U.S. v. Leek, 80-1750

• Decision Date: 24 September 1981
• Docket Number: No. 80-1750,80-1750
• Citation: 214 U.S. App. D.C. 227,665 F.2d 383
• Parties: UNITED STATES of America v. John E. LEEK, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 383

665 F.2d 383

214 U.S.App.D.C. 227

UNITED STATES of America v. John E. LEEK, Appellant.

No. 80-1750.

United States Court of Appeals District of Columbia Circuit.

Argued March 31, 1981.

Decided Sept. 24, 1981.

Appeal from the United States District Court for the District of Columbia (D.C.Criminal No. 1596-68).

Leslie J. Girard, Student Counsel, with whom Ellen Sue Shapiro, Washington, D. C. (appointed by this court), was on brief, for appellant.

J. Edward Agee, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before ROBINSON, Chief Judge, WRIGHT, Circuit Judge, and VAN PELT, Senior District Judge ^*.

Opinion for the Court filed by Chief Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Chief Judge:

We are called upon to decide whether an accused can be convicted and sentenced under both the Federal Bank Robbery Act ¹ and the District of Columbia assault statute ² for offenses stemming from a single course of criminal conduct. ³ The District Court adjudged John E. Leek, appellant, guilty of entering a federally-insured bank with intent to commit robbery in violation of the Act, ⁴ and of assault with a dangerous weapon in contravention of the District of Columbia Code, ⁵ and sentenced him to consecutive terms of imprisonment. Leek challenges both the convictions and the sentences as impermissible pyramiding. We agree.

I. BACKGROUND

On June 5, 1968, three men, including Leek, entered the main office of the Industrial Bank of Washington and held up several of its tellers. ⁶ Three months later, Leek was indicted on fifteen counts stemming from his part in the affair. Three of the counts were based on the Bank Robbery Act: one of entering a federally-insured bank with intent to commit robbery and two of robbery of such a bank. ⁷ The remaining twelve counts charged Leek with District of Columbia Code offenses: three of robbery while armed, ⁸ three of robbery, ⁹ five of assault with a dangerous weapon, ¹⁰ and one of carrying a dangerous weapon. ¹¹ On March 18, 1970, Leek entered pleas of guilty to one count of entry with intent to commit robbery, in violation of the Act, ¹² and one count of assault with a dangerous weapon in transgression of the Code. ¹³ The District Court sentenced him to imprisonment for three to nine years on the federal count and one to three years on the local count, the terms to be served consecutively. ¹⁴

In 1980, Leek filed a motion to vacate the sentences, ¹⁵ claiming that conviction and imposition of criminal penalties under both the federal and District of Columbia provisions was statutorily illegal as well as a violation of the Double Jeopardy Clause of the Fifth Amendment. ¹⁶ The District Court denied the motion without opinion, ¹⁷ and this appeal ensued.

II. ANALYSIS

More than a decade ago, in United States v. Canty, ¹⁸ we addressed a question virtually identical to the one now before us, and we believe the instant case is governed by Canty. Nevertheless, we take pains to explain the rationale underlying our decision here for two wholesome reasons. First, it is important to make absolutely clear the meaning of Canty, since both the Government and the District Court appear to have some doubts as to its significance. Second, it is equally important to set forth our views as to the impact of recent Supreme Court decisions on this area of the law, for unlike the Government we perceive no undermining of the fundamental basis of Canty.

A. United States v. Canty

Charles M. Richardson, an appellant in Canty, was convicted of federal bank robbery by force and violence, ¹⁹ and of assault with a dangerous weapon under District of Columbia law ²⁰-offenses contravening the same two statutes under scrutiny in the present litigation. ²¹ The former carried a possible sentence of twenty years and the latter ten; their combined total of thirty years exceeded by five the maximum sentence allowable under the aggravated robbery provision of the Federal Bank Robbery Act. ²² Richardson actually received consecutive sentences totaling twenty-seven years, ²³ and the circumstances suggested that the Government had manipulated the two statutes in order to obtain two felony convictions and sentences aggregating so much. We noted that

(i)nstead of prosecuting Richardson entirely within the bank robbery scheme, the Government charged him with the lowest tier of robbery in the federal scheme and sought to punish him for assault, or the aggravated portion of the offense, by reaching out to a catch-all provision in the District of Columbia Code. By venturing outside the federal scheme, the prosecution was able to circumvent the scheme's carefully crafted hierarchy of penalties. ²⁴

The Government argued in Canty that the convictions should be upheld because no obstacle to their imposition was posed by Blockburger v. United States, ²⁵ wherein the Supreme Court set forth the test that to this day remains the principal litmus for determining when conduct comprising a single transaction may be deemed to violate more than one criminal statute. "(W)here," said the Court, "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not." ²⁶ We agree with the Government that the Blockburger analysis itself presented no bar to multiple punishment, since robbery by force and violence or by intimidation ²⁷ and assault with a dangerous weapon ²⁸ each demanded proof of a fact unnecessary to establishment of the other. ²⁹ We concluded, however, that "even (where) two provisions require different elements of proof, there must still be a determination that Congress intended the provisions to bear separate punishments when applied to a single act or transaction." ³⁰

Analyzing the federal and the District of Columbia statutory sections pertinent in Canty, we found that Congress had recognized a distinction between bank robbery involving an assault with a dangerous weapon and robbery of a bank by force and violence. ³¹ We made this discovery on examination of the Bank Robbery Act, which establishes a maximum of twenty years of incarceration for robbery by force and violence, ³² while allowing up to twenty-five years of imprisonment for robbery accompanied by an assault with a dangerous weapon. ³³ Concluding that this precluded an inference that Congress intended to permit conviction and sentencing of offenders under both the federal scheme and the District of Columbia assault provision, ³⁴ we held that

(t)he federal bank robbery statute establishes a comprehensive scheme ... a continuum running from entry with intent to rob, to robbery by force and violence, to robbery with the aid of a dangerous weapon, to robbery resulting in death or kidnapping ... increas(ing) the penalty as the offense becomes more aggravated. ³⁵

Consequently, "punishment ... for assault with a dangerous weapon in addition to bank robbery by force and violence was, in our view, plain error." ³⁶ We therefore remanded to the District Court to vacate the convictions on the District of Columbia counts and resentence on the others. ³⁷

B. The Present Case

The instant appeal poses almost precisely the same questions as Canty. Leek was convicted of entering a federally-insured bank with intent to commit robbery, rather than bank robbery by force and violence, but his transgression is also an offense ranked on the lowest tier of the Federal Bank Robbery Act, ³⁸ and his local offense ³⁹ is identical to Canty's. Thus, on the basis of Canty, we hold that it was error to fragment the robbery and venture outside the federal scheme for a peg on which to hang the aggravated component of the offense. This technique resulted in two separate felony convictions rather than one, and maximum possible terms of incarceration aggregating thirty rather than twenty-five years.

We note that Leek was actually sentenced to an aggregate maximum of twelve years in prison ⁴⁰-eight years less than he could have received for entry with intent to commit robbery, and thirteen years less than the Act's aggravated robbery penalty. ⁴¹ But we do not agree with the Government that Leek is not in position to complain. Of course, we cannot be certain that he would have received an equally lengthy sentence had he been convicted under the federal statute alone. But more importantly, Leek has a right to be free of the brand of two felony convictions, for negative consequences may flow from the very fact that his record shows two convictions rather than one. When, as here, judgment could not legally have been entered on both, the accused is entitled to have his record set straight. ⁴² Consequently, we hold that the conviction and sentencing of Leek for assault with a dangerous weapon atop entry with intent to commit bank robbery was invalid. We remand the case to the District Court with instructions to vacate Leek's assault conviction and sentence. ⁴³

C. Intervening Supreme Court Developments

During the eleven years since our decision in Canty, the Supreme Court has issued a number of opinions emphasizing the importance of the Blockburger test ⁴⁴ in statutory construction related to problems of multiple convictions and penalties. For example, in Albernaz v. United States, ⁴⁵ the most recent decision in this area, the Court stressed that Blockburger's formula is "to be used 'to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.' " ⁴⁶ The Government would have us believe that the focus on Blockburger in Albernaz and in the Supreme Court precedent upon which Albernaz relies ⁴⁷ has so undercut our rationale in Canty that a new approach must be taken to the problem confronting us in this case. We do not agree.

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