UNITED STATES of America, Plaintiff-Appellee, v. Carl L. COMBS, Defendant-Appellant.
No. 80-1071.
United States Court of Appeals, Tenth Circuit.
Decided Nov. 18, 1980.
1295
Argued and Submitted May 5, 1980.
We have considered all of the points raised by the defendants and have been unable to find merit in any of them or, for that matter, in the case as a whole. The thread or thrust discernible in the defense which the defendants have sought to assert is first, that the defendants did not know that the information which they were communicating to the public was false and secondly, that they acted at all times in good faith. There is ample evidence in the record that these three defendants not only knew that the representations were false, but that they fostered the giving of such false facts. This was for the purpose of either persuading members of the public to make purchases or to maintain the status quo with those who had already made purchases and who were becoming apprehensive.
Accordingly the cause is remanded for the corrections last mentioned only. Otherwise the judgments are all affirmed.
R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
Thomas S. Udall, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., with him on brief), for plaintiff-appellee.
Before McKAY, BREITENSTEIN and LOGAN, Circuit Judges.
Carl L. Combs appeals from his conviction for violating the Federal Bank Robbery Act,
In November 1979 defendant was charged in two counts of a single indictment with violating
Defendant pleaded not guilty to both counts at his arraignment. In December 1979, prior to trial, he changed his plea on Count II to guilty. The court accepted the plea after following the procedures set forth in Fed.R.Crim.P. 11 but entered no judgment or final order. Count I was not dismissed at that time. In January 1980 defendant moved for dismissal of Count I for double jeopardy reasons. Four days later the motion was denied, and trial was held to a jury on Count I, resulting in a verdict of guilty. The judge merged the verdicts based on the plea and the jury conviction, and gave one sentence of twenty years. This is the maximum allowable sentence under subsection (a), five years less than the maximum under subsection (d), but ten years in excess of that allowed by subsection (b). The issues we must decide are (1) whether bank larceny and bank robbery are the same offense in this context, and if so, (2) whether the trial on the bank robbery count violated the Double Jeopardy Clause.
The trial judge concluded that jeopardy had attached when he accepted the guilty plea on Count II, but he held that the offenses charged were not the same offense for double jeopardy purposes and thus no
I
The Double Jeopardy Clause of the
The trial court here concluded bank larceny and bank robbery are not the same offense for double jeopardy purposes, reasoning first that bank larceny requires proof of the specific intent to steal or purloin, while bank robbery requires only general intent. Second, recognizing that of
Bank robbery and bank larceny as proscribed in
When offenses are the same for purposes of barring consecutive sentences, “they necessarily will be the same for purposes of barring successive prosecutions.” Brown v. Ohio, 432 U.S. 161, 166 (1977). Therefore, the offenses charged in the indictment against Combs are the same offense for purposes of double jeopardy analysis.
II
We now must consider defendant‘s claim that the trial court‘s failure to dismiss Count I following its acceptance of the guilty plea on Count II, but, before judgment and sentencing, resulted in defendant being twice placed in jeopardy for the same offense.
The Double Jeopardy Clause prohibits multiple punishment for the same offense and successive prosecution after either an acquittal or a conviction for the same offense. Illinois v. Vitale, 447 U.S. 410 (1980); Brown v. Ohio, 432 U.S. 161, 165 (1976).
No multiple punishment problem is presented in this case because at the end of trial, the judge merged the guilty plea and the jury verdict and imposed a single sentence. See Green v. United States, 365 U.S. 301, 305-06 (1961) (formal defect of sentencing on lesser offense under
The principles prohibiting successive prosecutions embody “a constitutional policy of finality for the defendant‘s benefit,” United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality opinion), that “serves principally as a restraint on courts and prosecutors.” Brown v. Ohio, 432 U.S. 161, 165 (1977). This policy prohibits the government from relitigating a prior acquittal. See Ashe v. Swenson, 397 U.S. 436 (1970); Green v. United States, 355 U.S. 184, 190 n.11 (1957). Furthermore, it protects a defendant from attempts to relitigate a prior conviction for the same offense. Brown v. Ohio, 432 U.S. 161 (1977); In re Nielsen, 131 U.S. 176 (1889). Accordingly, a prosecutor dissatisfied with a sentence cannot reinstitute charges against the defendant in an attempt to achieve what the prosecutor believes to be a more “just” punishment. See generally Twice in Jeopardy, 75 Yale L.J. 262, 262-67, 277-83 (1965).
In the instant case, we face the question whether the trial on Count I after the guilty plea on Count II was an imper
Defendant was entitled to request withdrawal of his plea. Fed.R.Crim.P. 32(d). See Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967). The court could have withdrawn the plea even over an objection by defendant upon determining that there was no factual basis for it. Fed.R.Crim.P. 11(f). Until entry of judgment and sentencing on the accepted guilty plea, defendant had not been formally convicted. See High v. United States, 288 F.2d 427 (D.C. Cir.), cert. denied, 366 U.S. 923 (1961). But see United States v. Rocco, 397 F.Supp. 655 (D.Mass. 1975) (holding jeopardy attaches when the guilty plea is accepted).
Although defendant‘s plea terminated one-half of the inquiry, it did not terminate the trial. The judge accepted defendant‘s plea but deferred judgment until after the full trial. Thus, defendant was required to prepare for and participate in a single trial. Defendant candidly concedes the plea on Count II was given to avoid trial and to lay a foundation for raising a double jeopardy defense. Defendant asserts he was entitled to plead guilty to bank larceny and end the prosecution because the offenses were set forth in separate counts, even though he would not have been able to so plead had both offenses been placed in a single count. See United States v. Gray, 448 F.2d 164 (9th Cir. 1971), cert. denied, 405 U.S. 926 (1972). We see no constitutional principle that suggests the manner of pleading a single indictment should affect the question of double jeopardy. See United States v. Goldman, 352 F.2d 263 (3d Cir. 1965). The fact that Goldman involved a plea of guilty to one of two counts during the course of trial is not a basis for distinguishing it from the present case.
For these reasons, the judgment is AFFIRMED.
BREITENSTEIN, Circuit Judge, concurring in part and dissenting in part.
My colleagues agree that for the purpose of double jeopardy analysis Counts I and II are the same offense. I do not agree and therefore dissent. Judge Logan affirms the conviction because the case presents a sin
Count I charges violation of
The joinder of offenses was proper under Rule 8(a), F.R.Crim.P. Subsection (a) requires proof of violence or intimidation with general intent to deprive a bank of something of value. Subsection (b) requires proof of taking with the specific intent to steal. Under the test held applicable for determination of whether two offenses are the same for double jeopardy purposes, see Blockburger v. United States, 284 U.S. 299, 304 (1932); Brown v. Ohio, 432 U.S. 161, 166 (1977), and Illinois v. Vitale, 447 U.S. 410 (1980), double jeopardy does not bar the trial on Count I.
Cumulative sentences under
The law applicable to lesser included offenses is of no pertinence. Rule 8(a) requires that there be a separate count for each offense. A joinder of subsection (a) with subsection (b) violates the rule and is duplicitous. The prime reason for the rule against duplicity is the protection of the defendant. See United States v. Starks, 515 F.2d 112, 116-117 (3d Cir. 1975). We are not concerned with what might have happened but with what did happen.
We have one episode, one indictment with two properly joined counts, a guilty plea to one count, a guilty verdict on the other count, one trial, and one noncumulative sentence. When defendant pleaded guilty to Count II, the offense carrying the lesser penalty, both he and his lawyer knew that the plea did not dispose of Count I which carried the greater penalty. The plea was made with the intent to establish a basis for a double jeopardy claim. In accepting the guilty plea to Count II, the court fully complied with Rule 11, F.R.Crim.P. Sentence was deferred. After the guilty verdict on Count I, the court merged the two counts for sentence. Defendant makes no claim of prosecutorial or judicial overreaching, oppression, harassment, or other misconduct.
Discussion of whether acceptance of a guilty plea is tantamount to a jury verdict and of whether acceptance of such plea is a judgment has no pertinence to the instant case. Not only do we have a single prosecution but also a situation for which the defendant is solely responsible. Acceptance of a double jeopardy claim in the situation presented will throw the criminal law into a state of confusion. Neither the prosecution nor the court will know how to proceed when one episode presents plural offenses.
United States v. Scott, 437 U.S. 82, 99 (1978) says that “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Defendant made his choice with full knowledge that the government intended to proceed on Count I. His clever maneuver does not forestall trial and conviction of Count I. The judgment should be affirmed.
McKAY, Circuit Judge, concurring in part and dissenting in part:
I fully concur with Part I of Judge Logan‘s opinion, which concludes that bank larceny and bank robbery are the “same offence” for double jeopardy purposes. However, I cannot agree with Part II. The conclusion that acceptance of a guilty plea for bank larceny does not bar trial for bank robbery is based on a formalistic distinction unrelated to double jeopardy policies and in my view works serious damage to the fabric of double jeopardy protection.
If the district court had entered judgment and imposed sentence on the guilty plea for larceny, trial on the robbery charge would have been impermissible. I fail to see how in logic or policy the defendant‘s double jeopardy protection should turn on whether or not, after accepting a guilty plea, the judge has performed the formal act of entering judgment and imposing sentence.
The time at which jeopardy attaches is “the lynchpin for all double jeopardy jurisprudence.” Crist v. Bretz, 437 U.S. 28, 38 (1978) (quoting Bretz v. Crist, 546 F.2d 1336, 1343 (9th Cir. 1976)). In a criminal proceeding which eventuates in trial, jeopardy attaches when the jury is sworn; in a nonjury trial, it attaches when the judge begins to receive evidence. Serfass v. United States, 420 U.S. 377, 388 (1975). Where there is no plenary trial because the defendant pleads guilty, the case law clearly indicates that jeopardy attaches upon the court‘s acceptance of the guilty plea, unless the plea is made in a sham proceeding or the court lacks jurisdiction. See, e. g., United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973); Annot., 75 A.L.R.2d 683 (1961). Guilt is established by the guilty plea, and the plea is ordinarily tantamount to a conviction. E. g., Kercheval v. United States, 274 U.S. 220, 223 (1927) (“A plea of guilty ... is itself a conviction. Like a verdict of a jury it is conclusive. ... [T]he court has nothing to do but give judgment and sentence.“).
Jeopardy means exposure to the risk of a determination of guilt or innocence. A defendant who pleads guilty and has his guilty plea accepted by the court obviously faces the risk of a determination of guilt. This risk is worthy of double jeopardy protection. By pleading guilty, the defendant admits all material facts alleged in the charge, Kahl v. United States, 204 F.2d 864, 866 (10th Cir. 1953), and waives nonjurisdictional defects in the proceeding. 1 C. Wright, Federal Practice and Procedure § 175, at 380-82 (1969). He also waives several constitutional rights, including the privilege against self-incrimination, the right to trial by jury, and the right to confront accusers, see McCarthy v. United States, 394 U.S. 459, 466 (1969), as well as his right to object to some, though not all, antecedent constitutional violations, see Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam); Tollett v. Henderson, 411 U.S. 258, 266 (1973). A plea of guilty leaves the court nothing to do but impose sentence and enter judgment. 1 C. Wright, Federal Practice and Procedure § 175, at 379 (1969).1
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
If the court has accepted a guilty plea, but nevertheless proceeds to trial on the same or a greater or lesser included offense, the “embarrassment, expense and ordeal,” the “continuing state of anxiety and insecurity,” and any increased risk of unjust conviction are the same whether the district judge has entered formal judgment or not. Surely the formality of entering judgment is not a talisman at which double jeopardy protection suddenly appears. As a general rule, the fifth amendment double jeopardy protection should apply whenever the dangers the clause was designed to prevent are implicated. That they are implicated here is beyond question. Once a defendant‘s guilt has been determined, it violates the very core of the double jeopardy clause to constrain him to undergo the trauma of trial for the same offense. See United States v. Myles, 430 F.Supp. 98, 101 (D.D.C. 1977) (“[T]he prohibition against multiple punishments and repeated prosecutions also means that once a person has pleaded guilty to a charge, he may not subsequently be prosecuted on other charges that allege the ‘same offence.’ “), aff‘d mem., 569 F.2d 161 (D.C.Cir.1978).
The judge‘s acceptance of a guilty plea is analogous to a jury‘s verdict. Kercheval v. United States, 274 U.S. 220, 223 (1927); United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973); United States v. Fox, 130 F.2d 56, 58 (3d Cir. 1942) (“The defendant in this case was not found guilty by a jury of his peers but by his own plea.... [T]hat is a distinction without a difference.“), cert. denied, 317 U.S. 666 (1942). But cf. United States v. Williams, 534 F.2d 119, 121-22 (8th Cir.), cert. denied, 429 U.S. 894 (1976); United States v. Anderson, 514 F.2d 583, 587 (7th Cir. 1975); Ward v. Page, 424 F.2d 491, 493 (10th Cir. 1970). Had this defendant been tried before a jury, the trial judge‘s failure to enter judgment and impose sentence after the jury‘s verdict would make no difference for double jeopardy purposes. Retrial for the same charge, or for a charge which is constitutionally considered to be the “same offence,” would be barred. We should not adopt a different rule for defendants who plead guilty rather than place their guilt in issue. Such a distinction is an unjustifiable reversion to a narrow English view of double jeopardy protection.2
Society‘s interest in having one complete and fair opportunity to convict an accused, as important as it is, may not override a constitutional protection. In any case, that societal interest was clearly vindicated here: a conviction was assured, and the defendant faced a possible ten-year sentence after the acceptance of the guilty plea. Society has no interest in subjecting an accused to a trial for a trial‘s sake alone. The extraordinary expenditure of judicial time at both the trial and appellate levels in this case was directed not at securing a conviction for a serious crime, but only at extending an already potentially severe sentence.
A new trial after a mistrial and an appeal from a midtrial dismissal can each be characterized as a single criminal prosecution. Such labeling does not obviate the need to analyze each such situation in light of double jeopardy principles, however. Both involve serious double jeopardy concerns and are permitted only in carefully defined circumstances. See United States v. Scott, 437 U.S. 82, 98 (1978) (government appeal from midtrial dismissal); United States v. Jorn, 400 U.S. 470 (1971) (plurality opinion) (mistrial).
United States v. Goldman, 352 F.2d 263 (3d Cir. 1965), cited in Part II of the opinion, concluded that acceptance of a defendant‘s change of plea to guilty on one count of a two-count indictment during trial was not a judgment, and that continuation of trial on the other count did not violate the double jeopardy clause. However, the same circuit has also held that jeopardy attaches upon acceptance of a guilty plea. United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973). In the case before us jeopardy attached to Count II when the court accepted the defendant‘s guilty plea. It attached to Count I when trial of Count I began. Since Counts I and II are the same offense for double jeopardy purposes, the defendant was twice put in jeopardy for the same offense.
Also cited in Part II of the opinion is United States v. Scarlata, 214 F.2d 807 (3d Cir. 1954). However, Scarlata merely held that a plea of guilty is not a “judgment of conviction” as that phrase is used in
There is double jeopardy language in the appellant‘s brief. If, by that language, it is intended to raise a constitutional argument, no more need be said than that it is absolutely without merit.
214 F.2d at 809. The reason the court rejected the appellant‘s double jeopardy argument, such as it was, is obvious. The Supreme Court has held that the double jeopardy clause does not prohibit a federal prosecution after a state prosecution. Abbate v. United States, 359 U.S. 187 (1959).
The only reference Scarlata made to the issue before us tends to contradict rather than support Part II of the opinion: “It may well be that a plea of guilty is a conviction in the same sense in which a jury verdict is a conviction.” 214 F.2d at 809.
In short, we are not dealing with apples and oranges here. We are dealing with one big apple which the Government chose to package in two parts. It had the right to do so, but must bear the consequences of its choice. Jeopardy attached upon acceptance of defendant‘s guilty plea as to count one.
The better procedure for the government to follow in a case such as this is to charge the defendant with the greater offense, and then to request a lesser included offense instruction. See generally Keeble v. United States, 412 U.S. 205, 208 (1973); Fed.R.Crim.P. 31(c). But see Ekberg v. United States, 167 F.2d 380, 385 (1st Cir. 1948).
There are several reasons why the government might charge both the greater and lesser included offenses in an indictment: (1) the government might mistakenly believe that they are not greater and lesser included offenses, but separate offenses; (2) to obtain a more favorable position for plea negotiation; and (3) to enhance the possibility of conviction on a single count by creating the impression that multiple offenses were committed, United States v. Mamber, 127 F.Supp. 925, 927 (D.Mass.1955).4 In even the most innocent of the above circumstances, where the government is mistaken, the consequences of the error should fall on the government, not on the defendant.5
This is a straightforward bank robbery case in which the prosecution could have had little doubt of success. From charge through appeal the prosecution has tried to squeeze multiple convictions and sentences from one criminal act. When the defendant sought to counter this increasingly common prosecutorial practice (“piling on the charges” in order to “up the ante“)6 by electing to plead guilty to the lesser included offense, the trial court permitted the prosecution to escape the consequences of its action. This court now joins in placing the sole risk and burden of such practices on the defendant. If society‘s interests were not fully vindicated by the procedures followed, the fault was the prosecution‘s, not the defendant‘s.
Notes
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association;
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both;
(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.
Although a defendant may move for withdrawal of the guilty plea, he is not entitled to such withdrawal as a matter of right. Granting leave to withdraw the plea is discretionary with the trial court, and an appellate court will rarely interfere with this discretion. 2 C. Wright, Federal Practice and Procedure § 537, at 464 (1969). A defendant who has entered a guilty plea on the advice of competent counsel must usually have some reason for attempting to withdraw the plea other than just a desire to stand trial. Everett v. United States, 336 F.2d 979, 984 (D.C.Cir.1964); 2 C. Wright, Federal Practice and Procedure § 537, at 467-69 (1969). Thus, defendant did not have it within his power, as the majority implies, to remove himself from jeopardy.