# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 19, 2012 *

Decided November 19, 2012

Before

WILLIAM J. BAUER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11

‐ 3362

MICKEY L. DOOLEY,

Movant

‐ Appellant

,

v.

UNITED STATES OF AMERICA,

Respondent

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 10

‐ 165

‐ GPM

G. Patrick Murphy,

Judge

.

O R D E R

Mickey Dooley, a former police officer, appeals from the denial of his motion to

vacate his federal convictions arising from the thefts of money and other property from his

department’s evidence vault. See 28 U.S.C. § 2255. Dooley claims that his trial attorney

provided ineffective assistance and argues that the district court should have granted him

an evidentiary hearing to prove that claim. We affirm the district court’s decision. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral argument

is unnecessary. The appeal is thus submitted on the brief and the record. See Fed. R. App. P.

34(a)(2)(C).No. 11

‐ 3362 Page 2

Dooley worked as an evidence custodian for the police department in Alton, Illinois.

His responsibilities included securing evidence collected from crime scenes, and he

possessed one of the five access cards allowing entry to the vault area. He also was the only

employee with keys to the vault and a cash locker inside; the only other copy of each key

was kept in the administration wing of the building.

After robberies at two local banks, successful police work led to arrests and recovery

of part of the loot. Dooley took possession of the money, and when the FBI later asked for it

to use as evidence in a federal prosecution against the robbers, Dooley arranged the

transfer. But the FBI soon realized that $39,000 was missing, and Dooley quickly became the

focus of investigation when review of video from a vault surveillance camera confirmed

that he twice had entered the vault despite the police chief’s directive that all personnel stay

out while the loss of the money was being investigated. An audit of the vault’s contents

showed that additional items from other crime scenes, including a laptop computer, also

were missing. Investigators confronted Dooley, who at first denied but then admitted

stealing the laptop. He would not admit taking the robbery proceeds.

Dooley was charged with lying to investigators, 18 U.S.C. § 1001(a)(2); attempting to

conceal evidence, id. § 1512(c)(1); disposing of money stolen from a bank, id. § 2113(c);

misapplication of property by an employee of a federally funded, local government agency,

id. § 666; wire fraud, id. § 1343; and failure to file an income tax return, 26 U.S.C. § 7203. At

trial the government established that all of the stolen property was under Dooley’s exclusive

control as evidence custodian, that his keys to the vault and cash locker were used in the

theft, and that the surveillance video showed him inside the vault handling the missing

items. The government contended that Dooley was stealing from the vault to fund a

gambling habit, and supported that theory with testimony from a casino manager who said

that Dooley had lost nearly $50,000 in a single year. The jury returned a guilty verdict on

each count, and after we upheld all but the conviction for wire fraud, United States v. Dooley

,

578 F.3d 582 (7th Cir. 2009), the district court sentenced Dooley to a total of 120 months’

imprisonment, with concurrent sentences for the separate counts.

Dooley then filed his § 2255 motion. He principally claimed that his lawyer had been

deficient on several fronts, in particular for not arguing that his convictions under § 2113(c)

and § 666 were multiplicitous because both were premised on the thefts from the vault of

money belonging to the banks. Dooley also accused the government of doctoring the video

from the vault surveillance camera as well as misrepresenting his gambling losses. The

district court denied the motion without an evidentiary hearing and declined to grant a

certificate of appealability. Dooley then applied to this court for a certificate, which we

granted but only on the claim of ineffective assistance.No. 11

‐ 3362 Page 3

In that order we encouraged the parties to focus on whether counsel was deficient in

failing to argue “that Dooley could not be simultaneously convicted of stealing goods and

receiving the same stolen goods.” Dooley says the answer is yes, and he also contends that

his lawyer missed an opportunity to undermine the government’s evidence about the

amount of his gambling losses.

According to Dooley, his lawyer was deficient in failing to argue that the “bank

robbery statute does not authorize separate convictions for one person for feloniously

receiving and feloniously taking the same property.” 1 When we granted Dooley’s

application for a certificate of appealability, we did so without benefit of the complete

record. And though Dooley’s description of his convictions under § 2113(c) and § 666

appeared to raise a question that warranted briefing, a closer look reveals that his

characterization of the charged crimes is inaccurate and his legal theory thus untenable.

In Milanovich v. United States

, 365 U.S. 551 (1961), the decision on which Dooley

relies, the Supreme Court held that the defendant could not be twice convicted and

sentenced under 18 U.S.C. § 641 for helping to transport burglars to a military commissary

and then later receiving part of what they stole. The government theorized that the

defendant was guilty of the theft as an accessory, and also guilty of receiving and

concealing loot from that same theft. In rejecting this view, the Court concluded that

Congress had not intended § 641 to allow for separate sentences based on the conversion of

the same property. Id

. at 551–54. That decision followed Heflin v. United States

, 358 U.S. 415

(1959), which holds that a bank robber cannot be sentenced under § 2113(a) for committing

the robbery and then sentenced a second time under § 2113(c) for receiving the proceeds of

the same robbery. We have understood these decisions as relating to the doctrine of merger

and suggested that, as a norm of federal criminal law, “[n]o matter how many statutes a

person violates when preparing to commit a robbery, actually committing it, and handling

the loot, only one sentence is appropriate.” United States v. Loniello

, 610 F.3d 488, 495–96 (7th

Cir. 2010) (explaining Milanovich and Heflin ).

1 Dooley also asserts that counsel was deficient in failing to argue that his conviction

under § 1512(c)(1) for attempting to conceal evidence likewise is multiplicitous when

viewed alongside his convictions for disposing of the robbery proceeds and for

misapplication of property in the custody of the police department. But this claim was not

presented to the district court, and thus is waived. See Wyatt v. United States

, 574 F.3d 455,

459 (7th Cir. 2009); Berkey v. United States

, 318 F.3d 768, 774 (7th Cir. 2003). We note,

however, that the concealed evidence underlying the § 1512(c)(1) conviction is the laptop

computer, not the money stolen from the banks, so this claim would have failed even if

Dooley had preserved and developed it.No. 11

‐ 3362 Page 4

Dooley’s case is different. In Milanovich the defendant was convicted and separately

sentenced both for “stealing” from the commissary and also for “receiving” what was

stolen. In contrast, Dooley was convicted under § 2113(c) for “disposing” of money stolen

during bank robberies that were committed by others without his knowledge or

involvement, and under § 666 for misapplying funds in the care of his federally funded,

local employer. The former statute deals with receiving money that another person had

stolen from a bank, see United States v. Gaddis

, 424 U.S. 544, 547–48 (1976); Loniello

, 610 F.3d

at 495, whereas the latter concerns public corruption, see United States v. Thompson

, 484 F.3d

877, 881 (7th Cir. 2007). Spending money from a bank heist does not merge into

misappropriating evidence from a police vault, even if that evidence happens to be the

bank’s missing money. So there is no basis to conclude that counsel’s performance was

deficient. In any event, Dooley’s sentences effectively do merge because he is serving them

concurrently; that his lawyer refrained from making a multiplicity claim thus caused no

prejudice, see Strickland v. Washington

, 466 U.S. 668, 687 (1984); Pole v. Randolph

, 570 F.3d 922,

934 (7th Cir. 2009).

Dooley’s other criticism of counsel is that he never objected to the use of casino

records which, according to the government, show losses of nearly $50,000. Dooley asserts

that those records also establish that he won over $57,000 in jackpots during that year, so he

could not have come out behind, and thus his lawyer missed an opportunity to disprove the

government’s theory of motive for the crimes. But Dooley misstates the evidence. The

casino’s accounting manager did not testify that Dooley lost $50,000 in individual bets.

Instead, she accounted for Dooley’s winnings by testifying that, “at the end of the day, the

casino was ahead $48,424.95.” Once again, there is no basis to conclude that counsel’s

performance was deficient, and neither was an evidentiary hearing needed before drawing

that conclusion. See Kafo v. United States

, 467 F.3d 1063, 1067 (7th Cir. 2006).

Finally, Dooley argues that the district court erred by concluding that he failed to

substantiate his accusations that the government used fraudulent evidence to secure his

convictions. But this contention is outside the scope of our certificate of appealibility, and so

we decline to review it. See 28 U.S.C. § 2253(c)(3); Lavin v. Rednour

, 641 F.3d 830, 832 (7th

Cir. 2011); Rodriguez v. Scillia

, 193 F.3d 913, 920 (7th Cir. 1999).

AFFIRMED.