U.S. v. Haas, 07-CR-26-LRR.
| Decision Date | 26 November 2008 |
| Docket Number | No. 07-CR-26-LRR.,07-CR-26-LRR. |
| Citation | 599 F.Supp.2d 1061 |
| Parties | UNITED STATES of America, Plaintiff, v. Jeffery Eugene HAAS, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Peter E. Deegan, Jr., U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Philip A. Burian, Simmons Perrine Albright Ellwood, Cedar Rapids, IA, for Defendant.
TABLE OF CONTENTS
I. INTRODUCTION ..............................................1062
II. RELEVANT PROCEDURAL BACKGROUND ............................1062
III. ISSUES ....................................................1063
IV. MULTIPLICITY ..............................................1063
A. Counts 1 and 2 are Multiplicitous ......................1063
1. Prince ...............................................1063
2. Kitts ...............................................1064
3. Conclusion ..........................................1064
B. Structure of Defendant's Formal Judgment ...............1064
1. Alternate sentences are appropriate ................. 1064
a. "Merger of sentences" approach ...................1064
b. Rutledge .........................................1066
c. Analysis .........................................1068
d. Conclusion .......................................1070
2. Choice of count .....................................1070
V. CAREER OFFENDER ...........................................1071
A. Qualifying Age .........................................1071
B. Qualifying Offense .....................................1071
C. Two Qualifying Predicate Offenses ......................1072
1. Burglary in the Second Degree .......................1073
2. Burglary in the Third Degree ........................1074
D. Defendant is a Career Offender .........................1074
VI. CONCLUSION ................................................1074
The matter before the court is the sentencing of Defendant Jeffery Eugene Haas.
On July 17, 2007, a jury found Defendant guilty on Counts 1 and 2 of the Second Superseding Indictment (docket no. 47). The jury found Defendant guilty of Unlawful Entry of a Bank (Count 1), in violation of 18 U.S.C. § 2113(a), unnmbrd. ¶ 2.1 The jury also found Defendant guilty of Theft of Bank Funds (Count 2), in violation of 18 U.S.C. § 2113(b), unnmbrd. ¶ 1.2
There are two issues before the court. The first issue is whether Counts 1 and 2 are multiplicitous. The second issue is whether Defendant is a "career offender" as defined in USSG § 4B1.1(a) (2007). The court examines each issue, in turn.
The first primary issue before the court is whether Counts 1 and 2 are multiplicitous. If the court finds Counts 1 and 2 are not multiplicitous, the court's enquiry ends with respect to this issue. If the court finds Counts 1 and 2 are multiplicitous, the court must decide how to structure the formal judgment against Defendant.
The court holds that counts 1 and 2 are multiplicitous. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) and Kitts v. United States, 243 F.2d 883 (8th Cir.1957) (per curiam) clearly govern.
The question presented in Prince was whether § 2113(a) and § 2113(b) "are two offenses consecutively punishable in a typical bank robbery situation." 352 U.S. at 324, 77 S.Ct. 403. The defendant in Prince robbed a bank and was convicted on one count of § 2113(a) and one count of § 2113(b). Id. The district court ordered consecutive sentences. Id.
The Supreme Court reversed and held that § 2113(a) and § 2113(b) were not consecutively punishable. Id. at 324-29, 77 S.Ct. 403. The Supreme Court examined the Federal Bank Robbery Act ("Act"), 18 U.S.C. § 2113, and reasoned:
It is a fair inference from the wording in the Act, uncontradicted by anything in the meagre legislative history, that the unlawful entry provision [(§ 2113(a))] was inserted to cover the situation where a person enters a bank for the purpose of committing a crime, but is frustrated for some reason before completing the crime. The gravamen of the offense [(§ 2113(a))] is not in the act of entering.... Rather, the heart of the crime is the intent to steal. This mental element merges into the completed crime [(§ 2113(b))] if the robbery is consummated.
Id. at 328, 77 S.Ct. 403. The Supreme Court held that, at least in "a typical bank robbery situation," id. at 324, 77 S.Ct. 403, "there was no indication Congress ... intended to pyramid the penalties" of § 2113(a) and § 2113(b), id. at 327, 77 S.Ct. 403. The Supreme Court found it highly unlikely that Congress "would have wanted the offender given 10 years for the larceny plus 20 years for entering the bank with intent to steal." Id.
The Supreme Court generically remanded the case to the district court "for the purpose of resentencing the petitioner in accordance with this opinion." Id. at 329, 77 S.Ct. 403. Prince is unclear as to whether on remand the district court was required to impose concurrent sentences on both counts, merge the defendant's sentences into one sentence or take the most drastic step and altogether vacate one of the defendant's convictions.
The question presented in Kitts was "whether a person who has been convicted [of] ... entering a bank with intent to commit the felony of larceny in violation of [§] 2113(a) can also be given a consecutive sentence upon conviction of larceny from the bank in violation of 2113(b)." 243 F.2d at 884. Like the defendant in Prince, the defendant in Kitts was convicted of one count of § 2113(a) and one count of § 2113(b), and the district court ordered him to serve consecutive sentences. Id. Unlike the defendant in Prince, the defendant in Kitts did not use force, violence, intimidation or extortion to steal bank funds. See id. (). Just as in the case at bar, the defendant in Kitts entered and stole from a bank but did not commit robbery.
In Kitts, the Eighth Circuit Court of Appeals extended Prince beyond the "typical bank robbery situation," Prince, 352 U.S. at 324, 77 S.Ct. 403, to the typical bank larceny situation. The Eighth Circuit Court of Appeals recognized that there was a "factual distinction" with Prince, because the defendant in Prince committed robbery. Kitts, 243 F.2d at 885. Nonetheless, the Eighth Circuit Court of Appeals found the ratio decidendi of Prince applied. Id. The Eighth Circuit Court of Appeals held a "conviction under [§] 2113(b), pertaining to larceny from a bank, can not be superimposed upon [a § 2113(a)] sentence." Id. The court reversed the district court and "remanded . . . with directions to vacate the sentence imposed under [§ 2113(b)]". Id.
Accordingly, the court holds that Counts 1 and 2 are multiplicitous. The court may not "pyramid the penalties" of § 2113(a) and § 2113(b). Prince, 352 U.S. at 327, 77 S.Ct. 403; Kitts, 243 F.2d at 885.
Because Counts 1 and 2 are multiplicitous, the court must decide how to structure the formal judgment against Defendant. The court must address two sub-issues. The court must (1) decide whether it may enter formal judgment on both counts of conviction and (2) choose the count upon which to impose sentence. The court considers these two sub-issues, in turn.
The first sub-issue is whether the court may enter formal judgment on both counts of conviction.
As indicated previously, Prince's remand order was unclear as to the appropriate remedy for multiplicity when a defendant is found to have violated both § 2113(a) and § 2113(b). In subsequent cases, the Eighth Circuit Court of Appeals adopted what the Sixth Circuit Court of Appeals refers to as the "merger of sentences" approach to the Act. Bryan v. United States, 721 F.2d 572, 575 (6th Cir. 1983) (cited United States v. Wilson, 787 F.2d 375, 383 (8th Cir. 1986)). Under the "merger of sentences" approach, the Act "is treated as creating separate offenses which will permit separate convictions but not multiple sentences." Id. The "merger of sentences" approach contrasts with other courts' "merger of offenses" approach, under which "only a single conviction can be allowed to stand." Id. at 575 (citations omitted).
Hardy v. United States, 292 F.2d 192 (8th Cir.1961) is the seminal case.3 The defendant in Hardy was convicted on one count of § 2113(a) and one count of § 2113(b). 292 F.2d at 193. The district court initially imposed two concurrent sentences but later sua sponte "vacated" the § 2113(b) sentence. Id.
On appeal, the defendant in Hardy argued that the district court should have vacated one of his convictions, not simply one of his sentences. See id. (). Defendant opined that, in Kitts, the Eighth Circuit Court of Appeals had interpreted the scope of the remand in Prince too narrowly. Id.
The Eighth Circuit Court of Appeals affirmed. Citing Kitts, the Eighth Circuit Court of Appeals held that "[t]he court's action was in conformity with what we had . . . directed to be done. . . ." Id. The Eighth Circuit Court of Appeals reasoned:
The effect of our decision in is that the incidents of entering a bank with intent to commit larceny and of engaging in larceny therein are violations of two distinct statutory provisions; that there is nothing in the...
To continue reading
Request your trial
-
Haas v. United States, 12-CV-97-LRR
...the facts stated in the Presentence Investigation Report were true because they were not objected to. See United States v. Haas, 599 F. Supp. 2d 1061, 1073 (N.D. Iowa 2008). The court agrees with the government that not objecting to the underlying facts contained in the Presentence Investig......
-
United States v. Hayes
...I for enhancement purposes." Doc. 321, at 1. Vacating a conviction is a drastic and inappropriate step. See United States v. Haas, 599 F. Supp. 2d 1061, 1064 (N.D. Iowa 2008). Rather, the appropriate remedy is merger and sentencing based on a single count of conviction. See, e.g., United St......
-
United States v. Hayes, CR14-4082-LTS
...is not appropriate. In support of that conclusion, he cited the cases previously discussed along with United States v. Haas, 599 F. Supp. 2d 1061, 1064 (N.D. Iowa 2008), United States v. Platter, 514 F.3d 782, 787 (8th Cir. 2008) and United States v. Gambo, 439 F.3d 796, 808 (8th Cir. 2006)......
-
United States v. Jackson
...marks and citations omitted). Both parties concur that Counts 1 and 2 are multiplicitous. I agree. In United States v. Haas, 599 F. Supp.2d 1061, 1063-64 (N.D. Iowa 2008), this Court found that an indictment was multiplicitous when in Count 1 it charged the defendant with UnlawfulEntry of a......