United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson

WRIGHT, Before TANG and REIN- HARDT, Judges. Circuit WRIGHT, Judge. EUGENE A. Circuit In this from convictions for con- spiracy and interstate of sto- albums, len record we have these issues: (1) multiplicitous? Were five counts (2) Speedy Was the Trial Act violated? (3) Were harsher sentences be- cause the defendants exercised their right to stand trial accept rather than proposed plea agreement?

FACTS 68,000 Appellants stole over record al- bums from stores in the Seattle-Tacoma two-year period. area over a The stolen shipped records were then boxed Chicago separate or Boston. At least 124 shipments were made to those cities. conspirators were arrested and charged 1984 in November a six- count charged conspir- indictment. Count I acy to violate 18 U.S.C. 2314. II Counts through charged aggregated Chiсago substantive violations II. VI Count It Shipments aggregated so through III ments in Counts The Chica- VI. satisfy that each count the statute’s would go chronologically. counts were divided $5,000 jurisdictional requirement. $5,000 Each count substantive satisfied guilty pleas jurisdictional requirement.1 Not were entered and trial January was set for 1985. On the trial Appellants the aggregation contend that date, pleaded guilty under of shipments subdivision into several agreement. presen- an The court ordered a multiplicitous. counts is They concede sentencing. report tence and scheduled On that, under v. United 362 Schaffer sentencing, day the court stated of 511, 517-18, 945, 948-49, U.S. 4 80 S.Ct. agreement acceptable only would be if (1960), may L.Ed.2d 921 shipments related required. be restitution were to Sentenc- aggregated be jurisdic- to 2314’s meet § ing was rescheduled to allow time for cal- amount, argue tional but one culation the amount of of restitution and of substantive pleas. for reconsideration count could have been government charged.2 The contends that 6, 1985, appellants On March with- shipment each separate transportation is a guilty pleas. ruling drew their After on chargeable separate in a count but for the 8, pretrial motions on March jurisdictional amount. scheduled trial for March 11. It relies on Conflicting Schaffer schedules between defense and the and the definition of value in 18 U.S.C. counsel forced calendar a continuance until support 2311 to aggregation of § April unanticipated delay 22. Due ments and subdivision into several counts. trial, intervening caused the trial provides part: Section 2314 in relevant 30, begin April days could not until 74 transports Whoever in interstate or for- indictment. eign any goods commerce ... the val- The jury appellants convicted the on all $5,000 more, ue of or knowing the same They six counts. were sentenced to five stolen, to have been or converted taken years probation I ten-year on Count by fraud ... be fined not more [s]hall concurrent terms for each Counts II $10,000 imprisoned not more through VI. The court ordered each defend- years, than ten or both. $148,171.83 pay ant to in restitution. 18 U.S.C. 2314. STANDARD OF REVIEW The law is sepa- clear that the values presented Each issue raises may rate aggregated. offenses be Section questions either of law questions or mixed 2311 aggregate. defines value in the Fur- of law and fact. We review these de novo. ther, Gallardo, Supreme See United States v. Court has allowed 1496, (9th Cir.1985); 1501 aggregation transportations within a 1195, 1201, (9th McConney, 728 F.2d if a shipments count series of sois related Cir.) (en banc), denied, cert. 469 U.S. may charged that it be single offense. (1984). 105 S.Ct. 83 L.Ed.2d 46 Schaffer, 362 U.S. at 80 S.Ct. at 949. ANALYSIS The Court said: Multiplicity Aggregation Ship-

I. A reading sensible proper- — of the statute ments Into Several Counts ly to Congress attributes the view that shipments government enough where the aggregated

The rela- shipments property tionship stolen may Boston so be distinguishes argument, 1. This our case from United States appellants ap- At oral counsel for Markus, (3d peared 1983) Cir. concede that three counts would have count, proper: (charges conspiracy jurisdic- one involving transportations one dismissed for sub- failure meet amount), stantive count by appellants' Bos- tional cited counsel at including ton second substantive count argument. oral shipments Chicago. offense, logical single their value scheme here to be a exten- charged as a present case sion of law. The Act defines aggregated. aggregate. of that ‘value’ terms government divided 124 history clear that the legislative makes into five counts which each include a series on a ‘series computed may be of related transactions and which value each jurisdictional meet the amount. While all transactions.’ part are of one overall (footnotes omitted); see also scheme, is not limited to Belmont, States charging only violating one count denied, Cir.1983), cert. 2314.3 79 L.Ed.2d The indictment did not divide a L.Ed.2d multiple offenses, into but transporta- rather treated each series of ag- question But the we face whether occurring specified tions peri- within a time gregate offenses also be subdivided separate od as a appel- offense. Since the separate charges. shipment The of into logic lants concede the stolen record albums was a series of trans- transportations to different cities as differ- sepa- fers. Each of the 124 is a offenses, ent and since Bell allows subdivi- chargeable rate offense under 2314 but § sion of an overall scheme into its constitu- jurisdictional parts, difficulty for the amount. ent no endorsing we have subdivision the overall scheme in each Other circuits have held that trans- chronological this case on a basis. The separate chargeable portation is a offense correctly district court ruled that jurisdictional if it meets the amount. Unit- multiplicitous. counts were not 724 F.2d Lagerquist, ed States v. 694- (five (8th Cir.1984) 95 of stolen Spеedy II. Trial Act property did not rise to five counts Appellants Speedy claim that their none because counts satisfied the (STA) rights Trial Act have been violated amount), jurisdictional re- after 74-day delay indict mand, 758 F.2d 1281-82 Cir. ment. The court denied their motions to 1985) (the shipments properly five could be violations, ruling dismiss for STA that the aggregated in juris- one count to meet the (STC) speedy again trial clock had started amount); dictional United States v. Mar- 3161(i) under 18 U.S.C. when with § kus, (3d Cir.1983) (20 guilty pleas. drew their transportations gave of stolen checks rise 3161(i)provides: Section counts; to 20 the court dismissed the If trial did not commence within the time charges because each count did not meet specified in limitation section 3161 be- amount). jurisdictional plea cause the defendant had entered a guilty We have held subsequent- of sto- оr nolo contendere ly charges in gives len withdrawn to or all an checks on different occasions rise information, indictment or the defendant counts, separate appropri- and that it is respect shall deemed indicted with be aggregate ate to the values within each charges all within therein contained jurisdictional count to meet the amount. meaning day of section on the Bell, permitting plea withdrawal of the order (9th Cir.1984). indictment subdi- “[T]he becomes final. (the vides one overall scheme interstate 3161(i). 18 U.S.C. orders) § transport money ... stolen into (interstate parts transport constituent requires an The Act indicted defend- days).” filing on four different find the days We ant be tried within 70 from the Further, position Chicago separate nothing 3. The dissent’s that all tation is a offense. count, requires ments should have been included in one to combine all Schaffer shipments having four, transpor- logical relationship. overlooks the fact that each the same judicial ap- or the first fies the time indictment limit plea trial. is If pearance, subsequently withdrawn, whichever later. U.S.C. the new time 3161(c)(1). significant dates are limit The determined under § Section 3161(i). these: April April April November March January February 19 14,1985 28,1984 Trial commenced. Second 70th Court Guilty pleas Indictment Original delay forces continuance it includes agreement entered them day after indictment informs trial pleas caused trial guilty pleas opportunity date; withdrawn restitution; date; will defendants be unanticipated intervening defendants accepted only to reconsider court gives plea if withdrawing started fendants from drew their added) (Guidelines). tion Speedy § Guidelines We find that 3161(h)(l)(I),governs purpose 3161(h)(l)(I), Trial anew Act when the the Administration of the pleading guilty pleas on 3161(i) at 45 § 3161(i), to thwart this case. The STC is to (1984) Comment March rather prevent (emphasis and then the time with- Sec- de- Mack, limit. United States v. Appellants argue gov- that this case is (1st Cir.1982). Legislative 31-32 history 3161(h)(l)(I), provides: erned which makes clear that “where a defendant (h) following periods delay shall pleads guilty and then withdraws his in computing be excluded time within again the time ... limits commence on the which an information or an indictment day S.Rep. withdrawn.” No. filed, computing or in the time 1021, Cong., (1974). 93rd 2d Sess. 27 within which the trial such of- fense must commence: Ninth Circuit Guidelines ‍​‌​​​​​‌‌​​‌‌​​​​‌​‌​​​​‌​​‌​​​‌‌​​‌‌​​​​‌​‌‌‌​‌‍further (1) Any period delay resulting from support, providing that “if arraignment proceedings concerning

other pleads the de- guilty, per- a defendant and later is fendant, including but not limited mitted by plea, tо— the court to withdraw his the indictment is treated been as ’ (I) filed at the time of such withdrawal.” Sec- delay resulting from consideration 3161(i), by tion Guidelines at 71. proposed plea the court of a agree- ment to be by entered into the defend- Here, entry pleas prevented trial ant the attorney Govern- commencing 14,1985, from January on ____ ment; pleas subsequently were withdrawn permits It resulting exclusion of time when the pay resti- refused from the court’s pro- consideration of a tution. “The Speedy specifically Trial Act posed plea bargain under provides Rule Fed.R. that when a pleads defendant It applies Crim.P. does not state guilty plea but later withdraws that ‘the plea cases where a withdrawn the STA defendant shall be deemed indicted on ... time limits. Nor does it day mention with- permitting the order withdrawal ” рlea drawn situations. It only plea refers becomes final’ United v. States delays Cordero, occasioned (1st Cir.1981) court’s considera- 668 F.2d proposed plea agreement. tion of a (quoting 3161(i))(footnote 18 U.S.C. omit- ted). The Ninth Circuit’s Speedy Trial Act Guidelines are instructive. The comment Appellants 3161(i) applies contend that § says:

to this section plea where withdrawal causes courts,

In plea some agreement when a begin trial not to within the STA time limit. reached, been guilty They argue delayed defendant’s that trial was due plea taken, is immediately subject to his congestion, withdrawal. right to it if They withdraw the court should cite no case law this novel inter- reject plea agreement. 3161(i). pretation such Nor have we found cases, timely taking any. satis- you’re depriving them interpretation dictates of their A common sense Constitu- that, plea pre- rights entry if and withdrawal tional to exercise their freedom to scheduled, begins as the STC vents trial have a trial. Davis, v. anew. See United States But that’s not says. what the Court Cir.1982) (70-day 849-50 says plead The Court those who from the date of court

period runs anew under the facts save the Government a withdrawal), de- permitting order cert. money, taxpayers lot of all the nied, 1207, 103 S.Ct. 459 U.S. people, and those those the defendants L.Ed.2d 441 When given Defendants would be credit for guilty pleas on March withdrew that fact. 3161(i). began again the STC under § at 477.5 30, 1985, began April Trial within correctly requirement. The court 70-day An subjected accused not be denied defendants’ motions dismiss exercising more severe his STA violations. constitutional to stand trial. United Medina-Cervantes, States Sentencing

III. (9th Cir.1982); United States Stock- Finally, appellants urge us to remand for well, (9th Cir.), resentencing remarks made because of sentencing hearing. They the court at the (1973). “[Cjourts L.Ed.2d 409 must not use allege they penalized for exercis- sentencing power as a carrot and stick right to their constitutional stand calendars, congested to clear ten-year five appearance must not create an of such a plus concurrent sentences restitution com- practice.” Id. pared three-year imprison- with a term of agreed plea agreement.4 to in

ment imposition Mere of a heavier sen tence, more, without does not invalidate it. sentencing, request- At Carter’s counsel bargaining approved Plea is an method of ed that the sentence not exceed what had encouraging guilty pleas by offering a de negotiated plea agree- the earlier certainty punish fendant “the of a lesser explained: ment. He possibility ment or the a more severe that, Nothing happened new has since Blackburn, punishment.” than, Frank v. course, other the assertion of (5th Cir.1980)(en banc), cert. right statutory to withdraw that denied, trial, right go and the Constitutional obviously. L.Ed.2d 123 anything

and I don’t think that,____ imposed greater should be voluntarily When a defendant chooses to Reporter’s (RT) Transcript (July at 476 reject plea bargain, or withdraw from a he 1985). right rejected retains no to the sentence. responded: Having rejected court the offer of a lesser sen- tence, receiving he assumes the risk of that, way looking There’s another at If too, Hillier, harsher sentence. defendants could de- you’re Mr. with which com- standing same tri- pletely mand the familiar. If the facts are all es- exchange guilty al that was offered in for obviously tablished and the Government guilty good plea, plead all incentives to would has a case and the Defendants guilty, disappear. nothing Defendants would lose plead give is Court entitled doing by going them credit for to trial. See id. at 887. The just exactly thal. Now, oh, no, plea bargaining I know is that say, reality defense counsel “[o]nce ten-year attorney, argued this 4. The sentences were within 5. Carter’s who the statu- appellants, remarked that had "no dis- tory then he limits. pute appellants RT 477. Now base with thal.” process their due claim on those remarks. trial, contrast, go Judge all 14. By the defendant elects bets Id. at McGovern are off.” Id. unequivocally pun- stated that he was not ishing appellants going to trial.

When the court involved in bar- gaining sentence follows the and harsher distinguished сrediting He those who negotiations, breakdown “the record plead punishing from those who do not. improper weight that no show was appears This procedures distinction in the given plead guilty.” the failure to Stock- recommended the American Bar Associ- well, 472 F.2d In at 1187-88.6 Medina- Justice, ation Standards Criminal Pleas Cervantes, 690 F.2d at we remanded Guilty (2d 1982). ed. The ABA Stan- resentencing judge where district recognize proper dards for the “[i]t during sentencing: stated grant charge court to and sentence conces- to me that this man Its obvious [sic] sions to defendants who enter a trial, all his wanted a with constitutional contendere____” ‍​‌​​​​​‌‌​​‌‌​​​​‌​‌​​​​‌​​‌​​​‌‌​​‌‌​​​​‌​‌‌‌​‌‍guilty or nolo Standard rights, upon and he insisted them and he 14-1.8(a); Frank, see also 646 F.2d at govern- them. To the to the had cost Standards). (quoting former ABA jury, jurors, ment for the with 40 $30 $1200, figure piece judge may While a not sentence vin defenders____ $1500, was cost dictively punitively, may legit he These statements rise to the infer sentencing imate reasons for a defendant punished ence that “Medina-Cervantes was Bond, more severely. J. Bargaining Plea severely more because of his assertion of 2.7(b), (2d Guilty Pleas at 2-21 ed. by jury.” Similarly, to trial 1983). consider Hutchings, United States v. details, impact upon flavor and victims — (2d Cir.), U.S. —, presented the offense as trial. (1985), 5.Ct. 87 L.Ed.2d 640 the Sec- Frank, 885; 646 F.2d at resentencing ond Circuit remanded for Derrick, (6th Cir.1975) (per based on jury the court’s remarks after the curiam). returned its verdict: Judge Carter stated that had four-day comple After a trial and been a “total public waste of funds and updated presentence report, tion of an resources ... there was no defense in Judge McGovern lawful sentences this clearly case. This man wаs based on the circumstances of the offense unquestionably guilty, and there should backgrounds, including and the defendants’ have been no trial.” lengthy criminal records for larceny, theft shoplifting.7 Doubtless he was mind Hutchings, a remand was ordered be- ful that defendants’ “unequivocal rejection cause the record restitution lacked judge fully accepted statement meant had not as whether [the go responsibility to justi decision to trial was for their actions. This defendant’s] not in imposing was considered sentence.” fied a originally stiffer sentence than that reject contrast, government’s By 6. disputed We the contention that the remarks trial about Judge McGovern was not involved in the response costs were made in to defense coun- bargain. His demand that restitution be includ- nothing happened, sel’s comment that new had negotiations ed caused the breakdown in except for defendants' assertion of their consti- led to trial. rights. places tutional The dissent more re- liance on these remarks basis for sentenc- 7. The dissent asserts that this statement lacks Instead, ing deserve. we to elect support contrary, factual in the record. On the evaluate them the context of the sen- entire the court’s tencing remarks each defendant at sen- tencing hearing. Judge Given McGovern’s ex- familiarity indicate with their back- press punishing statement that he was not de- Moreover, grounds family and situations. standing given fendants trial and his con- Judge McGovern recited the criminal record cern for the seriousness their extensive crimi- detail, Carter and Carson in considerable not- activities, disputed nal the remarks cannot serve ing, things." "I do have to consider these RT invalidating as a basis for these sentences. plea bargain. the proposed in See its purely United reliance on the semantic distinc- Hull, (9th tion “crediting” States v. Cir. between and “punishing”, 1986) (court deny probation could or “penalizing,” deci- express remorse); defendant did Unit- sions right whether waive the to trial. Malquist, ed F.2d 1402- The majority States also justification confuses (9th Cir.1986) (court OS could include de- the length of the sentence justi- itself with repentance in sentencing fendant’s lack fication of length an increase in the calculus); States, Gollaher 419 sentence once deemed appropriate. to be Cir.), us, 396 Given the record before I believe we are required L.Ed.2d 424 Carter, Daly to vacate and Car- (1969) (sentencing judge could consider ex- son’s sentences and remand for resentenc- rehabilitation). tent of ing. Carter,

The record fails to show Daly court and reject Carson decided to imposed improperly negotiated harsher sentences plea agreement as and to stand appellants’ exercise of their trial when the district court demanded that fact, right to stand trial. In the record restitution be included in agree- shows that the court expressly disavowed ment. During sentencing hearing, de- any such motivation. Under these circum- suggested fense counsel stances, sentences prop- should not appellants in excess of er. sentences agree- contained ment which the court approved, had since

AFFIRMED. exception with the of the defendants’ asser- tion of their REINHARDT, right constitutional Judge, dissenting: Circuit no new regarding information the defendants I dissent from I III Parts had emerged subsequent rejection to their First, majority opinion. sentencing plea. response, judge the district proceedings this case raise unrebut- stated that he was entitled give credit in ted inference that the district abused sentencing who, by to defendants pleading sentencing power Carter, by penalizing guilty, government save the and the tax- Daly and rejecting plea agree- Carson for payers money. standing ment on their to trial. If the facts are all established and the Therefore, precedent, under our clear we obviously good Government has a case should reverse and remand resentenc- plead guilty, the Defendants Second, ing. scheme this Court is entitled to them credit for multiplieitous. case is As the doing just exactly thal. organize charg- chosen to the aсts for says ... The plead Court those who VI, purposes, Counts III to each of under facts save Govern- alleges which a number of money, ment a lot taxpayers all the Chicago, violation constitute of 18 the United people, and those Carter, Daly U.S.C. 2314. and Carson’s given those Defendants would be credit convictions and sentences on three of those for that fact. four counts should be vacated. sentencing proceedings, Later in the Sentencing A. Vindictive judge Daly’s history prior referred majority’s approval of the sentenc- convictions and read from Carter and Car- ing proceedings in this in case flies the face son’s Appellants’ criminal record. full decisions, circuits, of our and those of other criminal pre- records included prohibiting sentencing power use of the report available to the court when punish approved defendants for stood trial. it bargain. up-dated The paying lip principle pre-sentence While report service to the at trial contained no by cases, established the relevant the ma- new any appel- information about jority proceeds to entirely by undermine it lants. trial, correctly priate prior majority states the well- and fails to state on the

settled law of this and other circuits that a legitimate record reasons for increasing may subjected criminal defendant not be sentence, remand, we must vacate and asserting his more severe regardless of whether the court district right to stand trial. States v. Medi- suggesting made statements that it na-Cervantes, 715, (9th Cir. sentencing by was influenced decision 1982); Stockwell, 472 United States v. the defendant’s decision to stand trial. 1186, (9th Cir.), denied, F.2d cert. Stockwell, 472 F.2d at 1187-88. 1924, U.S. 36 L.Ed.2d 409 requires justify Stockwell the court to (1973); Hutchings, United States v. sentence; in the increase it is not — (2d Cir.), enough justify appropri- that the court —, 87 L.Ed.2d 640 grounds ateness of the sentence itself on sentencing This rule has two rationales: might that have been sufficient had the chilling avoids the exercise of a constitu- imposed court the sentence as an initial right, Stockwell, tional 472 F.2d at subsequent matter rather than to a defend- acknowledges sentencing and it that a rejection plea agreement. Only ant’s defendant, solely a court should look defendant, emerged rejec- reasons that have after personal considerations that Stockwell, 1188; plea bargain tion of the justify 472 F.2d at ABA can see also Standards For post-trial Criminal Justice 14-1.8 increase in thе sentence. history (1980)(the of standard at 14.41 states, majority correctly majori- see standard on consideration of in final ty opinion that there be legit- disposition emphasize was revised “to imate reasons sentencing a defendant concessions predicated should be on rea- severely trial, more after personal sons to the defendant rather than Capriola, Cir.1976); explanations necessarily that are shared Stockwell, 472 F.2d at —reasons by all plead guilty”). defendants who specific based on considerations to the de- trial, conducting The costs of a Medina- fendant, crime, judge or to the that the Cervantes, conges- 690 F.2d at and the become aware of or subsequent observed docket, tion of Stockwell, 472 to rejection plea bargain. A trial F.2d at impermissible ‍​‌​​​​​‌‌​​‌‌​​​​‌​‌​​​​‌​​‌​​​‌‌​​‌‌​​​​‌​‌‌‌​‌‍are factors a brings negative often forth information sentencing court’s decision since those concerning judge might defendant that a wholly factors are unrelated to the defend- otherwise remain judge unaware cf. The personal ant’s circumstances. may well form a different view of the In order to chilling avoid the effect that degree defendant’s of involvement in the would arise from appearance even the offense, character, general or even of his judge punished had a defendant for hav- hearing testimony from and observ- trial, Medina-Cervantes, stood defendant, ing the listening to the de- appellate F.2d at required court is tailed evidence offered others. There to vacate and remand resentencing in at legitimate are also reasons for a court to First, least two situations. where a state- grant sentence plea, concessions after a ment gives court district rise to the genuine such as contrition. See Standards being penal- inference that a defendant is 14-1.8(a) for Criminal Justice (listing rea- trial, asserting ized for his and the sons). However, information that was explicitly does not rebut infer- known to the approved court when it by stating ence legitimate on the record lesser sentence at the time bargain- decision, sentencing reasons for its the re- ing cannot later serve as the basis for an viewing court vacate and remand. length increase in the of the sentence Id., Second, 690 F.2d at 716-17. where the when it is after trial. district court itself was involved in unsuc- case, plea negotiations, imposes cessful higher present the court’s state- sentence after appro- trial than it deemed ment that it was entitled to plead guilty having prohibits who credit for saved Our law a in “disparity sen- taxpayers the and the money tences” based on a defendant’s exercise of raises the inference that the court took the right trial, his stand to trial sentencing costs of into account Capriola, Cir.1976) penalized Carter, and therefore decision added). (emphasis We have not heretofore Daly and Carson for decision to stand distinguished a “penalty,” “credit” from a majority attempts trial. The avoid to the distinction entirely meaning- because the is prohibiting rule of a de- Stockwell, less. See F.2d at 1187 exercising for fendant the constitutional (“courts must not use the sentencing power right drawing by to trial a distinction be- as a and stick to congested cаrrot clear “crediting” and “penalizing” tween or calendars, they and must not create an “punishing” logically that is both untenable appearance practice”) such a (emphasis A precluded by and disparity law. between added). Neither has any ap- other federal pled sentences of a defendant who has pellate court.1 and a defendant has may who stood trial Here, required arewe under both Stock- characterized either as a or “credit” as a well and ap- Medina-Cervantes to vacate “penalty,” depending upon whether pellants’ remand, sentences and so that compared longer shorter sentence is to the may court either ameliorate the increased longer or the to shorter. The relation- sentences statе or valid reasons reim- for ship sentences, however, between the two posing Capriola, them. 537 F.2d at 321. is identical under either characterization. The district court was plea involved in the Moreover, the exercise of the to trial opinion negotiations, majority see at 513 n. equally chilled whether a defendant re- 5, (Stockwell) and a giv- made statement gards the differential a treatment as “cred- Carter, rise to the that Daly inference having pled it” “penalty” or substantially higher Carson received having Likewise, “crediting” stood trial. (Medi- sentences stood trial having public defendant saved the mon- na). Nevertheless, ey is no more on per- based the court articulated considerations sonal no “penaliz- increasing defendant than valid reason for the sen- ing” “punishing” or a defendant for tences. The majority’s reliance cost public money. during court’s references sentencing majority’s quotation (ii) 1. The selective possible from the the concessions will make al- support ABA Standards Criminal Justice ternative correctional measures which are "crediting" “punish- adapted its distinction achieving protective, between better deter- ing" rent, indefensibily authority. purposes distorts that Stan- or other correctional treat- ment, unambiguously dard 14-1.8 prevent states or will undue harm to the de- may conviction; not “credit” a defendant for the mere deci- fendant from the form of plead, may (iii) defendant, sion to do but so by making public for reasons specific Standard, unnecessary, to that defendant. Under the genuine has demonstrated con- cost-saving clearly permissible cost or not a for the sideration victims of his or her crimi- very by consideration. The Standard by relied on activity, desiring nal either to make restitu- majority precludes the decision it unseemly an- prevent public scrutiny tion or to or entirety: nounces. The them; Standard states in its or embarrassment (iv) given the defendant (a) has or offered co- The fact that a defendant has entered a operation cooperation when such not, has resulted guilty or nolo contendere should alone, prosecution result the successful itself be considered the court as a engaged equally other offenders mitigating serious or imposing factor in sentence. It is grant more serious criminal conduct. proper charge for the court to and sen- (b) impose upon The court should tence concessions tо defendants who enter a guilty defendant excess of or nolo contendere when con- justified by any protection protec- which would be tive, deterrent, public, with sistent offense, purposes gravity of or other of the crimi- the needs of the defendant, and nal law because the when there is evi- defendant has chosen to substantial prosecution require prove guilt dence to establish that: at trial (i) genuinely the defendant is rather than to enter a contrite and or nolo willingness responsi- shown to assume contendere. conduct; bility for his or her Standards for Criminal Justice 14-1.8 affirmatively record justification as for its show that the appellants’ records affirmance, opinion majority at solely see 514 court sentenced the defendant upon inadequate. legally rely n. is To so persоnal and the facts of his case and his histo- justification equate, mistakenly, of a is to ry, and not as to his refusal justification of an with increase plead sentence guilty.” 427 F.2d at 1188. The ma- Although appellants’ in a sentence. the jority’s bring to opinion belated effort its might justified ten-year records well have wholly within the that terms rule is sentences had the sentences unavailing. matter, those records cannot as initial sentences justify increase in the follow- Multiplicious B. Indictment appellants’ plea, rejection approval The majority’s of a reasons; first, all of the infor- two scheme under 18 U.S.C. 2314 in which plea bargaining was at the mation known jurisdictional provides amount the sole second, stage proceedings be- creating multiple rationale for substantive judge state cause the did not that he was counts from of shipments a series a relying on as a basis the information single destination turns the rule of Schaf- fact, In increasing the sentence. 511, 517, v. United fer pertinent no offered reasons that 945, 948-49, (1960), S.Ct. 4 L.Ed.2d 921 increase in other than its al- According majority, every head. leged right to “credit” defendants who time the total of a value series of circumstances, plead. Under such Stock- passes ments of property multiple stolen a require well Medina us to vacate and $5,000, rings a bell a new federal remand. Our failure do so is an invita- I crime is believe majority committed. ignore judges princi- tion district jurisdictional requirements confuses with ple purports the majority opinion to es- the substantive elements of an offense. also, pouse. opinion The will unfortunate- ly, widespread create confusion and uncer- Supreme The held in Court that Schaffer tainty as to what rule in our circuit shipments “where the goods] stolen [of actually is. relationship enough may so they that as charged be a offense majority’s original to its amendment 2314], section be may value [under opinion, following filing petition Id., aggregated.” 362 U.S. at rehearing banc, only point en serves to at principles regarding 949. Two the con- sharp how prior out the conflict with Ninth stitution of a substantive offense under authority actually Circuit is. The majority section 2314 derived be from following opinion. has added the to its Schaf- First, aggregation. rule of a series judge] “Doubtless district was mindful fer’s [the shipments charged may be as “single rejection that defendants’ of restitution shipments offense” only have some fully meant that accepted had not if logical relationship independent of their responsibility justi- for their actions. This aggregate Schaffer, value. that rela- fied a stiffer sentence than that originally tionship provided by was the fact that proposed bargain.” (citations single defendant all omitted). shipments received patent post-hoc in this flaw in each count. Id. at 518 n. rationalization is that it constitutes the ma- Second, 949 n. 11. if a shipments series of jority’s opinion effort to save its and not an sufficiently related so as explanation aggrega- to be on the record the district ble and the aggregate of its elects to motivation. The rule in our shipments series, permit does number of the majority circuit to con- jure up charged the series explanations creative then must the dis- “sin- on; gle rely trict court itself offense” than multiple did not rather as law of- it is the logical record fenses. The relationship determinative. which al- Nothing plainer Judge could be lows the Good- combination of a number of relat- win’s requires statement ed Stockwell: also the combination “[T]he related. Once of all so Bell that a count must consist upon logical relationship logical a relied between unit was correct. combination, shipments as a basis the Belmont, In United v. States 715 F.2d apply logic that must consist- 459, (9th Cir.1983), 462 we held that ently. It exclude other identical cannot “[bjecause there was one overall con- shipments merely from same the count spiracy, the district properly aggre- multiply order to the of number offenses gated of shipments the value all in deter- charge. mining jurisdictional whether the amount equally The rule of required by (cit- clear that 2314 had been sаtisfied” Schaffer

aggregation permissible 517, ‍​‌​​​​​‌‌​​‌‌​​​​‌​‌​​​​‌​​‌​​​‌‌​​‌‌​​​​‌​‌‌‌​‌‍of ing Schaffer, value a con- 362 F.2d at 80 S.Ct. at sequence 949). of the Again, constitution a substan- we assumed both that the tive a combining offense from related series of basis a series of shipments ments; it itself provide does not the ratio- was provided by logi- into one offense the constituting nale for a relationship among substantive offense. cal shipments spe- the — cifically, The five thousand dollar minimum limits that “only constituted one jurisdiction conspiracy” the of the federal court to cases overall that a court —and magnitude; jurisdictional a certain it does not define should determine whether the jurisdic- the crime over requirement which court has finding met a after statute, tion. finding violation rather than a violation of the statute on the basis of the Our cases expressly have followed the jurisdictional amount. principle underlying first rule Schaffer’s aggregation shipments Finally, a series of in Gilinsky States, v. United 368 —that 487, logical (9th some relationship Cir.1966), inde- F.2d 489 we held that pendent aggregate of their prosecution” value order “the allowable unit of charged single to be as offense. forged a dic- interstate transportation of securi- Bell, tum in United States v. 742 F.2d ties under section 2314 was defined in that (9th Cir.1984), 511 aggregation we said that “repeated case coincidence of time particular value across in a place inception, counts indict- and at during the inter- appropriate, ment was stages “since indict- at mediate the conclusion (the ment one transportation.” overall scheme Id. We based our hold- subdivide^] transport by interstate Bell of stolen lenity” mоn- on the so-called “rule set out orders) ey (inter- parts into its constituent v. Bell United 75 transport state four days).” (1955), on different 99 L.Ed. 905 which “ (citing 517-18, 362 Schaffer, requires U.S. at 80 ‘Congress where does 948-49.). S.Ct. at We assumed that each fix the for a federal offense count of the be clearly ambiguity, indictment should constitut- and without will doubt jurisdictional ed independently of against turning single be resolved trans- ” amount, and in fact declared multiple that each action into Gilinsky, offenses.’ jurisdictional Bell, count (quoting need not even meet the at 368 F.2d 349 622). I Although amount. believe that Although to dis- 75 S.Ct. at prohibi- pense jurisdictional requirement with the tion in section on the interstate trans- incorrectly portation each count would forged construe does securities not con- law, amount, jurisdictional case statute tain our implicit we Eighth requirement should follоw the and the Third in Gilinsky “transporta- in requiring Circuits that each count of tion” under section 2314 de- coherently multiple satisfy juris- applies equally prohibition count indictment fined to the minimum, dictional see United States v. the interstate of stolen Lagerquist, goods. jurisdiction- F.2d 694-95 Cir. mere addition of 1984), remand, requirement al prohibition to the on the (1985); Markus, 1281-82 transport goods United States stolen does not mean (3d Cir.1983), premise our jurisdictional that the can amount take

place logical definition of the “unit of aries of each count are solely defined prosecution.” aggregate value in- them, cluded within which value meets the acknowledged Other circuits have jurisdictional minimum requirement. To principle that a series of must be jurisdictional thus convert the requirement logically related order to constitute a into the substantivе definition of the crime single offense. See United States v. Mar- subverts the second principle and kus, (D.N.J.1983), F.Supp. Schaffer “ lenity” violates the “rule of by ‘turning a Markus, aff’d, United States ” multiple transaction into offenses.’ (3d Cir.1983) (“it permissible Gilinsky, 368 F.2d (quoting at 490 Bell v. aggregate a series of related transactions 349 U.S. at 75 S.Ct. at single long described count so as the 622). alleged single series is to constitute a of- fense”); Lagerquist, government could have (8th Cir.1985) (the facts charged two substantive counts in addition fraudulently shipments all the induced conspiracy to the count—one count consist- received, payment were and the checks in shipments Boston, the other issued within a period, two-week that the consisting shipments Chicago. pair same partners of business were de- remaining three counts multiplici- are shipment frauded each and that tous. The convictions and sentences on defendant shipment sold each to the same three of the four counts in III Counts to VI buyer provided “enough relationship should Although be vacated. the district among the transactions so that court set the sentences on those counts to properly charged offense”). single run concurrently, vacation is nevertheless required.

The charging presently See United DeBright, scheme States v. (9th Cir.1984)(en banc). consistent with the F.2d 1255 princi- first Schaffer ple. However, clearly violates the sec- that, principle

ond once combined a shipments

series of single into a count on logical basis of some relationship them,

among must com- shipments

bine all having that same rela- tionship. Although no court previously ST. PAUL MERCURY INSURANCE required expound upon this second COMPANY, Plaintiff-Appellee, principle, logic is irrefutable. Counts Cross-Appellаnt, III charge to VI all shipments Chicago; each count includes a number of such COMPANY, RALEE ments. The common ENGINEERING destination of the corporation, al, shipments within each Defendants-Appel- et provides count lants, proper basis for combining Cross-Appellees. shipments those However, into a ‍​‌​​​​​‌‌​​‌‌​​​​‌​‌​​​​‌​​‌​​​‌‌​​‌‌​​​​‌​‌‌‌​‌‍count.2 in the ab- 85-6544, Nos. 85-6565. sence of some rational basis for distin- United States Court of Appeals, guishing among the shipments, various Ninth Circuit. government cannot, merely in order to mul- tiply the number of charged, Argued offenses ex- 5,1986. Submitted Sept. clude from shipments a count other in the Sept. Decided 1986. same series sent to the same destination. Designated Publication Nov. Here, no distinguishing basis exists for among shipments counts; in the four one of its could have been

charged in any of the counts. The bound- 2. Had each count consisted of to sev- principle. have violated the first Schaffer cities, eral probably scheme would

Case Details

Case Name: United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 13, 1986

Citation: 804 F.2d 508

Docket Number: 85-3075, 85-3080 and 85-3082

Court Abbreviation: 9th Cir.