dean, No. 86-2620

(Feb. 17, 1987) (per curiam) (unpublished). Stracener then

presented a petition for writ of habeas corpus pursuant to 28
1 The district court vacated the following three convictions: (1) aiding

and abetting armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d)

and 18 U.S.C. § 2 (count 6); (2) aiding and abetting kidnapping in the course

of a bank robbery in violation of 18 U.S.C. §§ 2113(a) and (e) and 18 U.S.C.

§ 2 (count 7); and (3) aiding and abetting carrying a weapon during the

commission of a crime of violence in violation of 18 U.S.C. § 924(c) and 18

U.S.C. § 2. These convictions could not stand because the jury was not

instructed to determine whether Stracener had the intent that a weapon be used

or that a kidnapping take place.

 

2

U.S.C. § 2255, arguing, inter alia, that he had received ineffective assistance of counsel, that the prosecutor's improper comments

warranted reversal, and that the government had failed to inform

him that the main witness against him had been temporarily

committed to a mental institution. A magistrate recommended

partial relief, and the district court held that Stracener had

received ineffective assistance of counsel when his trial attorney

failed to object to jury instructions that allowed convictions for

aiding and abetting aggravated bank robbery without requiring the

jury to find that Stracener had specifically aided and abetted the

aggravating element, in this case, use of a gun and kidnapping.

The district court vacated Stracener's convictions on three counts

and resentenced him on the lesser included offense of simple bank

robbery.1

The district court adopted the magistrate's findings that the

prosecutor's comments did not violate his constitutional rights or

deprive him of a fair trial and that Stracener's allegations

concerning the witness's mental illness were unsupported by the

record. Stracener appeals the disposition of these three issues.

Finding no error, we affirm.
3

II.

Relying upon United States v. Milanovich, 365 U.S. 551 (1961),

Stracener contends that the resentencing procedure put him twice in

jeopardy. The defendant in Milanovich was convicted of both

larceny and receiving stolen property. The Court held that these

verdicts were inconsistent and reversed both convictions on the

ground that "there is no way of knowing whether a properly

instructed jury would have found the [defendant] guilty of larceny

or of receiving (or, conceivably, of neither)." Id. at 555.

Stracener relies upon the Court's dicta to suggest that a correctly

instructed jury might have acquitted him, rather than finding him

guilty of simple robbery. As pure dicta, the Court's parenthetical

comment does not have binding force. Moreover, its reasoning has

been undermined by subsequent cases.

This court consistently has held that Milanovich does not

require a new trial when multiple overlapping convictions create

double jeopardy. United States v. White, 440 F.2d 978 (5th Cir.),

cert. denied, 404 U.S. 839 (1971). Moreover, when one of two

inconsistent verdicts must be struck for other reasons, the Supreme

Court has held that resentencing, not a new trial, is the proper

remedy. United States v. Gaddis, 424 U.S. 544 (1975).

Milanovich applies only to inconsistent verdicts, not

overlapping ones. In White, the defendant was convicted of

violating section 2113(a) (entering bank with intent to rob) and

section 2113(b) (larceny of bank). Since section 2113(b) was a

lesser included offense of section 2113(a), the counts overlapped
4

but were not inconsistent. This court held that therefore

Milanovich did not apply and that resentencing on one conviction

only was the proper remedy. See also United States v. Mori, 444

F.2d 240, 245-46 (5th Cir.), cert. denied, 404 U.S. 913 (1971)

(resentencing appropriate where defendant was convicted of two

conspiracies that were found on appeal to be one). 

In White, the defendant was convicted and sentenced separately

for two offenses, one of which was a lesser-included of the other.

In the instant case, Stracener was convicted of three aggravated

offenses, which of necessity encompassed any lesser-included

offenses. Since the convictions on the aggravated offenses, but

not the lesser-included offense, were flawed, the district court

properly vacated the flawed convictions, entered judgment on the

lesser-included offense, and resentenced the defendant. See Tapp

v. Lucas, 658 F.2d 383, 386 (5th Cir. Unit A Oct. 1981), cert.

denied, 456 U.S. 972 (1982).

When one of two inconsistent verdicts must be struck for other

reasons, resentencing is the proper remedy. In Gaddis, the

defendants were convicted of robbery and receiving stolen property.

No evidence was presented that the defendants received stolen

property, however. Although the verdicts were inconsistent, the

Court did not reverse both convictions. Instead, it simply vacated

the conviction that was not supported by the evidence and the

sentence under that count. 

The Court in Gaddis found that resentencing did not usurp the

jury's role, because, in light of the insufficient proof, the jury
5

properly could have convicted the defendants on only one count. See

also United States v. Nelson, 574 F.2d 277, 282-83 (5th Cir.),

cert. denied, 439 U.S. 956 (1978) (resentencing appropriate where

verdicts inconsistent but jury note indicated jury's intent).

Similarly, resentencing Stracener did not usurp the jury's role,

because, in light of the faulty instructions, the jury properly

could have convicted Stracener only for simple robbery in violation

of section 2113(a). 

Stracener was convicted under count 6 of violating sections

2113(a) and 2113(d). The jury instructions describing a violation

of section 2113(d) were inaccurate, but the instructions describing

a violation of section 2113(a) were correct. Under White and

Gaddis, the proper remedy is resentencing, not a new trial. 

III.

After examining the record, we agree with the district court

that the prosecutor's comments, in light of the admonitions by the

trial court, did not deny Stracener a fair trial. Finally,

Stracener's allegations concerning the witness's mental illness are

conclusory allegations not supported in the record and thus do not

raise a constitutional issue. See Ross v. Estelle, 694 F.2d 1008,

1012 (5th Cir. 1983).

AFFIRMED.