McGann v. United States, 7750.

• Decision Date: 13 December 1958
• Docket Number: No. 7750.,7750.
• Citation: 261 F.2d 956
• Parties: Clarence Duke McGANN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

261 F.2d 956 (1958)

Clarence Duke McGANN, Appellant, v. UNITED STATES of America, Appellee.

No. 7750.

United States Court of Appeals Fourth Circuit.

Argued November 4, 1958.

Decided December 13, 1958.

Walter E. Black, Jr., Baltimore, Md. (H. B. Mutter, Baltimore, Md., on brief) (Court appointed counsel), for appellant.

John R. Hargrove, Asst. U. S. Atty., Baltimore, Md. (Leon H. A. Pierson, U. S. Atty., Baltimore, Md., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

Clarence Duke McGann, now at Leavenworth serving a twenty-year sentence, appeals from the District Court's denial of his motion, filed under Title 28 U.S. C.A. § 2255, to vacate the conviction which he asserts has subjected him to double jeopardy.

In 1954 the United States Grand Jury for the District of Maryland returned two indictments against the appellant. The first, Criminal No. 23017, was in four counts and charged him with robbery of a national bank in violation of Title 18 U.S.C.A. § 2113. The indictment described the bank as a member of the Federal Reserve System, organized and operating under the laws of the United States, insured by the Federal Deposit Insurance Corporation and located at the Andrews Air Force Base in Maryland. The second, Criminal No. 23024, charged McGann with robbery on the same occasion, on lands within the territorial jurisdiction of the United States, namely, the Andrews Air Force Base in Maryland, in violation of Title 18 U.S.C.A. § 2111.

On September 20, 1954, the appellant, represented by two court-appointed counsel, entered a plea of guilty to each charge in the District Court for the District of Maryland and was sentenced to twenty years under the first indictment and five years under the second, the sentences to run concurrently.

In 1957 McGann filed an application for a writ of habeas corpus, treated by the District Court as a motion for relief under Title 28 U.S.C.A. § 2255, alleging that a national bank cannot be on a United States Air Force Base. This court affirmed the District Court's denial of McGann's motion, 4 Cir., 1957, 249 F.2d 431.

In April, 1958, McGann filed his second motion for relief under Section 2255, this time charging that the two indictments were duplicitous and, as such, constitute double jeopardy. Having served the five-year sentence, he urged that the twenty-year sentence be vacated. The District Judge filed a carefully written opinion answering the petition at length and denied the motion, D.C.Md.1958, 161 F. Supp. 629. No appeal was taken, but in May, 1958, McGann filed his third motion for relief under Section 2255, again asserting that the indictments and convictions thereunder constitute double jeopardy. He appeals from the District Judge's denial of the motion.

This appeal could be dismissed under Title 28 U.S.C.A. § 2255, which provides in part: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." The District Judge properly refused to consider again the identical contentions already pressed by the appellant in his previous motion and fully answered by the District Judge in a considered written opinion. Having failed to appeal from that ruling, the prisoner cannot now file an identical motion in order to obtain review by this court. Burns v. United States, 8 Cir., 1956, 229 F.2d 87, 89, certiorari denied 351 U.S. 910, 76 S.Ct. 703, 100 L.Ed. 1445.

Moreover, the appellant's contentions lack merit. He feels that he has been twice charged with the same crime since both indictments relate to a $124,000 robbery at Andrews Air Force Base in the presence of the same enumerated persons.¹ McGann's contention is that this is double jeopardy since he has committed only one robbery, not two. But it is an elementary proposition of law that a single act can subject the actor to punishment under two statutes. In the leading case of Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, the defendant's act of insulting a public official in the latter's presence led to the defendant's two convictions, first, under a disorderly conduct statute and second, under a statute prohibiting insults to public officials in their presence. And in Blockburger v. United States, 1932, 284 U.S....