U.S. v. Shepard

Decision Date17 July 1975
Docket NumberNo. 73-1743,73-1743
Citation169 U.S.App.D.C. 353,515 F.2d 1324
PartiesUNITED STATES of America v. Ronald SHEPARD, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Lois J. Schiffer, Washington, D. C., with whom John S. Hoff, Washington D. C. (both appointed by this Court), was on the brief for appellant.

Michael G. Scheininger, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, John J. Mulrooney and Roger M. Adelman, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

Concurring opinion filed by Chief Judge BAZELON.

MacKINNON, Circuit Judge:

Appellant was indicted on October 13, 1972, for robbery of a federally insured state savings and loan association (18 U.S.C. § 2113(a)), 1 armed robbery (D.C.Code §§ 22-2901, 3202), 2 robbery (D.C.Code § 22-2901) and assault with a dangerous weapon (D.C.Code § 22-502). The count charging the robbery of the savings and loan association was dismissed by the Government prior to the submission of the case to the jury. The jury found appellant guilty of armed robbery and assault with a dangerous weapon. The District Court sentenced appellant to four to twenty years' imprisonment on the armed robbery conviction and dismissed the assault with a dangerous weapon conviction. We affirm.

I.

On June 29, 1972, two men wearing hats and nylon face masks and carrying pistols held up an office of the Maryland State Savings & Loan Association, located in the District of Columbia. They escaped with over $5,000.

Appellant was arrested in his home on August 1, 1972, on a warrant charging him with the July 21 armed robbery of the Colonial Storage Company (M.Tr. 67). 3 This offense was unrelated to the savings and loan (S&L) robbery. The affidavit for the warrant stated that a co-owner of the Storage Company had identified appellant's photograph as one of the participants in that robbery.

Upon being taken into custody, appellant was immediately given a Miranda warning (M.Tr. 23, 69, 95). He was then taken to the Robbery Squad office where he was again read his rights but refused to sign an acknowledgment form (Tr. 152-53, 173). After preliminary processing he was taken to a room for questioning and was read his rights a third time (M.Tr. 71, 96-97). Appellant never objected to being questioned or requested an attorney (Tr. 168). During the questioning, which began with inquiries concerning the Storage Company robbery, appellant voluntarily confessed to several other robberies, including the hold-up of the Maryland State Savings & Loan Association (M.Tr. 82, 86, 92). An FBI Special Agent was immediately brought into the interrogation and began to read appellant his rights a fourth time. Appellant interrupted, stating that he had "already heard this a couple of times today." (M.Tr. 106). He was then shown photographs taken by the S&L's surveillance camera and identified himself and one "Piggy" or Charles Howard as the robbers (M.Tr. 77). He described the circumstances of the robbery and his escape. At the conclusion of questioning appellant refused to execute a written confession although the FBI agent and a police officer had been taking notes throughout. (M.Tr. 89, 90, 114, 117).

Before trial, appellant moved to suppress his confession on the grounds that it was the fruit of an arrest made pursuant to an inaccurate warrant and that he had not effectively waived his rights against self-incrimination and to the presence of counsel. After a pre-trial hearing on this motion, the court held that the affidavit in support of the warrant was sufficient and did not indicate bad faith or false statements by the attesting officer (M.Tr. 133-35). The court also held that the confession was knowingly and voluntarily made after appellant had been informed of his rights and understood them. (M.Tr. 145-46).

The Government's proof at trial consisted of testimony by a customer and a bank teller concerning the events of the robbery, testimony establishing the validity of the photographs of the robbery, and appellant's oral confession that he was one of the robbers in the photographs. The confession was the only evidence linking appellant to the crime or the photographs.

A defense motion for judgment of acquittal at the close of the Government's case was denied (Tr. 202). The defense then recalled one of the police officers who took part in the interrogation. After the officer testified he had concluded, based on his experience with narcotics users and based on appellant's statement at the time of the confession, that appellant was "on narcotics" (Tr. 206), the defense moved for a directed verdict (Tr. 209). However, there was no testimony as to when he had last taken any narcotics, and his own counsel had to concur in the testimony of the police officer that "he was coherent, he understood what was going on. He was responsive to the questions . . . ." (Tr.209) The officer also testified that his speech was not "slurred," he had no difficulty "controlling his body, in walking, standing and sitting" and that he did not "fall asleep" during the interrogation (Tr. 207). On this evidence the motion was denied (Tr. 209), and the defense then rested.

A senior Vice-President of the S&L Association had testified (Tr. 134-36) that its correct name was Maryland State Savings & Loan Association rather than Maryland State Federal Savings & Loan Association and that it was insured by the Federal Savings & Loan Insurance Corporation rather than the Federal Deposit Insurance Corporation as alleged in the indictment. The Federal Savings & Loan Insurance Corporation and the Federal Deposit Insurance Corporation are separate and distinct entities; the former insures savings and loan associations and the latter insures banks.

Prior to submitting the case to the jury, the Government elected to dismiss the S&L robbery count because of the discrepancies in the indictment (Tr. 216). A retyped indictment was prepared eliminating the federal offense and the remaining counts were submitted to the jury, which returned verdicts of guilty to armed robbery and assault with a dangerous weapon (Tr. 254-56). Appellant was sentenced on the armed robbery charge to a 4 to 20 year term with a recommendation that he receive psychiatric treatment. Since the conviction for assault with a dangerous weapon is included within the armed robbery conviction, 4 the District Court dismissed the assault count (Tr. 266).

II.

Appellant was tried in District Court on an indictment which joined a federal offense with violations of the District of Columbia Code. The criminal jurisdiction of the U.S. District Court for the District of Columbia is enlarged by D.C.Code § 11-502, which provides:

In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following:

(3) Any offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense.

Thus joinder in the indictment with the federal S&L robbery charge was a necessary prerequisite to the District Court's exercise of jurisdiction over the D.C. armed robbery and assault charges. Appellant argues that the District Court's jurisdiction over the local offenses lapsed when the federal count in the indictment was dismissed. We find, however, that such conclusion is contrary to the intent and purpose of the statute.

Prior to 1970 the U.S. District Court for the District of Columbia had exclusive jurisdiction over both the federal and the District of Columbia Code offenses charged against appellant. The Court Reform Act of 1970 5 shifted general jurisdiction over the D.C.Code offenses to the D.C. Superior Court. 6 However, Congress responded to certain problems created by this division of jurisdiction by enacting D.C.Code § 11-502(3) to provide that an indictment jointly charging offenses against both statutory schemes should be subject to a single trial in the U.S. District Court. The present language of D.C.Code § 11-502(3) first appeared in H.R. 16196 (91st Cong., 2d Sess.), and the House Report on that bill stated:

Some overlapping of jurisdiction will inevitably remain, that being only a minor percentage of cases primarily arising when the same person is accused of infractions which are both Federal and purely local violations (and in those cases the United States Attorney will handle all charges with minimal procedural difficulties).

House Rep. No. 91-907, 91st Cong., 2d Sess., March 13, 1970. The language of the statute places jurisdiction in the District Court whenever a D.C.Code offense is "joined in the same . . . indictment with any federal offense." This is unequivocal language. The statute makes no reference to any other disposition of the joined counts charging D.C. offenses in the event all counts charging federal offenses are dismissed.

The Government concedes that the dismissal of all federal charges prior to trial would require the dismissal of the remainder of the indictment as well. (Gov't Brief at 10). It argues, however, that where the federal counts are dismissed after the trial commences, the District Court may determine the remaining charges. We find the Government's arguments on this issue persuasive.

Once the District Court swears in the jury, jeopardy attaches as to all counts in the indictment, both federal and local. 7 If this court were to adopt the position urged by appellant, the District Court would be required to dismiss the local counts whenever the federal counts are dismissed, regardless of the reason for the dismissal. Carried to its logical conclusion, this reasoning would also call for dismissal of local counts where the court directs a verdict of...

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