U.S. v. Reis, 85-1240

• Citation: 788 F.2d 54
• Decision Date: 08 April 1986
• Docket Number: No. 85-1240,85-1240
• Parties: UNITED STATES of America, Appellee, v. Daniel REIS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 54

788 F.2d 54

UNITED STATES of America, Appellee, v. Daniel REIS, Defendant, Appellant.

No. 85-1240.

United States Court of Appeals First Circuit.

Argued Oct. 11, 1985.

Decided April 8, 1986.

Norman E.V. D'Andrea, Providence, R.I., for defendant, appellant.

James E. O'Neil, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and HILL, ^* District Judge.

IRVING HILL, Senior District Judge:

Appellant, Daniel Reis, was convicted after a jury trial on all counts of a three-count indictment charging federal firearms offenses. Count One charged that Reis, a co-defendant named Langdeau and others conspired to transport five stolen firearms in interstate commerce, knowing the guns were stolen, a violation of 18 U.S.C. Sec. 371. Count Two charged Reis, Langdeau and others with unlawfully transporting the five stolen firearms in interstate commerce from Attleboro, Mass. to Pawtucket, R.I., knowing the firearms to have been stolen, a violation of 18 U.S.C. Sec. 922(i). Count Three charged Reis, Langdeau and others The case against the others was apparently disposed of at an early date. Reis and Langdeau were scheduled to be tried together. Pursuant to a motion by Langdeau, his case was severed for trial and Reis went to trial alone in December 1984. The jury failed to reach a verdict and a mistrial was declared. Reis's second trial commenced on January 9, 1985. After his conviction, Reis was sentenced as follows: 5 years imprisonment on Count One, 5 years probation on Count Two, and 5 years probation on Count Three. The two probationary terms were to run concurrently and were to commence after completion of the term of imprisonment. At the time of Reis's sentencing (and at the time of the argument of this appeal) Reis was in the custody of Rhode Island state authorities pursuant to a state conviction for different offenses.

with possession of the same firearms in commerce by a convicted felon, a violation of 18 U.S.C. App. Sec. 1202(a)(1).

Reis's appellate brief, which is not a model of clarity, appears to raise a great many separate points. We deal with them seriatim as best we understand them.

FACTS OF THE CASE

The evidence offered against Reis may be briefly summarized. On May 16, 1984, a Mr. Cameron observed four men break into and enter his home in Attleboro, Mass. He saw them come out carrying a group of his firearms and other items. Some coins were also later found to have been stolen. Cameron recognized Reis, with whom he had been previously acquainted, as one of the burglars. Cameron was also able to describe the purple car in which the four men drove away.

Cameron immediately notified the Attleboro police, who responded promptly. Cameron had seen the getaway car heading toward Pawtucket, R.I. The Attleboro police notified the Pawtucket police. Pawtucket police officers spotted the car, pursued it in a high speed chase and finally caused it to stop. Four men tumbled out of the car and fled. The police apprehended three of them at the scene, including codefendant Langdeau. Reis was not apprehended at the scene. Shortly thereafter, Reis was arrested on a Pawtucket street approximately 1 to 1- 1/2 miles from where the others had been arrested.

Five firearms stolen from Cameron's house were recovered from the automobile. Those firearms are the subject of the indictment and are described in each count. Keys to the getaway car as well as some coins similar to those stolen from the Cameron residence were found on Reis's person after he was arrested. Reis stipulated that he was a previously convicted felon.

DOUBLE JEOPARDY

Reis argues that his second trial, after his first trial resulted in a mistrial because of a hung jury, is somehow void. Although a double jeopardy challenge is not expressly articulated, it is implied. An identical claim of double jeopardy was summarily rejected by the Supreme Court in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242 (1984). Based on that authority, we reject the double jeopardy claim here.

Reis's appellate brief can also be read as making an argument which is somewhat different from the double jeopardy claim. Following the declaration of a mistrial at the end of the first trial, Reis's lawyer moved for acquittal. The trial court promptly denied that motion. Apparently Reis did not notice any appeal from the order denying the motion.

Counsel now seems to be arguing that the denial of the acquittal motion was an error which vitiates the conviction in the second trial. Counsel seems to urge that the trial court should have considered the failure of the first jury to reach a verdict as somehow giving extra weight, or a presumption of validity, to a motion for acquittal. If that is his contention, we also reject it. No authority supports that proposition. We assume without deciding that Reis may now, after being convicted at a second trial, question the propriety of the denial of his

motion made following the first trial. But Reis does not profit from the assumption. We hold that the trial court correctly decided Reis's motion for acquittal under the proper standard of law. The trial court found that there was "sufficient basis for a reasonable juror, drawing inferences favorable to the government, from that evidence, to find [Reis guilty as charged]". No error is shown in regard to this claim.

THE VALIDITY OF THE SENTENCES

Reis's counsel makes multiple attacks upon the sentences imposed by the trial court. But even after many readings of this section of counsel's brief, it is difficult to understand or characterize the precise attacks being made.

The main argument appears to be that the sentences somehow are duplicative punishments for the same criminal act and thus violate standards established by the Supreme Court in Ball v. United States, --- U.S. ----, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).

If Reis is contending that separate sentences on the conspiracy count and on either or both substantive counts violate the Ball rule as being duplicative and for the same criminal act, he is clearly wrong. It has long been established that violation of a conspiracy statute and substantive criminal violations, which were the objects of the conspiracy, may be separately charged and, on conviction, may be properly punished by separate sentences. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); United States v. Powell, 632 F.2d 754 (9th Cir.1980); see also United States v. Bosch, 615 F.2d 210 (1st Cir.1978). Nothing in the Ball decision indicates any weakening of this well established line of authority.

If Reis is contending that separate sentences for Count Two (unlawful transportation of stolen firearms in interstate commerce) and Count Three (unlawful possession by a convicted felon) are punishments for the same offense (a result prohibited by the rule of the Ball case), he is also clearly wrong. In Ball the Supreme Court held that separate punishments for the offense of possession of a firearm by a convicted felon (18 U.S.C. Sec. 922(h) ) and the offense of receiving the same firearm by a convicted felon (18 U.S.C. App. Sec. 1202(a)(1) ) were invalid as being two punishments for the same act. The Court emphasized that the elements of the two offenses were identical. Ball, 105 S.Ct. at 1672.

In this case, the inquiry as to whether the same act is being twice punished must focus on whether each statutorily defined offense requires proof of at least one fact, one element, which the other offense does not. If the elements are not identical, separate punishments are valid. See Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 181, 76 L.Ed. 306 (1932). As to Counts Two and Three in the instant case, it is obvious that the elements are different. Count Two requires proof that the defendant knew the firearms were stolen. Count Three does not. Count Three requires proof that the defendant was a previously convicted felon. Count Two does not. The separate punishments under Counts Two and Three in the instant case are consistent with the rule enunciated in Ball.

Reis also argues that the sentences imposed on him are invalid because they are "greater than the guidelines supplied to the Court in the presentence report which indicated that the average sentence was aproximately 36 to 42 months". Appellant's Brief p. 9. It is evident that the "guidelines" to which the argument is addressed are statements customarily included in presentence reports which indicate guidelines the U.S. Parole Commission uses when granting parole. In support of his argument, counsel cites 18 U.S.C. Sec. 3742. That lengthy statute, passed in 1984, is not on point. It provides for appellate review of sentences which are in excess of sentence guidelines to be enacted by a Federal Sentencing Commission. No such guidelines have yet been promulgated. Reis has not shown that any provision of Section 3742 is applicable to the present sentences All of Reis's attacks upon the sentences must be rejected. The sentences imposed are within the limits permitted by law. They cannot be construed in any way as invalid or unconstitutional.

nor that the statute has in any way been violated.

TESTIMONY OF OFFICER MOREAU

In the second trial, the government called a witness, Officer Moreau, who was not called as a witness in the first trial. Reis makes several complaints about this in his appellate brief. First, he claims that he received no statement of this witness from the government in advance of the testimony. He claims this constitutes a violation of the Jencks Act, 18 U.S.C. Sec. 3500. The transcript reveals that no such statement existed, so no violation of the Jencks Act occurred.

Reis's counsel further complains that he was not given Moreau's name as a witness in advance of the second trial, although the names of many government...