U.S. v. Pedigo, 87-5953

Citation879 F.2d 1315
Decision Date27 September 1989
Docket NumberNo. 87-5953,87-5953
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee PEDIGO, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

George Gleitz (argued), Bowling Green, Ky., for defendant-appellant.

Joseph Whittle, U.S. Atty., Louisville, Ky., Randy Ream, Terry M. Cushing (argued), for plaintiff-appellee.

Before WELLFORD and NORRIS, Circuit Judges, and COOK, District Judge. *

JULIAN ABELE COOK, Jr., District Judge.

Jimmy Lee Pedigo appeals from his conviction under the Armed Career Criminal Act of 1984, 18 U.S.C.App. Sec. 1202(a)(1), for which he received the statutory minimum fifteen year sentence. 1 Pedigo claims that the government never affirmatively established that he had been previously convicted of three robberies or burglaries, as required by the statute. 2 We agree.

The events which led to Pedigo's indictment occurred during the evening of March 11, 1986 and the early morning hours of March 12, 1986. At 11:46 p.m. on March 11, 1986, in Glasgow, Kentucky, police lieutenant Fred Serra received a telephone call from an individual who reported that shots had been fired from a black Chevelle automobile, which allegedly belonged to Pedigo. Shortly after midnight, Serra spotted Pedigo and followed him as he drove to, and eventually parked at, his mother's house. Serra, who had stopped behind the Chevelle, believed that he saw Pedigo throw an object back into the car. Shortly thereafter, Serra focused a flashlight into the Chevelle and saw a handgun on the back seat. On the basis of this discovery, Serra arrested Pedigo for carrying a concealed weapon.

On November 5, 1986, Pedigo was indicted by a federal grand jury in the Western District of Kentucky. Two months later, on January 5, 1987, the government filed a superseding indictment which alleged:

On or about the 12th day of March, 1986, in the Western District of Kentucky, Barren County, Kentucky, JIMMY LEE PEDIGO, having been convicted on December 12, 1980, in Warren Circuit Court, Bowling Green, Kentucky, of the felony offenses of Burglary in the first degree and Burglary in the second degree and on February 16, 1981, in Allen Circuit Court, Scottsville, Kentucky, of three (3) felony offenses of Burglary in the second degree, did have in his possession a firearm, that is, an Iver Johnson .38 caliber revolver bearing serial number C-7441, which had moved in interstate commerce.

In violation of Section 1202(a)(1), Title 18, Appendix, United States Code, the Armed Career Criminal Act, Chapter XVIII of the Comprehensive Crime Control Act of 1984.

The gist of Pedigo's argument is that "for a conviction to be had under 18 U.S.C. Sec. 1202, it also would be necessary to show that the offenses were committed on occasions different from one another." Brief of Appellant at 7. He submits that the conviction of an individual who has been found guilty of several crimes, all of which arise out of the same transaction or episode, should be charged with only one prior conviction for purposes of the Armed Career Criminal Act. Pedigo contends that the government should be obligated to show that his Warren County, Kentucky felony convictions in 1980 and his Allen County, Kentucky felony convictions in 1981 arose out of at least three separate criminal episodes.

The government disagrees, contending that, unlike the Special Dangerous Offender Act, 18 U.S.C. Sec. 3575, the Armed Career Criminal Act "contains no such limiting language. Obviously, therefore, Congress meant the Armed Career Criminal Act to encompass all convictions." Brief of Appellee at 5-6 (emphasis added).

Prior to the date of this decision, the Supreme Court and several appellate courts have rendered decisions that differ from the position which has been advanced by the government in the instant cause. As an example, in United States v. Petty, 798 F.2d 1157 (8th Cir.1986), cert. granted in part, judgment vacated, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987), the defendant contended that the government had failed to prove more than one prior conviction since there had been only one indictment and the sentences which had been imposed upon him were concurrent. This argument was rejected by the Eighth Circuit Court of Appeals, which held that Petty had sustained six prior convictions, noting that he had been convicted of six counts of armed robbery arising from an incident in which six different people were robbed simultaneously in a restaurant.

Thereafter, Petty applied for a writ of certiorari to the Supreme Court. In a brief decision, the Court granted his application on this issue and determined that:

[The] judgment [is] vacated, and [the] case [is] remanded [to the United States Court of Appeals for the Eighth Circuit] for further consideration in light of the position presently asserted by the Solicitor General in his brief filed April 13, 1987.

Petty v. United States, 481 U.S. 1034, 1034-35, 107 S.Ct. 1968, 1968-69, 95 L.Ed.2d 810 (1987).

On remand, the appellate court vacated Petty's conviction under the Armed Career Criminal Act of 1984, United States v. Petty, 828 F.2d 2 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2827, 100 L.Ed.2d 928 (1988), and summarized those portions of the Solicitor General's brief to the Supreme Court which it found to be relevant:

The Solicitor General argued that the court's characterization of Petty's convictions in New York as more than one conviction, for purposes of the enhanced sentencing statute, was error. He noted that the legislative history strongly supports the conclusion that the statute was intended to reach multiple criminal episodes that were distinct in time, not multiple felony convictions arising out of a single criminal episode.

828 F.2d at 3. Thus, the remand in Petty appears to reflect a viewpoint of the Supreme Court and the Eighth Circuit Court of Appeals which is at odds with the position of the government in this case.

In United States v. Wicks, 833 F.2d 192 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988), the Court of Appeals for the Ninth Circuit opined that it was in accord with Petty when it ruled that convictions could be viewed as separate if they arose from robberies and/or burglaries which were "distinct in time." 833 F.2d at 194. This constitutes a reaffirmation of the view that multiple guilty verdicts which arise out of the same criminal episode can constitute only one conviction for the purposes of the Armed Career Criminal Act. Multiple guilty verdicts must originate from multiple episodes that are distinct in time in order to constitute multiple convictions. 3 See also United States v. Balascsak, 873 F.2d 673 (3d Cir.1989) (en banc); United States v. Towne, 870 F.2d 880 (2d Cir.1989) (petition for cert. filed Apr. 28, 1989); United States v. Herbert, 860 F.2d 620 (5th Cir.1988); United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 580 (8th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988). This court fully agrees with the reasoning of the Ninth and Eighth Circuit Courts of Appeals and adopts the same approach to define what constitutes a previous conviction under the Armed Career Criminal Act. 4

Although the government in this case does not address the inconsistency between its legal position here and that of the Solicitor General in Petty, 5 it argues:

The facts in Petty, however, are clearly distinguishable from the facts at bar. Petty's four underlying convictions all stemmed from one incident where he robbed four individuals at the same time. 6 Pedigo's burglaries, on the other hand, were distinct in time. Some were committed on the same night, but nonetheless, they were all distinct in time.

Brief of Appellee at 6-7 (citation omitted).

We do not believe, under the principles discussed, that the evidence before the trial court was sufficient to show that Pedigo's burglary convictions arose from at least three distinct criminal episodes. The government has failed to identify that part of the trial record which establishes that all of Pedigo's acts were distinct and separate offenses.

For example, the government's counsel questioned Kentucky State Police Investigator Richard Barton during the trial regarding Pedigo's 1981 guilty convictions:

Q. Did you have cause ... to investigate a burglary or series of burglaries in Allen County, Kentucky regarding Mr. Jimmy Lee Pedigo?

A. Yes, I did....

Q. Now, you investigated some burglaries, do you know what happened regarding those charges?

A. Found guilty on some of them and some of them a guilty plea entered.

Tr. at 86-87.

Barton, after being shown certification of judgment orders, was asked, "That represents how many convictions there?" He responded, "Three." Tr. at 87. This constitutes all of the government's proof regarding the 1981 convictions. However, none of this evidence sheds any light as to whether the three guilty convictions in Allen County arose from one criminal episode or three distinct incidents. 7

The same problem exists with the Warren County guilty verdicts in 1980. The record does not establish whether these convictions arose out of one criminal episode or more than one incident. If anything, the record suggests that the Warren County verdict originated from one episode.

The government asked Wendell Jackson, a detective with the Kentucky State Police, the following question and received an interesting response:

Q. Did you have cause to investigate a series of burglaries here in Warren County with Mr. Pedigo?

A. Yes, sir. I had occasion to investigate one burglary.

Tr. at 84 (emphasis added). Jackson's answer strongly suggests that only one criminal episode was involved in Warren County.

In sum, the trial record is unclear whether more than two...

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