O'Clair v. United States

• Decision Date: 13 December 1972
• Docket Number: No. 72-1202.,72-1202.
• Citation: 470 F.2d 1199
• Parties: Dickie R. O'CLAIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

470 F.2d 1199 (1972)

Dickie R. O'CLAIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 72-1202.

United States Court of Appeals, First Circuit.

Submitted November 20, 1972.

Decided December 13, 1972.

Dickie R. O'Clair on brief pro se.

Peter Mills, U. S. Atty., John B. Wlodkowski, Asst. U. S. Atty., Jerome M. Feit, and Fred M. Acuff, Jr., Attys., Dept. of Justice, on brief for respondent-appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

In this proceeding under 28 U.S.C. § 2255, the appellant challenges his convictions and sentences under a two-count indictment, charging him with bank robbery in violation of 18 U.S.C. § 2113(a), and assaulting or putting in jeopardy the lives of bank employees, by use of a dangerous weapon, while committing the robbery, in violation of 18 U.S.C. § 2113 (d). The district court, which had, after he pleaded guilty, imposed concurrent sentences of 15 years for each count, set aside the sentence under Count I, as required by Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), but refused to set aside the convictions or the 15-year sentence under Count II. Appellant attacks the dual convictions both as violative of Congressional intent and of the double jeopardy clause of the Fifth Amendment.¹

In Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), the Supreme Court held that the two provisions here involved create not two separate crimes but rather a single offense. In Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), the Court reaffirmed that 18 U.S.C. § 2113 (d) does not proscribe a separate offense but merely makes the offense of simple bank robbery in § 2113(a) an aggravated one. It held that therefore two sentences may not be imposed for conviction under both provisions. Id. at 306, 81 S.Ct. 653. Although the original posture of that case was identical to ours, in that convictions and sentences had been entered on two counts, one alleging a violation of subsection (a) and the other of subsection (d), it came before the Court on a challenge to "the legality of the twenty-five-year sentence for aggravated bank robbery", id. at 303, 81 S.Ct. at 654, and thus the only issue considered and decided was the propriety of the two sentences. We do not believe that Green can properly be read to have passed on the propriety under the statute of two convictions for this one offense.²

In a long series of cases, the Supreme Court has held that when Congress has been ambiguous in defining the unit of conviction courts should resolve the ambiguity "in favor of lenity." Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L. Ed.2d 370 (1957); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L. Ed.2d 407 (1959); see also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Significantly, both Prince and Heflin involved interpretations of the Bank Robbery Act. In Prince the Court held that the crime of entry into a bank with intent to commit a felony, proscribed by the second part of § 2113(a) merged, upon completion of the robbery, into the crime of bank robbery, proscribed by the first part of that subsection, and that only one sentence could be imposed for that offense. In Heflin the Court, noting its use of the rule of lenity in Prince, held that the provisions of subsection 2113(c) making criminal the receipt of money stolen from a bank was not designed to increase the punishment for the robber but only to provide punishment for those who get the loot from him. 358 U.S. at 419, 79 S.Ct. 451. Importantly, the claim presented in Heflin, with which the Court agreed by its reversal of the lower courts' denial of the § 2255 motion, was "that he could not be lawfully convicted under both subsections (c) and (d) of § 2113." Id. at 417, 79 S.Ct. at 452. Emphasis added. It is noteworthy that in both Prince and Heflin, the regular bank robbery offense charged was the aggravated one of subsection (d), charged in one count, as is apparently the wont in the Fifth Circuit. Indeed, that court held in Prince that:

"when one is charged with committing or attempting to commit an offense defined in (a) or (b), and also the aggravating acts defined in (d) in conjunction therewith, only one conviction will stand." 230 F.2d 568, 571. Emphasis added.³

We agree with the Fifth Circuit. Although approaching construction of the statute with the rule of lenity in mind, we find that here the legislative intent is relatively unambiguous. The House Report on the original Bank Robbery Act, of which the present subsections (a) and (d) were both a part, makes clear the Congressional purpose in enacting the latter provision. After describing the basic crime of bank robbery, the Committee said:

"If an assault be committed or the life of any person put in jeopardy, by use of a dangerous weapon in the commission of the offense the penalty is increased to a fine not less than $1,000 nor more than $10,000 or imprisonment of not more than 25 years or both." H.R.Rep.No.1461, 73rd Cong. 2d Sess., 1 (1934). Emphasis added.

The Committee then quoted the statement of the Attorney General regarding the proposed legislation, in which he primarily explained its purpose of aiding, rather than displacing, state enforcement efforts against organized gangsters who operate from state to state. In describing the substantive provisions he said:

"The bill provides punishment for those who rob, burglarize, or steal from such institutions, or attempt so to do. A heavier penalty is imposed, if in an attempt to commit any such offense any person is assaulted, or his life is put in jeopardy by use of a dangerous weapon. A maximum penalty is imposed on anyone who commits a homicide or kidnaping in the course of such unlawful act." Id. at 2. Emphasis added.

It seems evident then that Congress intended to create one offense — bank robbery — which was to receive one punishment, its severity determined by the nature of the accompanying aggravating circumstances. This much the Supreme Court recognized in Holiday and Green, supra. But if Congress intended that aggravating incidents affect only the sentence, it necessarily follows that Congress did not intend that the existence of such incidents would double the convictions.

Whatever doubts do exist, arising either from the failure of the legislature to address specifically the conviction issue or from the wording of the statute, must be resolved in favor of the more lenient reading. Admittedly, Congress could have written more clearly, as we know from other federal statutes which prescribe higher penalties for the single crime defined in the same provision "if death results" or "if personal injury results". 18 U.S.C. §§ 241, 242, 245(b), 844(d), (f), (i), 1992. But on the other hand Congress did not, as it has been urged to do, establish two separate offenses, robbery and aggravated assault, defining separate penalties for each and making the latter subject to federal prosecution when "committed in the course of committing" a bank robbery. Proposed Federal Criminal Code, §§ 201 (b), 1721, and 1612, Final Report of the National Commission on Reform of Federal Criminal Laws, (1971); Note, Piggyback Jurisdiction in the Proposed Federal Criminal Code, 81 Yale L.J. 1209 (1972). Since Congress did not adopt either unambiguous option, we cannot read the statute as incorporating the harsher approach.

Our interpretation is also bolstered by the double jeopardy problems raised by the imposition of two convictions for one offense. Although usually thought of primarily as a protection against reprosecution after acquittal, it is clear that the clause applies as well to reprosecution after conviction. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Abbate v. United States, 359 U.S. 187, 199 n. 3, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (opinion of Brennan, J.); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656. Note, Twice in Jeopardy, 75 Yale L.J. 262, 278 (1965). For the purpose of the ban on double jeopardy is to prevent "repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial. Although admittedly there is less expense, anxiety and ordeal when the blows are delivered at once, one can hardly say that one is not punished, hurt, or embarrassed, if one receives two convictions. The collateral effects of a conviction, independent of the sentence, are many and varied. See Note, Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929 (1970); Note, Civil Disabilities of Felons, 53 Va.L.Rev. 403 (1967); Sibron v. New York, 392 U.S. 40, 53-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The government, although acknowledging the adverse effects of a conviction, argues that there are generally no additional consequences arising from conviction on a second count in the same indictment. But in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the case holding the double jeopardy clause applicable to the states, the Supreme Court noted, in discussing the danger of the concurrent sentence rule of appellate review, that some states count as prior felonies for purposes of habitual offender statutes, convictions on several counts of an...