U.S. v. Williams

• Citation: 534 F.2d 119
• Decision Date: 22 April 1976
• Docket Number: No. 75-1792,75-1792
• Parties: UNITED STATES of America, Appellee, v. Earl Lee WILLIAMS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 119

534 F.2d 119

UNITED STATES of America, Appellee, v. Earl Lee WILLIAMS, Appellant.

No. 75-1792.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1976.

Decided April 22, 1976.

Joseph T. Dixon, Jr., Minneapolis, Minn., for appellant.

Daniel M. Scott, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on brief.

Before VOGEL and VAN OOSTERHOUT, Senior Circuit Judges, and BRIGHT, Circuit Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Williams has taken a timely appeal from his conviction by a jury on two counts of an indictment charging violations of 18 U.S.C. § 2113(a), (d) and (e), bank robbery and aggravated bank robbery. ¹ We briefly summarize the background facts necessary to an understanding of this appeal. Defendant, on November 24, 1971, with others, was charged in a three-count indictment, CR. 3-71-187, with bank robbery and aggravated bank robbery. Defendant entered a plea of not guilty to such indictment. On December 14, 1971, likely as a result of plea bargaining, defendant Williams filed a waiver of indictment, and a one-count information based upon the same bank robbery and charging a violation of 18 U.S.C. § 2113(a) was filed. Defendant, as did codefendants, entered a plea of guilty to such charge, which plea was accepted by the court. On February 9, 1972, judgment of conviction was entered imposing a sentence of fifteen years imprisonment upon the defendant. Thereafter, upon motion by the Government, the indictment, CR. 3-71-187, was dismissed.

Defendant later succeeded in having his conviction set aside upon the ground that the court had failed to meet the requirements of Rule 11, Fed.R.Crim.P. Williams v. United States, 393 F.Supp. 260 (D.Minn.1975).

Subsequently, defendant entered a plea of not guilty to the 1971 information charging the § 2113(a) violation. A superseding indictment, CR. 3-75-69, identical in substance to indictment CR. 3-71-187, was filed on May 23, 1975. Motion to dismiss the indictment was denied. Defendant entered a plea of not guilty to all counts of the indictment, was tried to a jury, and was convicted. Defendant was given a fifteen year sentence covering both Counts I and II.

Defendant does not upon this appeal challenge the sufficiency of the evidence to support his conviction on Counts I and II. Hence, a detailed discussion of the evidence will serve no purpose. The evidence is clearly ample to support the conviction.

Defendant for reversal relies upon the following points:

I. The trial court erred in determining that defendant's constitutional rights under the double jeopardy and due process provisions of the Constitution were not violated by requiring defendant to stand trial on a new indictment making the same charges that were contained in a prior indictment which was dismissed after defendant entered a plea of guilty to an information charging a lesser offense, which plea and resulting conviction defendant succeeded in having set aside.

II. The trial court unduly limited defendant's dual rights to be represented by counsel and to pro se representation.

III. Prejudicial misconduct of the prosecutor.

We reject such contentions and affirm the conviction for the reasons hereinafter stated.

I.

Defendant concedes that he can be retried for the § 2113(a) offense with respect to which his guilty plea and conviction were vacated. He urges that his constitutional rights under the double jeopardy clause and the due process clause would be violated by requiring him to stand trial on the § 2113(d) and (e) charges.

The double jeopardy claim must be rejected. Observing that the § 2113(a) offense is a lesser included offense of the § 2113(d) and (e) offenses, we assume, without deciding, that, upon acceptance of the plea to the § 2113(a) charge, jeopardy "attached" as to all charges and that, therefore, had the conviction not been set aside, defendant could not subsequently have been tried on any of the charges. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). This assumption does not assist defendant, however, for his conviction was set aside. In that circumstance, a subsequent trial does not constitute double jeopardy; it is merely "continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300, 303-04 (1970); Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224-25, 2 L.Ed.2d 199, 205 (1957); United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195-96, 41 L.Ed. 300, 303-04 (1896); Percy v. South Dakota, 443 F.2d 1232, 1233 (8th Cir. 1971), cert. denied, 404 U.S. 886, 92 S.Ct. 223, 30 L.Ed.2d 169 (1971). Barring the applicability of some principle compelling the conclusion that defendant's initial jeopardy on the § 2113(d) and (e) charges came to an end at some time prior to the trial and conviction now appealed, the continuing jeopardy rule must control the result here.

Defendant urges that Green, supra,and Price, supra, contain such a principle. Because his argument has found acceptance with the Court of Appeals for the Sixth Circuit, Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970), and Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973), vacated on other grounds, 414 U.S. 896, 94 S.Ct. 232, 38 L.Ed.2d 139 (1973), we explain in some detail why we, like the Seventh Circuit, United States v. Anderson, 514 F.2d 583, 587 (7th Cir. 1975), "believe that the Sixth Circuit's position is incorrect and refuse to follow it."

Both Green, supra, and Price, supra, hold that a defendant who has once been tried on a greater charge but convicted on a lesser charge, and who has successfully attacked the conviction on appeal, may not subsequently consistently with the double jeopardy clause be tried again on the greater charge. He may, of course, be tried again on the lesser charge. Defendant contends that his position is, for double jeopardy purposes, indistinguishable from that of Green or Price, that it is immaterial whether the former conviction on the lesser charge resulted from a trial on both the greater and lesser charges or from a plea to the lesser charge only. We cannot agree. The Court in Price, supra, 398 U.S. at 328-29, 90 S.Ct. at 1760-61, 26 L.Ed.2d at 304-05, states that its holdings in both Green and Price rest on two premises. First, a jury's verdict of guilty on a lesser charge is an "implicit acquittal" on the greater charge. Second, a defendant's jeopardy on the greater charge ends when the first jury is given a "full opportunity" to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges. Green, supra, 355 U.S. at 190, 78 S.Ct. at 225, 2 L.Ed.2d at 206, reveals quite clearly why the Supreme Court concluded that an "implicit acquittal" had occurred there:

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.

In contrast, Williams was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating § 2113(d) and (e). He was not forced to run the gantlet on those charges. No trier of fact refused to convict him on those charges and none was given the choice between finding him guilty on either those charges or the § 2113(a) charge. The district judge had the sole options of accepting or rejecting the plea on the § 2113(a) charge. By accepting it, he made no determination, explicit or implicit, on the merits of the charges not embraced in the plea. ² There was no implicit acquittal. The second premise of Green and Price is patently inapplicable where the former conviction rests on a guilty plea. A plea to a lesser charge necessarily deprives court and jury of an opportunity to consider the greater charge. In sum Green and Price do not yield the result defendant seeks. ³

The defendant's due process contention must also be rejected. The contention rests on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Pearce, the Supreme Court held that a due process violation may result where a more severe sentence is imposed when a defendant is retried and reconvicted after a successful appeal, and that, whenever a judge imposes a more severe sentence in such a situation, sufficient reasons for doing so must accordingly affirmatively appear in the record. In Blackledge, the Pearce holding was extended to prosecutorial conduct in a context where the prosecutor had brought greater charges when the defendant exercised a North Carolina statutory right to a de novo criminal appeal. The touchstone to this variety of due process analysis, and the principle which we find controlling here, is contained in the following statement from Blackledge, supra, 417 U.S. at 27, 94 S.Ct. at 2102, 40 L.Ed.2d at 634:

(T)he Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness." . . . The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.

The Court further indicates that due process requires that a defendant be freed of apprehension of a "retaliatory...