United States v. Bauer

• Decision Date: 03 November 1961
• Docket Number: Cr. No. 911-56.
• Citation: United States v. Bauer, 198 F.Supp. 753 (D. D.C. 1961)
• Parties: UNITED STATES of America, Plaintiff, v. John F. BAUER, III, Defendant.
• Court: U.S. District Court — District of Columbia

198 F. Supp. 753

UNITED STATES of America, Plaintiff, v. John F. BAUER, III, Defendant.

Cr. No. 911-56.

United States District Court District of Columbia.

November 3, 1961.

David Acheson, U. S. Atty., and Daniel J. McTague, Asst. U. S. Atty. for the Dist. of Columbia, Washington, D. C., for plaintiff.

William A. Hall, Jr., Richmond, Va., for defendant.

HOLTZOFF, District Judge.

This is a motion under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to correct a sentence claimed to be illegal.

The defendant was indicted on September 4, 1956. The indictment contained three counts. The first count charged robbery, the second count charged assault with a dangerous weapon on the victim of the robbery, and the third count charged carrying a pistol without a license as required by law. The defendant pleaded guilty and on October 5, 1956, he was sentenced by this Court to a term of imprisonment of 5 years to 15 years on Count 1 and 20 months to 5 years on Count 2, the two sentences to run consecutively. In addition, a concurrent sentence of imprisonment for one year was imposed on Count 3.

A number of grounds have been raised in support of the motion, none of which, with a single exception, are worthy of serious consideration. One of the grounds, however, raises an important question of law that merits study, and for that reason the Court set this matter down for oral argument. This question is whether it was legal for the Court to impose consecutive sentences on the first and second counts of the indictment, namely, robbery and assault with a dangerous weapon.

The facts of this case are that the defendant committed an armed robbery in a store located in Washington, D. C. In the course of the robbery the victim was compelled to open his safe, out of which some money was stolen by the perpetrator of the crime. Before leaving the store, the defendant then struck the victim viciously over the head, and inflicted severe wounds on him.

It is well settled that the test whether consecutive sentences may be imposed under two or more counts charging separate offenses, arising, however, out of the same transaction or the same chain of events, is whether the offense charged in one count involves any different elements than an offense charged in another count. In other words, the test is whether some additional evidence is required to prove one of the offenses than is necessary to prove one of the other offenses.

One of the early cases formulating this principle is Gavieres v. United States, 220 U.S. 338, 343, 31 S.Ct. 421, 55 L.Ed. 489. The Court pointed out that evidence sufficient for conviction under the first charge would not have convicted under the second, since in the second case it was necessary to prove an element not involved in the first charge. Under the circumstances, the Court upheld the conviction under both charges.

The well known cases of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, and Gore v. United States, 357 U.S. 386, 389, 78 S.Ct. 1280, 2 L.Ed.2d 1405,...