# Petition — Snell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 957 ## Text ' 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 wo wn o0lC OlUlUCUNCCU NCO joe Sh an Oh ol» alWanas ed aaa aes BET 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. wo nN 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. /// ae & @W =. FF SS. & 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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. /// VaaN 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 a : tm % . ry ~ x “4 , 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 6 ‘= n° eo.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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 7 ‘ i Cre a ee Pm | Bae cg alle A ele Sa yng Cer da ri, | ay » {ikacgp ing poate 3) 32 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 31 32 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. —_——— 18 19 31 32 Ses 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. | ae ee . whe’ nee foun, gat PTs 7 31 32 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1792%3A1. Public record. Not legal advice.