United States v. Seals, William H.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 1997 Decided December 5, 1997

No. 96-3108

United States of America,

Appellee

v.

William H. Seals, a/k/a Puddin,

a/k/a William Brooks,

Appellant

No. 96-3109

United States of America,

Appellee

v.

Gary W. Sweatt,

Appellant

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Appeals from the United States District Court

for the District of Columbia

(No. 95cr00284-01 & 03)

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Daniel H. Bromberg, appointed by the court, argued the

cause for appellant William H. Seals.

Lisa K. Coleman argued the cause for appellant Gary W.

Sweatt. John P. Dean, appointed by the court, was on brief.

Mary-Patrice Brown, Assistant United States Attorney,

argued the cause for the appellee. Eric H. Holder, Jr.,

United States Attorney at the time the brief was filed, and

John R. Fisher, Thomas J. Tourish, Jr., and G. Bradley

Weinsheimer, Assistant United States Attorneys, were on

brief.

Before: Williams, Ginsburg and Henderson, Circuit

Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The appellants,

William Seals and Gary Sweatt, appeal their convictions on

federal conspiracy, kidnapping and extortion charges. They

contend that the Speedy Trial Act, 18 U.S.C. ss 3161 et seq.,

and Article III of the United States Constitution require

dismissal of the indictment underlying their convictions. In

addition, Sweatt argues that there was insufficient evidence

to convict him of kidnapping and that the district court

improperly sentenced him as a "career offender" under sec-

tion 4B1.1 of the United States Sentencing Guidelines (Guide-

lines). We affirm the appellants' convictions but vacate

Sweatt's sentence and remand to the district court to resen-

tence him not as a career offender.

I. BACKGROUND

On August 2, 1995 Seals and Sweatt were arrested and a

criminal complaint was filed against them in D.C. Superior

Court, charging them with armed kidnapping in violation of

D.C. Code Ann. ss 22-2101, 22-3202 (1981 & Supp. 1995).

They were not, however, immediately indicted on these

charges. After their arrest by Federal Bureau of Investiga-

tion (FBI) agents, the FBI and the D.C. Metropolitan Police

Department continued their joint investigation into the kid-

napping. The investigation resulted in the arrest of two

other suspects and additional evidence which persuaded the

United States Attorney to alter his tentative decision to lodge

D.C. charges against them and to instead indict them on

federal charges. As a result, on October 31, 1995 a D.C.

Superior Court grand jury returned an indictment in the

United States District Court for the District of Columbia.

Before trial Seals and Sweatt moved to dismiss the indict-

ment on Speedy Trial Act and constitutional (Article III)

grounds. The lower court denied the motion, finding that the

United States Attorney had not sent "the case back to D.C.

Superior Court ... for the purpose of gaining additional time

for federal prosecution." Pre-Trial Mot. Tr. 225. It further

held that the Congress, with plenary authority over the

District of Columbia, validly authorized the D.C. Superior

Court, an Article I tribunal, to supervise a grand jury that

can indict for both D.C. and federal offenses. Id. at 201.

At the appellants' trial the Government presented evidence

showing that Sweatt had assisted in detaining the kidnap

victim and in retrieving the ransom money. There was no

evidence, however, from which the jury could infer that

Sweatt had either been present at or assisted in the abduction

and transport of the victim across state lines. At the close of

the Government's case, Sweatt moved for acquittal on the

ground that he could not be found guilty of kidnapping unless

he was shown to have participated in the abduction or trans-

port of the victim across state lines. His motion was denied.

The district court charged the jury on the kidnapping and

extortion counts of the indictment under three theories: (1)

liability as a principal under 18 U.S.C. s 1201(a) (kidnapping)

and 18 U.S.C. s 1951 (extortion); (2) liability as an aider and

abettor under 18 U.S.C. s 2; and (3) liability as a Pinkerton

co-conspirator (Pinkerton v. United States, 328 U.S. 640, 647-

48 (1946)). The jury returned a general verdict, finding both

Seals and Sweatt guilty of conspiracy, kidnapping and extor-

tion. Seals and Sweatt were subsequently sentenced to iden-

tical, concurrent terms of imprisonment. They each received

60 months for conspiracy, 240 months for extortion and life

imprisonment for kidnapping.

At sentencing, Sweatt argued that he should be sentenced

under the November 1994 version of Chapter 4, Part B, of the

Guidelines and that, according to the 1994 version, as modi-

fied by United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993),

he did not have the requisite number of prior convictions to

qualify as a career offender. The district court disagreed,

concluding that the November 1994 and November 1995

versions of the Guidelines were substantially identical, the

only difference being that the 1995 version of section 4B1.1

contained amended Background Commentary. Thus, the

lower court ruled that Sweatt's prior convictions of robbery

and attempted distribution of heroin required that he be

sentenced as a career offender under both the 1994 and 1995

versions of section 4B1.1.

II. DISCUSSION

Despite the parties' contentions to the contrary, all of the

appellants' claims involve the trial court's legal conclusions or

its application of legal standards to the facts. Accordingly,

we review their claims de novo. See United States v. Abdul-

Saboor, 85 F.3d 664, 667 (D.C. Cir. 1996).

A. Timeliness of Indictment

The Speedy Trial Act (STA) provides that "[a]ny informa-

tion or indictment charging an individual with the commission

of an offense shall be filed within thirty days from the date on

which such individual was arrested or served with a summons

in connection with such charges." 18 U.S.C. s 3161(b). The

appellants contend that the clock began on the date of their

August 1995 arrests and expired thirty days later in Septem-

ber 1995. They therefore argue that their October 1995

indictment should be dismissed as untimely pursuant to 18

U.S.C. s 3162(a)(1).1 We disagree.

In United States v. Mills, 964 F.2d 1186 (D.C. Cir.) (en

banc), cert. denied, 506 U.S. 977 (1992), we determined that

"[u]nder the most natural reading" of section 3161(b), "an

arrest starts the clock only if it is 'in connection with' federal

charges" and thus, "[i]f ... the arrest [is] accompanied by a

complaint charging violations of the D.C. (not U.S.) Code, it

[is] not 'in connection with' federal charges." 964 F.2d at

1189 (emphasis original). Further, we concluded that the

remedial provision for an untimely indictment, 18 U.S.C.

s 3162(a)(1), "also suggests that the [STA] is triggered only

by arrests that are accompanied by the filing of a federal

complaint against the defendant." Id. (emphasis original);

see also id. at 1193 (Congress adopted "language in 3161(b)

that addresses solely federal complaints and their attendant

arrests") (emphasis added). We therefore held that because

the Mills defendants were initially charged with violations of

the D.C. Code, the section 3161(b) clock did not start on their

arrest dates and thus the federal indictments (returned, in

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1 This subsection provides:

If, in the case of any individual against whom a complaint is

filed charging such individual with an offense, no indictment or

information is filed within the time limit required by section

3161(b) as extended by section 3161(h) of this chapter, such

charge against that individual contained in such complaint shall

be dismissed or otherwise dropped. In determining whether to

dismiss the case with or without prejudice, the court shall

consider, among others, each of the following factors: the

seriousness of the offense; the facts and circumstances of the

case which led to the dismissal; and the impact of a reprosecu-

tion on the administration of this chapter and on the adminis-

tration of justice.

18 U.S.C. s 3162(a)(1).

one instance, one year after arrest) were not untimely. 964

F.2d at 1188-93.

Our Mills decision disposes of the appellants' STA claims.

Their August arrests, accompanied by the filing of D.C.

charges only, cannot be deemed arrests "in connection with"

federal charges and thus cannot start the STA clock. None-

theless, Seals and Sweatt invite us to fashion an exception to

Mills for the "unusual" circumstances of this case which (in

their view) consist of (1) the FBI's involvement in the arrests

and its continuing role in the post-arrest investigation of the

kidnapping, (2) the United States Attorney's "contemplation"

of federal charges when they were arrested and charged with

violations of the D.C. Code, (3) the alleged tentativeness of

the U.S. Attorney's initial decision to bring D.C. rather than

federal charges and (4) the identity of the prosecuting person-

nel. We decline their invitation.

First, the fact that the FBI was actively involved in their

August arrests does not make them arrests "in connection

with" federal charges. See United States v. Gerald, 5 F.3d

563, 566 (D.C. Cir. 1993) (where arrest was followed by

indictment for D.C. Code violations, fact that defendant ar-

rested by federal law enforcement officer held not to trigger

STA clock), cert. denied, 511 U.S. 1144 (1994); cf. Mills, 964

F.2d at 1192 (recognizing "the now well-established principle

that a state arrest does not start the clock no matter how

extensive the federal involvement in the original arrest")

(emphasis added). Nor does the fact that the FBI actively

participated in the post-arrest investigation make Seals's and

Sweatt's August apprehension an arrest "in connection with"

federal charges. See United States v. Iaquinta, 674 F.2d 260,

262-69 (4th Cir. 1982) (federal investigation undertaken after

defendant's arrest and indictment on state charges and lead-

ing to discovery of additional evidence prompting federal

indictment did not mean STA clock began on date of original

arrest); cf. Gerald, 5 F.3d at 565 (STA clock not triggered by

original arrest on D.C. charges even though prosecutor subse-

quently decided to seek federal indictment as result of post-

arrest review of defendant's criminal record and seriousness

of D.C. charges); United States v. Candelaria, 704 F.2d 1129,

1130 (9th Cir. 1983) (arrest by military police did not trigger

STA clock despite subsequent FBI involvement).

Second, whether the prosecutor contemplated the filing of,

or only tentatively decided not to bring, federal charges at

the time of the appellants' arrests is irrelevant to deciding

when the clock starts. Cf. Iaquinta, 674 F.2d at 269 (sug-

gesting inappropriateness of probe into federal prosecutor's

motives because prosecutor not required to file federal

charges as soon as he has enough evidence to prosecute). At

the very least, such an inquiry is proscribed by the long line

of cases holding that a federal prosecution based on the same

conduct as a failed state prosecution--and which is pursued in

order to salvage the prosecution--is not prohibited by the

STA because the state arrest does not start the STA clock.

See Mills, 964 F.2d at 1189-90 (citing Second, Third, Fourth,

Fifth, Seventh, Eighth and Ninth Circuit decisions for "the

undisputed rule that a state arrest does not trigger the

Speedy Trial Act's clock, even if the arrest is for conduct that

is the basis of a subsequent indictment for a federal offense").

Nor do the decisions upon which the appellants purport to

rely--e.g., United States v. Benitez, 34 F.3d 1489, 1494 (9th

Cir. 1994), cert. denied, 513 U.S. 1197 (1995); United States v.

Cepeda-Luna, 989 F.2d 353, 357 (9th Cir. 1993)--require a

different result. The cases do not authorize a wide-ranging

judicial inquiry into the prosecutor's motives or the finality of

his decisionmaking processes. Rather, they merely carve out

a narrow exception to prevent prosecutorial manipulation of

STA deadlines. The "ruse" exception is inapposite here

because the court below expressly found that "there was no

effort to manipulate the system to gain more time" (Pre-Trial

Mot. Tr. 225) and the appellants do not contest the finding.

Third, as the Government properly notes, the fact that the

same personnel were responsible for prosecuting Seals and

Sweatt in the D.C. Superior Court and United States District

Court does not transform their arrests on D.C. charges into

arrests "in connection with" federal charges. See Mills, 964

F.2d at 1192-93 (rejecting claim that identity of non-federal

and federal prosecutorial personnel triggers STA clock on

date of arrest accompanied by filing of non-federal charges).

Fourth, we reject the appellants' other arguments--name-

ly, that the STA's language, structure and purpose suggest

that an arrest on D.C. charges merely establishes a "pre-

sumption" that the arrest does not trigger the STA clock and

that the "presumption" is rebutted by the unique circum-

stances of this case. To the extent that the arguments have

any merit, they are plainly foreclosed by Mills. See 964 F.2d

at 1193 (section 3161(b) "addresses solely federal complaints

and their attendant arrests") (emphasis added).2

B. Constitutionality of Indictment

D.C. Code Ann. s 11-1916(a) (1981 & Supp. 1995) (section

1916(a)) provides that "[a] grand jury serving in the District

of Columbia may take cognizance of all matters brought

before it regardless of whether the indictment is returnable in

the Federal or District of Columbia Courts." The appellants

argue that the provision is unconstitutional because it vests

the judicial power of the United States outside Article III and

it does so by improperly empowering the executive branch.3

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2 Thus, contrary to the appellants' argument, we decline to read

section 3161(b) without reference to section 3162(a)(1) (see supra

note 2). See Mills, 964 F.2d at 1189 ("There appears to be

undisputed support among the circuits for this reading of the

interplay between ss 3161(b) and 3162(a)(1)."). Similarly, we reject

their assertion that the STA clock should be understood to start on

the same date the Sixth Amendment clock starts. See id. at 1193

("[T]he [STA] is not intended to track the Sixth Amendment.

Within the set of cases covered, it establishes bright-line rules

assuring minimum speed, while at the same time preserving defen-

dants' Sixth Amendment claims in full.").

3 The appellants also claim that section 1916(a) deprives them of

the constitutional safeguards associated with Article III supervision

of federally-indicting grand juries. See Commodity Futures Trad-

ing Comm'n v. Schor, 478 U.S. 833, 848 (1986) ("Article III, s 1,

serves both to protect the role of the independent judiciary within

the constitutional scheme of tripartite government, ... and to

safeguard litigants' right to have claims decided before judges who

are free from potential domination by other branches of govern-

ment.... Although our cases have provided us with little occasion

to discuss the nature or significance of the latter safeguard, our

prior discussions of Article III, s 1's guarantee of an independent

and impartial adjudication by the federal judiciary of matters within

the judicial power of the United States intimated that this guaran-

tee serves to protect primarily personal, rather than structural,

interests.") (internal quotation marks and citations omitted); Peretz

v. United States, 501 U.S. 923, 929 (1991) (noting that Gomez v.

United States, 490 U.S. 858, 864 (1989), had construed statute to

avoid "substantial question whether a defendant has a constitutional

right to demand that an Article III judge preside at every critical

stage of a felony trial"); but cf. Palmore v. United States, 411 U.S.

389, 400 (1973) (rejecting view "that criminal offenses under the

laws passed by Congress may not be prosecuted except in courts

established pursuant to Art. III [because] [i]n our view, ... there is

no support for this view in either constitutional text or in constitu-

tional history and practice"); Swain v. Pressley, 430 U.S. 372, 382

(1977) ("[T]he Constitution does not require that all persons

charged with federal crimes be tried in Article III courts.").

To the extent this claim is distinguishable from the appellants'

other claims, it implicates personal, not structural, constitutional

rights--insofar as such rights might exist in the grand jury context

(about which we express no opinion here). Assuming the right

exists and assuming it was violated as alleged, the appellants would

not be entitled to a dismissal of the indictment unless the violation

prejudiced them, which they do not contend and which the trial

judge explicitly rejected. See Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988) ("We hold that as a general matter,

a district court may not dismiss an indictment for errors in grand

jury proceedings unless such errors prejudiced the defendants.").

While Bank of Nova Scotia involved violations of Fed. R. Crim. P.

6(d) & (e), the decision plainly suggests that the analysis for

constitutional errors is no different from that used to assess other

types of errors. See id. at 256 ("It would be inappropriate to devise

a rule permitting federal courts to deal more sternly with nonconsti-

tutional errors than with constitutional errors."). Moreover, if the

petit jury ultimately returns a guilty verdict, any error committed

at the grand jury stage is (with exceptions not applicable here) non-

prejudicial. See United States v. Mechanik, 475 U.S. 66, 70 (1986)

("But the petit jury's subsequent guilty verdict means not only that

there was probable cause to believe that the defendants were guilty

(1) Judicial Supervision of Grand Jury as

"Judicial Power of United States"

The only reference to the grand jury in the Constitution is

found in the first clause of the Fifth Amendment.4 The grand

jury "has not been textually assigned, therefore, to any of the

branches described in the first three Articles." United States

v. Williams, 504 U.S. 36, 47 (1992).5 Accordingly, it has been

described as "an institution separate from the courts, over

whose functioning the courts do not preside." Id.; see also

id. at 48 ("[I]n its day-to-day functioning, the grand jury

generally operates without the interference of a presiding

judge."); but cf. Blair v. United States, 250 U.S. 273, 278

(1919) ("At the foundation of our federal government the

inquisitorial function of the grand jury and the compulsion of

witnesses were recognized as incidents of the judicial power

of the United States."); Levine v. United States, 362 U.S.

610, 617 (1960) ("The grand jury is an arm of the court and its

in camera proceedings constitute a judicial inquiry.") (inter-

nal quotation omitted).

The independence of the grand jury reflects the protective

role it plays in our system of criminal justice: "Historically,

this body has been regarded as the primary security to the

innocent against hasty, malicious and oppressive persecution;

it serves the invaluable function in our society of standing

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as charged, but also that they are in fact guilty as charged beyond a

reasonable doubt. Measured by the petit jury's verdict, then, any

error in the grand jury proceeding connected with the charging

decision was harmless beyond a reasonable doubt.") (note omitted).

4 The Grand Jury Clause of the Fifth Amendment recites:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger;....

U.S. Const. Am. V, cl. 1.

5 The grand jury's lineage is outlined in Hurtado v. California,

110 U.S. 516 (1884), and dates back to at least 1164. Id. at 529.

between the accuser and the accused, whether the latter be

an individual, minority group, or other, to determine whether

a charge is founded upon reason or was dictated by an

intimidating power or by malice and personal ill will." Wood

v. Georgia, 370 U.S. 375, 390 (1962); accord Williams, 504

U.S. at 47.6

The grand jury does depend on the judiciary in its role as

an investigative body: "A grand jury is clothed with great

independence in many areas, but it remains an appendage of

the court, powerless to perform its investigative function

without the court's aid, because powerless itself to compel the

testimony of witnesses." Brown v. United States, 359 U.S.

41, 49 (1959), overruled on other ground by Harris v. United

States, 382 U.S. 162 (1965); accord United States v. Calan-

dra, 414 U.S. 338, 346 n.4 (1974) ("[T]he grand jury must rely

on the court to compel production of books, papers, docu-

ments, and the testimony of witnesses, and the court may

quash or modify a subpoena on motion if compliance would be

unreasonable or oppressive.") (internal quotation omitted).

But even this dependence is limited as the grand jury must

"remain 'free to pursue its investigations unhindered by

external influence or supervision so long as it does not trench

upon the legitimate rights of any witness called before it.' "

Williams, 504 U.S. at 48-49 (quoting United States v. Dioni-

sio, 410 U.S. 1, 17-18 (1973)) (emphasis added).

Moreover, an Article III judge's role in the grand jury's

investigative process is often more attenuated as the respon-

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6 Under the Fifth Amendment, an indictment is not required to

initiate prosecution of a state "capital[ ] or otherwise infamous

crime." See Hurtado, 110 U.S. at 538. Although the District is

treated like a state in many respects--see, e.g., Palmore, 411 U.S.

at 397 (1973) (in District of Columbia "Congress may also exercise

the police and regulatory powers which a state legislature or

municipal government would have in legislating for state or local

purposes")--the Supreme Court has held that the prosecution of a

D.C. Code offense carrying the possibility of "infamous punishment"

may not be commenced other than by grand jury indictment or

presentment as required by the Fifth Amendment. See United

States v. Moreland, 258 U.S. 433 (1922).

sibility for issuing subpoenas and for accepting returned

indictments is vested in United States magistrate judges who

are not Article III judges. See Fed. R. Crim. P. 17(a)

(subpoenas "shall be issued by United States Magistrate

Judge[s]"); Fed. R. Crim. P. 6(e)(4) & 6(f) (indictment is to

be returned to magistrate judge). Indeed, the significance

attached to Article III supervision of a grand jury is so minor

that the Supreme Court has held that the judge's absence

from the federal judicial district in which the grand jury is

sitting neither implicates constitutional rights of the defen-

dant nor otherwise constitutes cognizable error. See Badders

v. United States, 240 U.S. 391, 394 (1916). Therefore, "[g]iv-

en the grand jury's operational separateness from its consti-

tuting court, it should come as no surprise that [the Supreme

Court] ha[s] been reluctant to invoke the judicial supervisory

power as a basis for prescribing modes of grand jury proce-

dure." Williams, 504 U.S. at 49-50.

Accordingly, to the extent that the supervision of a federal-

ly competent grand jury implicates the Article III "judicial

power of the United States," the power is a circumscribed one

and is far removed from "the essential attributes of the

judicial power" with which Article III is principally con-

cerned. Crowell v. Benson, 285 U.S. 22, 51 (1932). More-

over, section 1916(a) is applicable only to the "unique federal

enclave," Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 75 (1982) (plurality op.) [hereinafter

Northern Pipeline], that is the District of Columbia.

(2) Expanded Executive Branch Involvement with Grand

Jury as Encroachment on Judicial Branch

Seals and Sweatt contend that section 1916(a), by substitut-

ing Article I for Article III supervision of a federally-

competent grand jury, unconstitutionally encroaches on the

judicial branch. Their argument rests on the notion that a

D.C. Superior Court judge, lacking life tenure and salary

protections, is less able to curb federal prosecutorial abuses

than his United States District Court counterpart. We think

this notion is questionable at best. See Palmore v. United

States, 411 U.S. 389, 402 (1993) ("Nor, more particularly, has

the enforcement of federal criminal law been deemed the

exclusive province of federal Art. III courts. Very early in

our history, Congress left the enforcement of selected federal

criminal laws to state courts and to state court judges who

did not enjoy the protections prescribed for federal judges in

Art. III."); cf. Testa v. Katt, 330 U.S. 386 (1947) (Supremacy

Clause required Rhode Island trial court to enforce non-penal

provisions of federal penal price control statute). The delega-

tion of certain Article III powers to United States magistrate

judges, who are not Article III judges, has also been upheld.

See, e.g., Peretz v. United States, 501 U.S. 923, 937 (1991)

(structural constitutional protection not abrogated by allowing

magistrate to conduct voir dire); United States v. Raddatz,

447 U.S. 667, 683 (1980) (delegation of suppression hearing to

magistrate did not violate Article III or Due Process Clause

so long as Article III court retained final authority). More-

over, the Supreme Court has held that a D.C. Superior Court

judge is presumed competent to pass on federal constitutional

questions that may arise in the course of a criminal trial. See

Swain v. Pressley, 430 U.S. 372, 383 (1977) ("[T]he judges of

the Superior Court of the District of Columbia must be

presumed competent to decide all issues, including constitu-

tional issues, that routinely arise in the trial of criminal

cases.").7

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7 We do not here conclude that there are no constitutional limita-

tions on the Congress's authority to delegate either grand jury

supervisory functions or federal felony trial supervisory powers to

state and Article I judges, as controlling precedent suggests that, in

at least some instances, a non-consenting defendant may have a

personal constitutional claim to adjudication by an Article III

judge. See Gomez v. United States, 490 U.S. 858, 872 n.25 (1989);

Peretz, 501 U.S. at 936 ("[I]t is arguable that a defendant in a

criminal trial has the right to demand the presence of an Article III

judge at voir dire."). Even if a defendant has such a constitutional

right to Article III adjudication, it is far from clear that he has a

corresponding right to indictment under Article III supervision.

Further, because the grand jury conducts its proceedings ex parte,

it would be difficult (if not impossible) to obtain the accused's

consent to non-Article III supervision without altering the funda-

The appellants' challenge requires us to assess the "prac-

tical effect" of the alleged infringement of Article III power:

[I]n reviewing Article III challenges, we have weighed a

number of factors, none of which has been deemed

determinative, with an eye to the practical effect that the

congressional action will have on the constitutionally

assigned role of the federal judiciary. ... Among the

factors upon which we have focused are [1] the extent to

which the 'essential attributes of judicial power' are

reserved to Article III courts, and, conversely, [2] the

extent to which the non-Article III forum exercises the

range of jurisdiction and powers normally vested only in

Article III courts, [3] the origins and importance of the

right to be adjudicated, and [4] the concerns that drove

Congress to depart from the requirements of Article III.

Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,

851 (1986) (emphasis added). Applying the Schor test here,

we conclude that section 1916(a) does not abrogate Article III

structural protections.8

First, as discussed earlier, the power to supervise a federal-

ly-competent grand jury cannot fairly be described as an

"essential attribute" of the "judicial power of the United

States." The limited authority a supervising judge wields,

the independence of the grand jury from both the judicial and

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mental and independent role of the grand jury in the investigative

and indictment process--something Williams plainly proscribes.

See Williams, 504 U.S. at 52-55 (rejecting judicial rule requiring

presentation of exculpatory evidence to grand jury because it would

"alter the grand jury's historical role").

8 While Schor addressed the constitutionality of the Commodity

Futures Trade Commission's power to decide a state-law counter-

claim in an administrative reparation proceeding, there is no reason

that the structural constitutional analysis should be any different in

the criminal context. See, e.g., Mistretta v. United States, 488 U.S.

361, 382-83 (1989) (citing Schor in describing separation of powers

analysis to be applied in determining constitutionality of grant of

authority to Sentencing Commission to set mandatory minimum

punishments for criminal violations of U.S. Code).

executive branches, as well as the fact that such supervisory

responsibilities are often discharged by a magistrate judge

(without requiring the accused's consent)--all manifest that

the supervisory power at issue is not an "essential attribute"

of the "judicial power of the United States." See generally

Williams, 504 U.S. at 47-55.

Second, even if supervision of a federally-competent grand

jury qualified as an "essential attribute," section 1916(a)

authorizes only a limited sharing of the supervisory power

with an Article I court. An Article III judge continues to

preside at the defendant's trial and retains his authority to

dismiss an indictment. Cf. Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988) ("We hold that, as a general

matter, a district court may not dismiss an indictment for

errors in grand jury proceedings unless such errors preju-

diced the defendants."); United States v. Raddatz, 447 U.S.

667, 683 (1980) (delegation of authority to conduct suppres-

sion hearing to magistrate judge "does not violate Article III

so long as the ultimate [suppression] decision is made by the

district court").

Third, while indictment or presentment by a grand jury is a

right secured to felony defendants by the Fifth Amendment,

the history and origins of the grand jury suggest that any

constitutional right to have it supervised by an Article III

judge is of much more recent vintage:

The grand jury is an English institution, brought to this

country by the early colonists and incorporated into the

Constitution by the Founders. There is every reason to

believe that our constitutional grand jury was intended to

operate substantially like its English progenitor. The

basic purpose of the English grand jury was to provide a

fair method for instituting criminal proceedings against

persons believed to have committed crimes. Grand ju-

rors were selected from the body of the people and their

work was not hampered by rigid procedural or evidential

rules. In fact, grand jurors could act on their own

knowledge and were free to make their presentments or

indictments on such information as they deemed satisfac-

tory. Despite its broad power to institute criminal pro-

ceedings the grand jury grew in popular favor with the

years. It acquired an independence in England free

from control by the Crown or judges.

Costello v. United States, 350 U.S. 359, 362 (1956) (emphasis

added); accord Hurtado v. California, 110 U.S. 516, 530

(1884) ("When we add to this that the primitive grand jury

heard no witnesses in support of the truth of the charges to

be preferred, but presented upon common fame and general

suspicion, we shall be ready to acknowledge that it is better

not to go too far back into antiquity for the best securities for

our 'ancient liberties.' "). Thus, the grand jury's reliance on a

judge for subpoenas, immunity orders and the like is a

relatively recent development in the history of the institution,

resulting, no doubt, from proscribing the jurors' reliance on

personal knowledge of events in the vicinage to form their

opinions. Cf. Edward J. Finley II, Note, Ignorance as Bliss?

The Historical Development of an American Rule on Juror

Knowledge, 1990 U. Chi. Legal F. 457, 468 (jurors' use of

personal knowledge not prohibited by many states until end

of nineteenth century); see also Badders, 240 U.S. at 394-95

(1916) (finding no error, constitutional or otherwise, in district

judge's absence from District during grand jury deliberation).

Fourth, section 1916(a) promotes efficiency resulting from

the identity (both in composition and function) of the D.C.

Superior Court grand jury and the federal grand jury:

[G]rand jurors for both the District Court and the Supe-

rior Court are selected from the same pool of names, by

the same jury commissioners, by use of the Superior

Court computer, and pursuant to an identical method.

Moreover the grand jurors in the two courts have identi-

cal qualifications and it is only by chance that a person

may be selected to serve on one grand jury rather than

the other. The grand jury procedure is virtually identi-

cal in both.

United States v. Hackney, 389 A.2d 1336, 1340 (D.C. 1978),

cert. denied, 439 U.S. 1132 (1979). In addition, the provision

immediately following section 1916 directs:

To the extent feasible, the Superior Court and the Unit-

ed States District Court shall consider the respective

needs of each court in the qualification, selection, and

service of jurors. Nothing in this chapter shall be con-

strued to prevent such courts from entering into any

agreement for sharing of resources and facilities (includ-

ing automated data processing and hardware and soft-

ware, forms, postage, and other resources).

D.C. Code Ann. s 11-1917 (1981 & Supp. 1995). Given the

limited pool of potential jurors available to serve both the

D.C. Superior Court and the United States District Court, it

is hardly surprising that the Congress should vest a grand

jury empaneled by either court with authority to return an

indictment in the other or that judicial supervisory authority

should be shared by the courts. See Atkinson v. United

States, 295 A.2d 899, 901-02 (D.C. 1972) (observing that as of

February 1971, grand jury sitting in one court could return

indictment to other court). While the grand jury arrange-

ment in the District of Columbia may be unique, "[o]ur

constitutional principles of separated powers are not violated

... by mere anomaly or innovation." Mistretta v. United

States, 488 U.S. 361, 385 (1988).

The two cases Seals and Sweatt rely on do not suggest a

different conclusion. They first cite O'Donoghue v. United

States, 289 U.S. 516 (1932), in which the Supreme Court

upheld the classification of District of Columbia courts as

Article III courts because (1) the Congress did not expressly

denominate them Article I tribunals, (2) the Congress consis-

tently treated them like other Article III courts, (3) it vested

them with broad powers to determine matters under national

laws and (4) they were the only courts to which District of

Columbia residents could turn to protect their federal statuto-

ry rights. See 289 U.S. at 534-35, 544-49; cf. Palmore, 411

U.S. at 405-07 (O'Donoghue "[r]el[ied] heavily on congres-

sional intent" to uphold D.C. courts as Article III courts).

Some forty-one years later, after the Congress established

separate Article I and Article III courts in the District of

Columbia, the Supreme Court held that Article III did not

prohibit the Congress from authorizing D.C. Superior Court

judges to hear federal criminal cases brought under corre-

sponding provisions of the D.C. Code. Palmore, 411 U.S. at

389. Accordingly, O'Donoghue offers the appellants no sup-

port for their challenge.

Second, the plurality opinion in Northern Pipeline does not

support the appellants.9 In that opinion, Justice Brennan

likened the Congress's plenary Article I authority over the

District of Columbia to its authority over territorial matters

pursuant to Article IV and, with three other justices, held

that, with respect to such enclaves, "the general principle of

independent adjudication commanded by Art. III does not

apply." 458 U.S. at 76 (emphasis added).

(3) Other Considerations

The line of cases confirming the Congress's plenary author-

ity over the District of Columbia pursuant to Article I, s 8, cl.

17, further fortifies our holding today.10 In particular, Pal-

more recognizes that "[i]t is apparent that the power of

Congress under Clause 17 permits it to legislate for the

District in a manner with respect to subjects that would

exceed its powers, or at least would be very unusual, in the

context of national legislation enacted under other powers

__________

9 The precedential value of Northern Pipeline, which did not

produce a majority opinion, has been subsequently weakened. See

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 584

(1985) ("The Court's holding in [Northern Pipeline] establishes only

that Congress may not vest in a non-Article III court the power to

adjudicate, render final judgment, and issue binding orders in a

traditional contract action arising under state law, without the

consent of the litigants, and subject only to ordinary appellate

review.") (emphasis added); cf. Fields v. Washington Metro. Area

Transit Auth., 743 F.2d 890, 894 n.10 (D.C. Cir. 1984).

10 Article I, s 8, cl. 17, in relevant part provides:

[The Congress shall have Power] To exercise exclusive Leg-

islation in all Cases whatsoever, over such District (not exceed-

ing ten Miles square) as may, by Cession of particular States,

and the Acceptance of the Congress, become the Seat of the

Government of the United States....

delegated to it under Art I...." 411 U.S. at 397-98. Subse-

quently, the plurality opinion in Northern Pipeline went even

further in describing the extent of the Congress's plenary

authority under Article I, s 8, cl. 17: "Congress' power over

the District of Columbia encompasses the full authority of the

government, and thus, necessarily, the Executive and Judi-

cial powers as well as the Legislative." 458 U.S. at 76.

Moreover, we cannot find in the Fifth Amendment any

basis for concern regarding the assignment of the grand jury

supervisory function to a non-Article III judge. Instead, we

conclude that if a D.C. Superior Court judge is competent,

despite lacking life tenure and salary protections, to adjudi-

cate a constitutional right as fundamental as that guaranteed

by the writ of habeas corpus--see Swain, 430 U.S. at 383--we

see no reason that the same judge cannot likewise protect

whatever Fifth Amendment right the appellants might have

to indictment by a federally-competent grand jury supervised

by an impartial and independent judge.

C. Sweatt's Kidnapping Conviction

The federal kidnapping statute, in relevant part, provides:

Whoever unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away and holds for ransom

or reward or otherwise any person, except in the case of

a minor by the parent thereof, when--

(1) the person is willfully transported in interstate or

foreign commerce;

(2) any such act against the person is done within the

special maritime and territorial jurisdiction of the

United States;

(3) any such act against the person is done within the

special aircraft jurisdiction of the United States as

defined in section 46501 of title 49;

(4) the person is a foreign official, an internationally

protected person, or an official guest as those terms

are defined in section 1116(b) of this title; or

(5) the person is among those officers and employees

designated in section 1114 of this title and any such act

against the person is done while the person is engaged

in, or on account of, the performance of official duties;

shall be punished by imprisonment for any term of years

or for life and, if the death of any person results, shall be

punished by death or life imprisonment.

18 U.S.C. s 1201(a) (emphasis added). Sweatt contends that

the word "when" as used in section 1201(a) means that the

kidnapping ended after the victim was transported across

state lines and before he became involved in holding the

victim and retrieving the ransom.11 He therefore reasons

that he cannot be held criminally liable as a principal, aider

and abettor or Pinkerton co-conspirator under 18 U.S.C.

s 1201(a). He is mistaken.

Sweatt's crabbed reading of section 1201(a) is contrary to

the "natural meaning" of the term "when." See United

States v. Wells, 117 S. Ct. 921, 927 (1997) ("the first criterion

in the interpretive hierarchy, a natural reading of the full

text") (citing United States v. American Trucking Ass'n, Inc.,

310 U.S. 534, 542-43 (1940)). The term "when" is used in

section 1201(a) not in its temporal sense--i.e., "at the time

that"--but rather in its categorical sense--i.e., "in cases

where." This is evident from the syntax and structure of the

provision: the list of factors immediately following "when"

describes activities the provision intends to forbid, not their

chronology. Moreover, if "when" had the meaning Sweatt

ascribes to it, the word "while" in subsection (5) of section

1201(a) would be superfluous--again, a disfavored construc-

tion. See Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)

(courts should "give effect, if possible, to every clause and

word of a statute"); cf. Moskal v. United States, 498 U.S. 103,

__________

11 According to the Government's evidence, Sweatt assisted in

holding the victim in Maryland while the ransom demand was made

and he and Seals traveled to the District of Columbia to pick up the

ransom. See Trial Tr. 612-14, 619-20, 709-10, 1156, 1171. There

was also evidence that a telephone call was placed to Sweatt shortly

after the victim was abducted. Id. at 713-16.

111 (1990) (declining to read provision narrowly so as to "limit

it to instances of fraud rather than the class of fraud

encompassed by its language") (emphasis added); Bell v.

United States, 462 U.S. 356, 362 (1983) ("[F]ederal criminal

statutes that are intended to fill a void in local law enforce-

ment should be construed broadly.").

Other courts have held that, even though a violation of 18

U.S.C. s 1201(a) occurs when all of the essential elements of

the offense have been satisfied, the crime of kidnapping

continues while the victim remains held and a ransom sought.

See United States v. Denny-Shaffer, 2 F.3d 999, 1018 (10th

Cir. 1993) ("The broad language of s 1201(a) defines a con-

tinuing offense."); cf. United States v. Garcia, 854 F.2d 340,

344 (9th Cir. 1988) (federal kidnapping is continuing offense

and therefore statute of limitations does not begin with

transport of victim across state lines), cert. denied, 490 U.S.

1094 (1989); cf. also Grunewald v. United States, 353 U.S.

391, 403 (1957) ("Kidnapers in hiding, waiting for ransom,

commit acts of concealment in furtherance of the objectives of

the conspiracy itself, just as repainting a stolen car would be

in furtherance of a conspiracy to steal; in both cases the

successful accomplishment of the crime necessitates conceal-

ment.") (note omitted); see also McElroy v. United States,

455 U.S. 642, 654-56 (1982) (rejecting, as contrary to statute's

purpose of aiding in apprehension of criminals who misuse

channels of interstate commerce, argument that federal for-

gery conviction must be overturned because prosecutor had

failed to establish instrument was forged before transport

across state lines); United States v. Toledo, 985 F.2d 1462,

1467 (10th Cir.) (in enacting section 1201(a) "Congress was

attempting to address the misuse of interstate commerce by

kidnappers to frustrate the efforts of state police"), cert.

denied, 510 U.S. 878 (1993). Accordingly, there was sufficient

evidence to convict Sweatt as at least an aider and abettor--

which is all that is required to sustain his conviction. See

Griffin v. United States, 502 U.S. 46, 49 (1991) ("[A] general

jury verdict [is] valid so long as it [is] legally supportable on

one of the submitted grounds....").

Nor do the cases Sweatt cites compel a different conclusion.

The cases hold only that unlawful abduction and transport

across state lines is sufficient to violate section 1201(a); they

do not hold, nor does it follow from their holdings, that the

kidnapping concludes once the abduction and transport occur.

See, e.g., United States v. Broadwell, 870 F.2d 594, 601 & n.16

(11th Cir.) (holding that unlawful restraint began when victim

was abducted and "continued" after he was transported

across state lines even though crime "complete" upon trans-

port), cert. denied, 493 U.S. 840 (1989). Accordingly, we

uphold Sweatt's conviction on the kidnapping charge.12

D. Sweatt as "Career Offender" Under Section 4B1.1

We held in United States v. Price, 990 F.2d 1367 (D.C. Cir.

1993), that "the Sentencing Commission adopted ss 4B1.1 &

4B1.2 solely in an effort to fulfill the mandate of 28 U.S.C.

s 994(h)" and therefore only those offenses specified in sec-

tion 994(h) can render the defendant a "career offender." 990

F.2d at 1368. Because aiding and abetting, conspiring and

attempting to commit certain narcotics offenses are not

among those offenses listed in section 994(h), we held that the

defendant could not be sentenced as a career offender on the

basis of prior convictions of those offenses. Id. Price con-

cluded that Application Note 1 to section 4B1.2 of the Guide-

__________

12 We express no opinion regarding the Government's and

Sweatt's opposing arguments as to his culpability on a Pinkerton

theory. We also note that although the trial court's charge, in

describing the elements of kidnapping required to convict Seals and

Sweatt as principals, declared that Sweatt could not be convicted

unless he was shown to have participated in the abduction or

transport of the victim across state lines (Trial Tr. 1926), the aiding

and abetting charge (id. at 1917-19) contained no such limitation

and could have been used by a reasonable jury to convict Sweatt of

kidnapping. See Griffin, 502 U.S. at 49. In any event, although we

need not reach the issue today, we doubt that a criminal defendant

can obtain reversal of his conviction solely on the basis of instruc-

tions that create erroneous and unnecessary impediments to convic-

tion. See United States v. Bomski, 125 F.3d 1115, 1116 (7th Cir.

1997).

lines was invalid to the extent it suggested that convictions of

certain inchoate offenses counted in treating the defendant as

a career offender. Id. We held open the question, however,

whether the Sentencing Commission could repromulgate Ap-

plication Note 1 pursuant to statutory authority other than

section 994(h), including its discretionary authority under

section 994(a). See id. at 1370 ("Thus, without passing on the

Commission's authority to re-adopt Application Note 1 to

s 4B1.2 (or some variation of Note 1) on alternative grounds,

we vacate the sentence and remand the case to the district

court for resentencing.").

The Commission responded by amending and repromulgat-

ing the Background Commentary to section 4B1.1 of the

Guidelines. The repromulgated version clarified that, pursu-

ant to the Commission's general statutory authority, 28

U.S.C. s 994(a)-(f), and its amendment authority, 28 U.S.C.

s 994(o)-(p), prior convictions that can count toward career

offender status include convictions of attempts, aiding and

abetting and other inchoate offenses. See 1995 Guidelines

Manual, App. C, Am. 528 at 434-35. The repromulgated

Background Commentary to section 4B1.1 became effective

on November 1, 1995.

Sweatt argues that in light of Price, the district court

improperly sentenced him as a career offender under the

repromulgated version of section 4B1.1 because his 1987

conviction of attempted distribution of heroin could not be

used under the November 1994 version of section 4B1.1--the

version in effect when he committed the crimes.13 By retro-

actively applying the November 1995 version of section 4B1.1,

he reasons, the trial court imposed a greater punishment than

it could have imposed under the law as it existed when the

crimes were committed, violating the Ex Post Facto Clause.

See, e.g., United States v. Stover, 93 F.3d 1379, 1386 (8th Cir.

1996); United States v. Smallwood, 35 F.3d 414, 417-18 n.18

(9th Cir. 1994); United States v. Saucedo, 950 F.2d 1508, 1515

(10th Cir. 1991).

__________

13 Sweatt does not dispute that his 1987 robbery conviction was

properly counted as a prior conviction under section 4B1.1.

The Government essentially concedes that Sweatt's reading

of Price is correct but it contends that we should overrule

Price. See Appellee Br. at 43. Nevertheless, the law is well

settled that one panel may not "overrule the decision of

another panel of this court." United States v. Doe, 730 F.2d

1529, 1531 n.2 (D.C. Cir. 1984). Accordingly, we vacate

Sweatt's sentence as a career offender pursuant to section

4B1.1 of the Guidelines and remand to the district court for

resentencing.

III. CONCLUSION

For the foregoing reasons, we affirm the appellants' convic-

tions. We vacate appellant Sweatt's sentence as a career

offender and remand for resentencing in accordance with the

terms of this opinion.

So ordered.