U.S. v. Bowman

• Decision Date: 24 October 1979
• Docket Number: No. 78-1915,78-1915
• Parties: , 4 Fed. R. Evid. Serv. 1530 UNITED STATES of America v. Nathan O. BOWMAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 12

609 F.2d 12

197 U.S.App.D.C. 246, 4 Fed. R. Evid. Serv. 1530

UNITED STATES of America v. Nathan O. BOWMAN, Appellant.

No. 78-1915.

United States Court of Appeals District of Columbia Circuit.

Argued June 15, 1979.

Decided Oct. 24, 1979.

Dennis M. Hart, Washington, D. C., with whom Kenneth Michael Robinson, Washington, D. C., was on brief, for appellant.

Genevieve Holm, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell and Roger M. Adelman, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Also William E. Bucknam, Asst. U. S. Atty., Washington, D. C., entered an appearance, for appellee.

Before McGOWAN and MacKINNON, Circuit Judges, and HAROLD H. GREENE, ^* United States District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Nathan O. Bowman was indicted for bank robbery and in his trial in the United States District Court for the District of Columbia he was acquitted of the charge, United States v. Nathan Bowman, Criminal Case No. 76-796. It appeared to the Government, however, that he had threatened two witnesses who testified for the government in the trial and he was accordingly indicted for obstructing justice. The indictment contained three counts charging endeavors to obstruct justice in violation of 18 U.S.C. § 1503. The First and Second Counts charged corrupt endeavors by threats to influence, intimidate and impede James Jackson, and George Jackson respectively, both government witnesses in the bank robbery trial. The Third Count in slightly different terminology charged a similar corrupt endeavor to obstruct justice by impeding George Jackson.

At the April, 1978 trial of Bowman on the obstruction of justice charges he was acquitted on the Third Count. However, the jury was unable to agree on the First and Second Counts and a mistrial was declared on those counts. At the subsequent trial on these two remaining counts Bowman was convicted on both counts, i. e., obstructing James Jackson (First Count) and George Jackson (Second Count) and sentenced to consecutive sentences of five years on each count plus a committed fine of $2500. The appeal from the judgment in the second obstruction of justice trial is now before us. We affirm the conviction on the First Count, order the judgment on the Second Count vacated, and remand the case for resentencing.

I

The principal issue is appellant's claim that the double jeopardy clause of the Fifth Amendment ¹ was violated by his trial, conviction and sentence on the Second Count involving George Jackson. The answer to this contention requires an analysis of the Second and Third Counts and certain events at the first trial on the obstruction of justice charges. We set out the counts in the margin. ² Both counts charged obstruction of George Jackson as a witness in violation of 18 U.S.C. § 1503.

Bowman contends that the double jeopardy clause of the Fifth Amendment barred his retrial on Count Two. His theory is that, Because of the jury instructions, the "not guilty" finding in the first trial on the Third Count amounted to a ruling "by implication" that the jury was also finding Bowman not guilty on the Second Count. We have thoroughly examined this contention and reject it without discussion because we find that the Government in a second trial is collaterally estopped from litigating the issues presented by the Second Count.

Our analysis begins with a comparison of the factual allegations of the offenses alleged in the Second and Third Counts of the indictment. The Second Count charged that "Bowman . . . corruptly Endeavored by threats to influence, intimidate and impede George Jackson in the discharge of his duties as a witness well knowing that George Jackson had been identified as a witness for the United States in (the Bank Robbery case against Bowman, No. 76-796) . . ." (Emphasis added)

The Third Count charged that "Bowman . . . corruptly Endeavored to influence, obstruct and impede the due administration of justice by conveying to George Jackson threats and threatening communications well knowing that George Jackson had been identified as a witness for the United States (in the Bank Robbery case against Bowman, No. 76-796) . . ." (Emphasis added)

These counts are both based on violations proscribed by 18 U.S.C. § 1503, which provides:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, Endeavors to influence, intimidate, or impede any witness, in any court of the United States . . . or corruptly or by threats or force, or by any threatening letter or communication, influences, Obstructs, or impedes, or Endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 769. (Emphasis added).

Bowman bases his appeal on the ground that the jury refused to follow the court's instructions. We find this contention to be without merit; but he also, almost in an aside, asserts the substance of a collateral estoppel theory: "the wording of the two offenses are nearly identical and both involve a unity of time, place and action." Bowman Br. 21.

In reply the Government argues that:

Ample precedent supports the practice of charging a defendant with both Endeavoring to impede a witness and Endeavoring to impede the due administration of justice, even when both crimes stem from the same set of acts. See Broadbent v. United States, (149 F.2d 580 (10th Cir. 1945)); Samples v. United States, (121 F.2d 263 (5th Cir. 1941)); United States v. Meltzer, 100 F.2d 739 (7th Cir. 1938); Slade v. United States, 85 F.2d 786 (10th Cir. 1936); McCarthy v. Zerbst, 85 F.2d 640 (10th Cir. 1936).

Govt. Br. 28-29.

The above cases cited by the Government in some instances do not deal with double jeopardy questions and the others do not support the Government's contentions. Broadbent, supra, merely held that there was sufficient evidence to support the verdict that the accused had endeavored to corruptly influence the witness and endeavored to obstruct and impede justice. The possibly duplicitous nature of the two counts was never raised, discussed or decided. 149 F.2d at 5821. Samples, supra, was a conspiracy case in which two objects of the conspiracy were alleged to be the corrupt endeavor To intimidate a witness and a corrupt endeavor To obstruct the due administration of justice. The case merely holds that the evidence at trial was sufficient to support the guilty verdict on the Conspiracy charge. It is horn book law that proof of any single alleged object of a conspiracy is all that is required. Thus, double jeopardy was not at issue in this case.

Meltzer, supra, also does not support the Government's contention. It involved one offense charged under 18 U.S.C. § 241 of the Criminal Code (54 Stat. 13) which proscribed corrupt Endeavors to threaten, etc., witnesses before federal agencies, and one offense charged under 18 U.S.C. § 245 (35 Stat. 1114) which made it an offense to wilfully Obstruct an officer of the United States. 100 F.2d at 740. It is obvious that charging an uncompleted "endeavor" in one count and an actual completed "obstruction" in another count charges different crimes.

McCarthy v. Zerbst, supra, similarly involved clearly separate offenses in three counts:

(1) Impeding administration of justice by assaulting a witness; i. e., striking and shooting him (2) Conspiring to deter by force a witness from testifying freely;

(3) Conspiring to injure a witness After he has appeared and given evidence.

85 F.2d at 642. It is self evident that these counts charge separate offenses.

The opinion by Judge Phillips in Slade v. United States, 85 F.2d 786 (10th Cir. 1936) also points out distinctions in cases arising under 18 U.S.C. § 1503, then codified at 18 U.S.C. § 241 (1934), that are central to the issues here. He states particularly that the provisions of the obstruction of justice statute, with which we are here concerned, involved three separate offenses:

(1) Corruptly, or by threats or force, or by threatening letter or communication, endeavoring to influence, intimidate, or impede a witness, juror or officer.

(2) By the same means, endeavoring to influence, obstruct, or impede the due administration of justice.

(3) By the same means, influencing, obstructing, or impeding the due administration of justice.

Classes one and two embrace an Endeavor to accomplish a specific and a more general evil purpose. Class three embraces the Accomplishment of an evil purpose.

85 F.2d at 790. (Emphasis added). While the statute has been amended since Slade, it has not been altered in any respect that would alter Judge Phillips' analysis or that would affect this case. It can thus be said that the present statute proscribes (1) corrupt Endeavors by threats to impede a witness; (2) corrupt Endeavors by threats to obstruct the due administration of justice; and (3) by the same corrupt means, actually Obstructing the due administration of justice.

While Slade recognized the three classes of offenses, we note that the facts to which the decision was addressed only involved charges in one count that Slade "corruptly Endeavored to impede," etc., and in the second count that he Did "corruptly . . . impede," etc., the due administration of justice. Thus Slade did not involve an indictment, such as we have here, where one count charges a corrupt endeavor to obstruct a witness and the second count based on the same charge of obstruction charges a corrupt endeavor to obstruct justice in general. In this indictment Both counts charge an "endeavor" one an endeavor corruptly to impede, etc., a witness in the discharge of his duties as a witness in a criminal trial, and the other an endeavor corruptly to obstruct the due administration of...