U.S. v. Phipps

Decision Date15 January 2003
Docket NumberNo. 02-10102.,02-10102.
Citation319 F.3d 177
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Shane PHIPPS and Dean Rayburn Gilley, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Nancy E. Larson, Asst. U.S. Atty. (argued), Fort Worth, TX, for Plaintiff-Appellee.

Lawrence Brown (argued), The Brown Firm, Fort Worth, TX, for Phipps.

Peter Michael Fleury, Asst. Fed. Pub. Def. (argued), Fort Worth, TX, for Gilley.

Appeals from the United States District Court for the Northern District of Texas.

Before JONES, SMITH and SILER,* Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Michael Phipps and Dean Gilley appeal several aspects of their kidnaping, carjacking, and firearms convictions and sentences. Because 18 U.S.C. § 924(c)(1) does not unambiguously authorize their multiple convictions for a single use of a single firearm based on multiple predicate offenses, we vacate the sentences and remand for resentencing on all counts after one of the § 924(c)(1) counts is dismissed.

I.

On December 13-14, 2000, Paula Vastano-Pasquariello departed work and drove to her home outside Dallas; defendants and their accomplice, Julian Medina, followed her in Medina's car. As Pasquariello pulled into her carport, defendants approached her, Phipps put a gun to her head, Gilley restrained her in the back seat of her car, and they drove away with Phipps at the wheel. They stopped briefly to give the gun to Medina, then headed for the highway. Once they were on the highway, Gilley forced Pasquariello to perform sex acts with him, and he raped her. During and after the rape, Gilley continuously threatened Pasquariello with a knife as Phipps drove through the night.

Defendants switched positions near the Texas-New Mexico border. With Gilley driving, Phipps commanded Pasquariello to perform sex acts with him again. Gilley warned Phipps to wait until they arrived in Albuquerque, lest passing drivers see them. Upon arriving in Albuquerque, defendants forced Pasquariello to buy clothes for them and checked into a motel. Phipps again announced his desire to rape Pasquariello, but Gilley, who had become nervous, again intervened.

Defendants drove to a nearby alley. Pasquariello apparently believed that defendants planned to kill her, so she fled, screaming. Defendants did not give chase.

The FBI quickly apprehended defendants, no criminal masterminds. By the evening of December 15, just twenty-four hours after Pasquariello had escaped, an FBI agent swore a criminal complaint before a federal magistrate judge. The complaint included all of the foregoing facts and charged defendants with one count of kidnaping in violation of 18 U.S.C. § 1201(a)(1). The FBI arrested defendants the next day.

On January 3, 2001, a grand jury indicted defendants on one count of kidnaping, 18 U.S.C. § 1201(a)(1). On May 16, 2001, the grand jury returned a superseding indictment. Count 1 charged conspiracy to commit kidnaping, 18 U.S.C. § 1201(c); count 2 charged kidnaping, 18 U.S.C. § 1201(a)(1); count 3 charged use of a firearm during and in relation to the kidnaping, 18 U.S.C. § 924(c)(1); count 4 charged carjacking, 18 U.S.C. § 2119(2); count 5 charged using a firearm during and in relation to the carjacking, 18 U.S.C. § 924(c)(1).

The jury convicted defendants on all five counts. The district court sentenced them to 405 months' imprisonment on each of the conspiracy, kidnaping, and carjacking counts, with these sentences to run concurrently. It sentenced them to 84 months on count 3 (using a firearm during and in relation to the kidnaping) and 300 months on count 5 (using a firearm during and in relation to the carjacking), with these sentences to run consecutively to each other and to the 405-month sentence. The total sentence is therefore 789 months, or 65 years and 9 months. The court also imposed, as a special condition of supervised release, that defendants shall not possess "sexually oriented or sexually stimulating materials."

Defendants challenge the timeliness of their indictments, their multiple § 924(c)(1) convictions, a jury instruction, the application of two sentencing guidelines, the length of their sentence for the carjacking conviction, and the special condition of supervised release. We address these questions in roughly chronological order from the pre-trial stage to trial to sentencing.

II.

Defendants argue that all counts but the kidnaping count were untimely under the Speedy Trial Act ("STA"), 18 U.S.C. § 3161 et seq., and therefore should have been dismissed. We review interpretations of the STA de novo and related factual questions for clear error. United States v. Martinez-Espinoza, 299 F.3d 414, 416 (5th Cir.2002). We disagree with defendants' contentions.

The STA requires an "indictment charging an individual with the commission of an offense" to be filed within thirty days of arrest. 18 U.S.C. § 3161(b). If "a complaint is filed charging such individual with an offense," and the indictment charging the offense is untimely, "such charge against that individual contained in such complaint shall be dismissed." 18 U.S.C. § 3162(a)(1). The complaint, issued on December 15, 2000, charged kidnaping. Defendants were arrested on December 16 and were timely indicted for kidnaping on January 3, 2001. The superseding indictment, issued May 16, charged the remaining four counts. Defendants argue that these charges are untimely and must be dismissed under § 3162(a)(2).

Our precedents involve two kinds of allegedly untimely indictments. First, a defendant is charged in a complaint, arrested, and timely indicted for the offense charged in the complaint. Later (and after the STA period has run), a superseding indictment charges new offenses not contained in the complaint. United States v. Bailey, 111 F.3d 1229 (5th Cir.1997); United States v. Giwa, 831 F.2d 538 (5th Cir.1987). Second, a defendant is charged in a complaint, arrested, and timely indicted for an offense not charged in the complaint. Later (and after the STA period has run), a superseding indictment alleges the offense charged in the complaint. Martinez-Espinoza, 299 F.3d at 415-16; United States v. Perez, 217 F.3d 323 (5th Cir.2000). This appeal presents the first situation, so Bailey and Giwa control.

In Giwa and Bailey, defendants were charged and arrested for a specific offense and, after the STA period had run, were charged, in a superseding indictment, with other offenses.1 The court rejected the STA challenge in both cases and stated the general rule in Giwa: "If the Government fails to indict a defendant within thirty days of arrest, the Act requires dismissal of only the offense or offenses charged in the original complaint." Giwa, 831 F.2d at 541.2 Here, the original complaint charged defendants with kidnaping, for which the grand jury timely indicted them. The superseding indictment charged separate offenses, which does not violate the STA under the rule of Giwa and Bailey.

At the same time, Giwa identified, and Bailey elaborated on, a "gilding" exception to this general rule. "[A] gilded charge is one that merely annotates in more detail the same charge alleged in the initial accusatory instrument." Bailey, 111 F.3d at 1236. As an example of a gilded charge, Bailey cited a case involving a superseding indictment that merely added new supporting facts to the charge in the complaint. Id. (citing United States v. Bilotta, 645 F.Supp. 369, 371 (E.D.N.Y. 1986)). Defendants cannot take advantage of the gilding exception, however, because the superseding indictment did not merely supply supporting facts for the kidnaping charge, but added four entirely new charges.

Defendants rely on an old and irrelevant Ninth Circuit case and a secondary treatise to cobble together the argument that the complaint really charges all five counts because the facts in the complaint are sufficient to establish each charge. They cite no caselaw for this argument, nor could they, because the theory directly contradicts Giwa and Bailey.

Moreover, the government may have had a good reason to charge defendants solely with kidnaping in the complaint and first indictment: The evidence collected by the time of the complaint and first indictment may not have supported the other four counts.3 Defendants' proposed rule would encourage the government to "throw the book" immediately and needlessly at suspects to avoid STA violations. We decline to adopt a rule that contradicts our precedents and encourages imprudent prosecutions.4

III.
A.

Defendants challenge their multiple § 924(c)(1) convictions, arguing that they may be convicted under that statute only once for the single use of a single firearm. We review questions of statutory interpretation de novo. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir.2002). As applied to the facts of this case, § 924(c)(1) is ambiguous, so we apply the rule of lenity and decide that the statute does not authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses.

1.

Section 924(c)(1) states in relevant part that "any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence," be sentenced to varying terms of imprisonment based on the kind of firearm or the nature of its use. 18 U.S.C. § 924(c)(1). Kidnaping and carjacking are crimes of violence. 18 U.S.C. § 924(c)(3). Thus, defendants were charged with, and convicted of, two § 924(c)(1) counts (counts 3 and 5), one each for the predicate offenses of kidnaping and carjacking. They argue that § 924(c)(1) does not authorize, or, if it does, the Double Jeopardy Clause prohibits, these multiple § 924(c)(1) convictions for a single use of a single firearm based on multiple predicate offenses.

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