Petition — Simpson v. United States

NOY 26 1976

IN THE

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLLIRIK

October Term, 19J§- SUPREIS. SOU" U.S.|

Misc. No.- “4G wma 9 —

Michael Lee Simpson,

Tommy Wayne Simpson Petitioners

Ve

United States Gaya Respondent

Petition For A Writ Of Certiorari To The United

States Court of Appeals For The Sixth Circuit

fred E. Fugaz Zi, Jr.

roe A

Shelby x "Kinkead,/Jr.

P. O. Box 1489 ~—

111 Church Street

Lexington, Kentucky 40501

1-606-252-2312 ext. 2701

Federal Public Defender's Offic

IN THE

INDEX SUPREME COURT OF THE UNITED STATES

Page October Term, 1976

Misc. No.-

Opinions Below 1

Statement of Jurisdiction 1 Michael Lee Simpson;

Tommy Wayne Simpson _ Petitioners

Date of Judgment Reviewed 1

Date of Denial of Hearing 1 | v.

Statutory Provision 1

United States of America Respondent

Question Presented for Review 2

Statutes, Etc., Involved 2

Statement of the Case 3

Petition For Writ of Certiorari To The United

Basis For Federal Jurisdiction 3

States Court of Appeals For The Sixth Circuit

Argument For Allowance of Writ 4

Parties

Opinions 5 The petitioners, Michael Lee Simpson and Tommy Wayne Simpson,

respectfully request that a writ of certiorari issue to review

TABLE OF CASES

the judgment and opinion of the United States Court of Appeals

(Alphabetically)

for the Sixth Circuit entered on November 9, 1976, and October

Perkins v. U. S., 526 F2d 688 (5th Cir. 1976‘ 4

14, 1976. -

U. S. v. Crew, F2d (4th Cir. 1581) 4

U. S. v. Eagle, F2d (8th Cir. 75-1926) 4 A.

Opinions Below

1460, 1465, 1466) App.

The opinion of the Court and the order denying the petition for

18 U.S.C. 924(c) 2

rehearing appear in the Appendix hereto.

18 U.S.C. 2113(a) 2 lia -

28 U.S.C. 1254(1) 2 B.

Statement of Jurisdiction

Date of Judgment Reviewed

Date of Denial of Rehearing

Statutory Provision

The judgment of the Court of Appeals was rendered on October 14,

1976. A timely petition for rehearing was Genied on November 9,

1976. This petition for certiorari was filed within thirty (30)

days of that date. This Court's jurisdiction is invoked pursuant

to 28 U.S.C. 1254(1).

Question a For Review

Whether the trial court imposed an illegal sentence in com-

mitting the petitioners to prison under separate sentences

for violations of both 18 U.S.C. 2113(d) and 18 U.S.C. 924

(c) when both offenses arose from the same set of facts.

D.

Statutory Provisions Involved

United States Code, Title 18:

§2113(d)

Whoever, by force or violence, or by intimidation, takes or

attempts to take, from the person or presence of another any

property or money or any other thing of value belonging to,

or in the care, custody, control, management, or possession

of, any bank, credit union, or any savings and loan associa-

tion;

Whoever, in committing, or in attempting to commit, any offense

defined in subsections (a) and (b) of this section, assaults

any person, or puts in jeopardy the life of any person by the

use of a dangerous weapon or device, shall be fined not more

than $10,000.00 or imprisoned not more than twenty-five years,

or both.

United States Code, Title 18:

§924(c)

Whoever - uses a firearm to commit any felony for which he may

be prosecuted in a court of the United States,

shall, in addition to the punishment provided for the com-

mission of such felony, be sentenced to a term of imprison-

ment of not less than one year nor more than ten years. In

the case of a second or subsequent conviction under this sub-

section, such person shall be sentenced to a term of impris-

onment for not less than two nor more than twenty-five years

and, notwithstanding any other provisions of law, the court

shall not suspend the sentence in the case of the second or

subsequent conviction of such person or give him a probation-

ary sentence, nor shall the term of imprisonment imposed under

this subsection run concurrently with any term of imprison-

ment imposed for the conviction of such felony.

E.

Statement of the Case

The petitioners herein were convicted on February 2 and February 24,

1976 for two separate armed bank robberies. They were also convic-

ted on each occassion of the offense of using a firearm to commit a

felony. The Court sentenced each petitioner to twenty-five year

terms for each bank robbery and to ten years for each firearm felony,

all consecutive to each other. The proof at trial demonstrated that

the petitioners flourished handguns during the commission of the bank

robberies. The bank robberies were the felonies to which the firearm

convictions pertained.

F.

Basis For Original Federal Jurisdiction

The petitioners were brought before the District Court to answer

indictments alleging violations of Title 18 of the United States Code.

G.

Argument For Allowance Of Writ

THE DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

CONFLICTS WITH A DECISION OF THE EIGHTH CIRCUIT COURT OF AP-

PEALS.

The Sixth Circuit held that the two statutes related to sepa-

rate offenses involving different elements and therefor were

not duplicitous. The Court cited opinions in the cases of

United States v. Crew, F2d (4th Cir. No. 75-1581)

and Perkins v. United States, 526 F2d 688 (5th Cir. 1976).

The Eighth Circuit held in the case of United States of Ameri-

ca v. James Theodore Eagle, F2d _ (8th Cir. 75-1926)

that a conviction under §924(c) of Title 18 could not stand

where the felony referred to therein was a §1153 violation of

Title 18 arising from the same facts.

Unlike the Sixth, Fourth, and Fifth Circuit, the Eighth Cir-

cuit held that Congress did not intenc for the Gun Control Act

to govern wherein the statute underlying the felony itself

provided for increased punishment for the use of a dangerous

weapon. The cases decided by the Sixth, Fourth and Fifth Cir-

cuits addressed aggravated bank robberies. These are felonies

for which increased punishment is provided for the use of a

dangerous weapon.

These cases present a disparity in the application of federal

law affecting the substantive rights of federal offenders. The

offenders are subject to undefined statutory or constitutional

interpretation of these federal laws.

H.

Parties

The parties in the Court below consisted of each of the peti-

tioners and the United States of America. Tommy Wayne Simpson

was represented by the Federal Public Defender's Office in each

bank robbery. Due to a potential conflict Michael Lee Simpson

was represented in one of the bank robberies by the Honorable

Robert W. Willmott, Jr., and was represented in the remaining

bank robbery by the Federal Public Defender's Office.

I.

Opinions

The opinions of the Sixth Circuit Court of Appeals, the Fourth

Circuit and the Eighth Circuit are attached hereto.

Respectfully submitted,

7}

oy oo 7 ee:

Zé: C 4 —

Fre a7 E. “potessr-

2 iL

Shelby ¢@. Kinkead,

P. O. Box 1489 ~

111 Church Street

Lexington, Kentucky 40501

606-252-2312 ext. 2701

Federal Public Defender's Office

Nos. 76-1459, -1460, -1465, -1466

UNITED STATES COURT OF APPEALS | Nos. 76-1459, -1460, -1465, -1466 - 2

: FOR THE SIXTH CIRCUIT 7 my, | |

| - FILE w |

UNITED STATES OF AMERICA, , for the two separate bank robberies nor under the two statutes.

| OCT 14 1976 |

Plaintiff-Appellee : 4 | Finding no prejudicial error either in the convic-

i i

vs Nos. 76-1459 & -1466 : JOHN P. HEHMEN. Clerk 4 tions or in the sentences, it is ORDERED that the judgments

MICHAEL LEE SIMPSON, , of conviction be and they are hereby AFFIRMED.

| _.., SEaeenetep eee Md ee , ENTERED BY ORDER OF THE COURT.

UNITED STATES OF AMERICA, : \ A

)

\ ‘

; Plaintiff-Appelee : 4 On

/ clerk

vs Nos. 76-1460 & -1465 :

TOMMY WAYNE SIM/SON, : a

Defendant--Appellant

Before WEICK, PECK and ENGEL, Circuit Judges.

Upon consideration of the record, the briefs and oral

arguments of counsel we are of the opinion that the defendants

were properly charged with the armed robbery of two banks, on adif-

ferent occasions, and were convicted by juries in two trials, and

they received consecutive sentences for violations of 18 U.S.C.

§ 2113(d) and 18 U.S.C. § 924(c).

The two statutes, in our opinion, relate to separate

offenses involving different elements, and they are not dupli-

citous. United States v. Crew, F.2d (4th Cir. No.75-1581,

1976). Perkins v. United States, 526 F.2d 688 (5th Cir. 1976).

The District Court was not required to impose concurrent sentences

Nos. 76-1459, -1460, -1465, -1466

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, :

Plaintiff-Appellee :

vs Nos. 76-1459 & -1466 ;

MICHAEL LEE SIMPSON, $

Defendant-Appellant : ORDER

—_—---—

UNITED STATES OF AMERICA, >

Plaintiff-Appellee 3

vs Nos. 76-1460 & -1465 :;

TOMMY WAYNE SIMPSON, $

Defendant-Appellant :

Before WEICK, PECK and ENGEL, Circuit Judges.

Upon consideration it is ORDERED that the petition

for rehearing be and it is hereby denied.

ENTERED BY ORDER OF THE COURT.

} oe 0 |

GCierk

UNITED STATES COURT OF APPEALS

POR THE FrourtTy Cincur?

_

Unitee States of America

Fn ae ’

Appellee

vor

2acheria soi ho —_

Appellant.

No. 75-1581

United States of Ancrica

~So

Appellee

. vers

Dewayne Jones, -

Appellant.

No. 75-1582

United States of America,

: Appellee.

Leonard Carter, ae

Appellant,

Appeals from +), :;

: 2rom he iat, m4. - > z

District ae ot United States District court for the Raster

a © a Virginia, at Richmond. 2 meotern

District Judge. Robert R. Merhige, Jr.,

Argued February 5, 1976 ROR g 1976

Before CRQAYUN and 'WIDENER, Cirenit Judges, and JONES, Chief

District Jucde.*

Ropert L. bolbeare [court-appointed counsel] (Obenshain, itinnans,

Dolbeare & Beale on brief) for Appellant in 75-1560; LT. Rryon

Parker, Jr., [court-appointed counsel} for Apneilant ip 75-1581;

Je Yhomas mesrath [court-apnointea counsel) (Nance, Simnens,

Guill, Mctrath «¢ Catlett on brief) for Appellant in 75-1522;

Rodney Sager, ASSistant United States Attorney, (williom 3.

Cummings, Unites States Attorney, on brief) for Appellees in

75-1580, 75-1561 and 75-1552,

* Sitting hy Gesignation,

~-la-

JOURS, Chief District Judge;

In the bil] of indictment, ZAacherie Leroy Crew, Dewy abate.

Jones, and Leonard Carter were charged in count: I with the

robbery of the Meadowood Branch of the Central National pani:

in Henrico County, Virginia, on September 26, 1974 in Violation

of 18 U.S.c. 2113(a) ang (a), in count It with willfully and

unlawfully carrying a firearm during the commission of the

robbery in violation of 18 U.S.C. 924(c) (2), and in Count Iiz

with willfully using a firearm in the comiission of the robbery

in violation of 18 U.S.c. $24 (c) (1). All three defendants

were charced as Principals, and as accessories under 1g U.S.C.

2, and were tried tocether. The jury returned a verdict of

2

guilty against all defendants on each Count and the trial

court imposed identical sentences on crew and Jones of

thirteen years on Count I, one year on Coun* II, and one year

on Count III. carter received fifteen years on Count I and

one year each on Counts Ifand III. All Sentences were pro-

nounced under the Provisions of 19 U.S.C. 4208(a) (2) ana were

to run consecutively.

Although numerous questions are raised in this appeat,

we fin ly those relating to Sentencing meritorious. Thore=

fore, it is our conclusion that no Substantive defect in tri.)

~2—

It is well established that a defendant may be convicted

is to be found in any of these cases, and the convictions } snd

| of two separate offenses arising from a single act so long as

Should be affirmed. We now proeeed to the consideration of :

. each requires proof of a fact not essential to the other.

whether there is any infirmity in the sentences imposed.

| 7 r , Pereirs v. United States, 347 U.S. 1, 74 S.ct. 358, 95 L.Fd.

Kirst, appellants Jones and Carter contend that Counts

435 (1954); Montgomery v. United States, 146 ¥.2a 142 (4th Cir.

IZ and III, charging the unlawful carrying and use of z

ee or a an 1944). Expressed another way, it must be shown that the two

in the commission of a felony under Section should be :

Y 924 (C). ae oe offenses charged are in law and in fact the same offense before

dismissed upon the ground that these offenses merged into the ; ror

a . - a double jcopardy claim is viable. Iattaway v. United States,

armed bank robbery offense contained in Section 2113({d). 399 F.2d 431 (Sth Cir. 1968); Dryden v. United States, 402 F.2d

They concede that Section 924(c) sets forth a: a tf ime ‘ , ;

Y sind sates (c) oS a 1008 (Sth Cir. 1968). When Section 21)3(a) is compared with

when the related offense makes no statutor isi the ;

- = ory provision for th Section 924(c), it becomes apparent that different cloinents

use of a firearm. United States v. Sudduth, 457 F.2d 1198

of proof are required. United States v. Canty, 469 F.2d 114,

(10th Cir. 1972); United States v. vigil, 458 F.2d 385 (lOth

129 (U.S. App. D.c. 1972).

ir. 1972); United States v. Ranirez 2 F. ir. , eT ;

" 972); Unite RECS Vs Ramieez, 482 F.2d 807 (2nd Car i In order to sustain a conviction under Section 2113 (dq)

Sere s SN, SS Se Se SOE TAS Te ANS Seer the government must establish that the perpetrator assaulted

rovisions of Section 2113(d reclude conviction and sentencin , : , :

P 7 8 ; a person, or jeopardized the life of a person, by using a

under both tions 21]13(¢) and 92 ° he e) é i] ; , , :;

oaenee SASS) 924 (eo; sey augue Taat Se hou danqerous weapon or device during the conmission of the robbery.

otherwise would violate their constitutional right under the , , —S .

“ ’ . In comparison, in order to sustain a conviction under Section

Fifth Amendment to be free from dual punishment for a single , ,

: , ’ 924(c) the government must establish that the perpetrator

* offense.

used (or| carried a firearm during the comnission of a felony.

a

‘ter ret 2xamination of the statutes an ! ;

ASter a careful oxe 1 niall ? a cee The appellants would have us equate “using a dangerous weapon

author j we fin t Secti 3) S es is inparate : : ,

ones * ans Gags Segue Taste; Seer waanees © Gapesen or device" with “used or carried a firearm" and find that the

offense from that of armed bank robbery, and hold that a separate

sentence under each section was proper. _

Qe

prohibition against double jeopardy has been violated. ltow-

ever, it is cloar that Congress never intended to equate these

toxrms .

The passage of Section 924(¢c) was a Congressional ro~-

“-aelion to @ademonds for “qun contzol" in the wake of political

GOSRAG REEL ORS It is a narrowly @rawn statute intending to

discourage « felon from using or carrying a firearm, and does

not encompass the use of nonexplosive weapons. On the other

hand, Section 2113(d) punishos a felon for the use of any

weapon or Govice during the course of a bank niiniaans which

jeopardizes the lives of others. Therefore, the offenses are

not identical in law and fect, and the separate sentences

under Sections 2113(d) and 924(c) are affirmed. Mowever, the

challenge of appellant crew to the bifurcated sentence under

Section 924(c)(1) and (2) presents a more troublesome question.

Appellant Crew contends that it was error for the trial

court to impose separate sentences under Counts II and III which

respectively charge the unlawful carrying of a firearm in the

comuission of a felony in violation of Section 924(c) (2), and

the unlawful use of a firearm in the commission of a felony in

violation of Section 924(c)(1). The appellant argues that

Section 924(c) was intended to charge only a singJe crime,

and therefore the trial court's “pyramiding" of sentences was

improper. On the facts of this case, we agree.

From a studied exam ion of the statutory landquaqe

and the legislative history of the statute, there is nothiiry

to indicate that the Congress intended to mike the carrying

of a firearm in the covnission of a felony a separate crime

from the use of a firearm in the commission of a Leiony when

the carrying is shown to be a part and parcel of its use.

Rather, it appears that Congress intended to punish for this

lesser act, if the culprit should only carry the firearm during

——

States, 352 U.S. 322, 77 S.ct. 403, 1 L.ed.2d 370 (1957) ;

Phillips v. united States, 518 F.2d 108 (4th Cir. 1975); United

States v. Atkinson, 512 F.2d 1235 (4th Cix. 1975); United States

v. Curry, 512 F.2d 1299 (4th Cir. 1975).

In the case at bar the evidence adduced at trial of the

gun's use was exclusively relied upon to show the related crime

of "carrying". In such a situation, where a single act is the

proof of two offenses set forth in the saire subsection, it is

our opinion that Congress did not intend tor separate sentences

to lie. cf. Prince v. United States, sunra; Phillips v. United

oe ee ee tre —<— —- -

States, supra. See also United States v. Atkinson, Supra;

United States v. Curry, Supra. Therefore, upon the facts of

of this cane we conclude that the offense of “carrying” the fire-

arm merged into the offense of "using" the firearm, and that

separate sentences uncer Counts IT and IIY were improper. Upon

a

ihnis basis we reme Cl

of encating the

defendant.

ALLAs Me

\ ? ». sole purpeone

te the dirtrict cow's for the sole pvt]

Linpoase n vach

sentence under count 11 Linposed upo

=) . 11.

; a arm” ; ‘ad

“od , mart and rencandes.

vite yeversed in Pp

iy e3 rove) 1 [

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 75-1926

United States of America,

Appellee,

Appeal from the United

States District Court

for the District of

South Dakota.

Vv.

James Theodore Eagle,

*eeneneeee se

Appellant.

Submitted: May ll, 1976

Filed: July 30, 1976

Before VOGEL, Senior Circuit Judge, and HEANEY and HENLEY,

Circuit Judges.

HENLEY, Circuit Judge.

James Theodore Eagle, an Indian, appellant here and

defendant below, was convicted in the United States District

Court for the District of South Dakota wf an assault with a

dangerous weapon upon the person of James Catches, another

Indian, with the assault taking place on the Pine Ridge

Indian Reservation, in violation of 18 U.S.C. § 1153, as

amended, and of having used a firearm in the commission of

the offense in violation of 18 U.S.C. § 924(c) (1). The dis-

trict court sentenced the defendant to imprisonment for three

years on each of the two counts of the indictment with the

sentences to be served consecutively. The defendant appeals.

We affirm the conviction and sentence on Count I, the

a etl ——

SS

§ 1153 count. As to Count II, the § 924(c)(1) count, we

reverse and remand the case with directions that Count II

be dismissed.

I.

The government's evidence at trial showed that, on the

afternoon of May 17, 1975, James Catches was riding from

Oglala, South Dakota to Pine Ridge, South Dakota in a car

driven by Dale Janis. There were three other men in the car:

Lloyd Bissonette, Maurice Waters and Ezzard Tobacco. All had

been drinking to some degree on that day. The men had traveled

about a mile from Oglala when they stopped, near a historical

marker, to add oil to their car's engine. The spot where

they stopped was on the Reservation.

All the men were in the car, and they were about to

leave the marker when a green car came weaving down the road

toward them. This car stopped in the middle of the highway.

Two men with rifles emerged. One of these men was identified

by three of the occupants of the first car - Janis, Walters

and Bissonette - as the defendant, James Eagle. Janis

attempted to drive his car around the green car. As he was

doing so, he heard three shots. One of the shots struck the

arm of James Catches above the wrist, causing a severe wound.

The defendant presented an alibi defense. Nonetheless,

the jury found him guilty on both counts. As stated, con-

secutive three year sentences were imposed.

Appellant subsequently moved for a new trial on the

basis of newly discovered evidence. Among the grounds pre-

sented was an allegation that one of the jurors, Keith Long,

had admitted that he realized during the trial that Eagle wa:

One of the men charged with the shooting of two FBI agents at

-2-

Oglala, in an unrelated incident. Appellant's counsel filed

an affidavit, in which he asserted that he learned this from

Charles Dorothy, another attorney, who Claimed to have spoker

to juror Long.

A hearing was held on the new trial motion. Appellant moved

to subpoena the jurors, but the motion was denied. Charles

Dorothy did testify; he stated that Long told him that he did

realize during the trial that Eagle was connected with the

FBI shootings. Dorothy said that Long did not communicate this

belief to the judge or to any court official.

The government submitted the affidavit of juror Long.

Long admitted that during the trial he had speculated —

Eagle might be one of the men charged in the FBI deaths.

However, he asserted that this specualtion was not discussed

with any other juror, and did not affect his own decision in

the case.

On this evidence, the district court denied the motion for

new trial. A timely appeal was taken from both the conviction

and the denial of the new trial motion.

Appellant presents these arguments for reversal: that the

trial court erred in denying his motion to subpoena the jurors;

that the court did not have jurisdiction of the § 924(c) (1)

charge; that the evidence was not sufficient to support the

verdict; and that the imposition of consecutive sentences was

improper.

II.

A defendant who seeks to overturn a verdict by proof of

lon voir dire, the jurors had been asked if they had ever

heard of appellant. Long replied in the negative.

oj

jury misconduct must overcome two obstacles. First, he must

produce evidence which is not barred by the rule of juror

incompetency. Secondly, his evidence must be sufficient to

prove “grounds recognized as adequate to overturn the ver-

dict." See Government of Virgin Islands v. Gereau, 523 F.2d

140, 148 (3d Cir. 1975), cert. denied, U.S. » 8.Ce.

1119 (1976).

Appellant here has not shown an ability to pass the first

Obstacle. The evidence which he proposes to produce by

summoning the jurors to testify would not be competent to

impeach the verdict. Accordingly, we conclude that the dis-

trict court acted correctly in denying the motion to subpoena

the jurors, and in denying the new trial motion.

Rule 606 (b) of the Federal Rules of Evidence is a codifi-

cation of the common law rule relating to juror testimony.

Upon an inguiry into the validity of a

verdict or indictment, a juror may not testify

as to any matter or statement occurring during

the course of the jury's deliberations or to

the effect of anything upon his or any other

juror's mind or emotions as influencing him

to assent to or dissent from the verdict or

indictment or concerning his mental processes

in connection therewith, except that a juror

may testify on the question whether extraneous

prejudicial information was improper.y brought

to the jury's attention or whether any outside

influence was improperly brought to bear upon

any juror. ...

See generally Government of Virgin Islands v. Gereau, supra,

523 F.2d at 149; Downey v. Peyton, 451 F.2d 236, 239 (4th Cir.

1971); United States ex rel. Owen v. McMann, 435 F.2d 813,

819 (2d Cir. 1970), cert. denied, 402 U.S. 906 (1971). The

general rule both at common law and under the Rules of

-4-

Evidence is one of incompetency, with an exception made for

testimony relating to extraneous information or improper in-

fluence in the jury room.

Appellant contends that Long, if subpoenaed, would testify

that he realized during the trial that Eagle was connected

with the FBI shootings. He contends that this realization con-

stituted an “extraneous influence," and that Long's testimony

is therefore competent under the exception to the general rule.

He argues that he should be allowed to subpoena not only Long

but also the remaining jurors to determine whether they enter-

tained similar speculations.

Appellant's argument ignores a crucial fact: no contention

has been made that juror Long voiced his suspicions about

appellant's identity in the jury room. In fact, by affidavit

Long denies mentioning his speculation. This is fatal to

appellant's position.

A central purpose of the rule of juror incompetency is

the prevention of fraud by individual jurors who could remain

silent during deliberations and later assert that they were

influenced by improper considerations. See Mattox v. United

States, 146 U.S. 140, 148 (1892). If there were no rule of

incompetency, the “secret thought of one" juror would have

"the power to disturb the expressed conclusions of twelve.”

Id., 146 U.S. at 148. For this reason, courts have insisted

in cases of this sort that proof be limited to "overt acts

which are susceptible to the knowledge of other jurors."

Gafford v. Warden, 434 F.2d 318, 320 (10th Cir. 1970); see

United States v. Howard, 506 F.2d 865, 869 (5th Cir. 1975).

Appellant's allegations do not go beyond the mental process

of juror Long. Appellant has alleged no overt acts suscepti-

-5-

oo to the other jurors' knowledge. He has thus not show

: n

at ras evidence could be produced by summoni

to testify, and so may not Subpoena him =r

Simi

. | ilarly, appellant has no right to subpoena the remai

n ur . i -

yeh ors ; He has made no specific allegations that any of

engaged in overt impro

per acts suSceptibl f

clearly has no general ri indy

right to subpoena the j i

absence of such all . a tag

egations. United Stat

ri es v. Dye, 508 F.2d

pee 1232 (6th Cir. 1974), cert. denied, 420 U.S. 974 (1975)

Vv.

Vv. Cupp, 457 F.2d 1098, 1100 (9th Cir.), cert. denied

409 U.S. 880 (1972) icki

+ Dickinson v. Uni

(Sth Cir. 1970). v- United States, 421 F.2d 630

It is cl , "

ee ani ear that, in the absence of specific allegations

y to adduce competent evidence, the district court

Properly denied both th i

7 € motion to subpoena 7

motion for a new trial. ' ee

IItl.

Cc

which provi :

provides: Whoever (1) uses a firearm to commit any

felo

ny for which he may be prosecuted in a court of the

United S$ i

tates. -Shall, in addition to the punishment pro-

vided fo issi

r the commission of such felony, be sentenced to a

f . .

ten years." Thi

his statute creates an offense separate from

the und j i

erlying felony. United States v. Howard, 504 F.2d 1281

1286 (8th Cir. 1974)

. +; United States

(10th cir. 1972). v. Sudduth, 457 F.2d 1198

ae ) Its purpose is to prevent the Carrying and

a earms in the commission of federal felonies See

ed States v. Howard, supra, 504 F.2d at 1286

A

ppellant contends that although the Statutory language

-6-

is broad ("any felony"),

a prosecution for violating § 924(c) (1) would be

where the underlying felony is that charged

with a dangerous weapon in violatio

Major Crimes Act. We agree,

Congress did not in fact intend that

available

here, an assault

n of 18 U.S.C. § 1153, the

and so vacate the Count II con-

viction.

A.

We reach this result first because § 115

ous weapon. We are

3 itself provides

an increased penalty for use of a danger

convinced that Congress did not intend § 924(c) (1) to be

applicable in a case involving such a statute.

We are led to this conclusion by the legislative history

of § 924(c)(1). This section originated as a House floor

3

amendment to a bill to amend the Gun Control Act of 1968;

the only legislative history consists of the floor debates

prior to the bill's passage.

the rising incidence of the use of firearms

and an intention to deter such use

ls who use

774

al concern with

in the commission of crimes,

by imposing higher penalties on federal crimina

See United States v. Melville, 309 F.Supp-

firearms.

(S.D. N.Y. 1970).

solely on statutory grounds. We

hether Congress could, consistent

punish as separate crimes (1)

n and (2) the use of a fire-

Zour conclusion is based

need not reach the question w

with the double jeopardy clause,

an assault with a dangerous weapo

arm in committing the assault.

34.R. 17735, 90th Cong., 24 Sess. (1968), enacted as

pub. L. 90-618, Title I, § 102, 82 Stat. 1223-

4see 114 Cong. Rec. 21765 passim (1968).

The debates evidence a congression-

The amendment's sponsor, Representative Poff, apparently

recognized that certain federal crimes already entailed in-

creased penalties if committed with firearms. He expressed his

intention that the new statute would not be applicable to these

crimes. He said:

For the sake of legislative history, it

should be noted that my substitute is not in-

tended to apply to Title 18, Sections 11l, 112,

or 113 which already define the penalties for use

of firearms in assaulting officials, with Sections

2113 or 2114 concerning armed robberies of the

‘Mail or banks, with Section 2231 concerning armed

assaults upon process servers or with Chapter

44 which defines other firearm felonies.

114 Cong. Rec. 22232 (1968) (remarks by Representative Poff).>

The sections of Title 18 enumerated by Representative

Poff (except Chapter 44) have this in common: all impose a

higher penalty for the felony specified if it is committed with

a "dangerous" or "deadly" weapon. Representative Poff's remarks

evidence a clear congressional intention that the new statute

not be applicable in cases involving statutes of this type.

This intention accords with the deterrence rationale of

§ 924(c)(1). It is not necessary to deterrence to impose an

increased penalty for use of a firearm by Separate statute,

when the substantive statute itself does so.

"rt is proper to consult this legislative history to deter-

mine whether Congress meant the phrase “any felony" to have

a literal meaning, even though the statute is arguably un-

ambiguous. "(W])hen aid to construction of the meaning of words,

as used in the statute, is available, there certainly can be

no ‘rule of law' which forbids its use, however clear the

words may appear on ‘superficial examination.'" Train Vv.

Colorado Public Interest Research Group, 44 U.S.L.W. 4717, 4719

(U.S. June 1, 1976); United States v. American Trucking Ass'ns,

310 U.S. 534, 543-44 (1940) (footnotes omitted).

The crime charged in Count I, an assault between Indians

in Indian country, is clearly a crime of the same type as

those enumerated by Representative Poff. If committed with a

dangerous weapon, it is a federal offense. If committed

without a dangerous weapon, it is a minor offense within

tribal jurisdiction. See 18 U.S.C. § 1152. The existing

statutes, by providing federal sanctions only if firearms are

used, perform the function of deterrence. Application of

§ 924(c)(1) to the crime is not necessary, and apparently

was not intended by Congress. °

We thus conclude that a crime of the type charged in

Count I, i.e., one for which the penalty is enhanced by use

of a dangerous weapon, cannot form the basis of a prosecution

under § 924(c) (1).

B.

We are convinced that § 924(c)(1) is inapplicable here

Sror a contrary result, it could be argued that Representa~

tive Poff did not specifically mention the § 1153 assault with

a deadly weapon in his floor remarks, and that he therefore

did not intend to exclude it from the operation of § 924(c) (1).

However, we can perceive no apparent rational purpose for

singling out the § 1153 offense, among dangerous weapon offenses,

to be the basis of a § 924(c)(1) charge. Moreover, to do SO

would create serious constitutional problems. Representative

Poff explicitly excluded from the increased penalty 18 U.S.C.

§ 113, which would be applicable to the assault charged here .

if it had been committed by a non-Indian on an Indian. Singling

out the Indian defendant for harsher treatment may well run

afoul of the equal protection aspects of the fifth amendment

due process clause. See United States v. Cleveland, 503 F.2d

1067, 1070 (9th Cir. 1974); United States v. Goings, 527 F.2d

183 (8th Cir. 1975); United States v. Big Crow, 523 F.2d 955

(8th Cir. 1975). The desirability of avoiding the equal pro-

tection questions which would be created is a factor leading

us to the construction adopted in the text. See Ashwander v-

Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis,

J., concurring).

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for a second reason: federal jurisdiction of Count I arises by

reason of the Major Crimes Act, 18 U.S.C. § 1153. It is our

conclusion that Congress did not intend for a § 924(c) (1)

prosecution to be available where the underlying felony is

based on § 1153.

This conclusion is reached, again, after an examination

of the legislative history and the purposes behind the two

statutes.

We have already referred to the history of § 924(c) (1).

As indicated, it is a relatively new statute, passed after

only floor debate. Its purpose is to deal in a broad stroke

with a specific evil - the use of firearms by federal felons.

Section 1153, in contrast, is a very old statute. ’ To-

gether with 18 U.S.C. § 1152, it represents an attempt to

balance the sometimes conflicting interests of the federal

government, the Indian tribes, and the states in the regula-

tion of criminal conduct in Indian country. See generally

Keeble v. United States, 412 U.S. 205, 209-12 (1973). By the

terms of § 1152, the general laws of the United States relating

to government territory were extended to Indian country, ex-

cept in certain cases, including those involving offenses be-

tween Indians. By terms of § 1153, certain major crimes be-

tween Indians were brought within federal jurisdiction. Among

these crimes is the assault with a dangerous weapon which is

the subject of Count I of the instant indictment.

From time to time these statutes have been amended to

Toertain provisions of the current statute date from

1885. Act of March 3, 1885, c. 341, § 9, 23 Stat. 362, 385.

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adjust the balance among the competing sovereignties. Par-

ticularly, § 1153 has been amended to provide that certain

crimes, including the assault with a deadly weapon charged

here, be “defined and punished in accordance with the laws of

8 These amend-

the State in which such offense was committed."

ments represent an evident congressional purpose to conform the

punishment of these crimes to that provided by state law.

To allow a § 924(c)(1) prosecution to be based on a § 1153

violation would conflict with this purpose. It would in effect

impose a new federal penalty for conduct which Congress has

determined will be punished in accordance with state law.”

We are thus faced with a conflict between two statutes: a

general criminal statute, and a statute dealing with the specific

problem of criminal conduct in Indian country. The rules of

construction are clear as to which must prevail.

Where one statute deals with a subject in

general terms, and another deals with a part of the

same subject in a more detailed way, the two should

be harmonized if possible, but if there is any

conflict, the latter will prevail, regardless of

whether it was passed prior to the general statute,

unless it appears that the legislature intended

to make the general act controlling.

8act of Nov. 2, 1966, Pub. L. 89-707, § 1, 80 Stat. 1100.

we are aware that because § 924(c)(1l) creates a new

offense, the penalty for its violation is technically not a

penalty imposed for the § 1153 crime. It can be argued that

the two statutes are therefore not in conflict and that § 1153

itself is still punished solely in accord with state law. In

ascertaining congressional intent, however, we look to the

substance, rather than the form, of the statutes. Application

of § 924(c)(1) here would clearly thwart the objective of

amended § 1153: leaving the fixing of punishment for this con-

duct to the states.

@-jj-

2A Sutherland, STATUTORY CONSTRUCTION, ¥ 51.05 (4th ed. 1975).

There is no indication that Congress, in enacting § 924

(c) (1), intended to disturb the statutory scheme relating to

Indian offenses. Therefore, § 1153, the specific statute

dealing with the punishment of such offenses, must prevail as

the controlling statement of national policy in this area.

That section provides that the crime charged here must be

punished in accordance with state law. The inapplicability

of § 924(c) (1), which creates a federal penalty, is clear.?°

For these reasons, as well as for the reasons stated in

IIIA above, we conclude that, under the proper construction

of § 924(c) (1), “any felony" does not include the crime charged

in Count I of this indictment: assault with a dangerous weapon

in violation of § 1153. This being so, Count II of the indict-

ment fails to charge an offense against the United States, and

the conviction entered on that count must be vacated.

IV.

Appellant contends that the evidence was insufficient to

prove beyond reasonable doubt that he was the man who shot

and wounded Catches. Of course, in determining the sufficiency

of the evidence we view the evidence in the light most favor-

able to the government, giving the government the benefit of

all reasonable inferences favorable to its case which may be

10nhe authorities relied upon by the government for the

proposition that the general criminal laws of the United

States apply in Indian country (see, e.g., Stone v. United

States, 506 F.2d 561 (8th Cir. 1974); Walks on Top v. United

States, 372 F.2d 422 (9th Cir. 1967) are inapposite. Those

cases did not present the problem, present here, of conflict

between a general criminal statute and the statutory scheme

governing Indian country offenses.

-12-

drawn therefrom. See United States v. Wisdom, F.2d

(8th Cir. No. 75-1756, April 28, 1976); United States v.

Diggs, 527 F.2d 509, 512 (8th Cir. 1975).

Here, three government witnesses placed appellant at the

scene of the crime, with a gun in his hand, immediately be-

fore the firing of the shots. Appellant, by alibi testimony,

attempted to place himself elsewhere. The jury chose to

believe the government's witnesses; this court cannot Say that

it erred in so doing.? The sufficiency of the evidence to

Support the guilty verdict is apparent.

V.

Appellant finally contends that the trial court improperly

imposed consecutive three year sentences on the two counts.

He argues that, because appellant was young and had no prior

convictions, the district court erred in imposing such harsh

sentences.

Our disposition of Count II moots any claim based on the

second three year sentence. The remaining sentence was within

the statutory limits for this serious offense. A proper "no

benefit" finding under the Federal Youth Corrections Act was

made. Appellant's attack on the sentence is therefore without

basis. Dorszynski v. United States, 418 J.S. 424, 431 (1974);

United States v. Crow Dog, F.2d ss (8th Cir. No. 75-1934,

June 17, 1976).

For the reasons stated above, the conviction on Count II

cannot stand. However, no basis for reversal on Count I has

been shown.

Llonat the government's witnesses admitting to drinking on

the day of the offense is not conclusive, but is merely a

factor going to the credibility of their testimony.

-l]3-

The conviction and sentence on Count I are affirmed;

the conviction and sentence on Count II are reversed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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