U.S. v. Kelava

• Decision Date: 11 December 1979
• Docket Number: No. 79-1520,79-1520
• Citation: 610 F.2d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bozo KELAVA and Mile Kodzoman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 479

610 F.2d 479

UNITED STATES of America, Plaintiff-Appellee, v. Bozo KELAVA and Mile Kodzoman, Defendants-Appellants.

No. 79-1520.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1979.

Decided Dec. 11, 1979.

Robert A. Merrick, Jr., Michael D. Monico, Chicago, Ill., for Bozo kelava.

Frank E. Stachyra, argued, William J. Martin, Robert M. Stephenson, Chicago, Ill., for Mile Kodzoman.

Frank E. Stachyra, Chicago, Ill., for defendants-appellants.

Thomas P. Sullivan, U.S. Atty., Cynthia Giacchetti, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, CASTLE, Senior Circuit Judge, and SWYGERT, Circuit Judge.

SWYGERT, Circuit Judge.

In this appeal from the denial of the defendants' pre-trial motion under the Double Jeopardy Clause, ¹ we must determine the effect of the defendants' previous trial for conspiracy and kidnapping of foreign officials on the Government's present efforts to prosecute them for armed imprisonment of a foreign official. We hold that the defendants may be retried, but the retrial must be limited to the charge of simple imprisonment properly included in the kidnapping charge under Count Two of the first indictment.

I.

On August 17, 1978, the defendants entered the West German Consulate in Chicago. Each of the defendants carried a hand gun; they also brought ropes and a phony bomb. The defendants entered the Vice Consul's office, rounded up several other people in the building, and held them in that office. The purpose of the defendants' actions was to persuade the West German Government to deny extradition of Stepan Bilandzic, a fellow Croatian nationalist, to Yugoslavia. After ten and a half hours of negotiations, the defendants were allowed to speak with Bilandzic by telephone. Upon receiving assurances that Bilandzic would not be extradited without further review of his case, the defendants released their remaining hostages and surrendered.

A magistrate's complaint was filed on August 18 charging the defendants with imprisonment of six named officials of the Consulate while using deadly and dangerous weapons (hereinafter "armed imprisonment") in violation of 18 U.S.C. § 112. ² One week later, the government obtained indictment 78-Cr-551, superceding the magistrate's complaint and charging the defendants with four counts of kidnapping a named foreign official in violation of 18 U.S.C. § 1201(a)(4). ³ On October 31, the government filed a second superceding indictment, retaining the designation 78-Cr-551. This final version of 78-Cr-551 (hereinafter "first indictment") added a new Count One charging the defendants with conspiracy to kidnap foreign officials and renumbered the four substantive kidnapping counts as Counts Two through Five.

The defendants' jury trial on the first indictment began on November 22, 1978 before Judge McMillen. Most of the conduct alleged against the defendants and described briefly above was not disputed. The defendants submitted additional evidence to show the seriousness of the threat to Stepan Bilandzic's life, if extradited, and to show the degree of concern for Bilandzic in the Croatian community, both in Chicago and around the world. The defense theory was that the threat to Bilandzic amounted to duress which forced the defendants to commit the acts charged, or at least that their concern for Bilandzic negated the mental culpability required to establish the crimes charged.

After the close of evidence on November 29, Judge McMillen excused the jury for the day and held a conference with counsel for both sides regarding the court's instructions to the jury. The defendants submitted proposed instructions on the offense of imprisonment of a foreign official (hereinafter "simple imprisonment") ⁴ as a lesser included offense under the kidnapping counts.

The prosecutor objected to these instructions, arguing that the evidence showed that defendants used "deadly or dangerous weapons" in taking over the Consulate, and therefore that the instructions should include the language "with the use of a deadly or dangerous weapon," tracking the increased penalty provision of § 112(a). Defense counsel initially agreed that armed imprisonment was also a lesser included offense of kidnapping, but argued that the evidence still would permit the jury to find the defendants guilty of simple imprisonment as described in the proposed instruction. At the end of his argument on the evidence produced at trial, however, the following exchange occurred:

(Defense Counsel): . . . and, furthermore, your Honor, the Government in the kidnapping charge does not use the expression "with deadly or dangerous weapons." They could have done that, I would suspect, from the in the kidnapping, but they did not.

The Court: No.

(The Prosecutor): That is not an element of Section 1201, that a deadly or dangerous weapon be used.

Tr. 887. During the further discussions that afternoon and the following morning, defense counsel continued to press solely for a simple imprisonment instruction. ⁵ The court finally agreed to submit only simple imprisonment, but insisted that the instruction specify that the defendants acted "without the use of a deadly or dangerous weapon." Defense counsel opposed the inclusion of that language and offered to accept instructions on both simple and armed imprisonment in order to preserve his version of the simple imprisonment instruction. ⁶

The district court instructed the jury that it had four possible verdicts to consider under each of the four kidnapping counts: guilty of kidnapping, guilty of armed imprisonment, guilty of simple imprisonment, or not guilty. The jury began its deliberations on the afternoon of November 30 and returned its verdict the following afternoon, finding both defendants not guilty under Counts One, Three, Four and Five. Under Count Two, the jury found the defendants guilty of armed imprisonment. Judge McMillen immediately directed entry of convictions on the verdicts.

In their post-trial motions, the defendants argued that the convictions of armed imprisonment entered on the jury's verdict could not stand because armed imprisonment is not a lesser included offense of kidnapping as charged in Count Two of the first indictment. The primary relief requested was a judgment of acquittal of the offense of armed imprisonment and entry of a judgment of conviction of simple imprisonment as a proper lesser included offense under Count Two. On January 8, 1979, Judge McMillen vacated the convictions, holding that armed imprisonment is not a lesser included offense of kidnapping as charged in Count Two, because armed imprisonment requires proof of the element of use of a deadly or dangerous weapon which is not an element of the crime of kidnapping and which was not charged in Count Two. He refused to enter convictions for simple imprisonment, however, and ordered a new trial.

On January 12, the government filed indictment 79-Cr-33 (hereinafter "second indictment"). Count One of the second indictment charged the defendants with armed imprisonment of the same foreign official named in Count Two of the first indictment. Counts Two, Three and Four charged the defendants with assaulting individual federal officers during the take-over at the Consulate in violation of 18 U.S.C. § 111.

The defendants filed a motion for clarification and reconsideration of Judge McMillen's January 8 oral ruling ordering a new trial. On February 23, the court entered an order explaining its decision to set aside the convictions of armed imprisonment and its refusal to enter convictions for simple imprisonment. On the latter point, the court reasoned that the jury had never reached the lesser included offense of simple imprisonment, so the court had no power to enter a judgment of conviction on that offense. The court also vacated its previous order for a new trial on the ground that the indictment under which the new trial was ordered had now been superceded.

The defendants next turned their attention to the second indictment. On the defendants' motion, Judge McMillen recused himself to avoid any appearance of bias. The case was reassigned to Judge McGarr. The defendants then filed a motion to dismiss the second indictment on the grounds of prosecutorial vindictiveness and double jeopardy. Judge McGarr granted the motion as to Counts Two through Four, the assaulting a federal officer counts, on the ground that since the Government was aware of the facts underlying these counts when the first indictment was obtained, the inclusion of such counts in the second indictment after the results of the first trial gave the appearance of prosecutorial vindictiveness. The Government has not appealed from this ruling.

Judge McGarr, however, rejected the defendants' double jeopardy argument regarding the armed imprisonment charge in Count One of the second indictment, saying:

First, when a defendant successfully attacks his conviction, he may be retried without a violation of the Fifth Amendment protection against double jeopardy. United States v. Green (Green v. United States) 355 U.S. 184 (78 S.Ct. 221, 2 L.Ed.2d 199) (1957); United States v. Tateo, 377 U.S. 463 (84 S.Ct. 1587, 12 L.Ed.2d 448) (1964). Moreover, although the jury found defendants guilty of the offense contained in Count I of the new indictment, the verdict was a nullity because that crime was not properly before the jury as a lesser-included offense. Thus, defendants have not been tried for armed imprisonment; the verdict of guilty by implication on the lesser-included offense of simple imprisonment was a nullity; and jeopardy has not attached as to either.

The defendants appeal from this ruling.

To summarize these facts briefly, under Count Two of the first indictment the defendants were tried for kidnapping. The kidnapping charge necessarily included the offense of simple imprisonment. The district court erroneously submitted to the jury an...