U.S. v. Mathis

• Decision Date: 29 June 1978
• Docket Number: No. 77-2075,77-2075
• Citation: 579 F.2d 415
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry L. MATHIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 415

579 F.2d 415

UNITED STATES of America, Plaintiff-Appellee, v. Barry L. MATHIS, Defendant-Appellant.

No. 77-2075.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1978.

Decided June 22, 1978.

As Amended June 29, 1978.

Elliott M. Samuels, Chicago, Ill., for defendant-appellant.

James T. Hynes, Chicago, Ill., for plaintiff-appellee.

Before SWYGERT and TONE, Circuit Judges, and JAMESON, Senior District Judge. ^*

JAMESON, Senior District Judge.

Appellant, Barry L. Mathis, was charged in a two count indictment of assaulting a federal officer by use of a deadly weapon, in violation of 18 U.S.C. § 111 ¹ (Count I), and of robbery of government property, in violation of 18 U.S.C. § 2112 ² (Count II). He entered a plea of guilty to the robbery charge and to the lesser included offense of assaulting or interfering with a federal officer, without the use of a deadly weapon. He was sentenced to imprisonment for eight years on the robbery count and three years on the assault count, the sentences to run concurrently. On appeal this court remanded to the district court with directions to vacate the judgment of guilty and grant a new trial.

Following a jury trial, two guilty verdicts were entered. One verdict found Mathis "guilty of assaulting or interfering with a federal agent, without the use of a deadly and dangerous weapon, as a lesser included offense under Count I of the indictment". The other verdict found him guilty as charged in Count II. The district court sentenced Mathis to imprisonment for six years on Count II and three years probation on Count I, the sentences to run consecutively. Mathis contends that (1) the jury verdicts were fatally inconsistent and contradictory, (2) the district court abused its discretion in imposing consecutive instead of concurrent sentences, and (3) the district court erroneously imposed a more severe sentence after retrial.

Factual Background

On November 4, 1975, Arthur T. Tahauri, an undercover agent of the Drug Enforcement Agency (DEA), received a telephone call from Mathis, and they agreed that Mathis would sell Tahauri one ounce of heroin for $1,000. Later that day Tahauri picked up Mathis in a government car and Mathis directed Tahauri to the location of the drug source. In the meantime Tahauri and three surveillance agents, who were to follow in other cars, devised a distress signal. If trouble occurred, Tahauri was to apply the brake pedal several times and the flashing of the brake lights would alert the other agents.

Tahauri testified that after waiting 10 or 15 minutes for Mathis' source of supply, he told Mathis he wanted to terminate the buy. According to Tahauri, Mathis then pulled out an automatic pistol, took the ignition key, and ordered Tahauri to give him the money or he would be killed. Tahauri depressed the brake pedal. He then gave Mathis the money. Mathis got out of the car, leaned back into the car through the open window, told Tahauri not to move, and ran into an alley.

Mathis admitted taking the money, testifying that he induced Tahauri to give him the money to count it, diverted Tahauri's attention, snatched the car keys, jumped out of the car and ran with the money. He denied having a gun or threatening to kill Tahauri.

Two agents testified that the brake lights came on a few minutes before Mathis left the car and stayed on until Mathis left, and that before leaving the car, Mathis leaned into the car window and paused before running away. One of the agents also testified that there was a "heated discussion or argument going on" before Mathis left the car. When he arrived to assist Tahauri, he found Tahauri "very excited, very angry, and very agitated". Neither agent saw a weapon in Mathis' possession.

Inconsistent Verdicts

Appellant contends that the verdict of guilty to the lesser included offense of unarmed assault or interference with a federal agent, 18 U.S.C. § 111, necessarily means that the jury decided that Tahauri was not to be believed and that appellant was not in fact armed at the time of the robbery. Because a conviction for robbery of federal property under 18 U.S.C. § 2112 requires evidence of a taking of the property by force or threat of force, see Norris v. United States, 152 F.2d 808, 809 (5 Cir. 1946), Cert. denied 328 U.S. 850, 66 S.Ct. 1118, 90 L.Ed. 1623 (1946), and because Tahauri's testimony regarding the armed force was not believed, appellant argues that the jury's verdict of guilty of the offense of robbery directly contradicts its verdict of guilty of interfering with a federal official without a weapon. Appellant then contends that since Tahauri's testimony was the only evidence adduced that Mathis used force, the Government's case was insufficient to support the robbery verdict.

Appellant recognizes the general rule that "(c)onsistency in the verdict is not necessary". Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). He attempts, however, to distinguish Dunn by arguing that there the inconsistency was among a guilty verdict and two not guilty verdicts, whereas in his case the inconsistency was between two guilty verdicts.

We find no inconsistency in the jury verdicts. A verdict of guilty of assault or interference with a federal official without a weapon under 18 U.S.C. § 111 requires evidence that the defendant used some quantum of force or threat of force in committing the offense. The statute states, in pertinent part, that a person commits the offense by "Forcibly " assaulting or interfering with a federal official. There was sufficient evidence of force or threat of force to support the jury's verdict under 18 U.S.C. § 111, and that force or threat of force equally suffices to support a verdict of guilty under 18 U.S.C. § 2112.

We likewise find no basis for any claimed distinction between this case and Dunn. Any arguable inconsistency arises not from the verdict of guilty of unarmed assault, but rather from the implicit verdict of not guilty of the offense of assault with a deadly or dangerous weapon. Moreover, the jury verdict "may have been the result of compromise", a matter into which Dunn forecloses inquiry. 284 U.S. at 394, 52 S.Ct. at 191.

Appellant also relies on United States v. Bethea, 483 F.2d 1024 (4 Cir. 1973), to support his contention that the inconsistent verdicts must be set aside. In Bethea, however, conviction on all the counts "was not logically possible" because evidence to prove one element of the offense in one count had the effect of directly negating the existence of one of the elements of the offenses in two other counts. Id. at 1030. There is no such logical impossibility of conviction on both counts in this case.

We conclude that the conviction on both counts should be affirmed.

Consecutive Sentences

Appellant contends that the consecutive sentences for the two offenses, 18 U.S.C. §§ 111 and 2112, are improper because the "two convictions rest upon identical acts or conduct" i. e., that his convictions for both the robbery and the unarmed interference with a federal official were based upon "a single transaction" "the unarmed taking of money from Agent Tahauri". He argues that the Gravamen of both offenses was the same and the necessity that the victim under 18 U.S.C. § 111 be a federal officer is "merely to satisfy federal jurisdictional requirements". (citing United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975)).

It is true that constitutional problems may arise if a court imposes multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and cases cited therein. As the Supreme Court recently noted, "(c)ases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing . . . raise the prospect of double jeopardy . . .." Simpson v. United States, --- U.S. ----, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978). A court may, however, in a proper case impose separate and consecutive sentences for violation of different statutory provisions in a single transaction. The test "is whether each provision requires proof of a fact which the other does not". Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See also United States v. Holtzman, 440 F.2d 923, 927 (7 Cir. 1971).

In United States v. Roundtree, 527 F.2d 16, 20 (8 Cir. 1975), Cert. denied 424 U.S. 923, 96 S.Ct. 1133, 47 L.Ed.2d 332 (1976), the court, relying upon the test set forth in Blockburger, found that 18 U.S.C. § 111 and 18 U.S.C. § 2112 each required "proof of facts that the other does not. 18 U.S.C. § 111 is designed to protect federal law enforcement officers while performing federal functions . . . and requires proof of those facts to sustain a conviction. 18 U.S.C. § 2112 is designed to protect those who have government property in their immediate possession and requires proof that the property taken belongs to the United States". The court concluded that "(s)eparate congressional policies are reflected in each of the two statutes . . . and proof of separate elements are necessary". While in Roundtree the defendant had a gun when he committed the two offenses and in that respect is factually distinguishable, we see no reason why the same rule should not apply where the conviction under § 111 is for a lesser included offense.

More Severe Sentence

As noted Supra, in the first sentence following the guilty plea the district court imposed concurrent sentences of eight years imprisonment on Count II and three years imprisonment on Count I. Following remand and the...