U.S. v. Kimberlin, 85-1190

• Decision Date: 30 December 1985
• Docket Number: No. 85-1190,85-1190
• Citation: 781 F.2d 1247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1247

781 F.2d 1247

UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant.

No. 85-1190.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1985.

Decided Dec. 30, 1985.

Donald V. Morano, Chicago, Ill., for defendant-appellant.

Robert C. Perry, Asst. U.S. Atty., John Daniel Tinder, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

On October 8th, 1980, a jury convicted defendant-appellant Brett Kimberlin of eight counts in a thirty-four count indictment. Four counts of the eight on which the jury convicted defendant charged that defendant had unlawfully possessed a Department of Defense insignia, in violation of 18 U.S.C. Sec. 701 (1976). The other four counts on which the jury convicted defendant charged that defendant had falsely impersonated a Department of Defense police officer, in violation of 18 U.S.C. Sec. 912 (1976). The district court sentenced defendant to consecutive three-year sentences on the section 912 offenses, and to concurrent six-month terms on the section 701 counts. Defendant appealed his convictions and sentences on the section 701 and section 912 counts to this court. This court affirmed the convictions and sentences in an unpublished order. United States v. Kimberlin, 673 F.2d 1335 (7th Cir.1981). Defendant then filed Rule 35 and section 2255 motions in the district court, requesting reduction or vacation of his sentences. The district court summarily denied these motions on March 19, 1981. Defendant subsequently filed a motion to reconsider the previous denial of his post-trial motions in the district court, which the district court likewise denied. Defendant appealed the denial of his motion to reconsider to this court, and this court dismissed defendant's appeal. United States v. Kimberlin, 675 F.2d 866 (7th Cir.1982). Defendant then filed a second Rule 35 motion in the district court, which the district court denied. The district court's denial of this second Rule 35 motion forms the basis of the present appeal.

I. THE FACTS AND PROCEEDINGS BELOW

On February 28, 1979, a federal grand jury indicted defendant on thirty-four counts stemming from a series of bombings in Speedway, Indiana. Counts 1 through 16 of the indictment charged that defendant illegally possessed and manufactured firearms in connection with the bombings; Counts 17 through 22 charged that defendant maliciously caused damage by means of explosives; Counts 23 and 24 charged that defendant, a convicted felon, possessed explosives; and, Count 25 charged that defendant illegally transported ammunition in interstate commerce. Counts 26 through 30 of the indictment charged that defendant unlawfully possessed an official insignia of the Department of Defense and a Presidential seal, and Counts 31 through 34 charged that defendant falsely impersonated a Department of Defense official. The case proceeded to trial on all thirty-four counts, but the jury was unable to reach a unanimous verdict on Counts 1 through 25. The jury did vote to acquit defendant on Count 30, however, and voted to convict defendant on Counts 26 through 29 and Counts 31 through 34. After declaring a mistrial on Counts 1 through 24, the district court sentenced defendant to consecutive three-year sentences on Counts 31 through 34 and to concurrent six-month sentences on Counts 26 through 29.

Prior to a second trial on Counts 1 through 24, the district court granted defendant's motion to sever Counts 23 and 24 from the remaining counts. These counts were then the basis of a trial upon which the defendant was convicted. The district court entered a judgment of conviction on the two counts, which this court affirmed. United States v. Kimberlin, 692 F.2d 760 (7th Cir.1982).

The district court then conducted a third trial, on Counts 1 through 22. At this trial, the jury voted to convict defendant on each count. The district court then entered a judgment of conviction and imposed sentence on the counts. Defendant's appeal from that judgment is presently pending in this court. United States v. Kimberlin, No. 82-1025.

The appeal before this court in the present case concerns Counts 26 through 29 and Counts 31 through 34. As we have noted, the district court imposed consecutive three-year sentences on the latter four counts and concurrent six-months terms on the former. Defendant appealed his convictions and sentences on these counts to this court. We affirmed the convictions and sentences in an unpublished order. United States v. Kimberlin, 673 F.2d 1335 (7th Cir.1981). Defendant then sought Rule 35 and section 2255 relief in the district court, with no success. The district court likewise denied a subsequent motion to reconsider its previous denial of post-trial relief, and we affirmed the district court's decision. United States v. Kimberlin, 675 F.2d 866 (7th Cir.1982). Defendant subsequently filed a second motion for Rule 35 relief, raising numerous double jeopardy challenges to the format of the indictment as well as claims that his consecutive three-year sentences constituted cruel and unusual punishment and claims that the judge who initially denied post-trial relief was unconstitutionally biased. The district court denied defendant's second Rule 35 motion on January 23, 1985. Defendant presently appeals that denial of relief to this court, raising challenges identical to the challenges he presented in the court below. We discuss each of defendant's challenges in turn.

II. DUPLICITOUS COUNTS

First, defendant contends that the district court illegally imposed consecutive sentences upon him under Counts 31 through 34 of the indictment because Counts 31 through 34 were duplicitous. Specifically, defendant maintains that Counts 31 through 34 of the indictment each charged that defendant committed two offenses defined by 18 U.S.C. Sec. 912, the false personation statute. 18 U.S.C. Sec. 912 (1976). Counts 31 through 34 charged that defendant, on various dates in September, 1978, pretended to be a Department of Defense police officer and ordered, or attempted to receive, rubber stamps, security badges, hat shields, drivers license forms and drivers license plates from certain individuals, all in violation of section 912. 18 U.S.C. Sec. 912 (1976). Counts 31 through 34 closely tracked the language of section 912, by stating, in pertinent part:

On or about [a certain date], in the Southern District of Indiana, BRETT C. KIMBERLIN, did falsely pretend and assume to be an officer and employee of the United States, and acting under the authority thereof, that is, a security police officer of the United States Department of Defense, and did falsely take upon himself to act as such, in that while wearing a uniform with a United States Department of Defense sleeve patch, he ordered, or attempted to receive, [from a certain individual certain items of property].

18 U.S.C. Sec. 912 (1976) (language equivalent to statutory language italicized). Defendant asserts that the duplicity of Counts 31 through 34 stems from the Government's failure to elect to charge either the offense set forth in the first part of section 912, namely impersonating a federal official and "acting as such," or the offense set forth in the second part of section 912, namely impersonating a federal official and "in such pretended character demand[ing] or obtain[ing] [a] ... thing of value." 18 U.S.C. Sec. 912 (1976).

Several cases, including at least one from this circuit, acknowledge that the false personation statute, now codified as section 912, creates two separate offenses. ¹ United States v. Barnow, 239 U.S. 74, 75, 36 S.Ct. 19, 20, 60 L.Ed. 155 (1915) (decided under the predecessor to 18 U.S.C. Sec. 912); United States v. Fierson, 419 F.2d 1020, 1021 n. 1 (7th Cir.1969); United States v. Wilkes, 732 F.2d 1154, 1156 n. 2 (3d Cir.1984); United States v. Robbins, 613 F.2d 688, 690 (8th Cir.1979). These offenses are: 1) the false impersonation of a federal official coupled with an overt act in conformity with the pretense (offense 1); and, 2) the false impersonation of a federal official coupled with the demanding or obtaining of an item of value (offense 2). See United States v. Rosser, 528 F.2d 652, 654 n. 4 (D.C.Cir.1976); United States v. Mitman, 459 F.2d 451, 453 (9th Cir.1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111; United States v. Leggett, 312 F.2d 566, 568-69 (4th Cir.1962). Counts 31 through 34 of the indictment returned against defendant charged both of these offenses because each of these counts contained allegations that defendant impersonated a Department of Defense police officer and acted as such, and allegations that defendant, in such pretended character, ordered or attempted to receive an item of value. Thus, we conclude that the counts were duplicitous, at least in a technical sense.

Our conclusion that the counts were duplicitous, however, does not inalterably require the further conclusion that the sentences imposed upon these counts must be eradicated. To the contrary, we must examine the record to determine whether the duplicity of Counts 31 through 34 resulted in harmless or plain error to defendant. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

We note, initially, that the ban against duplicitous indictments derives from four concerns. First, courts condemn duplicitous indictments which fail to give defendants adequate notice of the nature of the charges against which they must prepare a defense. See United States v. Berardi, 675 F.2d 894, 899 (7th Cir.1982). Second, courts denounce duplicitous counts which threaten to subject defendants to prejudicial evidentiary rulings at trial. See United States v. Pavloski, 574 F.2d 933, 936 (7th Cir.1978); United States v. Alsobrook, 620 F.2d 139, 143 (6th Cir.1980), cert. denied, 449 U.S. 843, 101 S.Ct....