United States v. Spears

• Decision Date: 16 February 1971
• Docket Number: No. 23043.,23043.
• Parties: UNITED STATES of America v. Walter B. SPEARS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

145 US App. DC 284, 449 F.2d 946 (1971)

UNITED STATES of America v. Walter B. SPEARS, Appellant.

No. 23043.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 1970.

Decided February 16, 1971.

Mr. Nicholas E. Allen, Washington, D. C. (appointed by this court) for appellant.

Mr. John Ellsworth Stein, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before ROBINSON, MacKINNON, and WILKEY, Circuit Judges.

MacKINNON, Circuit Judge:

Appellant was convicted of various offenses arising out of his robbery of the Columbia Heights Branch of the United States Post Office in the District of Columbia. In Count I of the six-count indictment he was charged under the Federal Mail Robbery Statute¹ with assaulting and placing in jeopardy the life of Clarence W. Smith, a custodian of the United States mail, with the intent to rob him.² In Count II he was charged under the District of Columbia robbery and crime of violence statutes³ with robbing Smith of money belonging to the United States while armed with a dangerous weapon.⁴ He was also charged with three counts of assault with a dangerous weapon and one count of carrying a dangerous weapon. The jury returned a verdict of guilty on both Counts I and II and appellant was sentenced to concurrent terms in prison of from eight and one-half to twenty-five years on each of said counts. In addition, while not materially relevant to our discussion, he was convicted and sentenced on two counts of assault with a dangerous weapon and on one count of carrying a dangerous weapon.

I

The two convictions of robbery and of assault with intent to rob

Appellant's first contention is that it was improper for him to be convicted and sentenced on both Counts I and II because the assault charged in Count I "merged" with the completed robbery charged in Count II permitting only one conviction and one sentence.⁵ In opposition to this contention, the Government argues that the offenses charged in Counts I and II were violations of two different statutes and each had different elements thus permitting separate convictions and separate sentences. Specifically, the Government argues that the evidence necessary to support a conviction under Count I would not support a conviction under Count II because the former did not require proof of a completed robbery. Likewise, the evidence necessary to support a conviction under Count II would not support a conviction under Count I because the latter did not require proof that a life had been placed in jeopardy.⁶

Before considering the merits of these arguments, we note that we are not precluded from considering appellant's claims by the fact that he received concurrent sentences. While this court has followed frequently the statement in Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), that one valid conviction precludes review of others when concurrent sentences have been given,⁷ Benton v. Maryland, 395 U.S. 784, 789-790, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969) makes it clear that the rule is a discretionary one. This discretion has been exercised in favor of review in the past by this court.⁸ Chiefly because of the possible harmful effect on appellant of the myriad collateral consequences of an improper double felony conviction⁹ and the desirability of having this issue settled, we have again decided to exercise it in favor of review.

In turning to the merits, we note first that the assault with intent to rob is charged under the Federal Mail Robbery Statute¹⁰ and that the robbery is charged under statutes of the District of Columbia.¹¹ While one might question, on various grounds, the advisability of charging the assault and the completed robbery under different criminal codes, especially when the specific federal statute under which the assault was charged also made it a crime to commit the completed robbery, still it is not questioned here that both statutes are generally applicable throughout the District of Columbia. Thus, both 18 U.S.C. § 2114 and D.C.Code §§ 22-2901, 3202 each are applicable to the crime committed by appellant,¹² and since we vacate the conviction on the assault charge, the fact that it was charged under the federal law, while the robbery was charged under the District law, is immaterial.

In many cases, when separate statutes are applicable to a single act, the test enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) determines whether Congress intended the act to be punished as one crime or two.¹³ In Blockburger, the petitioner was convicted of (a) selling morphine not in or from the original stamped package¹⁴ and (b) with respect to the same sale of selling morphine not pursuant to a written order of the purchaser.¹⁵ In rejecting petitioner's argument that the two charges permitted but one conviction, the Court said that Congress had not manifested an intent to prohibit all sales of morphine when it enacted the two statutes but had manifested an intent to prohibit certain practices in connection with sales of morphine. The single sale made by petitioner involved two forbidden practices for which he could be convicted and punished twice. In the absence of congressional intent to the contrary, the Court held that

the applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.¹⁶

The test prescribed in Blockburger, though criticized by some as being too broad,¹⁷ has been followed in this jurisdiction¹⁸ and in others.¹⁹ It has not been followed blindly, however, and statutory schemes which, on their face, permit multiple convictions under the Blockburger test have been held to permit only one where the intent of Congress was manifest that only one conviction should result.²⁰ Because there appears in the legislative history of 18 U. S.C. § 2114 substantial evidence that Congress did not intend a person to be convicted of assault with intent to rob and with the completed robbery, we think that the Blockburger test is inapplicable to the case at bar. It is the intent of Congress that controls.

18 U.S.C. § 2114, the mail robbery statute here under consideration, is derived from a statute of considerable age. Pursuant to its powers over the post office,²¹ Congress, in 1792, established a number of post roads and made provisions governing the carriers who were to use the roads in delivering the mail.²² In the same statute, larceny of the mail and robbery of the mail from a carrier were made offenses punishable by death.²³ In 1794, Congress greatly reduced the penalty for larceny of the mail but left unaltered the penalty for robbery of a mail carrier.²⁴ Several years later, aiding and abetting the commission of the two offenses was made punishable in the same manner as was the commission of the offenses themselves.²⁵

At that time there was no statute specifically proscribing attempts to rob a mail carrier. In 1799, however, in a statute which for the first time formally organized the Post Office Department, an attempt amounting to an unconsummated robbery of a mail carrier was made punishable by imprisonment for not more than two years. At the same time, the penalty for simple robbery of a mail carrier was reduced to public whipping and ten years' imprisonment for a first offense. For subsequent offenses, and for wounding or placing the life of the carrier in jeopardy while robbing or attempting to rob him, the death penalty was authorized.²⁶ By 1799, then, the essential elements of the offenses now codified in 18 U.S.C. § 2114 had been enacted.²⁷ Except for the penalties involved, the elements have been little changed from that time until the present.²⁸

The "attempt" portion of the 1799 statute is of particular importance in this case. Though it has been modified several times over the years, the changes have been essentially in form and not in substance. To begin with, the 1799 statute did not proscribe all attempts to rob mail carriers; rather it said that

if any person shall attempt to rob the mail of the United States, by falling on the person having custody thereof, shooting at him or his horses, or threatening him with dangerous weapons, and the robbery is not effected * * * he shall be punished * *²⁹

In the general revision, consolidation and amendment of the postal laws in 1872,³⁰ the section dealing with attempts to rob was slightly altered to provide:

Any person who shall attempt to rob the mail by assaulting the person having custody thereof, shooting at him or his horse, or threatening him with dangerous weapons, and shall not effect such robbery, shall * * * be imprisoned * * *.³¹

The words "any person who attempts to rob the mail by assaulting the person having custody thereof" thus replaced the words "if any person shall attempt to rob the mail of the United States, by falling on the person having custody thereof." Under the 1799 statute, however, the prohibited attempts amounted, in essence, to assaults and the 1872 revision did not change the nature of the acts made punishable in any material respect. The only assaults coming within the statutory ban remained those in which the accused attempted, but failed to commit, the robbery of a mail carrier.³² In this general form, the offense was carried into the Revised Statutes of 1878.³³

When the entire United States penal code was codified, revised and amended in 1909, the language of the above mail robbery attempt statute was again changed. This time, the words "whoever shall assault any person having lawful * * * custody of any mail matter with intent to rob such mail matter" replaced the words "any person who shall attempt to rob the...