Jordan v. United States District Court for Dist. of Col., Misc. No. 462

• Citation: 98 US App. DC 160,233 F.2d 362
• Decision Date: 12 June 1956
• Docket Number: Misc. No. 462,No. 13184.,13184.
• Parties: George T. JORDAN, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Respondent. George T. JORDAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

98 US App. DC 160, 233 F.2d 362 (1956)

George T. JORDAN, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Respondent.

George T. JORDAN, Appellant, v. UNITED STATES of America, Appellee.

Misc. No. 462, No. 13184.

United States Court of Appeals District of Columbia Circuit.

April 19, 1956.

As Amended May 28, 1956.

Petition for Rehearing Denied June 12, 1956.

Mr. Charles A. Horsky, Washington, D. C., appointed by this Court, for petitioner.

Mr. Lewis A. Carroll, Asst. U. S. Atty., for respondent. Messrs. Leo A. Rover, U. S. Atty., and Harold H. Greene, Asst. U. S. Atty., entered appearances for respondent.

Before WILBUR K. MILLER, WASHINGTON, and BASTIAN, Circuit Judges.

Petition for Rehearing In Banc Denied June 12, 1956.

WASHINGTON, Circuit Judge.

In June 1944 George T. Jordan was indicted for assault with intent to commit robbery. D.C.Code 1940, § 22-501. For various reasons, he was not tried until 1953. A mistrial was declared, and a second trial was had, which resulted in conviction. On November 20, 1953, Jordan was sentenced to serve a prison term of six to twenty years. His counsel took an appeal to this court, and on December 9, 1954, we affirmed the conviction. Jordan v. United States, 1954, 95 U.S.App.D.C. 27, 217 F.2d 670.

Immediately after conviction Jordan filed pro se a motion under Section 2255 of Title 28 of the United States Code (1952) seeking to vacate his sentence, on grounds other than those urged in the appeal filed by his counsel. The District Court denied the motion without a hearing or the filing of an opinion. Petitioner later filed pro se another motion under Section 2255. This second motion was also denied, the District Judge noting the denial on the face of the papers on July 30, 1954. On the same day, petitioner filed in this court a "Petition for Leave to File a Petition for Writ of Mandamus," seeking to compel the District Court to grant him a hearing on both his Section 2255 motions. On October 14, 1954, we denied the petition on the ground that petitioner had had a hearing on his second 2255 motion on October 7, 1954. Petitioner then advised us that this ground was a mistaken one, and that the hearing of October 7, 1954, was on an independent motion made by petitioner's counsel under Section 2255 on narrower grounds than those alleged by the petitioner in his own moving papers. Investigation showed petitioner to be correct on this point. We thereupon appointed counsel (Mr. Charles A. Horsky) to represent petitioner in his request for a rehearing. Counsel filed a memorandum, which was opposed by an answering memorandum filed by the United States Attorney. Oral argument was had.

Petitioner's latest motion under Section 2255 raised a question of law, namely, whether the trial judge could — as he did here — impose the additional five-year penalty prescribed by D.C.Code 1951, Section 22-3202, for committing a crime of violence when armed with a pistol or other firearm, in spite of the fact that the indictment here does not charge that the defendant was so armed. The motion also urged: (1) that the Government's delay in bringing him to trial deprived him of his constitutional right to a speedy trial, (2) that petitioner was put in double jeopardy, (3) that the Government knowingly used perjured testimony, and (4) that the trial jury was not impartial. Petitioner's court-appointed counsel now urges that the question of law be resolved in petitioner's favor, and that the remaining contentions present genuine issues of material fact on which the District Court should hold a hearing.

In the first place, we must consider the extent of our own jurisdiction in the matter. It is clear that our affirmance of petitioner's conviction, see 95 U.S.App.D.C. 27, 217 F.2d 670, is not conclusive. The points he now raises were not before us in that appeal and are in no sense res judicata. Compare Chessman v. Teets, 1955, 350 U.S. 3, 76 S.Ct. 34, reversing 9 Cir., 1955, 221 F.2d 276. It seems clear, also, that petitioner has diligently sought to preserve his right to appellate review of the adverse decision of the District Court on his latest motion under Section 2255. No doubt a formal appeal from that decision would have been more orthodox procedure than the filing of a petition for mandamus. But the petition Jordan filed was prompt and timely; in fact, it was filed on July 30, 1954, the same day that the District Court entered a notation of denial on the face of the motion under Section 2255. And the petition was adequate to bring to our notice the nature of petitioner's grievance. Further, it brought the matter to the attention of the United States Attorney, who thereupon resisted the petition on its merits. Petitioner's good faith is not challenged. He has been in confinement for many months, and the delays which have occurred are not chargeable to him. The relief which his motion sought is in the nature of habeas corpus, Adams v. United States, 1955, 95 U.S.App.D.C. 354, 222 F.2d 45, and consideration of it should be prompt.

Under these circumstances, we asked the Government to show cause why petitioner should not be considered as having perfected his appeal, pointing out in our order that we had concluded that petitioner had "stated at least one substantial question as to the correctness of the order of the District Court of July 30, 1954 * * *."¹ After studying the Government's answer, and the response to that answer filed by petitioner's counsel, we concluded that in the interest of justice we should consider the petition for mandamus as the equivalent of the taking of an appeal,² and that we have jurisdiction to review on the merits the matters which petitioner raises. See Lemke v. United States, 1953, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3; Reconstruction Finance Corporation v. Prudence Securities Advisory Group, 1941, 311 U.S. 579, at pages 582-583, 61 S.Ct. 331, 85 L.Ed. 364; cf. Gerringer v. United States, 1954, 93 U.S.App.D.C. 403, 213 F. 2d 346; West v. United States, 1954, 94 U.S.App.D.C. 46, 222 F.2d 774.³

We turn to the contention that the sentence imposed on Jordan was in excess of the maximum authorized by law. The sentence was for a term of from six to twenty years. The statute provides that "Every person convicted of any assault with intent * * * to commit robbery * * * shall be sentenced to imprisonment for not more than fifteen years." D.C.Code 1951, § 22-501. The Government seeks to justify the imposition of the additional five years on the authority of D.C.Code 1951, § 22-3202, which provides:

"If any person shall commit a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm, he may, in addition to the punishment provided for the crime, be punished by imprisonment for a term of not more than five years * * *."

Assault with intent to commit robbery is included in the definition of "crime of violence" in Section 22-3201.

There was testimony by a prosecution witness that Jordan was armed with a pistol at the time of the crime. Jordan defended on the issue of the identity of the assailant, and alternatively on the ground that he was insane at the time of the crime. Consequently, he did not dispute the testimony that the assailant was armed with a pistol.

The indictment did not charge that Jordan was armed with a pistol or other firearm,⁴ and thus the legal question is squarely presented whether the aggravating circumstances must be charged in the indictment before the additional penalty may be imposed. No case on the point has been found in the District of Columbia, but a number of decisions in other jurisdictions deal directly with the problem. Meyers v. United States, 5 Cir., 1940, 116 F.2d 601, involved a conviction under the old Bank Robbery statute.⁵ That statute punished anyone who by various means attempted to take money belonging to or in the custody of a bank. It imposed an aggravated penalty upon any person who in committing or attempting to commit the crime "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device * * *." See former 12 U.S.C. § 588b(b) (1946), now 18 U.S.C. § 2113(d) (1952). In the Meyers case the indictment mentioned the use of a dangerous weapon but did not say that any assault was made with it or that anyone's life was put in jeopardy. On appeal from a judgment of conviction, the Fifth Circuit said that the pistol used might only have been exhibited but not pointed, it might have been not loaded, and it might have been used only to put the victim of the crime into fear without jeopardizing his life. Accordingly, the court held:

"An offense under Section 588b(b) is not alleged. The facts constituting such aggravation of a crime as will increase the statutory punishment must be plainly charged or they are not confessed by a plea or established by a verdict of guilty. Aderhold, Warden, v. Pace, 5 Cir., 65 F.2d 790. Sentence could not be imposed under Section 588b(b). The prisoner ought to be brought before the court for a resentence. Hammers v. United States, 5 Cir., 279 F. 265." 116 F.2d at page 603.⁶

The Government relies on language in Tomlinson v. United States, 1937, 68 App. D.C. 106, 93 F.2d 652, 654, 114 A.L.R. 1315, that the words "being then and there armed with a certain pistol", were surplusage to a robbery indictment. However, in that case the added penalty was not, and could not have been,⁷ sought, and the court merely held that inclusion of the allegation of being armed was "surplusage" and not prejudicial to the defendant.

The Government also cites Jackson v. United States, 1955, 95 U.S.App. D.C. 328, 221 F.2d 883. We there held that in the analogous situation where an additional penalty is sought under a statute authorizing it if the defendant has previously been convicted of a felony, the prior conviction need not be charged in the indictment. In the second-offender situation,...