Gerberding v. United States, 71-1585.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation471 F.2d 55
Docket NumberNo. 71-1585.,71-1585.
PartiesArland L. GERBERDING, Appellant, v. UNITED STATES of America, Appellee.
Decision Date10 January 1973


Jerry Estes, Fort Dodge, Iowa, for appellant.

Evan L. Hultman, U. S. Atty., Sioux City, Iowa, for appellee.

Before MATTHES, Chief Judge, and GIBSON and HEANEY, Circuit Judges.

MATTHES, Chief Judge.

Due to a unique history, this case is before us on two appeals, one from the denial of a § 2255 motion to vacate sentence and the other from the original judgment of conviction.

On September 10, 1954, a three count indictment was filed against Arland L. Gerberding, appellant, in the Northern District of Iowa, Central Division, charging him with three violations of the Federal Bank Robbery Act, 18 U.S. C. § 2113. His trial commenced on August 19, 1955, and the jury returned a verdict of guilty on all counts on the following day. On the same day appellant was sentenced to twenty years in prison on Count I, twenty years on Count II, and ten years on Count III, the sentences to run concurrently.

Appellant filed a timely notice of appeal and an application for leave to proceed in forma pauperis. The district court denied the application on the ground that the appeal was not taken in good faith. Subsequently, the appeal was dismissed by this court for want of prosecution and, in 1970, when appellant filed a motion with this court to reinstate his appeal, the motion was denied on the ground that "this case has been closed in this court for more than fifteen years."

In 1964, appellant initiated proceedings under 28 U.S.C. § 2255 to vacate his sentence. The district court ruled that the motion was premature since appellant was still serving a previously-imposed state sentence and had not yet entered into federal custody. Then, on January 20, 1971, having been transferred into federal custody, appellant renewed his § 2255 motion in the district court and a partial transcript of the trial proceedings was ordered at government expense.

The court, without a hearing, vacated the sentences on Counts I and II on the ground that appellant was sentenced on those counts "on the basis of a finding of his guilt of criminal acts not charged in the indictment." Otherwise, the court found appellant's contentions to be without merit. Thus the sentence for ten years on Count III remained in effect.

Appellant appealed the denial of his motion to vacate sentence to this court, the appeal being submitted to a panel of three judges on April 12, 1972. On April 24, that panel vacated the submission of the appeal from the denial of the motion to vacate sentence and held that appellant should be permitted to take a delayed appeal from his original judgment of conviction. In addition, a complete trial transcript was ordered.

The appeal from the judgment of conviction having now been perfected, we would probably be justified in ignoring appellant's contentions which he initially raised on appeal from the denial of the motion to vacate sentence and failed to renew on direct appeal. However, in an effort to bring an end to this litigation, we have chosen to review all contentions raised on both appeals. Therefore, we have considered the following grounds relied upon for reversal of the judgment and the granting of a new trial: (1) multiplicity and duplicity of the indictment; (2) conduct of the prosecution in calling a witness it knew would invoke the privilege against self-incrimination and in purposely eliciting the fact that the witness had entered a plea of guilty to the same offense; (3) admission of a sawed-off shotgun and testimony pertaining to burglary tools which were not connected with the bank robbery in question; (4) failure of the court to hold a hearing on the voluntariness of appellant's confession as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (5) ineffective assistance of counsel; and (6) denial of the right to a speedy trial.

I. Multiplicity and Duplicity of the Indictment

Appellant's first contention is that the indictment is multiplicitous and/or duplicitous and therefore invalid. We disagree.

"Multiplicity" is the charging of a single offense in several counts. Wright, Federal Practice and Procedure § 142, p. 306 (1969 ed.); United States v. Brandom, 320 F.Supp. 520, 525 (W. D.Mo.1970). Count I of the indictment against appellant factually alleged violation of the second paragraph of § 2113(a), entering the Lakota Farmers Trust & Savings Bank with intent to commit larceny therein. Count II factually alleged a violation of the first paragraph of § 2113(a), taking money from persons by force and violence, and by intimidation. Count III factually alleged violation of § 2113(b), taking and carrying away bank money with intent to steal, and § 2113(d), assaulting and putting in jeopardy the lives of two persons while committing such offense.

In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the Supreme Court found that it was not Congress's intention, in establishing a series of lesser and greater offenses under the Bank Robbery Act, to pyramid penalties. However, although more than one sentence is prohibited, the consummated crime may well encompass several of the graduated offenses described by the statute. Thus there is no contradiction in permitting multiple counts of an indictment under § 2113, and multiple convictions, and at the same time prohibiting multiple sentencing Gorman v. United States, 456 F.2d 1258, 1259 (2d Cir. 1972); United States v. White, 440 F.2d 978, 981 (5th Cir. 1971); Hardy v. United States, 292 F.2d 192 (8th Cir. 1961).

Although Count I factually alleged only a violation of the second paragraph of § 2113(a), such offense was stated to be in violation of § 2113(a), (b) and (d). As noted, Count III factually alleged violations of (b) and (d). Appellant urges that this repetition, if nothing else, renders the indictment multiplicitous. It is sufficient in reply to note that the statement of facts in the pleading, rather than the statutory citation, is controlling, provided that the defendant is not mislead to his prejudice by any error or omission. Rule 7(c), Fed.R.Crim.P.; Tanksley v. United States, 321 F.2d 647 (8th Cir. 1963); Wright, Federal Practice and Procedure § 124, p. 228 (1969 ed.). As appellant was properly charged with violations of § 2113(b) and (d) in Count III, any improper reference to these subsections in Count I could not have been prejudicial. We note also that the jury was carefully instructed to find appellant guilty of Count I only if it found the facts alleged therein to be true.

Next appellant contends that Count III is duplicitous in that it alleged that appellant both assaulted and put in jeopardy the lives of two persons in the course of the bank robbery.

"Duplicity" is the joining in a single count of two or more distinct and separate offenses. Wright, Federal Practice and Procedure § 142, p. 306 (1969 ed.). Its vice is that a general verdict of guilty will not reveal whether the jury found the defendant guilty of one crime and not guilty of the other, or guilty of all.

It is important to distinguish, however, a statute creating several offenses from one, such as § 2113(d) which enumerates several ways of committing the same offense. Where, as is the situation here as to Count III, the statute specifies two or more ways in which one offense may be committed, all may be alleged in the conjunctive in one count of the indictment, and proof of any one of the methods will sustain a conviction. Rule 7(c), Fed.R.Crim.P.; Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971, 976-977 (1971); United States v. Amick, 439 F.2d 351, 358 (7th Cir.) cert. denied, 404 U.S. 823, 92 S.Ct. 48, 30 L.Ed.2d 51 (1971); Hall v. United States, 372 F.2d 603, 610 (8th Cir.), cert. denied, 387 U.S. 923, 87 S.Ct. 2040, 18 L.Ed.2d 979 (1967); Dranow v. United States, 307 F.2d 545, 558-559 (8th Cir. 1962). Needless to point out, a verdict of guilty would bar further prosecution on all allegations.

It is abundantly clear that although § 2113 as a whole creates several offenses, § 2113(d) describes two ways in which previously-described offenses may become aggravated. Accordingly, Count III is not duplicitous.

II. Conduct of the Prosecution

Appellant also argues that he was deprived of a fair trial by the conduct of the prosecution in calling a witness it knew would invoke the privilege against self-incrimination and in purposely eliciting the fact that the witness had entered a plea of guilty to the same offense.

The witness, Terrance Farrell, had pleaded guilty in the District Court of Minnesota to one of the bank robbery offenses with which appellant was charged. As a government witness, he testified at some length about his activities in connection with appellant prior to the bank robbery. Finally, when asked if he had gone to the town of Lakota with appellant, Farrell refused to answer on the ground that, although he had already pleaded guilty, he had not yet been sentenced. The witness also indicated a desire to change his plea. The trial court sustained the witness' privilege. Defense counsel, however, was permitted to cross-examine the witness on all matters he testified to before claiming his privilege.

There is substantial authority that the assertion of the fifth amendment privilege by a witness under these circumstances is not reversible error. Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963); United States v. McKuin, 434 F.2d 391 (8th Cir. 1970); cert. denied, 401 U.S. 911, 91 S.Ct. 875, 27 L.Ed.2d 810 (1971); Smith v. United States, 331 F. 2d 265, 276 (8th Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964).

In Namet v. United States, supra, the Supreme Court noted two standards used in the lower courts to determine whether a...

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