United States v. Ronald Shepard

factual enlarged the basis of a situation beyond

as we have indicated in- case of

volved in the Searcher’s. This

difference in evidence to be con- jury

sidered leads us ato some-

what different formulation of the stand- govern jury’s

ard to deliberations.

Wе think it should be stated as follows: determine whole evidence brought

whether was was not home

to Picker clarity with reasonable

ANA was to be accountable for the

actual might loss Picker through suffer negligence caring

ANA’s

bailed cases. attache

Reversed and remanded for further

proceedings not inconsistent opinion.

UNITED STATES America SHEPARD, Appellant.

Ronald

No. 73-1743. Appeals, Court of States Columbia Circuit.

Argued Sept. July

Decided Schiffer,

Lois J. Washington, C., D. Hoff, with whom John Washington, S. Opinion by for the court filed Circuit (both Court), D. appointed C. Judge MacKINNON. appellant. on the brief for Concurring opinion filed Chief Scheininger, G. Asst. U. Michael S. Judge BAZELON. Silbert, Atty., with whom Earl J. U. S. Terry, Atty., Mulrooney John A. John J. MacKINNON, Judge: Circuit Adelman, U. Roger and M. Asst. At- S. Appellant was indicted on October brief, tys., appellee. were on the for robbery of federally a insured state BAZELON, Judge, savings and (18 Chief and loan association Before MacKINNON, 2113(a)),1 U.S.C. robbery (D.C. Circuit armed § and ROBINSON Code 3202),2 (D.C. robbery §§ Judges. snatching, by fear, putting seizure or or in charged: 1. The First Count of the Indictment person shall take from the or immediate ac- 29, 1972, On or about June within the Dis- possession value, anything tual of another of Columbia, trict of RONALD SHEPARD and guilty robbery, any person of and convict- JR., HOWARD, wilfully CHARLES lawfully and un- imprisonment ed thereof shall suffer for not by and with felonious intent force years less than two years. nor more than fifteen intimidation, by and violence and did take person presence from the and of Garrett E. allеgation appellant The was “armed with Ware, $5,228.00 money, belonging to and dangerous weapon” brings 22- § D.C.Code care, custody, control, management play: 3202 into possession Maryland and State Federal Committing crime when armed —Added Association, Savings deposits and Loan punishment. by of which were then insured the Federal (a) Any person who commits a crime of Deposit Corporation. Insurance violence in the District of Columbia when (Violation 18, U.S.Code, of Title Section having readily any armed with or available 2113(a)) pistol (or thereof) or other firearm imitation charged paragraph This a violation of the first dangerous deadly weapon (in- or other cluding or 2113(a) provides: of § which shotgun, shotgun, a sawed-off ma- Whoever, (a) by violence, by force and or dirk, chinegun, rifle, knife, bowie butcher intimidation, takes, take, attempts or knife, knife, razor, blackjack, switchblade person presence any from the property or of another billy, knuckles)— or metallic or other false money any thing or or other (1) may, if he is convicted for the first to, belonging care, custody, value or in the having time of so committed a crime of control, management, of, possession or Columbia, violence in the District of be bank, union, any savings credit or and loan sentenced, penalty pro- in addition to the association; crime, period impris- vided for such to a may up imprison- onment which be to life $5,000 Shall be fined not more than or ment; and imprisoned twenty years, not more than or shall, (2) if he is convicted more than both. having once of so committed a crime of Columbia, The Second Count of Indictment violence in the District of be charged: sentenced, penalty pro- in addition to the crime, period vided for such ato minimum On or about June within the Dis- imprisonment years of not less than five Columbia, trict of RONALD SHEPARD and period imprisonment and a maximum HOWARD, JR., CHARLES while armed with may not be less than three times dangerous is, weapon, by pistol, imposed the minimum sentence and which against force and violence and resistance up imprisonment. to life by fear, putting and stole and took from person the possession and from the immediate actual nothing There these statutes which re- Ware, property of Garrett E. by deposits lates the insurance of the Feder- Maryland Savings State Federal and Loan Deposit Corporation. al Insurance That refer- Association, deposits of which were then charging ence in the count of- by Deposit insured the Federal Insurance pure surplusage, fense is and U.S. Attor- Corporation, $5,228.00, of the value of about ney have been well advised to delete it would consisting $5,228.00 money. entirety in its for reasons which are too all (Violation D.C.Code, of Title Section apparent insuring agency in this case.. 3202) 2901 and identified the inclusion of incorrectly (Emphasis added). (1973) § D.C.Code 22-2901 “Federal” in the name of the Association was provides: also incorrect. by violence, Whoever force or whether stealthy resistance or sudden or 22-2901) (M.Tr. 92). sociation Code An § assault with FBI a dan (D.C.Code Special Agent was gerous weapon immediately brought 22-502). interrogation began into the charging The count to read rights a savings appellant his fourth time. Ap and loan association was dis interruptеd, pellant stating missed that he prior Government had to the “already couple submission of heard this a the case of times jury. jury (M.Tr. 106). appellant today.” found He was guilty then of armed photographs shown taken by assault with the S&L’s a dangerous weapon. The surveillance camera and identified him Court sentenced appellant “Piggy” to four one self and Charles twenty years’ Howard im prisonment (M.Tr. 77). robbers He described robbery convic tion and dismissed the circumstances of the and his assault with a dangerous escape. At the weapon conclusion of questioning conviction. We af firm. refused to appellant execute a written although agent confession the FBI and a

I. police taking officer had been Association had testified that its correct name was (Tr. 134-36) Maryland ^{[*] [*] [*] [*] [*] [*]} Savings Loan State & Association rather (3) Any any offense under law ap- Maryland State Savings than Federal & plicable exclusively to the District of Association and that it Loan was insured Columbia which joined offense is Savings Federal & Loan Insur- the same information or indictment Corporation ance rather than thе Feder- any with Federal offense. Deposit Corporation al Insurance as al- joinder Thus in the indictment with the leged in the indictment. The Federal robbery charge S&L was neces- Savings Corporation & Loan Insurance sary prerequisite to the District Court’s Deposit and Federal Insurance Cor- jurisdiction of exercise over the D.C. separate are and poration distinct enti- robbery and charges. armed assault Ap- ties; savings the former insures and loan argues pellant the District Court’s the latter associations and insures banks. jurisdiction over the lapsed local offenses when the count in the indictment submitting the case to the to Prior find, however, was dismissed. We elected to dismiss the Government jury, is contrary such conclusion to the intent robbery count because of the the S&L purpose and of the statute. (Tr. 216). discrepancies in indictment prepared, retyped indictment A Prior to 1970 U.S. District Court offense, eliminating the federal the District of Columbia had exclu were to the remaining counts submitted jurisdiction sive over both the federal guilty verdicts of which returned of Columbia jury, and the District Code of awith dan robbery and assаult charged against appellant. The fenses (Tr. 254-56). Appellant weapon gerous gen Reform Act of 19705 shifted Court on the armed jurisdiction was sentenced eral over D.C.Code of year term with a a 4 to 20 charge Superior to the Court.6 fenses D.C. Johnson, (June 1972) 4. United States v. 6. The offense and the indict- (Oct. 1972) ment in this case both occurred subsequent completion the division District Columbia Court Reform & Crimi- jurisdiction under the Court Reform Act. See Procedure nal Act Pub.L. No. 91-358 D.C.Code 11-502. § 29, 1970), (July 84 Stat. 477. arguments per- on this issue ment’s However, Congress responded to certain suasive. created problems this division ju by enacting risdiction 11- § District Court swears in Once the 502(3) provide that an indictment jeopardy attaches as to all jury, counts

jointly charging offenses both indictment, both federal statutory schemes subject should be to a adopt If this court were to local.7 single trial in the U.S. District Court. urged by appellant, the position present language of D.C.Code 11- required would be to dismiss the Court 502(3) appeared first (91st H.R. 16196 local counts whenever federal counts Cong., Sess.), 2d and the House Report dismissed, regardless are the reason on that bill stated: logical to its for the dismissal. Carried conclusion, reasoning would also call will overlapping Some of local counts for dismissal where the remain, being only inevitably acquittal a verdict of court directs on the of cases percentage primarily minor perhaps even federal counts where person the same ac- arising when a verdict of not jury guilty returns infractions which are both cused of counts. on the federal Since double purely local violations Federal prohibit clause would reindict jeopardy cases the United (and in those States the District of Columbia ment on of charges handle all Attorney will fenses, the defendant would in each in difficulties). procedural minimal go being free without tried stance ever Rep. Cong., House No. 91st 2d charged local offenses in the ind Sess., March 1970. The language of ictment.8 places jurisdiction the statute in the Dis- trict whenever a Court D.C.Code offense enacting D.C.Code section 11- “joined in the . same . . indict- 502(3), Congress obviously intended that any federal ment with offense.” This is offenders in thе District of Columbia language. unequivocal statute should be triable for all relevant offenses makes no reference to other disposi- a part committed crime. It would joined tion of the counts charging D.C. unreasonable for this court be to hold in the event all offenses counts charging joinder authorized a federal offenses are dismissed. federal and local offenses for a The Government concedes that the trial and at the same time made the dis- charges charges all prior disposition upon missal of federal to tri- of the local turn require strength would the dismissal of the of the Government’s al the re- case in mainder of the indictment as of the counts. support prac- well. federal (Gov’t 10). argues, however, holding Brief at It tical effect of such a would be to discourage the federal the Government bring- that where counts are dis- commences, joint after the trial a indictment in certain circum- missed the may Court stances. If the offenses involved determine the re- were (e. maining charges. independent g. We find the of one another Gоvern- aside, States, 734, upon 7. See Downum v. tried United 372 be anew U.S. same 1033, indictment, (1963); upon indictment, 83 S.Ct. 10 L.Ed.2d 100 another Newman States, U.S.App.D.C. 271, v. 133 the same offence of which he 410 had been con 259, denied, ‍‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​‌‌​‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌​​‌‌‌‍868, Utah, Hopt 631, cert. 396 U.S. victed. v. 104 90 S.Ct. U.S. [26 132, 873]; 574, (1969); 202, 24 L.Ed.2d 121 L.Ed. 110 U.S. 4 Crawford v. Unit S.Ct. [28 219, 262]; 488, 972, 109 ed 285 L.Ed. 114 U.S. 5 F.2d 661 S.Ct. [29 (1960). 183]; 614, L.Ed. 120 U.S. 430, S.Ct. [30 708]; Regina Drury, L.Ed. 544; 3 Cox Cr.Cas. case, however, appellant’s ap- 8. In the instant 193; S.C. 3 Car. & Kirw. Common peal might constitute a waiver of double Gould, Gray, wealth v. Ball, jeopardy claim. United States v. 672, Id. at S.Ct. 662, 1192, (1896): 16 S.Ct. 41 L.Ed. 300 defendant, procures judgment who a [A] upon him an indictment to be set 9, (2d 1970). ed. Once the §§ federal robbery and possessing S&L an unli- acquired jurisdiction, court has it may firearm), impetus censed would be to questions arising, determine all irrespec separate charge. hold a trial on each If disposition tive of of the federal sufficiently the offenses were related Oursler, 238, claim. Hurn v. 289 U.S. separate trials prohibited would be (1933); 77 L.Ed. 1148 Chicago S.Ct. jeopardy, due to double the Government Kendall, W. G. R. Co. v. 266 U.S. encouraged drop would still be (1924); 69 L.Ed. 183 Greene v. charge proceed federal only on the Co., & Louisville Interurban R. 244 U.S. Superior local offense in Court if it felt 61 L.Ed. 1280 its ease under the local statute was the However, in dealing pendent with the strongest. In еither instance the result claim, the federal courts have drawn would be frustration of the congres- stage based on the of the pro distinction sional intent that the District Court was ceedings at which the federal claim is preferred to be the forum whenever fed- dismissed.10 Dismissal of eral joinable and local offenses were prior taking claim evidence the same indictment and that a single held pendent has been to defeat trial was to preferred over sepa- two jurisdiction.11 hand, On the other where trials, rate one in U.S. District Court and been evidence has received on both one in the local courts. claims, it has been held that the trial facts the instant case illustrate jurisdiction to court retains determine of congressional frustration purpose pendent though state claim even which would result from adopting appel federal claim is dismissed.12 proposal. lant’s The federal S&L rob count dismissed not because of course, pendent Of the doctrine ju substantive errors but because the S&L risdiction has been applied in civil Association and the insuring agency directly cases and thus is not relevant in erroneously were identified.9 the criminal presently us, context before hardly could have intended that such er provide but it does us with a model for rors one count of multiple-count in the resolution of this case. purpose One dictment would automatically result pendent jurisdiction doctrine is to escaping defendant prosecution on insure the expenditure most efficient all counts. effort parties. courts and the See The instant situation involving Wright, C. Federal Courts 19 (2d §§ D.C.Code offenses in 1970). ed. The retention of analogous courts is to actions in pendent over a civil claim where evi involving courts claims under the federal dence has been received obviously is de and state law. The doctrine both signed duplication to avoid of that “pendent jurisdiction” permits the of By in the state courts. effort the same jurisdic Courts to exercise District token, U.S. judicial system the burdens on the tion over and resolve both state fed are reduced when an indictment charg Wright, issues. C. Federal Courts eral arising offenses from а factual necessary 9. is It point at g. Express, Adley for us to 11. See e. McFaddin Inc. v. determine whether such Corp., errors in (2d 1965); 424 indict- 346 F.2d Cir. T. B. require ment Eliscu, dismissal since (2d the Government Harms v. 339 823 Co. Cir. voluntarily dismissed denied, 1964), 915, 1534, count. See Stirone cert. 381 U.S. States, v. United 361 (1965); 80 Stanley 14 L.Ed.2d Robinson v. (1960); L.Ed.2d 252 Products, Inc., Gaither v. (1st United Home 272 F.2d 601 Cir. U.S.App.D.C. Martin, 1959); (5th 413 F.2d Dixon v. 260 F.2d 809 Cir. (1969) (effect 1071-72 of 1958). variance between the indictment and al). proof the Government’s at tri- Telechron, Parissi, (2d v. Inc. Palmer, 1952); Strachman Cir. F.2d 427 1949). (1st Cir. Annot., generally 10. See 5 A.L.R.3d § 9[b] & [c]. try the armed jurisdiction of its rob- can be tried in a single situation pro counts, bery and assault we ceeding proceedings rather than in two next turn to Also, appellant’s argument joinder courts. if it that the separate were pos particular federal and local retry Supe charges sible to local offenses in instant Court, this indictment was improper. rior would involve a serious of effort duplication where District already part

Court has tried case as III. joint of a indictment. The excerpt from Report the House page, F.2d at page supra, on Based the facts case, of this Congress’ purpose еnacting shows have proper would been appel indict 11-502(3) D.C.Code was to § minimize lant under 18 2113(d),13 U.S.C. § the ag compound rather than the gravated burdens on offense section of the federal prosecution in courts and the those situa S&L statute. The Government tions where overlapped. charge instead chose to simple S&L rob Holding joint one trial indict under 18 2113(a)14 U.S.C. § and the generally ment will also minimize the local offenses of armed robbery15 and in presenting burden defendant with dangerous assault weapon.16 ‍‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​‌‌​‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌​​‌‌‌‍This case. his of charging method made available a greater range penalties since the max by The rule advocated appellant, imum term imprisonment aggra for when in light considered of the double vated federal S&L 25 years, clause, jeopardy would attach severe whereas the maximum terms are 20 consequences to the dismissal of all fed years simple for robbery, S&L life im eral counts which this court can not rea prisonment for D.C. armed robbery and sonably were infer intended years dangerous assault with a when system it reformed the court weapon. the District of By drawing, Columbia. an analogy doctrine of pendent a situation presents This case jurisdiction, produce we construction the District of Co peculiar 11-502(3) which is reasonable courts would Other lumbia. nearly comports and which most with adjudicate occasion to violations have no our perception expressed congres ' present criminal law.' of state sional intent. We therefore hold that however, Crimi case, States where federal and local offenses have District of Columbia and the nal Code joined properly been one indictment adopted both Code were Criminal attached, has jeopardy the District result, jeop the double As a Congress. Court proceed to a determination of amendment will clause of the fifth ardy the local regardless offenses in fed prosecutions separate bar tervening disposition of the federal for the same of statutes eral and D.C. counts. fense, e., offenses are identi where the f. is a lesser in where one offense cal or of the S&L Since thе dismissal the other.17 To the offense cluded deprive the Court charge did not 16. § 22-502. Assault intent to commit Whoever, committing, attempt- (d) or in mayhem dangerous weapon. or with commit, any defined in to offense sub- section, (b) (a) Every person sections of this assaults convicted of an assault with any person, puts jeopardy mayhem, or in the life intent to commit or of an assault weap- by dangerous any person dangerous weapon, use of a with shall be sen- device, imprisonment shall be fined not more than on or $10,000 to tenced for not more than imprisoned years. not more than twen- or ten ty-five years, or both. (1973). 22-502 2113(d) (1970). 18 U.S.C. § Co., 253, See Puerto Rico Shell v. 302 U.S. n.l, supra. 14. See 167, (1937); 58 S.Ct. 82 L.Ed. 235 Grafton v. States, n.2, 333, 354-55, supra. United 206 U.S. 15. See 27 S.Ct. 1332 The federal and D.C. Criminal robbery and the federal S&L extent that together” “were intended to exist Codes robbery charges fall the local “were to mesh with each intended category, ap “same offense” within this Greene, States v. other.” United 160 subjected to one only be pellant could 21, 26, 1145, 489 U.S.App.D.C. F.2d 1150 trial. exercising power over (1973). In its We have held that it is not a Columbia, Congress can еnact District process denial due for the Govern substantially which are identical to laws prosecute

ment to choose to under a fed legislation provide but which national imposes greater pen eral statute which for penalties their violation. different an alties than identical D.C. statute. States, v. United O’Donoghue 289 See [Appellant’s] point is that the offenses 740, 516, L.Ed. 53 77 McDonald, 1356 U.S. S.Ct. by denounced the federal and local States v. (1933); United 156 statutes are identical and that he was 338, 343, 513, U.S.App.D.C. 481 F.2d 518 prosecuted to be entitled under the hold, we were to in (1973).19 If situa the penalty violating latter because for present where such as the case dou tions it provided is less severe than that prevent separate jeopardy constraints ble trials, the federal statute. The is theory un- single prosecution that a under A tenable. defendant has no constitu- was impossi schemes statutes from both right tional to elect which of two ap- principle, would general as a we as a ble plicable statutes shall be the basis of one nullifying matter stat practical рrosecution. his indictment and That dealing an enactment ute whenever with choice is to be made the United is at variance with a local offense its Attorney. States counterpart. See This is id. States, meshing hardly v. 120 the co-existence to Hutcherson United U.S. 274, 277, 964, codes which this court App.D.C. gether 345 F.2d 967 of the two being congression (1965). reasoning applies equal interpreted has Furthermore, the present force to the situation where the Government al intent. greater charge lesser included provides penalties permitted local statute is to in order to allow than federal statute.18 offenses Appellant alternate contingencies proof. in Sutton thus cannot contest Government’s United 188, States, 199, U.S.App.D.C. 140 right prosecute elect to him under 434 (1970), denied, statute, 462, cert. argues 473 402 may either he that it F.2d but 988, 1676, 29 L.Ed.2d him both 91 S.Ct. 153 prosecute statutory U.S. (1971). time. schemes at same 749, (1907); exercising power 1084 United States v. 51 L.Ed. I do not doubt that in its Knight, 21, 27, 28, U.S.App.D.C. 166 over 509 the District Columbia 354, (1974); Canty, body separate legislation ap- United States v. 360-61 enact a 103, n.20, U.S.App.D.C. jurisdiction. Indeed, ply 117-18 469 F.2d it within 114, Florida, separate enacting n.20 Cf. Waller v. body 128-29 of law for the 1184, 25 L.Ed.2d 435 apparently 397 U.S. also has the (1970) (state municipalities power and its held to be a substantially to enact laws identical sovereign). legislation, provide to its national differ- ing penalties despite for their violation Greene,

18. See also United States v. 160 U.S. identity, require and to that both sets of App.D.C. 21, 27, (1973): 489 F.2d laws be enforced the District of Columbia. brought omitted); Whether ju- (Footnotes in this Greene, United States v. 21, 27, risdiction under the D.C.Code or whether 489 F.2d brought applicable under an (1973), quoting section of the Johnson v. United States Code is a matter confided 56 L.Ed. 1142 solely to the (1912): discretion of the United States Attorney. certainly nothing There is anomalous punishing differently the crime of murder 19. And McDonald, see jurisdictions. United States v. different applica- It is but the U.S.App.D.C. 338, 348, legislation 481 F.2d tion of conditions. (1973) (Bazelon, J., concurring C. and dissent ing): the courts of the several States under of the above authori On basis the laws thereof. ties, we conclude that the Government is general principle prevented not a (1970), U.S.C. Stat. 826. in simultaneously charging from one Congress considered that section 4 of the similar federal dictment offenses under robbery bank statute was adequately arising out of a and D.C. statutes by covered the new section. House Rep. transaction. 80-304, Cong., No. 80th 2d Sess. Thus must whether We next determine Congress apparently has never altered particular preclude statutes involved original its juris- intent that the federal Appellant in this case. prosecution such diction over offenses arising from rob- argues per that the is not Government beries of federally banks and other in- simultaneously prosecute mitted to of sured institutions under section 2113 fenses under both the federal S&L rob should not be exclusive. provid- What is statute and the local armed by ed is that those offenses created fed- statute creates statute where the federal eral statutes exclusively prose- must be comprehensive punishing scheme for cuted in federal courts. studying the total offense. After these Nelson, Pennsylvania statutes, we the federal conclude (1956), 100 L.Ed. 640 preclude prosecution statute does not 3231, supra, the Court noted that section under local law for the of an was not intended itself to resolve is- jurisdiction falling institution within the super- of whether a federal statute sues of the federal statute. seded state of the same of- passage specific Whether the of a 501, n.10, 76 fense. Id. at It precludes prosecution law under a more where is silent on held that general covering law the same offense is a federal statute would be question, question legislative intent. The if the scheme found to be exclusive statute, original federal bank regulation pervasive is so 73-235, Cong., (May Pub.L. 73d 2d Sess. left for the states to no room 1934), provided: 48 Stat. it, if the statute deals with a supplement Jurisdiction over of Sec. subject in which the federal interest fense defined Act not be shall dominant, of the state or if enforcement exclusively reserved to courts of the would interfere with administra- statute United States.20 However, program. tion of the federal decision did the Court cautioned that its repealed in expressly This section prosecuting “prevent State 866) replaced by 18 (62 Stat. same act constitutes both a where the provides: 3231 whiсh U.S.C. § offense a state offense under courts of the United district 500, 76 police power.” Id. at S.Ct. at jurisdiction, original shall have States falls with- robbery certainly 479. Armed courts of the exclusive of the police power, the state and this is against the laws of the of all offenses doubly many certain where insti- United States. and associations tutions are state banks solely rests jurisdiction and federal Nothing in this title shall be held to of federal insurance. presence away impair take Rep. Cong., 20. See House No. 73d 2d is no inten- There courts. United States Sess., May at 2: shall su- Federal Government that the tion in this class persede State authorities Attorney has made the fol- General cooper- intervene It will of cases. lowing statement to the Committee is evident when local forces Judiciary proposed ate with reference to this cope crimi- with the latter cannot that the legislation: juris- nals. specifically provides The bill exclusively diction shall not be reserved 1334 In the simultaneous District of Columbia, prohibited held that Prince

the provisions robbery of the for bank rоb and sentences D.C.Code convictions bear the same relationship 2113(a)) to and assault (18 the U.S.C. § federal bank robbery statute (D.C.Code as do the dangerous weapon with a robbery statutes of the various recognized states. that The court 22-502).22 dou § ble jeopardy clause prohibits controlling since directly Prince was successive prosecutions in D.C. for under violations “was not sentenced defendant fed eral and D.C. law arising robbery bank of the federal same two counts (S&L) bank 469 U.S.App.D.C. statute.” 152 robbery, supra, see However, it noted that the p. -, at 128. F.2d pp. 515 F.2d 1331- essentially a charge local assault was but it not require prosecu- does charge aggra under the substitute for tion under federal scheme is to be the bank rob section of prosecution vated offense preferred ‍‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​‌‌​‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌​​‌‌‌‍to under local stat- bery statute. utes, long so a single prosecution place. In takes absence of con- does not follow [I]t from the existence trary expression of congressional intent, of a parallel provision on bank robbery implied it cannot chose with the aid dangerous of a weapon prosecutions to allow dual of bank (S&L) 2113(d)] that Congress [§ intended to throughout robberies the rest of the permit punishment for assault with a prohibited United States but the Govern- dangerous weapon under the District ment electing prosecute from ever to un- of Columbia top Code on of punish- der local rather than federal law when ment for robbery of a bank by force (S&L) the bank located the District and violence under the federal bank of Columbia. robbery statute 2113(a)], [§ States, Prince United Id. at 469 F.2d at 127. The court (1957), L.Ed.2d observed: was Supreme Court held it error to punishments for impose separate robbery bank statute es- of a for entry bank and bank with a comprehensive tablishes scheme for (separate intent paragraphs rob prosecuting persons punishing who 2113(a)). section The Court concluded federally-insured rob banks. establishment lesser entry pur offense of with an unlawful

pose, merely By venturing pro intended outside the federal scheme, vide for a when the lesser offense ac was able to complet сused had unsuccessful in circumvent carefully been scheme’s robbery, hierarchy his crime penalties. intended crafted intended also same preted vated bank Id. at “there was no indication statute.21 App.D.C. In United sentences reasoning, as also 103, 469 F.2d 114 States v. pyramid prohibiting Prince has been inter both ^[403] simple 152 Canty, U.S. at 406. On the that Congress convictions penalties.” (1972), we aggra twice der two distinct statutes rather though the defendant was convicted un- Id. at er than the maximum authorized un- the bank same, Government to obtain a sentence long- outside the scheme the effect of charging one count under under that is to say, 469 F.2d at 127-128. Al- same statutory scheme and another effectively permitted scheme, than returned six indictment was States, 22. The instant g. 21. See e. Holland v. Canty (Gov’t days decision this court’s (5th 1967); after Bayless Cir. v. United 9, n.8). (9th Brief at 1965). Cir. der highest sentence was His robbery tier of statute. the bank ed rob- bery punishment scheme. the maximum within well require by that statute. allowed 117, Id. at 469 F.2d at 128.23 further rele were of no Canty ments of dangerous weapon assault with a Since of the in federal count once the vance is a lesser included offense of armed rob dismissed.25 was dictment bery, reasoning apply the above should equal present with force to the case. argument In reaction to an somewhat Canty clearly prohibited sentencing Thus urged by appellant similar to the one appellant on both federal S&L rob case, we stated: bery robbery and the armed counts D.C. of the indictment.24 adopt To appellant’s construction would lead to an result, Canty,

Unlike the situation in how- anomalous one that Congress ever, could not appellant present in the case conceivably have intended. If ultimately only sentenced under one one killed during the course of a statutory robbery scheme. Thus it is necessary street in front bank, of a he appellant argue Canty pro- that could be prose- cuted for felony only multiple hibits not convictions but murder under the D.C.Code,but if during also simultaneous under both course of a robbery in a bank language statutes. The Canty killing occurred, used in that robber could support argument. prosecuted lends some to this not be for felony murder under The court stated that the defendant the D.C.Code. Such a construction prejudiced “was must impermissible rejected. an joinder 116, charges,” id. at 469 F.2d Greene, U.S.App. States v. at and that “it was join” error to (1973). D.C. 489 F.2d charges, the two id. 469 F.2d at reasoning That applies present However, the court remedied this equally case as well. It would be anom by vacating error the assault convictions alous hold that if someone committed affirming the federal bank robbery robbery an armed in the District of Co by ordering convictions rather than lumbia of any type of establishment oth new trial under an indictment which did S&L, er than a bank or he would be prejudicially join charges. Thus it is subject to the maximum sentence of life apparent despite that the court’s lan- imprisonment under the local statute guage, lay the error in sentencing under person whereas if that confined himself both statutes for essentially the same of- federally-in to the armed fense rather in prosecuting than offenses savings sured banks or and loan associa under both statutes. D.C., pun tions located in he could be аppellant only case ished under the less harsh federal present arm the local statute. only under was sentenced although should follow committing The same result convicted of the same crime he is imposed particular actual sentence in a case charged attempting in violation of the Spears, less than the maximum allowed the federal robbery statute. United States v. D.C. 284, 288-293, statute. 449 F.2d (1971). 950-955 Joyner, U.S.App. 24. See United States v. (1974), D.C. 492 F.2d 655 where this court holding argument 25. Our eliminates any that vacated an armed conviction entered prosecution under both statutes is a denial of simultaneously with a conviction for bank rob equal protection. subject A defendant bery. government Joyner had conceded in only trial in this district and there are Canty that barred the dual conviction. possible consequences being no adverse due to respect We have also held with to mail rob- guilty found under both federal and D.C. law Congress may prohibit that the intent of ultimately since he can be sentenced under (at- conviction for assault with intent to rob statutory one scheme. See also Sims v. tempt) statute, Robbery the Mail Rives, App.D.C. (1970), U.S.C. when the accused is also conclude (M.Tr. We therefore 133-135). or bad faith We find charge in may properly Government nothing to indicate these conclusions offenses both

same indictment Assuming were erroneous. arguendo (S&L) robbery and the appellant’s federal bank arguments concerning statutes, provided local “incompleteness” affidavit are ultimately sen that the is not defendant properly court, before this they do not proscribing statutes es tenced under two justify a reversal. Even if the affidavit recog offense.26 sentially the same We had contained the “facts” which were encourage holding may nize the this omitted, that allegedly magistrate the would sentencing of bank rob conviction and have had adequate grounds for conclud- rather than law. bers under ing probable D.C. that cause existed to issue two Congress has chosen to enact Since an arrest appellant. warrant for Final- conduct, covering the same how statutes ly, the omission of an instruction that ever, to Attorney deter is for the U.S. voluntary negate narcosis spеcific could prosecute to under both mine whether intent plain to robbery commit the was not one, court statutes or for the trial Appellant’s error. counsel never impose to on which to select the counts requested instruction, such an he had jury the verdicts sentence when returns previously admitted, under compul- the statutes, of both and for guilty under the sion of officer’s testimony, that ap- is Congress change to the law if it to be pellant’s actions indicated he was not un- express changed. In the absence of an der the influence of narcotics when he intent, congressional the statement of (see confessed 169 U.S.App.D.C. obliged to enforce stat courts are both -,p. 1328, 515 he supra), F.2d and p. con greatest possible, utes to the extent with the in- his satisfaction indicated 252). sistent with constitutional constraints. (Tr. given as structions Nor issue sufficient to

the evidence on this an instruction require give the court to IV. voluntary narcosis absence of on request by the defense. such appel the of We find remainder reasons, For the above appellаnt’s con- lant’s to be merit. arguments without viction and sentence for armed testimony, After to the the tri listening under the D.C. is statute affirmed. explicitly appellant al court gave found that Judgment accordingly. knowingly his and vol confession 258) untarily (M.Tr. Tr. BAZELON, Judge Chief (concurring): preparing the officer the affidavit I concur in the result reached support of arrest warrant was not concerned, I court. am however, guilty swearing, overzealousness, with of false ‍‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​‌‌​‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌​​‌‌‌‍See also Knight, felony- United States v. under latter U.S. for a App.D.C. 21, (1974), involving occurring federally-insured murder in a fi reject position. simultaneous convictions for federal mail rob nancial institution. We bery, (1970) regard 18 U.S.C. passage § and local armed In to the effect robbery, 3202, Act, Robbery argument contrary D.C.Code §§ 2901 and where Bank general principles prosecutorial court stated: to tion, discre Hutcherson v. United 120 U.S. impermissible joinder What is not the 274, 277, App.D.C. F.2d cert. joinder offense for trial . . . but the denied, 382 U.S. judgments even with concurrent sentences. (1965), legislative L.Ed.2d 151 histo 509 F.2d at 363. In United States v. ry congres of the Act does not indicate a Caldwell, (Dec. 1974), D.C.Cir. the court intent sional to limit that discretion in this stated: H.R.Rep. Cong. manner. See No. Appellants 73rd also contend that the Federal 2d Sess. See also United Act, States v. Robbery Bank codified in 18 U.S.C. Greene, . . . 160 at (1970), appellants jointly § 2113 under which at 1151. super- incurred three convictions . . general provisions sedes the of the District Op. Slip n. thus, assert, they Columbia bars Code reasoning of Part III of its opinion supports broad infer insured banks”7 relating petitioner’s to contention did intend the ence that (of local counts he was con apply to at all to offenses local code victed) and the bank in that a reading dealt with act. Such count, prior which was dismissed sub only prevent joinder of feder would not jury, were not properly mission counts in al and local court, federal district joined in a indictment Can out prosecution under it would also rule On ty premise, United States.1 of local code offenses relat D.C. court urged petitioner us conclude that the robberies. to bank no district court had A construction of the Federal Bank to try 11-502 him Act Robbery superseding pro catchall charges. local prevented visions of D.C.Code is not by any express statement of Canty, the defendant was convict ed, contrary. alia, majority’s rejection inter of bank under the it, despite implications broader States Code2 assault Canty, appears to major have two deadly weapon under the bases. D.C.Code.3 The first these is a review charges having Both stemmed from of the his Robbery Federal Bank legislative a a Act’s gun. robbed bank with He sen history and relevant to case law8 tenced consecutive terms of to 18 that jurisdiction concludes federal years on the bank count and 3 over offenses dealt with in the Act years count, to on the local does not making a preclude state of the combined sentence of from 9 same years. to 27 The offenses. short answer the to this charged ap If defendant had been and proach that is the convicted the federal bank Columbia is not a alone, state. As will he become subject count would have been evident discussion, subsequent from there maximum of 25 are years.4 to term This grounds distinguish on whiсh to between court vacated the conviction sen questions of a count, exclusivity statute’s as to holding tence assault that the exclusivity states and its as to prohibited the Government was D.C.9 A basis majority’s second for the venturing con outside the scheme established anomaly the the struction that would Robbery Federal Bank or exist Act in reading under petitioners: to “to favorable der fully circumvent care scheme’s [that] hierarchy penalties.”5 crafted if someone an committed armed rob in The immediate concern of the court District of Columbia of any type for Canty punishment was to limit establishment other than a S&L, bank the act. he cognizable under would be subject crimes to out, points maximum majority opinion as the sentence of But life impris suggest onment under language Canty statute, in to there local where person as if that the federal act charges under confined himself to covering armed robbery the same conduct of federally-insured local code Indeed, Canty’s savings banks or joined.6 not be and loan associations D.C., “a locаted he punished federal act as could be characterization only under the prosecuting for less comprehensive scheme harsh federal statu te.10 federally- punishing persons who rob 7. 469 U.S.App.D.C. (1972). F.2d at 127. 1. 152 2113(a). 2. U.S.C. § 8. 350 U.S. 100 L.Ed. 640. n Majority Opinio See 3. D.C.Code 22-502. . ---, at at 1333-1334 2113(d). U.S.C. § 9. See accompanying note & text notes 11- 5. 469 F.2d at 128. 21 infra. Opinion 6. Draft at 19. See United States v. Opinion 10. Draft at 20. Canty, supra note susp opinion particularly nates them is reasons that as reasonably such cannot have intended ect.11 result, Robbery Bank Federal Act We concluded that “it enough is not must be read as [discriminatory] classifications [affecting “meshing together.” prosecutor D.C. to be merely rational or residents] prosecute D.C. retains discretion bank plausible; even justification offered robberies under either federal or local convincing.”12 must be principles These law, time, or under both at the same informed our approach question he chose do in this case. whether provisions the bail of the D.C. Court applied Reform Act to those But nowhere con majority opinion does victed in D.C. of viоlating acknowledge anomaly crimi is created nal laws. Finding no adequate justifica reading its of the statutes as “mesh- tion for subjecting together.” the bail appli release applicability Dual of the cations of D.C. will offenders to statutes mean a bank robber standards different from those applicable subject D.C. will be to a else maximum sen- where in the system, federal court tence of life imprisonment, we whereas in based our construction punish- other statute on maximum a presumption that ment Government’s congressional enactment reading was erroneous. be only twenty-five years. would adopting majority’s reading we are possible There saying ground exists a for dis- effect that intended subject tinguishing Thompson. There we dealt greater D.C. bank robbers to potential punishment against discrimination those in than D.C. bank robbers crimes; convicted of anywhere in this case else in the country. In my are view, a we concerned with court discrimination might reasonably refuse to violating such those convicted of reach a laws conclusion in the absence оf express exclusively application. local in an of This dis- legislative statement in- argument tent to the tinction forms the basis contrary, for an reversing pre- sumption equal protection indulged by in concerns the majority opinion. Thompson simply stressed in not are rel- evant here. this, pretend I do not suggesting court, responsibilities In addition to its by the inequity cited maker, Congress national law is empow stat- of the in its on construction relied by ered the Constitution exist, is exercise or even that ute, “[t]o does Legislation neutral exclusive in all Cases whatso at least it is But insignificant. ever” in the affect- District Columbia.13 As of those political as to the status Supreme recently Court by court’s declared in inequity created ed. The Palmore v. in United we said reading is not. As Thompson, v. States power only may plenary. Not just here is not isWhat involved Congress statutes of of otherwise na two between arbitrary classification to application applied tionwide resi groups. The similarly situated Columbia, District of but pro a Washington occupy dents police also exercise all the fed position in the foundly anomalous regulatory powers legis which a state they do not send system, eral municipal government lature or would [because Congress,] voting to representative legislating have in for state local which any classification discrimi purposes.14 U.S.Const., I, cl. 17. art. 11. 147 13. (1971). 389, 397, 93 L.Ed.2d 342 at 1341. Id case: in an supports the proposition approval This provision tection Act to ed States analysis which statute’s was It ia.17 be enforced in the District of Columb tion, their violation despite that and to has the District Congress apparently also tially identical to its McDonald, violating provisions of the D.C.Code. denying coverage to those convicted necessity.20 enacting relied unique opinion principle upheld the local arguments also at the core in United inclusion of U.S.Code offenses. require of the federal Youth Offenders provide v. McDonald,15 power on in the majority opinion in this aspect a separate body of law in a passage quoted with concurring and dissenting rejecting enunciated in Palmore to enact laws substan thаt both sets of laws differing penalties for States petitioners Congress’ national which which felony v. the court’s equal Greene,16 upheld identity, I legisla murder stated power Unit pro for which render rejected, by United States Donald, Greene, and more diffidence at tent, which does not contain a from the Constitution member elected gued in the courts to prosecution of bank robbery and related stark locality. trols on ly democratic the police power of a sovereign over the a direction government.” elections, it would seem other the limited are denied Federal Bank Robbery Act does not bar I held, press rather apparition of a “local” legislature albeit in McDonald, So this legislative contrary government, long as the itAnd moves us further in implication those controls than to ^[19] This a vote in congressional analysis enforce the Caldwell,23 power point.22 to basic principles of is not required by Columbia, activity footnote, legal fiction, I ar with considerable fabricate devices residents of their fullest ex presenting the of the people incumbent minimal con least, inoperative.21 which It recently stemming has been and the in Mc voting plain state D.C. does not exercis offenses under the But this mean that in D.C.Code. Perhaps there are reasons exempt dual functions ing its have yet to be put forward, or which I guarantee equal protection have yet properly appreciate, process clause of the due that do implicit make Thompson Thompson irrelevant Skirting here. And Fifth even if Amendment.18 Thompson relevant, conceptual step, which there may further requires jus be tification for considering “Congress as two discriminatory'classifi amounts cations in bodies, cases such as legislative exercising one this that distinct did not 15. 156 338, substantially U.S.App.D.C. (1973). expressed po- 513 I have same 481 F.2d 22. Greene, previously in United States v. sition supra (1973). 21, 1145 U.S.App.D.C. F.2d 489 160 16. 16, Bazelon, (Statement at 1159 note why J., grant rehearing he would en as to C. 17. 481 F.2d at 523. McDonald, banc), supra States v. and United 15, J., (Bazelon, concurring C. in note at 518 Legrant, Washington 18. generally v. See dissenting part). opin- part in And in an and 1322, (1968) 22 L.Ed.2d 600 Brown, majority in United States for the v. ion rеported nom. Sha- (consolidated with and sub (1973), I Bolling Sharpe, Thompson); 347 U.S. piro v. Thompson -based considerations found that 98 L.Ed. apply” “might in to the issue before us also McDonald, supra note States v. provisions bail that case: whether D.C.Code J., part (Bazelon, concurring in C. apply in be read to to local offenders should part). dissenting in reading The Government’s was federal court. 20. Id. depend at 524. rejected rationale which on a did not Thompson presumption, although con- on the analysis the basis of' should make clear This background formed the stitutional concerns holding petitioners would my for that a view the issue was decided. which the Federal with decisions that consistent Robbery as to the 23. No. is not exclusive Act (D.C.Cir. Bank 1974), slip 72-1513 Dec. supra. accompanying note 9 op. See text states. at 65 n. 176. options part But after careful Thompson. of the prosecutor. exist He reasoning majority invoke the federal act in district

review court, with or opinions joinder on which it re without counts opinion, code, contentions continue to under the locаl or he lies, may ignore petitioner’s questions of serious im the federal entirely for me statute proceed present under the satisfactorily have not been local code in D.C. Superior port Court. If he chooses the latter answered. alterna tive, the defendant is vulnerable to the decisions, particu by prior Estopped full penalty provided the local Caldwell, carry from holding in lar code. prosecutor Once the chooses the logical is its what I believe Canty to course, however, former it seems to me dispute the ma conclusion, I am left that the circumvention of the reading of that decision on a jority’s scheme concern, becomes a relevant re majority opin basis. limited more gardless of whether prosecutor ulti so, states, correctly Canty that ion mately attains multiple convictions, as he multiple convictions for armed prohibits Canty. did in The central thrust of Can robbery resulting bank robbery and ty is that the pyramiding of penalties in But the activity. opinion goes the same excess of the ceiling under the fedеral “requirements to state act must be avoided. The multiple con relevance were of no further once Canty victions involved in Canty are simply one of the indictment count the federal device which the Government might open possi This leaves dismissed.”24 impermissible achieve this goal. Joinder could have Shepard been sen bility of charges with prior dismissal to judg prison life in a term of tenced to ment is another. Canty is properly read (as against a maximum prevent the use of either toward that act), twenty-five years under the federal end.26 long as he was convicted of the so charge for which he was indict My difference with the majority does ed. not affect the Shepard result. was sen- open possibility this is incon Leaving tenced under the local Canty’s charge broad sistent statute to a term of 4 to 20 years. Since not be allowed to “cir prosecutor this is less than the term he could have carefully scheme’s cumvent [federal] received under the Federal Bank Rob- hierarchy penalties.”25 Act, crafted particular Caid- case Canty, requires recognize it, well us to two as I understand was not broad violated. Opinion 24. Draft at 19. congressional regard intent with tion of provisions particular involved and therefore' 25. 469 F.2d at 128. case; govern the instant indeed does not position 26. This is not in conflict with our Knight suggested possible court itself ba- holding Knight, in recent United States v. distinguishing acknowledg- the cases in sis for (1974). Ap- robbery the case of mail stat- ‘[i]n pellants in that case were convicted and sen- ute, 18 U.S.C. the scheme is not as under tenced both the federal mail comprehensive as that of the federal bank rob- robbery provision. and the local statute degree statute.” 509 F.2d at 362. To the years was sentenced Each to from three to ten Knight the court considered the mail code; under one was sentenced to comparable statute in all relevant re- years 4 to 12 under the local Act, code and Robbery spects to the Bank its result years other to from 10 to 30 sentences simply disposition —all inconsistent with the concurrently. run Maximum sentence un- court, Canty Canty. remanding For the years. mail der the statute* was ten court, district vacated the local assault Canty prevented The court found that the dual sentencing only count and allowed under convictions, but at the same time it held that Robbery Act and the local count Bank remand the district court had discretion to carrying dangerous weapon, spe- which was either under sentence federal statute or cifically coverage to lie outside the found local code —without restrictions This action was an im- the federal scheme. 10-year keyed ceiling under the plicit recognized of the discretion denial holding This turned on a scheme. determina- Knight. notes (M.Tr. 89, 90, 114, throughout. 117). 29, 1972, wearing two men June On trial, and nylon carrying face masks appellant and Before moved to sup- hats Maryland an of the up held office press grounds his confession on the pistols Association, locat- Savings pur- & Loan was the fruit of an arrest made State Jt They the District of Columbia. suant to an inaccurate warrant and that ed $5,000. effectively rights with over he had not waived his escaped self-incrimination and to the was arrested in his home on Appеllant presence pre-trial of counsel. After a charging on a warrant August motion, hearing on this the court held July the 21 armed of him with support that the affidavit in of the war- (M.Tr. Storage Company Colonial the rant was sufficient and did not indicate was 67).3 This offense unrelated to the bad faith or false statements the at- (S&L) robbery. and loan savings (M.Tr. testing 133-35). officer for the warrant stated that a affidavit court also held that the confession was Storage Company the had co-owner knowingly voluntarily and made after appellant’s photograph as one identified appellant had been informed of his robbery. in that participants the (M.Tr. rights and understood them. 145- 46). Upon being taken into custody, appel immediately given lant was a Miranda proof The Government’s at trial con- (M.Tr. 23, 69, warning 95). He was then testimony by sisted of a customer and a Robbery Squad taken to the office where concerning bank teller the events of the again rights he was read his but refused robbery, testimony establishing the va- sign an acknowledgment (Tr. form photographs ‍‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​‌‌​‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌​​‌‌‌‍the lidity of of the robbery, 152-53, 173). After preliminary procеss appellant’s and oral confession that he ing he was taken to a room for question was one of the robbers in the photo- was ing rights read his a third time graphs. The confession was the only ev- 97). (M.Tr. Appellant never ob 96 — linking appellant idence to the crime or jected being questioned requested photographs. the attorney (Tr. 168). During an ques tioning, began which inquiries con A defense motion for judgment of ac- cerning Storage Company robbery, quittal at the close of the Government’s appellant voluntarily confessed to several (Tr. 202). case was denied The defense robberies, including other the hold-up police then recalled one of the officers Maryland Savings State & Loan As part interrogation. who took Aft- transcript transcript refers of the trial sentencing 3. “M.Tr.” (pp. the hear- 130-267). pre-trial suppress appel- motions to (pp. 1-155). confession lant’s “Tr.” refers to concluded, he had recommendation that he er the officer testified psychi receive atric experience with narcotics treatment. on his Since the bаsed conviction for assault appellant’s statement with a dangerous and based weapon users is in confession, appel- cluded within the armed robbery time convict ion,4 (Tr. 206), narcotics” the District lant was “on Court dismissed the (Tr. (Tr. 266). assault count moved for directed verdict defense However, 209). no testimony there was II. any to when he had last taken narcot- as ics, questions 209), was “slurred,” ling cer also testified “he was during sitting” A senior Vice-President and his own testimony evidence the motion was denied going his and that body, walking, standing coherent, he understood what he on. . interrogation (Tr. had defense . He counsel had to concur in that his he did not “fall asleep” . .” no was difficulty (Tr.209) police then responsive speech rested. officer that 207). the S&L The offi- “control- (Tr. On offense with violations of the District of Code tion of on an indictment which Columbia Code. The criminal Appellant was tried in District Court law, the United States District Court for the District of Columbia has diction other United States In addition of the following: Columbia is U.S. District Court for the to its district court and conferred on it provides: jurisdiction enlarged by joined a federal jurisdic- juris- aas D.C.

Case Details

Case Name: United States v. Ronald Shepard

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 17, 1975

Citation: 515 F.2d 1324

Docket Number: 73-1743

Court Abbreviation: D.C. Cir.