Ward v. U.S.

• Decision Date: 03 January 1983
• Docket Number: No. 81-5832,81-5832
• Citation: 694 F.2d 654
• Parties: Colon O. WARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 654

694 F.2d 654

Colon O. WARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 81-5832.

United States Court of Appeals Eleventh Circuit.

Jan. 3, 1983.

Robert S. Windholz, Atlanta, Ga., for petitioner-appellant.

Kenneth W. Sukhia, Asst. U.S. Atty., Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before VANCE, ANDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Colon O. Ward appeals from the denial of his petition to vacate sentence under 28 U.S.C.A. Sec. 2255 by the United States District Court for the Northern District of Florida. Ward raises several issues on this appeal. We affirm the district court's denial of relief as to all but one of Ward's claims, but reverse and vacate one of his conspiracy convictions on the basis of multiplicity.

I. FACTS

Ward, members of his family, and others were engaged in receiving, possessing and disposing of trucks, tractors, and other vehicles stolen from interstate commerce. Ward was subsequently indicted on sixteen counts of a twenty-count indictment. Following a jury trial, he was convicted on fifteen counts: one count of conspiracy to receive shipments stolen from interstate commerce (18 U.S.C.A. Sec. 371 (West 1966) and 18 U.S.C.A. Sec. 659 (West 1976)), two counts of receiving stolen shipments (Sec. 659), eleven counts of receiving and concealing stolen vehicles moving in interstate commerce (18 U.S.C.A. Sec. 2313 (West 1970)), and one count of conspiracy to receive and conceal stolen vehicles moving in interstate commerce (Secs. 371 and 2313). Excluding concurrent sentences, Ward was sentenced to twenty-five years in prison. On direct appeal, Ward's conviction was affirmed by a unanimous panel of the Former Fifth Circuit. United States v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977).

In his Sec. 2255 petition to the district court ¹ Ward raised the following claims for relief: (1) the trial court was without jurisdiction to sentence him because of an improperly filed superseding indictment; (2) the indictment was duplicitous as to two substantive counts under Sec. 659 and as to eleven substantive counts under Sec. 2313; (3) the indictment was multiplicious as to counts 1 and 20, the conspiracy counts; (4) Ward was denied effective assistance of counsel at trial; (5) the trial court's conduct of jury selection deprived Ward of his right to a fair and impartial jury; and (6) Ward's character was wrongfully placed in evidence by evidence of other crimes.

On appeal of the district court's denial of his motion, Ward renews all but the last of these claims. We affirm the district court's findings on all claims except that relating to multiplicity. Because in our view the separate conspiracies of which Ward was convicted arose from but one agreement, we reverse and vacate the conviction and sentence on one of the conspiracy counts.

II. THE SUPERSEDING INDICTMENT

Ward was first arraigned on a twenty-count indictment on February 12, 1976. On March 11, a superseding indictment was filed, adding Ward's name to one of the conspiracy counts, and correcting the serial number of one of the stolen vehicles he was alleged to have received under one of the substantive counts. ² He was arraigned on this second indictment on March 19, and trial commenced on April 19. After his conviction under the superseding indictment the district court dismissed the original indictment pursuant to the government's motion.

Ward now contends that the second indictment was invalid because it was not returned by a grand jury, and that in fact he was tried on the first indictment. He asserts that the court's dismissal of that indictment after his conviction but before sentencing withdrew jurisdiction from the district court to sentence him. We agree with the district court, however, that this contention is without merit.

Ward's argument amounts to an unsubstantiated claim that the second indictment was not submitted to the grand jury. An indictment regular on its face, however, carries with it a strong presumption of validity. See United States v. James, 290 F.2d 866, 869 (5th Cir.), cert. denied, 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961). ³ In this case, the superseding indictment was signed by the same grand jury foreperson who signed the original indictment. Because this signature constitutes an attestation to the act of the grand jury, see United States v. Cox, 342 F.2d 167, 171-72 (5th Cir.) (en banc), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), and because Ward has produced no credible evidence to indicate otherwise, we must presume that the superseding indictment was properly returned by the grand jury. Thus, the district court's dismissal of the first indictment after Ward's conviction had no effect on either the validity of his conviction or the court's authority to sentence him. See United States v. Gower, 447 F.2d 187, 189 & n. 2 (5th Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88 (1971). No other alleged defects in the indictment rise to the level required for obtaining relief under Sec. 2255. ⁴

III. THE ALLOWABLE UNIT OF PROSECUTION UNDER 18 U.S.C.A. Sec. 659

Ward next contends that it was improper to convict him for two separate violations of 18 U.S.C.A. Sec. 659 for receiving and possessing four stolen tractors which were all being transported on one truck-tractor at the time they were stolen. ⁵ He correctly points out that this court must determine the "allowable unit of prosecution" under Sec. 659, Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 621, 99 L.Ed. 905 (1955), and argues that in this case it is all "goods or chattels" taken in a single theft. Brief for Petitioner at p. 23. The government contends that the proper unit of prosecution is each "shipment"--in this case, each tractor that was ultimately bound for a different destination, regardless of whether it was temporarily being transported with others at the time it was stolen. ⁶

The Former Fifth Circuit has held that each discreet shipment that is the object of a prohibited act under Sec. 659 constitutes one allowable unit of prosecution. See United States v. Gilbert, 537 F.2d 118, 119 (5th Cir.1976), remanded for reconsideration on other grounds, 430 U.S. 902, 97 S.Ct. 1169, 51 L.Ed.2d 578 (1977), aff'd on remand, 573 F.2d 346 (5th Cir.1978). Accord, Oddo v. United States, 171 F.2d 854, 856 (2d Cir.), cert. denied, 337 U.S. 943, 69 S.Ct. 1498, 93 L.Ed. 1747 (1949). Thus, each tractor received by Ward which was ultimately bound for a different destination would constitute one shipment and one allowable unit of prosecution, regardless of whether all tractors were at one time traveling together in interstate commerce. ⁷ Because the vehicle received under count 3 was destined for Springdale, Arkansas, while the vehicle received under count 4 was bound for Seymour, Missouri, we affirm the district court's ruling.

IV. THE ALLOWABLE UNIT OF PROSECUTION UNDER 18 U.S.C.A. Sec. 2313

Each of counts 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, and 19 charges Ward with receiving, concealing, and storing one separate stolen vehicle in violation of 18 U.S.C.A. Sec. 2313. ⁸ Ward claims that because all eleven vehicles covered in these counts were seized by the government at the same time, he should have been charged with only one violation of Sec. 2313. We disagree.

There is no basis in Sec. 2313 for petitioner's somewhat unique theory of the unit of prosecution. Unlike his claim under Sec. 659, he does not contend that he received the vehicles in these counts at one time and as one transaction. It must be assumed, therefore, that he received, concealed, and stored each vehicle as a separate act. Thus, regardless of whether the allowable unit of prosecution under Sec. 2313 is each vehicle received or each separate act of receiving vehicles, each of the eleven counts in question could properly focus on one particular vehicle. ⁹

V. THE MULTIPLICIOUS INDICTMENT

Count 1 charges Ward and three others under 18 U.S.C.A. Sec. 371 ¹⁰ with conspiring to violate 18 U.S.C.A. Sec. 659 by receiving, possessing and concealing three vehicles which had been embezzled and stolen while being shipped in interstate commerce. Count 20 charges Ward and six others under Sec. 371 with conspiring to violate 18 U.S.C.A. Sec. 2313 by receiving, storing, bartering, selling and disposing of motor vehicles moving as, and a part of interstate commerce. ¹¹ Ward alleges that together these two counts charge one ongoing conspiracy which properly may be the subject of but one count under the indictment.

"Multiplicity" is the charging of a single offense in more than one count. United States v. De la Torre, 634 F.2d 792, 794 (5th Cir.1981); United States v. Free, 574 F.2d 1221, 1224 (5th Cir.), cert. denied, 439 U.S. 873, 99 S.Ct. 209, 58 L.Ed.2d 187 (1978). Generally, the test for determining whether an indictment is multiplicious is that set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): "Whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182; see United States v. De la Torre, 634 F.2d at 795; United States v. Free, 574 F.2d at 1224. When the charges alleged to be multiplicious are overlapping or similar conspiracies, however, the issue is more complex, and depends primarily upon whether the separate conspiracies alleged are each based upon a general federal conspiracy statute, such as Sec. 371, or instead are based on separate provisions outlawing specific types of conspiracies. See generally United States v. Rodriguez, 612 F.2d 906 (5th Cir.1980) (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); ...