U.S. v. Anderson

• Citation: 514 F.2d 583
• Decision Date: 31 March 1975
• Docket Number: No. 74-1461,74-1461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Lee ANDERSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 583

514 F.2d 583

UNITED STATES of America, Plaintiff-Appellee, v. Eddie Lee ANDERSON, Defendant-Appellant.

No. 74-1461.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 23, 1975.

Decided March 31, 1975.

Daniel L. Freeland, Hammond, Ind., for defendant-appellant.

John R. Wilks, U. S. Atty., Fort Wayne, Ind., Richard A. Hanning, Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and SPRECHER, Circuit Judges.

SWYGERT, Circuit Judge.

Defendant-appellant Eddie Lee Anderson is appealing his conviction and ten year sentence for violation of 18 U.S.C. § 2113(d) on the basis of alleged double jeopardy and due process violations.

On March 13, 1972 Anderson participated in an armed robbery of the Lake Federal Savings and Loan Association in Hammond, Indiana. During that robbery weapons were pointed at a teller and at a woman at the front desk. Due to some confusion only thirty-five dollars in dimes was actually taken by the robbers.

On March 17, 1972 an information was filed against Anderson under cause number 72 H CR 44 charging him with a violation of 18 U.S.C. § 2113(d). ¹ Pursuant to a plea agreement, a new information, cause number 72 H CR 59, was filed on April 21, 1972 charging Anderson with a violation of 18 U.S.C. § 2113(b), ² for taking "with intent to steal and purloin . . . certain money aggregating $35.00 . . . ." Anderson pled guilty to this new information and on May 5, 1972 was sentenced to a prison term of ten years. Information number 72 H CR 44 charging the violation of section 2113(d) was then dismissed on the motion of the Government.

On November 30, 1972 Anderson filed a section 2255 petition seeking to have his guilty plea vacated on the basis of alleged noncompliance with Fed.R.Crim.P. 11. This motion was denied by the district court on March 16, 1973 and appealed to this court. During consideration of that appeal we discovered that although Anderson had been given a ten year sentence the information charged him with a theft of $35.00 and the maximum penalty under section 2113(b) for thefts of under $100 is one year. On October 4, 1973, sua sponte, we ordered the Government to file a memorandum addressing this point. The Government's memorandum indicated that at the time of the guilty plea everyone involved, including the defendant, mistakenly believed that Anderson was subject to a possible ten-year sentence. The Government suggested that since Anderson did not correctly understand the maximum penalty which he could possibly receive, his guilty plea was not voluntarily entered and thus the section 2255 petition should be granted and his guilty plea vacated. In accordance with the Government's confession of error, on November 7, 1973, in an unpublished order, this court reversed the decision of the district court on the section 2255 petition and remanded with directions "to vacate the illegal ten-year sentence imposed upon Anderson under information No. 72 H Cr 59, to allow Anderson to withdraw his guilty plea, and to conduct new arraignment proceedings at which Anderson can plead anew to charges brought against him."

Subsequent to our order, a new indictment, No. 73 H Cr 157, was obtained charging Anderson with violating 18 U.S.C. § 2113(d), the more serious assault with a dangerous weapon statute which provides for a twenty-five-year maximum sentence regardless of the amount of money stolen. Although Anderson's counsel who later withdrew did file a motion seeking an extension of time in which to file motions raising a double jeopardy issue, no formal double jeopardy claim was ever presented before trial. Anderson was tried and convicted by a jury and sentenced to ten years imprisonment.

I

A preliminary issue we must consider is whether Anderson is foreclosed from raising the double jeopardy question on appeal since he failed to raise it in a formal manner in the district court. Indeed, his first appointed counsel withdrew because Anderson refused to provide certain papers and documents concerning his previous conviction which the attorney thought might be relevant to a double jeopardy defense.

A finding of waiver requires "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We should particularly scrutinize a claim of waiver when it relates to a right as fundamental as that embodied in the constitutional protection against double jeopardy. See Kepner v. United States, 195 U.S. 100, 135, 24 S.Ct. 797, 49 L.Ed. 114 (1904) (dissenting opinion of Mr. Justice Holmes).

In this case we do not find an "intentional relinquishment" of a "known right." A double jeopardy defense is normally not the type of claim that would be foregone for some strategic purpose. Indeed, the question of a possible double jeopardy problem was at least mentioned before the district court. Moreover, it is clear from the transcript that Anderson refused to give his attorney the requested documents because he did not think that anything concerning the prior charges could be relevant to the new charge brought against him. This demonstrates a failure to fully comprehend the right to be free from being placed in jeopardy twice. Under these circumstances we find no waiver.

II

We proceed then to discuss the question of whether the Government was barred by the Constitution from prosecuting Anderson for the more serious crime of violating section 2113(d). Although the only constitutional claim raised by the defendant in regard to this precise point is an alleged double jeopardy violation, it also appears that there is a possible due process claim ³ and we shall therefore consider the issue on the basis of both possible grounds.

We agree with defendant that a violation of section 2113(b) is a lesser included offense contained in section 2113(d). United States v. Davis,439 F.2d 325 (8th Cir. 1971). Thus, if this were a case in which a defendant had been tried by a jury on a charge of violating section 2113(d) and convicted, after appropriate instructions, of violating section 2113(b) without any specific verdict having been returned as to section 2113(d), the Double Jeopardy Clause would be a bar to a subsequent prosecution for violating section 2113(d) even if the section 2113(b) conviction had been overturned on appeal. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The issue with which we are faced is whether this principle should be extended to our factual situation.

Anderson's argument that the principle is applicable in this case is supported mainly by two Sixth Circuit cases. In Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970), the petitioner in accordance with a plea agreement, had pled guilty in a Michigan state court to the charge of unarmed robbery after having pled not guilty to the charge of armed robbery. His guilty plea was subsequently overturned on a federal habeas corpus petition. He was then tried and convicted for armed robbery. The court found that this armed robbery conviction amounted to double jeopardy. In part this conclusion was based on the fact that by accepting the plea of guilty to the unarmed robbery charge, the judge had to have found to be true facts inconsistent with a finding of guilty of armed robbery since an essential element of unarmed robbery in Michigan is that the robber not be armed. Our case is distinguishable on this point because conviction under section 2113(b) does not require a finding that the robbery was committed without the use of a weapon. But the true rationale for the Mullreed decision appears to be the view that the state's decision not to prosecute the armed robbery charge is equivalent to the jury's refusal to convict on the greater charge in Green v. United States, supra :

For purposes of the present appeal it was not the conviction on count two which is crucial here; rather it is the State's relinquishment of its rights, or its refusal, to prosecute on count one. Cf. Green v. United States, 355 U.S. 184, 190, n. 11, 78 S.Ct. 221, 2 L.Ed.2d 199. ⁴

Under this rationale, Mullreed is indistinguishable from our case. Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973), ⁵ proves that this is the true basis for the Sixth Circuit's position. In Rivers the petitioner was charged with murder and allowed to plead guilty to a manslaughter charge. This conviction was reversed and murder charges were again brought against Rivers. Mullreed was found to be controlling:

We affirm that there is implicit in a court's acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction, for double jeopardy purposes, is the equivalent of a jury's refusal to convict on the more serious charge. Only if this is true may a defendant seek review of his conviction without being faced with the "incredible dilemma" of choosing between a legal right and the possibility that success will revive the hazard of conviction of a charge which the prosecution had willingly abandoned in exchange for his plea. ⁶

We believe that the Sixth Circuit's position is incorrect and refuse to follow it. The Government here did not unequivocally relinquish its right to prosecute Anderson for violating section 2113(d). Instead, it conditionally relinquished this right provided Anderson was convicted of and remained convicted of the section 2113(b) offense. This is in direct contrast to Green in which the implicit acquittal on the greater charge was in no sense contingent on the continued viability of the conviction for the lesser offense. When the section 2113(b) conviction was vacated the condition precedent to the Government's agreement not to prosecute no longer existed. The Government was then free to prosecute Anderson for the section 2113(d) charge without...