Julius Ingram v. United States

BURGER, Circuit Judge

(dissenting):

The question of the legality of sentencing Appellant to consecutive terms for violations of 22 D.C.Code § 501 and § 502 turns on whether the offenses created by these sections are separate. Section 501 makes it an offense to commit an assault with intent to kill, and § 502 creates the offense of assault with a dangerous weapon. If Congress intended these two offenses to be alternative means of proscribing certain conduct, the consecutive sentences cannot stand; but if it intended the offenses to be separate and did not consider assault with a dangerous weapon a lesser included offense of assault with intent to kill, the *876 District Court should be affirmed. The question of punishment follows from the pattern of violations envisaged by Congress in enacting § 501 and § 502.

It is a settled principle of law which is hardly a “stereotype” that separate offenses are punishable consecutively even when they arise out of the same transaction. Ekberg v. United States, 167 F.2d 380, 384 (1st Cir. 1948); see Gore v. United States, 357 U.S. 386 , 78 S.Ct. 1280 (1958); Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed 306 (1932). The difficulty arises in discerning the intent of Congress.

A method for determining congressional intent, however, has been developed: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Block-burger v. United States, supra, 284 U.S. at 304 , 52 S.Ct. at 182 . In that case consecutive sentences for a sale of narcotics not in the original stamped package and not made pursuant to a written order of the purchaser — constituting violations of two different statutes — were upheld. In Gore v. United States, supra, which reinforced Blockburger , consecutive sentences for violations of three narcotics provisions were upheld.

In the instant case, as in Blockburger and Gore , different facts need be proved to make out a violation of § 501 and § 502. There can be no conviction under § 501 without proof of intent to kill and there can be no conviction under § 502 without proof of use of a dangerous weapon; intent to kill is not necessary for § 502 and proof of use of a dangerous weapon is not essential under § 501. Since each cannot be proved without a fact that is not necessary for the other, the Blockburger-Gore test is fully satisfied.

Gore indicates that this formulation of statutory construction was not made in ignorance of the legislative history of the narcotics laws, and the Court refused, after an examination of the congressional intent, to upset it. The Court found that, “If the [succession of] legislation reveals anything, it reveals the determination of Congress to turn the screw of the criminal machinery — detection, prosecution and punishment — tighter and tighter.” 357 U.S. 386, 390 , 78 S.Ct. 1280, 1283 (Emphasis added.) It used this affirmative stringent purpose of Congress, as the italicized phrase implies, merely to refute the contention that the literal reading of the statutes, as construed under the Blockburger test, should be upset in view of the passage of narcotics laws at various times; it did not require proof of such a legislative intent to read the statutes to sustain consecutive sentences.

In the instant case, therefore, we need not find an affirmative intent to improve and extend the laws against attacks on the person to infer that the two sections were meant to be separate, thus permitting consecutive sentences. Congressional intent in this area is rarely spelled out, but the holdings in Gore and Blockburger seem to me to preclude our finding any basis for overturning the plain words and pattern of the statute as the expression of the congressional will. Sections 501 and 502 were not passed at different times as were the various narcotics statutes involved in Blockburger and Gore , but that fact indicates all the more clearly that Congress realized it was setting up two crimes in two different sections and militates more strongly against an argument that it was unknowingly dealing with the same problem twice in slightly different and overlapping ways. Two different crimes were intended to be covered.

The cases cited by the majority do not call for a different construction. In United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218 , 73 S.Ct. 227 , 97 L.Ed. 260 (1952), the issue was whether the unit of prosecution was each employee on each occasion the employer failed to obey the Fair Labor Standards Act. Similarly, in Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 *877 (1955), the question was whether two women being transported in one vehicle at one time gave rise to two violations of the Mann Act. And in Ladner v. United States, 358 U.S. 169 , 79 S.Ct. 209 , 3 L.Ed. 2d 199 (1958), one shot that hit two officers was found to be only one assault. In these three cases, the Supreme Court refused to attribute to Congress an intent to prohibit behavior depending on the number of objects affected. The case of one act violating one provision but having multiple objects is entirely different from one act violating different laws. Gore v. United States, supra, 357 U.S. at 391 , 78 S.Ct. 1280 .

Prince v. United States, 352 U.S. 322 , 77 S.Ct. 403 , 1 L.Ed.2d 370 (1957), involves a situation more analogous to the instant case, although the distinction between entrance with intent to rob and the actual robbery is a good deal narrower than that between assault with intent to kill and assault with a dangerous weapon since there will be very few cases where the intruder enters without already having the intent to rob, thus making the entrance with that intent a lesser included offense of the robbery itself. Congress had been prompted to add the crime of entering with intent to rob to ensure a basis for prosecution where the robbery was not completed after the entry. The Court recognized that the question posed was unique and warned, “It can and should be differentiated from similar problems in this general field raised under other statutes” and observed, “It was manifestly the purpose of Congress to establish lesser offenses.” 352 U.S. 322, 325, 327 , 77 S.Ct. 403, 405, 406 . Thus the sections in Prince , while they could possibly be interpreted to be separate, were intended by Congress to deal with one problem.

Such is not the case with assault with intent to kill and assault with a dangerous weapon; these violations involve different behavior and the fact that both may be present in the same deed does not modify the congressional intent that they be treated separately. If Congress had wanted to have separate sections to cover different behavior but to prevent consecutive sentences where they coincide in one criminal transaction, it would be necessary for it to indicate this affirmatively. The doctrine allowing consecutive sentences for separate offenses is so well accepted that only in that sense can it be called a “stereotyped formula,” and this puts the burden on Congress to indicate plainly when it intends a change. The cases cited by the majority implicitly accept this by focusing on whether the offenses were intended by Congress to be separate; they deny consecutive sentences only when they do not find separate offenses.

Since the offenses of which Appellant was convicted are separate and distinct, as defined by the Blockburger-Gore formulation, it follows that the consecutive sentences ought to be affirmed.