Delay v. U.S.

• Decision Date: 06 August 1979
• Docket Number: No. 79-1070,79-1070
• Citation: 602 F.2d 173
• Parties: Dallas Ray DELAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 173

602 F.2d 173

Dallas Ray DELAY, Appellant, v. UNITED STATES of America, Appellee.

No. 79-1070.

United States Court of Appeals Eighth Circuit.

Submitted May 14, 1979.

Decided July 18, 1979.

Rehearing Denied Aug. 6, 1979.

John A. Klobasa, of Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for appellant.

David M. Rosen, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., and Evelyn M. Baker, Asst. U. S. Atty., St. Louis, Mo., on brief.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, District Judge. ^*

GIBSON, Chief Judge.

This is an appeal from an order of the District Court ¹ denying Dallas Ray Delay's motion to vacate, set aside, or correct a sentence of 100 years' imprisonment imposed in 1974 after Delay was convicted in the same District Court of bank robbery and three counts of killing in an attempt to avoid apprehension for bank robbery. The present motion was filed pursuant to 28 U.S.C. § 2255, and alleged that Delay's federal sentence and prosecution was in violation of Delay's privilege against double jeopardy and the policy of the Justice Department generally to refrain from prosecution of those convicted in state courts of crimes arising from the same set of operative facts. After carefully considering the briefs and the arguments of the parties, we affirm.

On January 17, 1973, Delay abducted Mr. and Mrs. Bob Reid Ketterman and their 17-year-old daughter. An explosive device was strapped to the back of Mr. Ketterman. He was then directed to go the the Bank of Grandin, Missouri, where he served as president, withdraw funds, and return to the site where Mrs. Ketterman and the daughter were being held hostage. Mr. Ketterman did as he was directed, and returned with $10,850 to the area where Delay held the two women. In return for his cooperation, Mr. Ketterman, his wife, and daughter were tied to trees and executed by the appellant.

On January 19, 1973, Delay was arrested, and on May 8, 1973, he pled guilty to three counts of murder in the first degree in Missouri state court. He was eventually sentenced to three consecutive life sentences and is now serving that time. Following a jury trial, Delay was convicted in the United States District Court on January 23, 1974, of one count of bank robbery and three counts of killing in an attempt to avoid apprehension for the offense of bank robbery. On direct appeal this court carefully considered and rejected numerous allegations of error in the trial of Delay. United States v. Delay, 500 F.2d 1360 (8th Cir. 1974). Because of our holding that under the statute only one punishment could be imposed for violation of the various provisions of the bank robbery statute, we vacated the sentence for bank robbery and two of the sentences for killing in an attempt to avoid apprehension for bank robbery. However, we affirmed the 100-year sentence imposed on the third killing-in-an-attempt-to-avoid apprehension count.

In filing the present motion, Delay contended before the District Court that his federal sentence should be vacated because the prosecution was in violation of the fifth amendment prohibition against double jeopardy. He also argued that his prosecution violated the announced policy of the Department of Justice, requiring prior specific approval from the Attorney General in cases where a federal prosecution is based on the same acts as involved in a state conviction. In this appeal, Delay no longer contends that the fifth amendment prohibition on double jeopardy was violated by his federal prosecution and conviction. The report of the United States Magistrate, which was adopted by the District Court, had rejected this claim because it had been made and denied on direct appeal. United States v. Delay, 500 F.2d 1360, 1362 (8th Cir. 1974). It is well that Delay no longer pursues this argument, since few matters are more firmly established than that the fifth amendment does not prohibit prosecution by both federal and state officials for crimes against each sovereign involving the same acts. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036 (1927); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922); Moore v. Illinois, 55 U.S. (14 How.) 13, 14 L.Ed. 306 (1852); United States v. Marigold, 50 U.S. (9 How.) 560, 13 L.Ed. 257 (1850); FOX V. OHIO, 46 U.S. (5 HOW.) 410, 12 l.Ed. 213 (1847); HOUSTON V. Moore, 18 U.S. (5 Wheat.) 1, 5 L.Ed. 19 (1820).

Delay still does contend that he should receive relief from his federal sentence due to the alleged failure of the United States Attorney to obtain the approval of the Attorney General for Delay's prosecution after the state conviction. A failure to obtain prior approval would apparently contravene the announced policies of the United States Department of Justice. An understanding of those policies is necessary for the disposition of this appeal. ²

The Justice Department policy involved in this case was first expressed by Attorney General William P. Rogers in a news release dated April 6, 1959. ³ In that news release, the Attorney General stated that the power of the federal government to prosecute a defendant who had previously been prosecuted in state court for the same act or acts should be sparingly used. Specifically, he expressed the view that such prosecutions should not occur "unless the reasons are compelling." He doubted "that it is wise or practical to attempt to formulate detailed rules to deal with the complex situation which might develop, particularly because a series of related acts are often involved." However, he expressed the view that prior to trial of a federal case following a state prosecution, a recommendation should be submitted by the United States Attorney to the appropriate Assistant Attorney General, and no such recommendation should be approved without its having first been brought to the attention of the Attorney General. Significantly, the language of the news release does not indicate an absolute rule of prior permission being required for such a prosecution. The policy expressed by Attorney General Rogers has been adopted by subsequent attorneys general. However, it is not part of the Code of Federal Regulations and has not been statutorily adopted by Congress. Obviously, a department of the Executive Branch has no power to make laws or overrule decisional holdings of the courts. However, the Executive department or official can exercise discretion within proper bounds.

In 1960, in a case involving prosecutions in two different United States district courts for crimes arising from related conduct, the Supreme Court mentioned the press release of Attorney General Rogers. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). That marked the first reference to the policy by the Supreme Court and hence led to its being referred to as the "Petite policy." In some subsequent cases, the Supreme Court vacated and remanded for dismissal convictions obtained in the federal district courts. Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975), Vacating 505 F.2d 951 (5th Cir. 1974); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975), Vacating 502 F.2d 300 (8th Cir. 1974); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974), Vacating 492 F.2d 125 (5th Cir. 1974); Thompson v. United States, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17, Vacating 421 F.2d 373 (5th Cir. 1970). These cases may have involved the policy against dual prosecutions. The Supreme Court, upon request of the Government, disposed of these cases by Per curiam order, thus they do not indicate any right of criminal defendants to obtain enforcement of the policy.

Recently the Supreme Court has considered the Justice Department policy against dual prosecutions more directly. In Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), the Court, by Per curiam opinion, vacated the judgment of the court of appeals and remanded the case to the district court for the purpose of dismissing the indictment. Rinaldi had been convicted in the United States district court and also in the courts of the State of Florida for his participation in a plot to rob safety deposit boxes. When the federal prosecution reached the Fifth Circuit, the Government moved the court of appeals to remand the case to the district court to permit it to seek dismissal of the indictment due to the violation of the federal policy against multiple prosecutions. The court of appeals granted the motion to remand. However, the district court denied the motion to dismiss, in part because it concluded that the prosecutor had acted in bad faith in representing to the district court that he had been instructed to maintain the prosecution during the original trial. The Fifth Circuit affirmed the district court's denial of the motion but the Supreme Court reversed. It noted that the policy against multiple prosecutions "is useful to the efficient management of limited executive resources and encourages local responsibility in law enforcement. But it also serves the more important purpose of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct." 434 U.S. at 27, 98 S.Ct. at 84 (footnote omitted). The Court went on to hold: "The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government." 434 U.S. at 31, 98 S.Ct. at 86. It is clear that under Rinaldi if the Government were now urging us on a direct appeal to permit it to dismiss the case after a remand to the District Court, we would be required to comply, at least in the absence of bad faith in making that request. However, there is nothing in...