U.S. v. Dougherty, s. 88-1948

• Decision Date: 08 February 1990
• Docket Number: Nos. 88-1948,88-1949,s. 88-1948
• Citation: U.S. v. Dougherty, 895 F.2d 399 (7th Cir. 1990)
• Parties: 29 Fed. R. Evid. Serv. 700 UNITED STATES of America, Plaintiff-Appellee, v. Joseph W. DOUGHERTY and Terry L. Conner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 399

895 F.2d 399

29 Fed. R. Evid. Serv. 700

UNITED STATES of America, Plaintiff-Appellee, v. Joseph W. DOUGHERTY and Terry L. Conner, Defendants-Appellants.

Nos. 88-1948, 88-1949.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1988.

Decided Feb. 8, 1990.

Mel S. Johnson, Eric Klumb (argued), Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Francis D. Schmitz, Stephen J. Liccione, Asst. U.S. Attys., Milwaukee, Wis., for the U.S.

David P. Lowe (argued), Friebert, Finerty & St. John, Milwaukee, Wis., for Joseph W. Dougherty.

William M. Coffey, David P. Geraghty (argued), Coffey, Coffey & Geraghty, Milwaukee, Wis., for Terry L. Conner.

Before CUDAHY and KANNE, Circuit Judges, and WILL, Senior District Judge. ^*

KANNE, Circuit Judge.

On Labor Day, 1985, Joseph P. Dougherty and Terry L. Conner ("defendants"), posing as U.S. Marshals, entered the home of Richard Woodcock, the chief executive officer of the Central Bank in West Allis, Wisconsin. Woodcock, his wife, his daughter, and his daughter's boyfriend were present in the house. A short time later, the defendants announced that they intended to rob the Central Bank. To show that they were serious, Conner and Dougherty displayed a hand grenade and an automatic weapon. Later, the Woodcocks and their guest were taken to the basement and held hostage throughout that night. Conner questioned Mr. Woodcock about the bank and access to the vault. He was told that Woodcock had half of the vault combination and another bank officer had the other half.

Early the next morning the hostages were taken to Woodcock's van and driven to the Central Bank. After entering the bank, Mr. Woodcock was told to greet the incoming employees. In the meantime, the other hostages were locked in a storage room inside the bank. As they arrived for work, the bank employees also were locked in the storage room. During this time, a bank maintenance man also observed Dougherty and Conner in possession of hand grenades and guns. When the other bank officer arrived, he was forced to open the vault and to assist Dougherty in taking over half a million dollars in cash and stuffing the money into three large duffle bags. Conner and Dougherty then locked the remaining employees in the storage room and escaped in the bank officer's car.

Sometime later, the defendants and an accomplice were arrested on charges contained in a four-count indictment. Count I charged Conner, Dougherty and the accomplice with armed bank robbery under 18 U.S.C. Sec. 2113; Count II charged Conner and Dougherty with use of firearms during a crime of violence under 18 U.S.C. Sec. 924(c); Count III charged Dougherty and Count IV charged Conner with being a convicted felon in possession of a firearm under 18 U.S.C. Sec. 1202(a)(1). ¹

At trial, to prove that Dougherty had a prior felony conviction the government offered a certified copy of a June 19, 1985 jury verdict from the U.S. District Court for the Western District of Oklahoma. The form of verdict carried the name of the defendant, Joseph W. Dougherty, and a case number. However, the verdict did not set out the specific crime charged but merely indicated that the named defendant was guilty of "the offense charged in the indictment." The government then offered an uncertified copy of an indictment from the Western District of Oklahoma which carried the same case name and number as the verdict and charged Dougherty with the felony offense of bank robbery. The certified copy of the verdict and the uncertified copy of the indictment were admitted into evidence and formed the basis for Dougherty's conviction on Count III.

In its case-in-chief, the government called a West Allis police officer to testify. On cross-examination, it was revealed that the police had conducted an investigation which produced various reports which were compiled in a single document. Neither the government nor the defendants had previously known of the document. The testimony of the police officer was suspended in order to give counsel an opportunity to review the document. Counsel for both defendants requested a continuance to enable them to interview individuals identified in the document. The requests were denied.

The jury found Dougherty and Conner guilty on all counts ² and each defendant was sentenced to: a term of life imprisonment on Count I; a concurrent term of life imprisonment, without eligibility for parole, on Counts III and IV; and a consecutive term of five-years imprisonment, without eligibility for parole, on Count II.

On appeal, the defendants challenge their convictions claiming that: (a) the proof was insufficient to convict on Count III, being a convicted felon in possession of a firearm; (b) the district court's denial of their motion for a continuance deprived them of their constitutional rights to a fair trial and to effective assistance of counsel; and (c) the district judge improperly sentenced them. We address each claim in turn.

A.

Dougherty argues that his conviction on Count III must be overturned because the government failed to submit evidence to prove that he had a prior felony conviction. Specifically, he argues that a prior jury verdict of guilty, absent entry of a judgment thereon by the court, does not constitute a prior conviction under 18 U.S.C. Sec. 1202(a)(1). He also asserts that no competent evidence was introduced to prove the prior jury verdict related to a felony.

To bring this issue into focus, we must examine Sec. 1202(a)(1) which was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. ³ It provided:

(a) Any person who--

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony,

. . . . .

and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

It is obvious that Sec. 1202(a)(1) required proof of a prior felony conviction.

Thus, we must first decide whether a jury verdict of guilty amounts to being "convicted by a court" under Sec. 1202(a)(1), even though no formal judgment of conviction was entered on the verdict. We hold that it does.

In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Supreme Court explored the meaning of the words "convicted by a court" in Sec. 1202(a)(1). The Court held that a prior conviction, which was subject to collateral attack on constitutional grounds because the defendant was without counsel when it was entered, was a conviction under the statute. Id. at 65, 100 S.Ct. at 921. In arriving at its decision, the Court made several findings which are instructive here. In reference to Sec. 1202(a)(1), the Court said, "No modifier is present, and nothing suggests any restriction on the scope of the term 'convicted.' " Id. at 60, 100 S.Ct. at 918. In examining the legislative history, the Court said Congress intended to create a broad rule and the language of Sec. 1202(a)(1) was termed "sweeping." Id. Thus, it is apparent that the phrase "convicted by a court" is not to be given a narrow interpretation.

Subsequently, the Supreme Court decided Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). Dickerson involved an interpretation of the language "convicted in any court" in Title IV of the Act, 18 U.S.C. Sec. 922(g)(1) and (h)(1). ⁴ David Kennison had previously entered a plea of guilty to a state crime, but the state court "deferred" the entry of a formal judgment while Kennison was on probation. After he successfully completed his term of probation, the state court expunged the deferred judgment. The issue was whether Kennison was previously "convicted" so as to invoke the firearm disability of Title IV. Dickerson presents a situation analogous to the one before us in which no judgment of conviction was entered. The Court began its analysis by citing the findings of Lewis which gave a broad reading to the disability language of Title VII. 460 U.S. at 111, 103 S.Ct. at 991. It also cited the Lewis finding that there is " 'little significant difference between Title IV and Title VII.' " Id. (quoting Lewis, 445 U.S. at 64, 100 S.Ct. at 920). The Supreme Court then addressed what constitutes a "conviction": " 'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.' " Id. 460 at 112-13, 103 S.Ct. at 992 (quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927)) (emphasis added). Here, a verdict of a jury found Dougherty guilty and the district court had nothing left to do but enter judgment. ⁵ Under the Supreme Court's broad interpretation of the statutory language and the Dickerson analysis, we are compelled to find that the jury verdict of guilty amounts to being "convicted" within the language of Sec. 1202(a)(1). See also United States v. Locke, 409 F.Supp. 600, 603 (D.Idaho 1976) (finding the defendant was "convicted" for purposes of Sec. 1202(a)(1) even though judgment on the plea of guilty had been withheld).

Next, in connection with Sec. 1202(a)(1), we must determine whether the uncertified copy of the indictment was properly admitted into evidence to show that the prior jury verdict related to a felony. Dougherty objected when the government offered the uncertified copy of the indictment. The district court conditionally admitted it "subject to it being certified." A certified copy of the indictment was never substituted by the government for the uncertified copy. However, Dougherty did not move to strike or otherwise renew his objection. We hold that by failing to renew the objection to the conditional admission, Dougherty waived...