UNITED STATES of America v. David D. SCHOOLCRAFT, Appellant.
No. 88-5757.
United States Court of Appeals, Third Circuit.
June 22, 1989.
Rehearing and Rehearing In Banc Denied July 18, 1989.
879 F.2d 64
Argued Feb. 3, 1989.
If we consider the district court‘s instruction on the issue of willfulness—an impermissible instruction because no evidence of willfulness appears in the record—in conjunction with all of the other evidence which should not have been heard had the district court properly ruled on the joinder question, it becomes more than highly probable, to the point of certainty, that individually, and combined, the district court‘s errors affected the outcome of this case leading to the “sure conviction that the error[s] did” indeed prejudice Westinghouse. United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986).
VI.
The most egregious error committed by the district court and the one that infects the entire case was its ruling which allowed the joinder of Wilson, Bradley, and Durham, and therefore the testimony of the additional plaintiffs. This error, in my opinion, so tainted the trial proceedings, that without more, this case must be remanded for a new trial. Unfortunately, however, there is “more.”
I have catalogued the other district court errors, almost all of which are admitted by the majority opinion to be erroneous rulings. Given the sheer number of these erroneous rulings which this record presents, and the consequences that flow from them, there can be no question but that the substantial rights of Westinghouse were seriously affected, and substantial justice to Westinghouse was denied. See
I therefore respectfully dissent from so much of the majority‘s opinion which affirms the judgment of the district court.8 I would vacate the entire district court judgment and remand this case for a new trial.
SUR PETITION FOR REHEARING
Before GIBBONS, Chief Judge, and HIGGENBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD and GARTH, Circuit Judges.
A. LEON HIGGENBOTHAM, Jr., Circuit Judge.
The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked fоr rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court in banc, is denied. Judge Hutchinson would grant rehearing before the Court in banc. Judge Garth would grant the petition for panel rehearing for all of the reasons expressed in his panel dissent. See supra, at 59.
William A. Behe, (argued), U.S. Atty.‘s Office, Harrisburg, Pa., for appellee.
Before HUTCHINSON, SCIRICA and NYGAARD, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an appeal from a judgment of conviction and imposition of sentence for violation of
I.
On February 10, 1988, a federal grand jury returned a two count indictment against Schoolcraft. Count one charged a violation of
Before trial, Schoolcraft filed numerous motions, including a motion to dismiss the indictment based on vindictive or selective prosecution. He alleged that the district attorney of Adams County, who had referred the case to the federal authorities for prosecution under the ACCA, was motivated by bad faith and vindictiveness. Schoolcraft requested that the indictment be dismissed with prejudice. The district court denied the motion without a hearing. At the jury trial, Schoolcraft was convicted on both counts of the indictment.
Schoolcraft filed a post-verdict notice of intent to challenge enhanced sentencing, claiming that he lacked the three prior convictions necessary to impose an enhanced sentence under the ACCA. He did not contest the burglary and the robbery offenses as predicate offenses for the purposes of sentencing enhancement, but contended that the prior conviction for escape could not be counted as a predicate conviction under the ACCA since it was neither a violent felony nor a serious drug offense under
At the sentencing hearing, the district court declined to count the escape conviction as a predicate conviction under the
After the imposition of sentence, our court of appeals vacated the Balascsak panel opinion that was followed by the district court in this case. United States v. Balascsak, No. 88-5089 (3d Cir. September 29, 1988) (vacating opinion and judgment and granting rehearing in banc). Schoolcraft filed a timely notice of appeal from the judgment of conviction and imposition of sentence. He asserts that: (1) the district erred in denying without a hearing, his motion to dismiss the indictment on the basis of vindictive or selective prosecution; (2) the government failed to present sufficient evidence that he had been convicted of a crime punishable by imprisonment for a term exceeding one year; and (3) the government failed to establish predicate convictions sufficient to support enhanced sentencing under the ACCA. We have jurisdiction under
II.
Schoolcraft contends that when the Adams County district attorney referred the firearms offenses to the United States attorney for prosecution under the ACCA, the referral was tainted by bad faith and vindictiveness. Schoolcraft makes two principal allegations. First, he claims that the district attorney initially brought state charges against him for rape, carrying a firearm without a license, and ownership of a firearm by a former convict. According to Schoolcraft, the district attorney then referred the firearms counts to the federal authorities knowing that he would be subject to stiffer penalties under the ACCA. In the state prosecution, Schoolcraft says he was convicted of rape, but was granted a new trial.
Second, Schoolcraft alleges that the district attorney, as private counsel, represented private parties opposing Schoolcraft in a contract dispute. According to Schoolcraft, the dispute ended in a settlement favorable to him, and the district attorney told him that if he ever came before him, the district attorney would “nail him to the wall.” Schoolcraft claims that these facts demonstrate that the district attorney‘s referral of the firearms counts to the federal authorities was motivated by bad faith. He argues that the actions of the district attorney constituted both vindictive and selective prosecution and that he was deprived of his right to due process and equal protection of the law.
In both vindictive and selective prosecution claims, we review the district court‘s determinations of fact under the clearly erroneous standard. United States v. Meyer, 810 F.2d 1242, 1244 (D.C.Cir. 1987), cert. denied, U.S., 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988); United States v. Wilson, 639 F.2d 500, 503 n. 2 (9th Cir. 1981); United States v. Ojala, 544 F.2d 940, 944 (8th Cir.1976). The district court‘s application of legal precepts in these claims are given plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981).
Prosecutorial vindictiveness may occur when the government penalizes a defendant for invoking legally protected rights. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed. 2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). There is no prosecutorial vindictiveness, however, where the prosecutor‘s decision to prosecute is based on the usual determinative factors. United States v. Oliver, 787 F.2d 124, 126 (3d Cir.1986) (cit-
In this kind of case, our focus is not on the district attorney‘s actions, but rather on the actions of the United States attorney who prosecuted this case. We note that the role of a separate sovereign in bringing charges against a defendant minimizes the likelihood of prosecutorial abuse. Ballester, 763 F.2d at 370. Indeed, the involvement of a separate sovereign tends to negate a vindictive prosecution claim. Robison, 644 F.2d at 1273. See also United States v. McGriff, 678 F.Supp. 1010, 1012 (E.D.N.Y.1988) (“the doctrine of prosecutorial vindictiveness does not apply to prosecutions brought by different sovereigns, absent a showing that a State prosecution was a stalking horse for a subsequent federal investigation“).
We have addressed the question of prosecutorial vindictiveness in cases with similar facts. In United States v. Fulford, 825 F.2d 3 (3d Cir.1987), the defendant argued that a district attorney pressured federal authorities into seeking the defendant‘s indictment. We stated, “[t]hese allegations fail to set out a claim of vindictiveness on the part of the United States attorney because the charges appear to be directed against the...district attorney.” Id. at 9. Similarly, Schoolcraft has made no allegations against the United States attorney who prosecuted him. Schoolcraft hаs also failed to demonstrate that the decision of the United States attorney to prosecute him was not based on the “usual determinative factors.” Oliver, 787 F.2d at 126. He has also failed to allege that the district attorney was a stalking horse for the federal government.
The defendant bears the initial burden of proof in a vindictive prosecution claim and is required to establish the appearance of vindictiveness. United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir.1984); Robison, 644 F.2d at 1272. The burden then shifts to the prosecution to show that the prosecutor‘s decision to prosecute was justified. Heldt, 745 F.2d at 1280. We hold that Schoolcraft failed to meet his burden. As we have noted, the record reflects no evidence that the decision to prosecute was not based on the “usual determinative factors.” Oliver, 787 F.2d at 126. As in Fulford, “the record demonstrates that [Schoolcraft] did commit an offense against the United States and that his indictment was properly brought in the [Middle] District of Pennsylvania.” Fulford, 825 F.2d at 9. Accordingly, Schoolcraft‘s vindictive prosecution claim cannot be sustained.
Schoolcraft has also failed to demonstrate that his indictment was the result of selective prosecution. A decision to prosecute is selective and violates the right to equal protection when it is made on a discriminatory basis with an improper motive. Government of Virgin Islands v. Harrigan, 791 F.2d 34, 36 (3d Cir.1986) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886); United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980); United States v. Aleman, 609 F.2d 298, 305 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); Crass v. Tennessee Valley Authority, 460 F.Supp. 941, 944 (E.D.Tenn.1978), aff‘d without opinion, 627 F.2d 1089 (6th Cir.1980)). To establish a claim of selective prosecution, Schoolcraft must demonstrate two factors. First, he must provide evidence that persons similarly situated have not been prosecuted. Id. Second, he must show that the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor, or that the prosecution was intended to prevent his exercise of a fundamental right. Id. Schoolcraft bears the burden of proof. United States v. Berrigan, 482 F.2d 171, 174 (3d Cir.1973); United States v. Torquato, 602 F.2d 564, 570 (3d Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979).
In his motion to dismiss the federal indictment, Schoolcraft merely alleged,
III.
Section
We hold that the government presented sufficient evidence of guilt. The government presented the gun registration forms, in which Schoolcraft stated that he had not been convicted of a crime punishable for a term exceeding one year. The gun had been shipped in interstatе commerce and was found in Schoolcraft‘s possession. The government also presented testimony that Schoolcraft had been previously convicted of robbery. State Trooper Peck, a government witness, testified on the classification and penalties for robbery in the Commonwealth of Pennsylvania. He testified that the lowest classification of robbery is a misdemeanor punishable up to seven years in prison; the highest classification is a felony punishable up to 20 years in prison.
Schoolcraft presented no evidence but moved to dismiss count two on the basis that the government did not prove that his robbery conviction was not a misdemeanor. Schoolcraft argued that a copy of certified docket entries, admitted to show that he had been convicted of robbery, did not establish whether the crime was a misdemeanor or felony, and that Trooper Peck‘s testimony was insufficient for this purpose. The district court denied the motion to dismiss.
Schoolcraft‘s argument is based on the premise that the government is required to show that he had been previously convicted of a felony to support a conviction under
Our standard of review in sufficiency of the evidence claims is deferential. “It is not for us to weigh the evidence or to determine the credibility of the witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” United States v. Aguilar, 843 F.2d 155, 157 (3d Cir.) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)), cert. denied sub nom. Sosa v. United States, U.S., 109 S.Ct. 305, 102 L.Ed.2d 324 (1988).
Given this standard, we find that there was sufficient evidence of Schoolcraft‘s guilt. The evidence presented by the government, as recounted above, established each of the elements in
IV.
The government sought enhanced sentencing under the ACCA. Upon conviction of
Schoolcraft‘s sentencing took place on September 21, 1988. He argued that the escape conviction could not be counted under the ACCA, because it was neither a violent felony4 nor a serious drug offense. The district court agreed, and that finding is not disputed on appeal. Of the remaining five convictions, Schoolcraft argued that the last three convictions for armed robbery could not be counted toward enhanced sentencing because he had not yet been convicted of the prior offense for robbery when he committed the three armed robberies. In support, Schoolcraft relied on the dissenting opinion of Chief Judge John Gibbons in United States v. Balascsak, No. 88-5089, slip op. at 14 (3d Cir. September 6, 1988).
A.
The issue before us is whether Schoolcraft is subject to the mandatory sentencing provisions of the ACCA. Schoolcraft‘s first predicate offense, the burglary which occurred in 1978, constitutes a conviction for purposes of sentencing enhancement. United States v. Palmer, 871 F.2d 1202, 1208 (3d Cir.1989) (the legislative history of the ACCA evidences an intention to include burglaries as prior offenses for purposes of sentencing enhancement). Although the second predicate offense, robbery, occurred on May 31, 1980, Schoolcraft was not charged until November 23, 1981. He entered a guilty plea on March 11, 1982 and was sentenced on April 26, 1982. Schoolcraft‘s commission of the three armed robberies, in a two hour period on August 21-22, 1981, occurred before his conviction of robbery, the second predicate offense.
Thus, there is no dispute that the 1978 burglary and the 1980 robbery were properly considered as predicate offenses. The question is whether the 1981 armed robberies can be considered predicate offenses for the purposes of enhanced sentеncing under the ACCA, because these offenses were committed before Schoolcraft was convicted of the 1980 robbery.
We look to our in banc decision in Balascsak. Balascsak presented the question whether a criminal defendant who was convicted of burglary and later convicted of two burglaries committed on a single night could be subject to enhanced sentencing under the ACCA.5 The latter burglaries were committed on the evening of July 10-11, 1981; the first occurred at 10:45 p.m. and the second between 11:00 p.m. and 7:00 a.m. The issue was whether there were “three previous convictions” to support enhanced sentencing under the ACCA.
Under this view, the ACCA does not apply to a person who commits three offenses without twо intervening convictions. “The sort of ‘three-time loser’ which the supporters of the bill had in mind is one who is convicted of one crime, then commits a second, is again convicted, and then commits a third.” At 682. In this case, Schoolcraft had not yet been convicted of his second crime when he committed his third crime. Thus, were we to apply the view enunciated by Chief Judge Gibbons, Schoolcraft would not be subject to enhanced sentencing under the ACCA.
Five members of the court dissented in Balascsak, finding that the ACCA does not mandate that there be intervening convictions before offenses could be counted for enhanced sentencing. “Congress intended that the enhanced penalty provision be applied where the convictions arise from separate criminal episodes or transactions, without regard to when the defendant is convicted of the respective predicate offenses.” Id. at 685. The dissent, written by Judge Morton Greenberg, relied in part on the decisions of other circuits that have considered the issue6 as well as a recent clarification of the ACCA.7 The dissent found that an enhanced sentence is proper where a defendant has three convictions arising from separate and distinct criminal episodes. Id. at 688. Under this analysis, Schoolcraft would be subject to an enhanced sentence, because he was convicted of crimes resulting from three separate criminal episodes.
In an opinion concurring in result only, Judge Edward Becker agreed with Chief Judge Gibbons that the defendant in Balascsak should not be subject to enhanced sentencing. However, Judge Becker agreed with the dissent‘s analysis of the ACCA as well as the “conclusion of a number of Courts of Appeals that Congress intended that, to qualify as triggering offenses for the enhanced penalty, the three previous convictions must each have arisen from separate criminal episodes, but need not be separated by intervening convictions.” Id. at 684. Nevertheless, Judge Becker found that an enhanced sentence was improper because the government had not met its burden of proof in establishing that the second and third burglaries, committed in a relatively short period of time, wеre separate criminal episodes. Id. at 684.
Thus, six members of the court would require three convictions arising from separate criminal episodes to trigger enhanced sentencing under the ACCA, and six mem-
B.
Upon review, we find convincing the views expressed by Judge Greenberg and Judge Becker in their dissenting and concurring opinions in Balascsak. We are also guided by the decisions of other courts of appeals that have examined this matter. The issue of enhanced sentencing under the ACCA has frequently arisen in cases wherе the defendant received multiple convictions in a single judicial proceeding. In each of these cases, courts have held that the individual convictions may be counted for purposes of sentencing enhancement so long as the criminal episodes underlying the convictions were distinct in time. United States v. Rush, 840 F.2d 580, 581 (8th Cir.) (“it is the criminal episodes underlying the convictions, not the dates of conviction, that must be distinct to trigger the provisions of the ACCA“), cert. denied, U.S., 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988); United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988) (“multiple convictions arising from multiple criminal transactions should be treated as separate convictions“), cert. denied, U.S., 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Wicks, 833 F.2d 192, 193 (9th Cir.1987) (finding that the language of the ACCA “encompasses any person with three predicate convictions, whenever obtained“), cert. denied, U.S., 109 S.Ct. 87, 102 L.Ed.2d 63 (1988); United States v. Greene, 810 F.2d 999, 1000 (11th Cir.1986) (four convictions arising out of one indictment may be counted for sentencing enhancement where the convictions arose from separate episodes); see also United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, U.S., 109 S.Ct. 264, 102 L.Ed.2d 252 (1988).
Other courts of appeal, like this court in Balascsak, have examined the ACCA to determine if multiple convictions arising out of a single spasm of criminal activity may be counted for sentencing enhancement. In these cases, courts considered whether to count merely the number of convictions obtained against the defendant, or whether to count the number of convictions obtained from separate criminal episodes. In each case, the “separate episode” test was adopted. Recently, the Second Circuit stated that “it is fairly well-established in other сircuits that
Therefore, as noted in United States v. Towne, “every federal court of appeals that has considered the issue has adopted the multiple episodes approach ... thesе courts have ‘simply required that the criminal episodes be distinct in time.‘” 870 F.2d at 889-90 (quoting Brief of United States Solicitor General filed in Opposition to Defendant‘s Petition for Certiorari at 5, in United States v. Wicks, No. 87-6807 (U.S. 1988)). While these decisions are not binding us, we find their reasoning persuasive. Furthermore, our own examination of the statute brings us to the same conclusion, namely that the statute does not require that the three predicate offenses be sepa-
C.
When we interpret a statute, the starting point must be the language of the statute itself. Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980). If the terms of the statute are plain and unambiguous, judicial inquiry is complete. Burlington Northern Railroad Co. v. Oklahoma Tax Comm‘n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987). If the language of the statute is ambiguous, we then look to the legislative history as a guide to the meaning of the statute. Cf. Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978); see also Herbert, 860 F.2d at 621.
Section
By contrast, in this case, we look to the statute to determine if the language requires that the “convictions” must occur before the commission of the crime underlying a subsequent predicate conviction. We observe no such requirement in the plain language of the statute, and find the language of the statute unambiguous in that regard. See Balascsak, at 687 (Greenberg, J., dissenting). Accordingly, “[r]esort to the legislative history is neither necessary nor appropriate in this case.” Wicks, 833 F.2d at 193.
Even if the statutory language were not clear, “the legislative history of the statute is not inconsistent with the plain meaning of the statute.” Id. at 194. Examination of the legislative history supports the adoption of the “separate episodes” test, Towne, 870 F.2d at 890; Herbert, 860 F.2d at 622; Wicks, 833 F.2d at 194; but see Balascsak, at 683 (rejecting the “criminal episodes” test as inconsistent with the congressional purpose of the statute), but does not compel the additional requirement that the defendant be convicted of one offense before committing the crime underlying a subsequent conviction. We decline to read this requirement into the statute and hold, for the purposes of enhanced sentencing under the ACCA, that a defendant need not be convicted of one predicate offense before committing the next predicate offense.
D.
Based on our holding, Schoolcraft is subject to enhanced sentencing under the ACCA. Schoolcraft was convicted of (1) a burglary in 1978, (2) a robbery which occurred on May 31, 1980, and (3) three armed robberies which took place on August 21-22, 1981. Even if these three armed robberies were considered as one conviction, see United States v. Gillies, 851 F.2d at 497, Schoolcraft has “three previous convictions” within the meaning of
We find the challenge to Schoolcraft‘s conviction on the basis of vindictive or selective prosecution to be without merit. We also reject Schoolcraft‘s claim that there was insufficient evidence to convict him of possession of a firearm by a previously convicted person. We hold that the district court properly considered Schoolcraft‘s armed robbery convictions for the purpose of enhanced sentencing on count two under the ACCA. On this basis, we will affirm the judgment of conviction and judgment of sentence.
SCIRICA, Circuit Judge, dissenting.
For the reasons stated by Chief Judge Gibbons in United States v. Balascsak, 873 F.2d 673, 678-84 (3d Cir.1989) (in banc), I respectfully dissent from Parts IV and V of the court‘s opinion.1 I would affirm the judgment of cоnviction, vacate the judgment of sentence, and remand for resentencing.