Hoopengarner v. United States

• Citation: 270 F.2d 465
• Decision Date: 07 July 1959
• Docket Number: No. 13391.,13391.
• Parties: Benjamin L. HOOPENGARNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

270 F.2d 465 (1959)

Benjamin L. HOOPENGARNER, Appellant, v. UNITED STATES of America, Appellee.

No. 13391.

United States Court of Appeals Sixth Circuit.

July 7, 1959.

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Walter Shapero, Detroit, Mich., Sidney L. Cohn, Detroit, Mich., on brief, for appellant.

George E. Woods, Detroit, Mich., Fred W. Kaess, Detroit, Mich., on brief, for appellee.

Before McALLISTER, MILLER, and BAZELON, Circuit Judges.

McALLISTER, Circuit Judge.

This is an appeal from the judgment of the District Court, convicting appellant of operating a motorboat recklessly on the waters of Lake St. Clair, as well as for his misconduct, negligence, and inattention in operating his boat without lights, thereby causing the death of Virginia Ward and endangering the lives of several other persons, in violation of Title 18 U.S.C.A. § 1115, and Title 46 U.S. C.A. § 526, subdivisions (L) and (M). The case was tried by the court without a jury, and the sentence of the court was that appellant be committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one year on each of two counts, the sentences on each count to run concurrently.

Appellant pleaded double jeopardy on the ground that he had already been prosecuted for the same offense in the state court. He further contended that the Constitution, as well as the Federal Rules of Criminal Procedure, required dismissal of the indictment; that the District Court had no jurisdiction over the offense; that his conduct was not the proximate cause of the death of Virginia Ward; and that the court abused its discretion by failing to suspend the sentence.

The background of the case is as follows: On the late afternoon of August 8, 1952, a cabin cruiser owned and operated by Mr. Russell Rousch left the Clinton River and proceeded into the waters of Lake St. Clair. Mr. Rousch was accompanied by his wife and by Mr. Robert Ward and his wife, Virginia, and their two children, Donna and Aleen Ward, and Virginia Ward's parents, Mr. and Mrs. Alphonse van Riette. They were on a fishing expedition, and after going out about three miles into Lake St. Clair, they anchored off Strawberry Island and continued to fish there until twilight. They then commenced their return in a fairly direct course toward the mouth of the Clinton River, approaching the channel of the river which is defined by two rows of buoys, the red buoys on the north side of the channel, and the black, on the south side. The channel is about 100 feet wide. It was a moderately warm evening, with a very slight breeze blowing from the east northeast. Near the first buoy of the channel was a slight current of approximately one-sixth of a mile per hour, flowing in a southerly direction. The sun set at 7:46 P. M. on that particular day, and the moon arose at 8:22 P. M. It was the night following full moon. As Mr. Rousch's cruiser approached the Clinton River along the north side of the channel and near the first buoy, about 850 feet from the nearest point of land, a collision occurred between the cruiser and a speedboat owned by Mr. Benjamin L. Hoopengarner.

The collision occurred around 9:00 P. M. The sun had gone down about an hour before, and the moon was just rising. It was dark. With the impact of the collision, all of the occupants of Mr. Rousch's cruiser climbed overboard, just before the boat sank. Mr. Hoopengarner was thrown into the water and his speedboat, in its damaged condition and with motor running, continued on a wild course to a point where it was later located and salvaged.

After the collision, there was much shouting from the people who were in the water. About that time, a number of small cruisers were returning to the Clinton River from Canada with members of an organization and their friends who had been attending an outing there. They arrived within a few minutes of the collision and, together with Mr. Hall, who had rowed his boat out from the dock at the river, when he heard the collision, rescued Mr. Hoopengarner and all of the members of the Rousch party except Virginia Ward. Her body was found floating in the water. Mr. Gerlock, from one of the cruisers, took the body aboard and immediately went to the first dock on the river where efforts were made toward artificial respiration; but Virginia Ward was then deceased, having been killed in some way as a result of the collision. When she was in the water immediately after the collision, she had her small child in her arms, and asked her husband to take the child and to look after her mother, Mrs. van Riette. At that time, she stated that she was all right. A few minutes later, her body was found floating. Her death was not the result of drowning. Her breast bone, or sternum, had been fractured by reason of a severe blow inflicted afterward, and not by reason of the force of the collision of the two boats. The cause of her death was hemorrhage due to her lungs being punctured by her fractured breast bone. The blow causing death was inflicted by an object (possibly a moving rescue boat) sometime after, and not at the time of, the collision, while the deceased was in the water and after she had left the sinking boat. Death was practically instantaneous with the infliction of the blow.

The District Court, sitting as a jury, found that the collision had occurred on the north side of the channel where the Rousch cruiser had a right to be and where it was properly proceeding in the direction of the mouth of the Clinton River, and that, at the time of the impact, the Rousch cruiser was proceeding in a lawful, careful, and proper manner, and had its lights lighted. The court further found from the evidence that Mr. Hoopengarner had been drinking beer and whiskey prior to the collision; and, from the testimony of witnesses who saw him afterward, that he was intoxicated that evening at the time the collision occurred. It further found that he was operating his speedboat in the dark, without lights, on the wrong side of the channel, at an excessive and dangerous rate of speed; and that, by reason of his intoxicated condition, his operation of the speedboat in the dark, without lights, and at such excessive and dangerous rate of speed, he was guilty of negligence, misconduct, and inattention to his duties in the operation of his speedboat in manner and form as set forth in the indictment. Finally, the court found, from the evidence which convinced it beyond a reasonable doubt, that the aforementioned conduct of Mr. Hoopengarner was the proximate cause of the collision; that it caused the death of Virginia Ward; and that it endangered the lives of the other occupants of the Rousch cruiser. Accordingly, the court thereupon passed sentence on appellant, as above mentioned.

On review, we discuss the issues raised by appellant.

It appears that, prior to his trial in the District Court, he was tried, on the same evidence, in the state court upon an information which had been filed against him charging manslaughter; that he was convicted by a jury of simple assault; and that he was sentenced to pay a fine of $100 and costs of $50, which he paid. Appellant claims that his indictment, trial, and sentence in the District Court constituted "double jeopardy," in violation of the provisions of the Fifth Amendment. Upon the argument of the case before this court, counsel for appellant submitted that the Supreme Court had granted a writ of certiorari in Abbate v. United States, 5 Cir., 247 F.2d 410, and that the issue of double jeopardy in the instant case would be controlled by the Supreme Court decision in Abbate. We, accordingly, deferred consideration of this question pending that determination. Since then, the Supreme Court has resolved the issue against the contention made in this regard in Abbate v. United States, 359 U. S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729. On this question, therefore, we conclude that appellant herein was not subjected to double jeopardy, in violation of his rights under the Fifth Amendment.

Appellant next contends that Rule 48 (b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the "speedy trial" guarantee of the Sixth Amendment required dismissal of the indictment.

Rule 48(b) provides:

"Dismissal * * * (b) By Court. If there is unnecessary delay in presenting a charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint."

The Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."

The Sixth Amendment applies to the right to a speedy trial after formal complaint is lodged against a defendant in a criminal case. It has been held that the constitutional right to a speedy trial does not arise until after such formal complaint has been filed. See D'Aquino v. United States, 9 Cir., 192 F.2d 338, 350. There is no contention made that there was any undue delay in the prosecution of the action after the complaint or information; and, accordingly, this case presents no valid issue of violation of constitutional rights under the Sixth Amendment.

As to Rule 48(b) of the Federal Rules of Criminal Procedure, the District Court is authorized to dismiss the indictment, information, or complaint, providing there has been an unnecessary delay in presenting a charge to a grand jury or in filing an information against a defendant who has been held to answer to the District Court, or if there is unnecessary delay in bringing a defendant to trial. There was no unnecessary delay in the prosecution of defendant after he had been held to answer. As to delay from the time of the commission of the offense to the commencement of the criminal proceedings, that is controlled by the Statute of Limitations, which is not here in question.

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