Petition — Snell v. United States

' RECEIVED 3

80-5643 NOV 3 1980

OFFICE OF THE

iN THE SUPREME COURT, U.S,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

No.

EDWARD FRANK SNELL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent. ~»

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, EDWARD FRANK SNELL, pursuant to Rule 53

and 18 U.S.C. §3006 A(d) (6) asks leave to file the attached

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit without Pre-Payment of Costs, and

to proceed in forma pauperis. Petitioner was represented by

appointed counsel in the District Court and on appeal to the United

States Court of Appeals for the Ninth Circuit.

DATED: October A7 , 1980

~ Respectfully submitted,

4 Pa.

By BL St. Min radar

PAUL H. ALVARADO

ALVARADO & SPAIN

50 California Street, Suite 955

San Francisco, CA 94111

Tel: (415) 392-4695

Counsel for Petitioner

EDWARD FRANK SNELL

RECEIVED

NOV 3 1980

80-5643 OF OF US

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

No.

EDWARD FRANK SNELL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL H. ALVARADO

ALVARADO & SPAIN

50 California Street, Suite 955

San Francisco, CA 941l1ll

Tel: (415) 392-4695

Counsel for Petitioner

EDWARD FRANK SNELL

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INDEX

TABLE OF CONTENTS

Opinions BelOw...... cc eeeeeccesccnnrseesccsssscecesceses 1

JULISGLCCLON. . cscccccccccccccccccccsccccsccscscsessseces 2

Question Presented....... see cece ecrcecesees errr TTT 2

Constitutional and Statutory Provisions.........+-- oer ae

Statement Of CaS€... ccc reccccccccsessecseesesesesesesecs S

Reasons for Granting Writ.......---eeee-ee (vader sieeeenen

Conclusion........+..+. WreTevetitiy noveducsusees 7

APMONELX..cccccccccccccscccccsesesesccsscces opeoseesses este

wan

TABLE OF AUTHORITIES CITED

CASES

Abbate v. United States, 359 U.S. 187 (1959)......---+--- 5

Ashe v. Swenson, 397 U.S. 436 (1970)....-2--eeeeeeee coos Ger

Blockburger v. United States, 284 U.S. 299 (1932)....... 6

Petite v. United States, 361 U.S. 529 (1966).........++-- 5,6

Rinaldi v. United States, 434 U.S. 22 (1977)...---++-++-- 5

United States v. Snell, F.2d ss (9th Cir.1980).... 6

United States v. Snell, 592 F.2d 1083 (9th.Cir. L979) .35° See

United States v. Snell, 550 F.2d 515 (9th Cir. 1977).... 4

Snell v. United States, 422 U.S. 944 (1979)...----2-00-- 4,5

CONSTITUTIONAL PROVISIONS

United States Constitution, 5th Amendment......----«+e+- 2

STATUTES

1B U.S.C. S3B7lecccccccccccccsccsccccccccccssscsseseseces 2

18 U.S.C. §$19SL. .ccccccccvccccsccecce wrerTrrerT TS oe

1B U.S.C. S2LL3 (a). cccccccccvccccscsccesccssssssesecs ahh ae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

No.

EDWARD FRANK SNELL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner EDWARD PRANK SNELL prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit entered on September 8,

1980, affirming the conviction of petitioner for attempted

bank robbery (18 U.S.C. §2113(a)). No petition for rehearing

was filed.

OPINIONS BELOW

The opinion of the Court of Appeals, which has not as yet

been published, appears as Appendix "A" to this petition. The

District Court for the Northern District of California did not

render an opinion.

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Prior opinions of the Court of Appeals, in this case,

appear at 550 F.2d 515 (9th Cir. 1977) and 592 F.2d 1083

(9th Cir. 1979).

JURISDICTION

The judgment of the Court of Appeals was entered on

September 8, 1980 (Appendix "A", p. 1). The jurisdiction of

this Court is evoked pursuant to the provisions of 28 U.S.C.

§1254(1).

QUESTION PRESENTED

WHETHER THE DOUBLE-JEOPARDY CLAUSE OF THE UNITED STATES

CONSTITUTION BARS PROSECUTION FOR ATTEMPTED BANK ROBBERY

FOLLOWING A CONVICTION OF CONSPIRACY TO COMMIT BANK ROBBERY

AND A REVERSAL OF THE CONVICTION OF ATTEMPTED EXTORTION?

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitution of the United States,

Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment 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; nor shall any person be

subject for the same offence to be twice in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

Title 18, United States Code, Section 371:

If two or more persons conspire either to commit

any offence against the United State, or to

defraud the United States, or any agency thereof

in any manner or for any purpose, and one cr more

of such persons do any act to effect the object

of the conspiracy, each shall be fined not more

that $10,000. or imprisoned not more than five years,

or both.

If however, the offence, the commission of which

is the object of the conspiracy, is a misdemeanor

only, the punishment for such conspiracy shall

not exceed the maximum punishment provided for such

misdemeanor.

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Title 18, United States Code, Section 1951:

(a) Whoever in any way or degree obstructs, delays,

or affects commerce or the movement or any article

or commodity in commerce, by robbery or extortion or

attempts or conspires so to do, or commits or threatens

physical violence to any persons or property in

furtherance of a plan or purpose to do anything in

violation of this section shall be find not more than

$10,000 or imprisoned not more than twenty years,

or both.

(b) As used in this section--

(1) The term “robbery” means the unlawful taking or

obtaining of personal property from the person or in

the presence of another, against his will, by means

of actual or threatened force, or violence, or fear

or injury, immediate or future, to his person or

property, or property in his custody or possession, or

the person or property of a relative of member of

his family or of anyone in his company at the time

of the taking or obtaining.

(2) The term "extortion" means the obtaining of

property from another, with his consent, induced by

wrongful use of actual or threatened force, violence,

or fear, or under color of official right.

(3) The term "commerce" means commerce within the

District of Columbia, or any Territory or Possession

of the United State, all commerce between any point

outside thereof, all commerce between points within

the same State through any place outside such State;

and all other commerce over which the United States

has jurisdiction.

Title 18, United States Code, Section 2113(a):

(a) Whoever, by force and violence, or by intimida-

tion, 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 case,

custody, constrol, management, or possession of, any

bank, credit union, or any savings and loan association,

or

Whoever enters or attempts to enter any bank, credit

union, or any savings and loan association, or any

building used in whole or in part as a bank, credit

union, or as a savings and loan association, with

intent to comnit in such bank, credit union, or in

such savings and loan association, or building, or

part thereof, so used, any felony affecting such

bank or such savings and loan association and in

violation of any statute of the United States, or

any larceny--

Shall be fined not more than $5,000 or imprisoned

not more than twenty years, or both.

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STATEMENT OF CASE

Petitioner was originally charged in an indictment with

attempted extortion (18 U.S.C. §1951, "Hobbs Act") and

conspiracy to commit bank robbery (18 U.S.C. §371, 2113(a)).

Petitioner was convicted of both counts and sentenced to con-

current terms of twenty years and five years, respectively.

On appeal to the Ninth Circuit Court of Appeals, the conspiracy

conviction was affirmed and the attempted extortion conviction

was reversed. United States v. Snell, 550 F.2d 515 (9th Cir.

1977).

Following this reversal, petitioner was charged in a

second indictment, with attempted bank robbery (18 U.S.C. §2113

(a)). The District Court for the Nothern District of California

dismissed this second indictment, after a challenge on double-

jeopardy and due process grounds. The Ninth Circuit Court of

Appeals reversed and remanded the case to the District Court

for trial. United States v. Snell, 592 F.2d 1083 (9th Cir. 1979.

A petition for writ of certiorari to review the judgment of the

Ninth Circuit was denied by this Court. Snell v. United States,

422 U.S. 944 (1979).

Petitioner waived jury trial, and submitted the case on

the transcripts of the first trial together with oral argument.

Briefly summarized, the evidence at trial showed that petitioner,

one Schmidt, and an unindicted co-conspirator devised a plan to

kidnap a bank manager's wife and to accompany the manager to

the bank in order to obtain $150,000 in ransom money. Petitioner,

along with the other co-conspirators, went to the bank manager's

house on December 11, 1975, in an attempt to implement the

plan, but left when the bank manager's wife came to the door

with a large dog at her side. United States v. Snell, 550 F.2d

515, 517 (9th Cir. 1977). On November 19, 1979, after a bench

trial on the record of the former jury trial, petitioner was

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found guilty of attempted robbery and sentenced to a term of

eight years. On appeal to the Ninth Circuit Court of Appeals,

petitioner asserted that (1) the evidence was insufficient to

support a conviction of attempted robbery, (2) his retrial

violated his fifth amendment right against double jeopardy, and

(3) the new indictment was defective. The Ninth Circuit Court

of Appeals affirmed the conviction finding ne compelling reason

to alter the holding, with respect to the double jeopardy issue,

of a different. panel of the Ninth Circuit, in United States v.

Snell, 592 F.2d 1083 (9th Cir. 1979), cert. denied, 442 U.S.

944 (1979).

REASONS FOR GRANTING THE WRIT

This case now presents a clear and complete record to

facilitate the determination of the extent to which the Fifth

Amendment's double jeopardy and due process clauses prohibit

successive prosecutions for offenses arising out of a single

transaction. The question of the applicability of the Fifth

Amendment guarantees to successive prosecutions for offenses

arising out of a single transaction is an important and funda-

mental constitutional question which should be decided on the

merits. Abbate v. United States, 359 U.S. 187 (198-199) (1959),

(Brennan J., separate opinion); Petite v. United States, 361

U.S. 529, 553 (1960) (Brennan J., separate opinion); Rinaldi v.

United States, 434 U.S. 22, 34 (1977) (Rehnequist, J., dissent-

ing opinion).

In the present case, petitioner has been subjected to

multiple prosecutions arising out of a single transaction. First

tried and convicted of attempted extortion (18 U.S.C. §1951)

and conspiracy to commit bank robbery (18 U.S.C. §371, 2113(a)),

petitioner was subjected to a second prosecution on charges of

attempted bank robbery following a reversal of the attempted

extortion conviction. The evidence presented to the trier of

ls ee ei eed

fact was identical in each of the prosecutions, as petitioner

2] waived a jury trial in the second prosecution and the matter

3 || was submitted on the record of the first trial. United States

4] v. Snell, F.2d (9th Cir.1980), Appendix "A", p. l.

5 In upholding the retrial of petitioner on the attempted

6] robbery charge, the court below relied on the conclusion of the

7 previous panel that "due process and the Department of Justice

8] policy already protected defendants from multiple prosecutions.”

9} United States v. Snell, id., Appendix "A", p.4. This protection

10] against multiple prosecutions is weak at best. The Department

ll] of Justice policy described in Petite v. United States, supra,

12] "limits the federal prosecutor in the exercise of his discretion

13] to initiate, or to withhold, prosecution for federal crimes.”

14] Rinaldi v. United States, 434 U.S. 22, 27 (1977) (emphasis add&x

15] The principles of due process protect a criminal from multiple

16) prosecutions only to the extent the principles of collateral

17] estoppel are applicable to the particular factual situation at

18] hand. Ashe v. Swenson, 397 U.S. 436 (1970).

19 Under the Blockburger test, a single criminal act may

20] lead to multiple prosecutions if it is viewed from the perspec-

21] tive of different statutes, so long as each statute “requires

22] proof of a fact which the other does not...." Blockburger v.

23] united States, 284 U.S. 299, 304 (1932). Given the abundance

241 of modern criminal legislation, “the opportunities for multiple

25! prosecutions for an essentially unitary criminal episode are

26 frightening." Ashe v. Swenson, 397 U.S. 452. To require the

27! prosecution to join at one trial all the charges against a

28] defendant arising from a single criminal act, occurrence,

29 episode or transaction would provide criminal defendants with

30} a degree of protection from the abuse of the criminal process

31] which attends multiple prosecutions. The “same transaction"

32] test would require the consolidation in one prosecution of all

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the charges arising out of a single transaction, thereby best

promoting justice, economy and convenience. Ashe v. Swenson,

397 U.S. at 454.

CONCLUSION

For the foregoing reaons, it is respectfully submitted

that a Writ of Certiorari should issue.

DATED: October 27 , 1980

Respectfully submitted,

BLL ade

PAUL H. ALVARADO

Counsel for Petitioner

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FILED

IN THE UNITED STATES COURT OF APPEALSP g 1090

FOR THE NINTH CIRCUIT RICHARD H. DEANE

UNITED STATES OF AMERICA,

No. 79-1806

CR 76-4

Plaintiff-Appellee,

vs.

EDWARD FRANK SNELL, OPINION

De fendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

William W. Schwarzer, District Judge, Presiding

Argued and submitted on June 9, 1980

Before: ANDERSON and TANG, Circuit Judges, and MURRAY,*

District Judge.

Per Curiam:

Edward Snell for his participation in an aborted kidnap

and robbery scheme. In the first appeal, United States

Snell, 550 F.2d 515 (9th Cir. 1977), the court affirmed

Snell's conviction for conspiracy to rob a federally

insured bank, but reversed his conviction for attempted

obstruction of commerce in violation of the Hobbs Act, 18

U.S.C. § 1951, on the ground that the conduct charged was

within the exclusive coverage of 18 U.S.C. § 2113.1 A

new indictment was returned charging him with attempted

robbery of a federally insured bank. “Snell's pretrial

appeal of his motion to dismiss the new indictment on

double jeopardy grounds was rejected in United States v.

Snell, 592 F.2d 1083 (9th Cir.), cert. denied, 442 U.S.

944 (1979). After a bench trial on the record of the

former jury trial, Snell was found guilty of the new

charge and appeals.

*Honorable William D. Murray, Senior United States

District Judge for the District of Montana, sitting by

designation.

APPENDIX "A"

CLERK, U.S. COURT OF APPEALS

This is the third appeal involving the prosecution of

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The facts of this case are recounted in the first

Snell opinion, 550 F.2d at 517. They show that Snell and

two co-conspirators planned to kidnap a bank manager and

his wife, hold the wife hostage while accompanying the

manager to the bank to obtain $150,000, and then kill the

manager. Pursuant to that plan the three went to the

manager's home and then to the bank where, from the

parking lot, they observed the manager and identified his

car. The other two co-conspirators also waited near the

manager's house in the evening to observe him returning

home.

After observing the manager's routine at his home and

office, the three assembled false identifications, rubber

gloves, hand guns, mace, ropes, and adhesive tape and went

to the bank manager's house to carry out their plan.

Spotting a Highway Patrol vehicle near the house, they

postponed execution of the plan. The following day they

returned to the house, again armed. Snell and one

co-conspirator carried false police identification. They

knocked on the door and identified themselves as

policemen, but their plan to force an entry and kidnap the

wife was frustrated by a Great Dane that accompanied her

to the door. When one of the co-conspirators was picked

up on unrelated charges and revealed the plan to the

police, Snell and the third co-conspirator were arrested.

On appeal, Snell contends that (1) the evidence shows

that he was in engaged in preparation rather than an

attempt; (2) his retrial for attempted robbery after the

Government had obtained a conviction for another offense

arising out of the same transaction violated his fifth

amendment right aaainst double jeopardy; and (3) that the

new indictment was defective in form. We find no error

and affirm.

I.

A conviction for attempt requires proof of culpable

intent and conduct constituting a substantial step toward

commission of the crime that strongly corroborates that

intent. United States v. Mandujano, 499 F.2d 370, 373-79

(Sth Cir. 1974), cert. denied, 419 U.S. 1114 (1975); see

United States v. Bussey, 507 F.2d 1096 (9th Cir. 1974).

The evidence here established the existence of both

elements. Snell's intent was demonstrated by the plan

that he devised with his co-conspirators. His intent was

corroborated in a number of ways: assemblage and

possession of the materials necessary to commit the crime,

reconnoitering the locatiou of the crime and the habits of

the victim, and the eoktens taken to effectuate the plan

that were frustrated only by the fortuity of a police car

on one occasion and the presence of a Great Dane at the

intended victim's house on another. Despite Snell's

contrary assertion, this case is not meaningfully

distinguishable from *e factual circumstances in Bussey.

Snell argues that his conduct may constitute

attempted kidnapping, but not attempted robbery. Given

the nature of his scheme that made the kidnapping an

integral part of the plan to rob the bank, Snell's acts

taken in furtherance of the kidnapping equally evidenced

his intent to rob the bank. In this respect, Snell's

entry into the home of the bank manager's wife is

factually precedent but so far as the total scheme is

concerned is analytically little different than entry into

the bank itself.

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II.

Snell next contends that retrial on the attempted

robbery charge violates double jeopardy. This idential

argument was rejected, prior to Snell's retrial, by a

panel of this court in United States v. Snell, 592 F.2d

1083 (9th Cir.), cert. denied, 442 U.S. 944 (1979). The

court reasoned the’ the successive prosecution was not

barred by double jeopardy because, under the Supreme

Court's formula in Blockburger v. United States, 284 U.S.

299 (1932), attempted robbery required proof of facts

different: than the crimes of conspiracy to commit robbery

and attempted extortion, even though all the offenses

arose out of the same transaction. We find no compelling

reason to alter the result reached by the first panel, and

reject Snell's latest formulation of his double jeopardy

argument. }

The facts required to prove conspiracy and attempted

extortion are plainly different from the facts necessary

to commit attempted robbery. Snell argues that, although

successive prosecution for different offenses may be

justifiable when no conviction is obtained on the first,

once a conviction has been obtained, any further

Prosecution for crime arising out of the same transaction

amounts to harassment. The prior panel reasonably

concluded, however, that due process and the Department of

Justice policy already protect defendants from multipie

prosecutions. There is no evidence here that the second

prosecution constituted harassment. Id. at 1066-63,

III.

Finally, Snell contends that the indictment charging

him with attempted bank robbery was invalid.

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The new indictment that was returned after his

attempted extortion conviction was reversed was labelled a

"Superceding" indictment. Snell argues that a superceding

indictment, like an amended information under -

Fed.R.Crim.P. 7(e), can be returned before a trial on the

merits, but may not be returned after a final judgment,

i.e., the reversal of his first conviction.

We reject this hypertechnical argument. Although

labeled "superceding", the indictment returned against

Snell was in effect a new indictment, not an amended one.

Snell presents no authority to suggest that superceding

indictments are limited to describing amended indictments,

and in fact the word superceding is used to describe

serial indictments in a variety of contexts. See, e.g.,

United States v. Kelava, 610 F.2d 479, 480, 482 (7th Cir.

1979); United States v. Ledee, 549 F.2d 990, 993 (5th

Cir.), cert. denied, 434 U.S. 902 (1977). Even if the

inclusion of the word superceding was a technical defect,

Snell does not show he was prejudiced.

The judgment of the district court is affirmed.

FOOTNOTE

lin United States v. La Binia, 614 F.2d 1207 (9th Cir.

1980), this court relying on the Supreme Court's

intervening decision in United States v. Culbert, 435 U.S.

371 (1978), overruled the holding in Snell that led to the

reversal of Snell's Hobbs Act conviction.