Pope v. United States, 19602.

Citation434 F.2d 325
Decision Date01 March 1971
Docket NumberNo. 19602.,19602.
PartiesDuane Earl POPE, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Wallace M. Rudolph, Lincoln, Neb., for appellant.

Richard A. Dier, U. S. Atty., Omaha, Neb., for appellee.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT and BRIGHT, Circuit Judges.

Certiorari Denied March 1, 1971. See 91 S.Ct. 953.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal by defendant Pope from final order of the District Court entered on December 6, 1968, finding defendant guilty as charged on the basis of guilty verdicts returned by the jury upon each of six counts of the indictment. Pope was sentenced to the custody of the Attorney General for imprisonment on the respective counts as follows:

Count I, twenty years under 18 U.S. C.A. § 2113(a).

Count II, ten years under 18 U.S.C.A. § 2113(b).

Count III, twenty-five years under 18 U.S.C.A. § 2113(d).

Count IV, for life under 18 U.S.C.A. § 2113(e).

Count V, for life under 18 U.S.C.A. § 2113(e).

Count VI, ninety-nine years under 18 U.S.C.A. § 2113(e). All of such sentences are to be served concurrently.

Pope by notice of appeal dated and filed December 13, 1968, appealed from his conviction and sentence and from the denial by the trial court of his motion (filing 178) for an order protecting him in the exercise of his right of appeal. The notice of appeal reads in part:

"The appellant hereby appeals to the United States Court of Appeals for the Eighth Circuit from the above denial of his motion, filing No. 178, and from all of the above judgment and from each and all of the above sentences to imprisonment, including without limitation all of the claims of error that were not reached by the United States Supreme Court as pointed out in its opinion-order dated June 17, 1968."

The prior history of this litigation is fully and fairly set out in our opinion affirming in banc Pope's conviction, reported at 372 F.2d 710. As there shown, Pope after obtaining the money as a consequence of burglarizing the bank ordered four bank employees to lie on the floor face down. They fully complied. Pope then shot each of the four employees in the back and again in the neck or head. Three of the four employees died as a result of the wounds so inflicted. It was on the counts charging the killing of such employees in connection with the bank burglary that death sentences were fixed by the jury and imposed by the court under § 2113(e).

The Supreme Court granted certiorari and vacated our judgment and remanded the case to us. The majority opinion in its entirety reads:

"The petitioner was convicted by a jury and sentenced to death under the Federal Bank Robbery Act, 18 U.S.C. § 2113(e). The Solicitor General has filed a memorandum for the United States conceding that this death penalty provision `suffers from the same constitutional infirmity\' as that found in the Federal Kidnaping Act, 18 U.S.C. § 1201(a). United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Accordingly, the Solicitor General concedes that the petitioner\'s `sentence must be vacated and the cause remanded * * * for resentencing.\' In light of this concession and upon an independent examination of the record, but without reaching any of the petitioner\'s other claims, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion." 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317.

Two Justices dissented.

Thereafter, this court by opinion filed July 23, 1968, reported at 397 F.2d 812, noted that the Supreme Court had by certified copy of its judgment filed in our court vacated our judgment affirming the conviction and remanded the case to us for further proceedings in conformity with its opinion. We expressed some doubt whether the vacation applied only to the three counts upon which the death sentence was imposed or to all counts. We held:

"Noting that the Supreme Court took its action and vacated our judgment `without reaching any of the petitioner\'s other claims\', and in the exercise of caution in order to prevent any possible loss of rights through misunderstanding or inadvertence, we now in turn vacate the sentences imposed by the trial court on all six counts of the indictment and remand the case to the United States District Court for the District of Nebraska for further proceedings consistent with the opinion of the Supreme Court of the United States and with this opinion." 397 F.2d 812, 813.

Our mandate issued forthwith and pursuant thereto the trial court after due hearing and consideration entered the order hereinabove described from which this appeal is taken.

Pope in his brief in support of the present appeal raises the following issues:

"I. To require a person to waive a Constitutional Defense in order to perfect an appeal or petition for certiorari denies such person due process of law and chills his right to appeal.
"II. When Appellant is examined under 4208(b) and requests a sentence under 4208(a) (1), the Trial Court\'s failure to so sentence is an abuse of discretion when the substantial evidence shows that the Appellant will benefit from a 4208(a) (1) sentence and that Appellant was mentally ill when he was convicted of the crime leading to the sentence."

Counsel for Pope at the commencement of oral argument before us was advised by the court that the issues raised on the prior appeal which were not reached or passed upon by the Supreme Court were before us on his present appeal and that an extension of time would be granted for arguing such points. Counsel for defendant insisted that the court rule upon his new points (points I and II, supra), before reaching the points raised on the prior appeal not passed upon by the Supreme Court. Thereupon the court heard arguments on points I and II. The court after conferring on the bench announced in open court in the presence of defendant's counsel that points I and II lacked merit and that the action of the trial court was affirmed upon the issues raised by such points and that an opinion would subsequently be filed covering all issues.

We now set forth separately the reasons for our affirmance of the trial court on points I and II. Pope by motion filed August 12, 1968 (filing 178) states that he is being prosecuted in Deuel County, Nebraska, upon first degree murder charges arising from the death of the bank employees whose deaths were made the basis for the § 2113(e) counts in the federal prosecution described in our prior opinion, and that on the basis of his federal conviction he has raised in the state court the double jeopardy defense to the state charges including the first degree murder charges. He states that he dare not press his appeal from his federal conviction "because by so doing he would subject himself to a much greater risk of being sentenced to death by a court of the State of Nebraska" and that his constitutional right to appeal is thus chilled. Defendant urges that a protective order be entered reading as follows:

"If the defendant\'s convictions, or any of them, under 18 U.S.C. 2113 are reversed by this Court, by the U. S. Court of Appeals, or by the U. S. Supreme Court, and thereafter if the United States within a reasonable time fails to retry the defendant on the indictments in the case at bar or before retrial transfers the custody of the defendant to authorities of the State of Nebraska pursuant to warrants for arrest issued by a Nebraska State Court, then upon a proper showing by the defendant a judgment of acquittal on the indictments in the case at bar will be entered by this Court."

Such motion was overruled. We are satisfied the court committed no error in overruling the motion.

What Pope is really seeking to do is to stall his federal appeal so that he can base a former jeopardy defense to his state murder prosecution upon a federal conviction and then after such purpose has been served, he desires to prosecute his federal appeal.

The trial court aptly answers Pope's chilling of constitutional rights argument as follows:

"There is no obligation of this Court or of any Federal Court with reference to State prosecutions to provide a path for a defendant that could lead him to immunity, and this is particularly true in the case of a crime such as murder. This Court should not take any action which would restrain either the United States Attorney or the proper county attorney in Nebraska to take such action as the facts warrant and State law may require. Trials as well as appeals always present problems and choices. Whether the choice is good or bad, using the football expression, leads to Monday morning quarterback discussion. And it must always be remembered that it is the defendant who triggered the incidents which brought him into court. * * * The
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5 cases
  • United States v. McCracken
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 17, 1974
    ...Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731-732, vacated, 1968, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317, on remand, 8 Cir. 1970, 434 F.2d 325, cert. denied, 1971, 401 U. S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232; 2 Wright, supra note 10, at 367 n. 35, we share those doubts. We not......
  • Parker v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 14, 1975
    ...Conley, 503 F.2d 520 (8th Cir. 1974)., or noted that the issue was still open to the petitioner in state court. See Pope v. United States, 434 F.2d 325, 329 (8th Cir. 1970), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971). Moreover, we have not explicitly held that counsel m......
  • Apgar v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 12, 1971
    ...Pope v. United States, 372 F.2d 710, 731 (8 Cir. 1967), vacated 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Pope v. United States, 434 F.2d 325 (8 Cir. 1970). 1 Apgar's co-defendants were convicted and sentenced separately and are not involved in this appeal. 2 The Honorable George......
  • State v. Pope, 38945
    • United States
    • Supreme Court of Nebraska
    • November 9, 1973
    ...on two of the three counts and to 99 years on the other, the sentences to run concurrently. The judgment was affirmed. Pope v. United States, 434 F.2d 325 (8th Cir., 1970). Pope is now in the custody of the United States serving those federal Meanwhile, in 1969, the Nebraska state prosecuti......
  • Request a trial to view additional results

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