Petition for Writ of Certiorari — Wieland v. Brown

= 7 Bupreme Court, U.S. }

ry, FrLeD

No.

In The

SUPREME COURT OF THE UNITED STATES

January Term, 1991

SHELDON I. WIELAND, JR.

Petitioner,

-Vs-

ROBERT BROWN, DIRECTOR,

Michigan Department of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID A. DODGE, P.C. (P22906)

Counsel of Record

200 North Division

Grand Rapids, Michigan 49503

616/459-3839

JOHN A. VOS (P38643)

Of Counsel

QUESTION PRESENTED FOR REVIEW

Did the multiplicitous information

in the instance case violate the

Petitioner’s right not to be twice

placed in- jeopardy for the same

offense, and substantially prejudice

the Petitioner in violation of his

right to due process?

ii

TABLE OF CONTENTS

Question Presented for Review............6. i

Pees OE COMRORER.. «444466 6400466 Oe SR we ii

Tabie OF AutNOFICEOS..cceccccvsasecese iii,iv

Opinions Delivered in the Case

Dy Other Courts... cccccscccccesesasess 1

Statement of Jurisdiction... ..cccsccccccce 2

Constitutional Provisions Involved........ 2

Statement of the Case... . ccc ccccccccccccce 4

Reasons for Granting the Writ............ 13

CONCLUSION. oc ccccccecesesssceccssscesseseas 41

Appendix:

Michigan Court of Appeals Opinion....... la

Michigan Supreme Court Order

Denying Leave to Appeal.............14a

Federal District Court Opinion and

Judgment Denying Petition for

Habeas COrpuS... cc cccccccccccccccces 15a

U.S. Court of Appeals (Sixth Circuit)

Opinion and Order Affirming Decision

of District Court........ see eee .-34a

iii

TABLE OF AUTHORITIES

Cases:

Benton v Maryland, 395 U.S. 784; 89 S Ct

2056; 23 L Ed 2d 707 (1969)......... 15

Blockburger v U.S., 284 U.S. 299; 52 S Ct

180; 76 L Ed 306 (1932)....... 26-28, 34

Clausen v Clerk of Circuit Court,

S37 FP Supp 1233 (1982). wcesccccccee 17

Green v U.S., 355 U.S. 184; 2 L Ed 2d

199; 78 S Ct 221 (1957).18,19,22,25,33

Harrell v Israel, 478 F Supp 752 (ED

WisSCONBin, 1979)... cee cccccees 15,30,31

Hughes v United States, 95 F 2d 538

PEE a? BU OU Pe cc cdensecccsescccsececs 23

Illinois v Vitale, 447 U.S. 410; 100 S Ct

2260; 65 L Ed 2d 228 (1980)...27,28,34

New Jersey v DeLunca, #A-5751-8475, New

Jersey Supreme Court, Appellate

Division, decided March 14, 1986....28

O’Clair v U.S., 470 F 2d 1199,

is @ SD) > ) eee rere eee ee ee ee 20

U.S. v Dunn, 284 U.S. 390; 52 S Ct 189;

TO Be Oe SEO CADSR) oc snccccsccccces 22,23

U.S. v Free, 574 F 2d 1221 (CA 5, 1978).34

U.S. v Hairrell, [sic] 521 F 2d 1264

(6th Cir.), cert denied, 423 U.S.

PE EEO OR eo Pec ecesnsccncseccecesecs 29

iv

U.S. v Hearod, 499 F 2d 1003 (CA 5,

A974) cc ccrcnnnccccccsscesessecsceses 34

U.S. v Ketchum, 320 F 2d 3, 8 (CA 2,

1963), cert denied, 375 U.S. 905;

84 S Ct 194; 11 L Ed 2d 145 (1963)..38

United States v Marzani, 71 F Supp 615,

(DDC, 1947) affirmed 168 F 2d 133;

affirmed 335 U.S. 895, 69 S Ct 299,

93 L Ed 431; affirmed on rehearing

336 U.S. 922, 69 S Ct 653, 93 L Ed

LOSS cect weccewcceseceseces 15,25,29-32

U.S. v Rosenthal, 793 F 2d 1214, 1234

(CA U1, 19OG). wwecccccccccccccneseses 31

U.S. v Woodell, 285 F 2d 316 (CA 4,

TAREE RO CROPS A I gS ia cea ae 22

Constitutional Provisions:

Unites States Constitution,

PS, PEGE cc cc cceeescesecccenese Zea

United States Constitution,

AMONGMONE Six... wcrc ccscccccesssscccecs 4

Statutes:

2S UG Bose Ge ccc cc ewecncescecnssasecencese 1

2B UBC SLSSS(1) occ ccccvccccescccccscescese 2

Michigan Compiled Laws 750.520b(1)(a)..... 4

1

PINIONS DELIVERED IN THE E

BY HER URTS

On January 13, 1986, the Michigan

Court of Appeals affirmed Petitioner’s

October 17, 1984, jury trial conviction for

First Degree Criminal Sexual Conduct and

consequent sentence of four to twenty years

in an unpublished per curiam opinion (la).

The Michigan Supreme Court denied leave to

appeal on June 30, 1986, in an Order

published at 425 Mich 876 (1986) (14a).

On March 31, 1988, the United States

District Court for the Western District of

Michigan, per Judge Richard A. Enslen,

rendered a written unpublished opinion and

accompanying Judgment denying Petitioner's

petition for a writ of habeas’ corpus

submitted pursuant to 28 U.S.C. §2254.

(15a).

On November 8, 1990, the United States

Court of Appeals for the Sixth Circuit

2

aff ned the decision of the United States

District Court in an unpublished per curiam

Opinion. (34a).

TATEMENT OF RISDICTION

Petitioner, Sheldon I. Wieland, Jr.,

moves this Honorable Court now for a writ

of certiorari and review of the Judgment of

the United States Court of Appeals for the

Sixth Circuit entered in the above-titled

cause on November 8, 1990. (34a). The

jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

NSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United

States Constitution provides:

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or

naval forces, or in the Malitia,

when in actual service in time of

War or public danger; nor shall any

person be subject for the same

3

offence to be twice put in jeopardy

of life or limb; nor_ shall be

compelled in any criminal case to be

a witness against himself, 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. "

United States Constitution, Amendment Five.

(Emphasis added)

The Sixth Amendment to the United

States Constitution provides:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed, which district

shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the Assistance of

Counsel for his defense."

United States Constitution, Amendment Six.

(Emphasis added)

4

STATEMENT OF THE CASE

In February, 1984, Petitioner was

arrested and charged with six counts of

First Degree Criminal Sexual Conduct in

violation of Michigan Compiled Laws

750.520b(1)(a) which prohibits sexual

penetration with a person under thirteen

years of agee- These criminal acts

allegedly occurred on the following six

sets of dates:

I. On or about July 26, 1983;

II. On August 25, 1983;

III. On or about September 5,

through September 19, 1983;

IV. On or about September 26, 1983;

V. On or about October 10, 1983;

and

VI. On or about October 11, through

October 17, 1983.

On February 29, 1984, the 6lst

District Court of Michigan conducted a

5

preliminary examination in the matter. At

this time, the District Court amended

allegation III, "on or about September Se

1983, through September 19, 1983" to read,

"on or about September 6, 1983, through

September 19, 1983." The District Court

also amended Count IV, "on or about

September 26" to read, "on or _ about

September 24, 1983." (preliminary

examination transcript, pp. 81-82).

Following testimony by the complainant,

__Petitioner was bound over tc Kent County

Circuit Court to stand trial on all six

allegations.

On April 20, 1984, Petitioner

requested of the trial court by way of

pretrial motion that the six charges be

consolidated for one trial pursuant to

state court rules and this request was

granted by the trial court. (April 20,

1984, hearing transcript, p. 11).

6

Petitioner’s request for particularity

regarding the dates of the alleged acts,

specifically the shotgun dates of Counts

III and IV in order that Petitioner could

respond in terms of investigation and

notice of alibi, was denied by the trial

court without prejudice.

On May 22, 1984, Petitioner filed a

Notice of Alibi specifically regarding

Count IV, the "on or about September 24,

1983," allegation. (September 14, 1984,

motion hearing transcript, p. 6).

On September 14, 1984, the prosecution

responded to Petitioner’s Notice of Alibi

by motion to again amend Count IV from "on

or about September 24, 1983," to "on or

about September 16, 1983." The effect of

this amendment was the overlapping of

Counts III and IV, each Count alleging that

Petitioner committed criminal sexual

conduct on September 16, 1983. Petitioner

strongly objected to this amendment

stating:

"They have already got that [date]

charged under the _ shotgun, the

September shotgun date [Count III],

so that in effect what they want to

do is subject my client to a shotgun

of ‘September 6 through 19’ and also

somehow to have the court change

this [Count, Count IV] to an ‘on or

about September 16th,’ which would

be covering the identical period of

time that we had objected to before

{for lack of particularity on April

20, 1984] and in effect have a -- I

don’t know if it is a double

jeopardy argument of a lack of

specificity argument or both, but in

effect we had objected to this

manner and form of charging in the

past and tried to comply with it in

terms of an alibi, and now that we

have constructed the alibi proofs on

these different dates, the

Prosecutor is moving the target

again and moving it into an area

that’s already covered by a charge."

(September 14, 1984, motion hearing

transcript, pp. 7-9).

The trial court then granted the

prosecutor’s motion for the amendment.

(September 14, 1984, motion hearing

transcript, p. 9)

Trial proceedings commenced on October

. 1984. During the course of the

proceedings, Petitioner denied all six

Counts of allegations through his own

extensive testimony. (trial transcript,

pp. 639-918) Petitioner’s testimony was

supported by the testimony of thirty-nine

other witnesses. Petitioner’s witnesses

included alibi witnesses, merit witnesses,

and eiaireinente witnesses.

Jury deliberations commenced on

October 17, 1984. During the second day of

deliberation the jury asked, "since

question number four, on or about September

16, falls within the dates of question

number three, September 6, through 19, does

this not dictate that if guilty on number

four, the answer must also be the same on

number three?" (trial transcript, p. 1037)

The court responded, “the answers’ to

question number three and question number

four need not be consistent." (trial

a

ooo

transcript, p. 1037) The court went on to

state that the September 16th allegation is

a specific date and that the other dates

are collective, "so they need not be

consistent answers." (trial transcript,

pp. 1036-1038). Petitioner then interposed

the following objection:

"MR. DODGE: Your Honor, at a

previous time on a Friday morning

motion hearing, we objected to the

September 24th date being changed to

the 16th for a number of reasons.

One of the specific objections that

was raised at that time, that we

obviously would renew at this time,

had to do with the double jeopardy

aspect of my client, in effect,

being in jeopardy of the same date

twice, and that if the jury, in

effect, could find him guilty twice

on the same date or even to consider

his guilt or innocence of twice on

the same date, being September 16th.

We have previously raised that

objection. We renew it at this

time. We don’t believe that the

September 16th charge should exist

as a separate charge from the other

shotgun charge on the 6th through

the 19th, all of which. has been

stated prior to trial."

(trial transcript, pp. 1036-1039).

10

The trial court then indicated the

objection was preserved for the record.

(trial transcript, p. 1039)

The jury then returned a verdict of

Not Guilty as to Count I, Not Guilty as to

Count II, Not Guilty as _ to Count III,

Guilty as to Count IV, Not Guilty as to

Count V, and Not Guilty as to Count VI.

On November 9, 1984, Petitioner moved

the trial court to set aside the guilty

verdict rendered on Count IV of the

information claiming that the Petitioner's

right to be free from double jeopardy had

been violated since the jury found

Petitioner not guilty on Count III alleging

criminal sexual conduct "on or _ about

September 6th through September 19th,

1983," and inconsistently and over

Petitioner’s objections found Petitioner

guilty on Count IV alleging criminal sexual

conduct "on or about September 16, 1983.”

4

11

The trial court denied Petitioner’s motion

to set aside the verdict, denied

Petitioner's request for the trial court to

certify this double jeopardy issue for an

interlocutory appeal to the Michigan Court

of Appeals, and denied Mr. Wieland’s

request to be permitted to bail during

Appellate proceedings. (November 9, 1984,

motion hearing transcript, p. 18)

On November ai. 1984, after

acknowledging receipt of seventy letters as

a “remarkable" display of support in favor

of Petitioner, the trial court sentenced

the Petitioner to a term of four to twenty

years in prison and also denied

Petitioner’s request for bail pending

appeal.

On appeal to the United States Court

of Appeals for the Sixth Circuit, from the

Federal District Court’s denial of his

Petition for a Writ of Habeas Corpus,

12

Petitioner argued that the trial

proceedings violated his Michigan and

Federal Constitutional rights not to be

twice placed in jeopardy for the same

offense and that Petitioner, over numerous

objections, was in fact subjected to two

trials in a single trial court proceeding

because he was twice charged for committing

the same alleged criminal sexual conduct on

the date of September 16, 1983. Petitioner

argued further that the multiplicitous

Counts and the information charging

Petitioner with the same offense and the

same date in two different Counts resulted

in substantial prejudice to Petitioner in

violation of his right to due process and

therefore warranted reversal. The Sixth

Circuit declined to find any Constitutional

violation, ruling that aithough the proper

course would have been for the trial court

to amend Count III to formally omit

13

September 16, 1983, the jury fully

understood any possible ambiguity in the

indictment and, as a practical matter,

eliminated it to find Petitioner guilty

beyond a reasonable doubt on or about

veptember 16 and on no other day. The

court held that moreover, Petitioner was

not exposed to the real danger of a

multiplicitous indictment or information,

namely, multiple punishment, in violation

of the double jeopardy clause. Finally,

the court held that even assuming a

Constitutional violation, the remedy is not

necessarily retrial. (34a)

REASONS FOR GRANTING THE WRIT

Petitioner submits that the instant

case raises an important question of

federal léw, unique on its facts, which has

not been settled by this Court: Does an

acquittal on one of two multiplicitous

counts followed by a conviction on the

14

second multiplicitous count in a single

trial violate the Double Jeopardy

provisions of the United States and

Michigan State Constitution as well as

violate the Petitioner’s right to due

process of the law where the Count on which

the Petitioner was acquitted alleges the

same offense under the same state statute

and includes the very same crime or act

alleged in the Count for which the jury

returned a guilty verdict? And does such

a multiplicitous information itself violate

the Petitioner’s right not to be twice

placed in jeopardy for the same offense in

a single proceeding or constitute a

substantially prejudicial, unfair, and

improper charging so as to violate the

Petitioner’s right to due process of the

law? Petitioner notes that the Sixth

Circuit United States Court of Appeals has

rendered a decision in the instant case in

—

15

conflict with other published Federal

District Court decisions, i.e., United

States v Marzani, 71 F Supp 615, 618 (DDC,

1947) and Harrell v Israel, 478 F Supp 752

(ED Wisconsin, 1979), which cases would

clearly confirm that the Petitioner in the

instant case was in fact twice placed in

jeopardy of conviction for the same

offense. Petitioner submits that the

answer to the aforementioned questions is

yes, and is one on which this Court should

grant certiorari.

As this Honorable Court is well aware,

the Fifth Amendment to the United States

Constitution provides in part, "no person

shall...be subject for the same offense to

be twice put in jeopardy of life or limb."

The Double Jeopardy clause of the Federal

Constitution applies to the States via the

Fourteenth Amendment. Benton v Maryland,

395 U.S. 784; 89 S Ct 2056; 23 L Ed 2d 707

16

(1969).

The Michigan Constitution of 1963,

Article l, §15, almost identically

provides, "no person shall be subject for

the same offense to be twice put in

jeopardy."

Petitioner respectfully contends that

his state court conviction, which was

affirmed by the Michigan Court of Appeals

as well as the Federal District Court and

United States Court of Appeals for the

Sixth Circuit, resulted from and included

a violation of his right not to be twice

placed in jeopardy for the same offense as

well as a violation of his right to due

process of the law under both the Federal

and Michigan Constitutions.

The Sixth Amendment of the United

States Constitution provides that an

accused has a right to be advised of the

nature of the charges against him. As part

-—_— -_- -—<—

on” EEO

a a Reel

17

and parcel of this right, an accused is

entitled to an Information which, with a

fair degree of certainty, specifies the

particular charge against him and fixes the

scope of prosecution. This requirement is

essential to the accused's trial

preparation and to his double jeopardy

protection. Clausen v Clerk of Circuit

Court, 537 F Supp 1233 (1982). In the case

at bar, the trial judge allowed the

prosecution to make several amendments to

the Information. After these amendments,

the Information impermissably charged the

petitioner twice for committing the same

criminal act and therefore, although the

Petitioner was not actually subjected to

two trial proceedings, such impermissable

charging placed the Petitioner twice in

jeopardy for one criminal act in one single

proceeding. The Double Jeopardy clause

clearly prohibits multiple prosecutions by

18

the state for the same offense. Whether

those multiple prosecutions occur serially,

over a number of proceedings, or

simultaneously in one proceeding should not

be dispositive. The Petitioner submits

that the Double Jeopardy clause should be

interpreted to prohibit not only multiple

convictions or multiple punishments for the

same offense but also simultaneous

prosecutions for the same offense.

Although the Double Jeopardy clause is

Clearly and succinctly written, it has

generated a great deal of confusion among

defense attorneys, prosecutors, and judges

and, therefore, has been the subject of

extensive debate and litigation. To better

understand the .pPouble Jeopardy clause, an

analysis should first look to the

underlying purposes of the clause and then

the application of the clause as derived

from case law. In Green v U.S., 355 U.S.

19

184, 187-188; 2 L Ed 2d 199; 78 S Ct 221

(1957), the Supreme Court stated:

"The constitutional prohibitation

against ‘double jeopardy’ was

designed to protect an individual

from being subjected to the hazards

of trial and possible conviction

more than once for an alleged

offense . . . The underlying idea,

one that is deeply engrained in at

least the Anglo-American system of

jurispurdence, is that the State

with all its resources and power

should not be allowed to make

repeated attempts to convict an

individual for an alleged offense,

thereby subjecting him to

embarrassment, expense, and ordeal

and compelling him to live in a

continuing state of anxiety and

insecurity, as well as enhancing the

possibility that even though

innocent he may be found guilty."

Typically, Double Jeopardy cases involve

facts where the defendant is convicted of

both the substantive crime and the lesser

included offense, or where the defendant

was convicted and/or acquitted of the crime

and the prosecutor attempted to re-

prosecute. In these cases, the Courts have

little difficulty in determining that the

20

defendant’s Double Jeopardy rights were

violated. Analogizing the instant case to

these cases, "it would seem apparent that

if the State cannot constitutionally obtain

two convictions for the same act at two

separate trials, it cannot do so at the

same trial. Although admittedly there is

less expense, anxiety and ordeal when the

blows are delivered at once, one can hardly

say that one is not punished, hurt or

embarrassed," when one is forced to twice

run the gauntlet for the same alleged

criminal act in a single proceeding.

O’Clair v U.S., 470 F 2d 1199, 1203 (CA 1,

1972). Indeed the same policy

considerations underlying the Double

Jeopardy prohibition would seem to support

Petitioner’s contention in the instant case

that the prosecutor should not be allowed

to attempt to assure himself of one

conviction by charging the same act and

en rom

21

same offense in two separate counts. It is

wrong to try a man for a crime of which he

has been found innocent and it is wrong to

unnecessarily badger a defendant’ by

charging the same offense and conduct in

two different counts.

Petitioner does not dispute that a

multi-count Information may be tried in one

proceeding. However, the various counts

must be clear and each must allege a

different offense; the amended information

in this case fails in this regard. An

allegation of criminal sexual conduct,

first degree, “on or about September 6

through September 19" necessarily includes

an allegation of "on or about September

16." While the instant issue stems from

only one trial, it is clear that Petitioner

was "subjected to the hazards of trial and

possible conviction more than once for an

alleged offense...," and that the

22

Information as aforestated had the effect

of “enhancing the possibility that even

though innocent [the Petitioner] may be

found guilty." Green, supra, pp. 187-188.

Petitioner does not dispute that

consistency in the verdict is not required.

U.S. v Dunn, 284 U.S. 390; 52 S Ct 189; 76

L Ed 356 (1932). However, the verdicts in

the instant case go beyond the

inconsistency allowed for in Dunn. In U.S.

v Woodell, 285 F 2d 316 (CA 4, 1960), the

court stated, in keeping with Dunn, that

"Since [Dunn} there has been a

complete new line of decisions, all

holding that consistency is not

required in a jury verdict. Where

different offenses are separately

charged in the counts of a single

Indictment and the same evidence is

offered in support of each, an

acquittal on one count cannot be

pleaded as res judicata of the

others." (Emphasis added) (Page

317)

Petitioner submits that the instant case is

distinguishable in that the instant case

23

involves muitiple counts in the _ same

information alleging the same offense on

the same dates. In Hughes v United States,

95 F 2d 538 (CA 5, 1938), a case decided

after Dunn, the court still held that

"It may be conceded that if the same

offense is charged in two counts of

an Indictment or in two Indictments

consolidated for trial, acquittal on

one Count will bar conviction on the

other. But in considering this

question, the test of identity is

whether the same evidence will

support both Counts.” (Emphasis

added) (Pages 538-539)

Labeled double jeopardy or not, the

repugnancy is such that if the jury accepts

Petitioner’s contention that he did not

commit the offense alleged between

September 5, 1983, and September 19, 1983,

the jury must reject the prosecutor’s

contention that Petitioner committed the

same offense alleged on September 16, 1983.

To hold otherwise creates an absurdity in

the conviction. The same proofs were

24

submitted for both of the Counts in

question, and submitted to support the same

offense. It cannot be said, therefore,

that somehow there was a different or

stronger factual support for the September

16, 1983, allegation that was part of Count

IV than was present for the September 16,

1983, allegation that was included in Count

III. The jury could not find sufficient

evidence to convict Petitioner of the Count

alleging the offense(s) to have occurred

between September 5, 1983, and September

19, 1983, and, therefore, it cannot be said

that they could properly find sufficient

evidence tc convict Petitioner of the

offense allegedly occurring on September

16, 1983. Moreover, the alleged proofs,

viewed in a light most favorable to the

prosecutor, pointed toward an offense date

of September 17, 1983, and did not support

a September 16, 1983, offense date.

25

Petitioner submits that the "implicit

acquittal” a—|s;/; in Green, supra,

should apply equally as well to the instant

case. In Green, the court reasoned that

the jury, given the choice between finding

the defendant guilty of either first or

second degree murder and choosing the

latter implicitly acquitted the defendant

on the charge of first degree murder.

Simarily, the Defendant’s acquittal of

Count III in the instant case. should

operate as an implicit acquittal of Count

IV, since Count III included the activity

alleged in Count IV. Marzani, supra, is

also consistent with this thecry.

As stated earlier, most of the caselaw

addressing the issue of double jeopardy in

the Information or Indictment speak to

charging a defendant wich greater and

lesser included offenses on _ separate

counts. The typical issue is whether a

26

defendant is twice being charged with the

"same" offense. The United States Supreme

Court applied the Blockburger, infra, test

to determine whether the crimes are the

"same" offense:

"(The}) test to be applied to

determine whether there are _ two

offenses are only one, is whether

each provision requires proof of a

fact which the other does not."

Blockburger v U.S., 284 U.S. 299,

304; 52 S Ct 180; 76 L Ed 306

(1932).

In other words, if each statutory offense

charged requires proof of an additional

fact which the other does not require, then

the offenses are not the same under the

Blockburger test. By analogy, in the case

at bar, Count III requires no additional

proof of fact beyond what Count IV

requires. Proving a criminal sexual

conduct offense "On or about September 16"

would necessarily and logically prove a CSC

offense "On or about September 6 through

27

September i3.° Thus, Petitioner

respectfully submits that Counts III and IV

both alleged the same offense under the

Blockburger test.

Petitioner also believes that the

Vitale test applies to the instant case.

In Illinois v Vitale, 447 U.S. 410; 100 S$

Ct 2260; 65 L Ed 2d 228 (1980), the Supreme

Court focused upon the actual evidence that

the prosecution would rely upon to prove

the two charged offenses and held that if

the evidence used for one charge would be

the same evidence used for other charge,

then double jeopardy rights are violated

even though the two offenses are not the

"same" offense under the Blockburger test.

The Vitale test was recently applied in a

New Jersey case in which the defendant was

acquitted of a "death by automobile" charge

and later charged with a "driving under the

influence" charge that arose from the same

28

incident. The Court said:

“Proof of the recklessness element

of death by auto does not involve

evidence of driving while under the

influence of intoxicating liquor..."

and therefore Blockburger does not apply,

but:

"Since the evidence to be presented

in the drunk driving prosecution of

this defendant would involve the

same proofs that were presented to

establish the prior offense of death

by auto, defendant has a

‘substantial’ double jeopardy claim

under Vitale." New Jersey v

DeLunca, #A-5751-8475, New Jersey

Supreme Court, Appellate Division,

decided March 14, 1986.

Vitale applies to the Petitioner’s case in

that the prosecution used exactly the same

set of proofs to obtain the conviction

under Count IV as the acquitted Count,

Count III. Petitioner respectfully

contends that to twice use the same

evidence at trial, where Petitioner was

both acquitted and convicted for committing

an alleged offense violated his

constitutional right to be free from double

29

jeopardy.

Petitioner submits that it is clear

that he was charged with the same offense

in more than one count. The District Court

Judge, in his March 31, 1988, written

Opinion, confirmed this when he wrote:

"There is clearly something ‘wrong’

with charging a defendant with the

same offense in more than one

count." ‘Multiplicity’ is the

charging of a single offense in

separate counts." U.S. Hairrell,

[sic] 521 F 2d 1264 (6th Cir.), cert

denied, 423 U.S. 1035 (1975). "That

is what occurred here." (Page 5)

(25a)

The test for double jeopardy as

applied to multiplicity was set forth in

U.S. v Marzani, 71 F Supp 615, 618 (1947);

affirmed 168 F 2d 133; affirmed 335 U.S.

895, 69 S Ct 299, 93 L Ed 431; affirmed on

rehearing 336 U.S. 922, 69 S Ct 653, 93 L

Ed 1084, "The test of double jeopardy

through a multiplicity of counts is whether

a conviction on one count and an acquittal

30

on another count would bring about a

contradiction on the face of the verdict."

Harrel v Israel, 478 F Supp 752 (1979), a

case in which the defendant was charged and

convicted of two counts of rape for twice

raping the victim in a twenty-five minute

period, applied the Marzani test at p. 755:

"Applying this test, the Court finds

that there would be no

contradictions on the face of the

verdict if the jury found the

petitioner guilty of one count and

not the other."

In Harrel, the Court determined that the

defendant committed two separate acts of

rape and therefore the Information was not

multiplicitous. If the Court had

determined that there was only one act of

rape, or one continuous rape for twenty-

five minutes, the Information would have

been improper.

Petitioner submits that the

circumstances in the instant case are in

31

fact ripe for application of the double

jeopardy clause. To say that double

jeopardy is inapplicable to the instant

multiplicitous Information ignores logic,

common sense, and the peculiar pretrial and

trial objections to the proceedings raised

by Petitioner. Petitioner submits that the

better test to be used in the instant case

is indeed the test set forth in U.S. v

Marzani, supra, and applied in Harrell v

Israel, supra. Moreover, Petitioner

submits that more recent cases have

recognized that a defendant is subjected to

multiple prosecutions in violation of the

double jeopardy clause when ae single

offense is charged in several counts. U.S.

v Rosenthal, 793 F 2d 1214, 1234 (CA ll,

1986). In the instant case, it would be

possible or proper for the jury to find

Petitioner guilty on Count IV and not Count

III, but not the reverse. Acquittal on

32

Count III in the instant case necessarily

includes an acquittal on Count IV.

Additionally, the order in which the

jury returned the verdicts on the

respective Counts supports Petitioner’s

contention that he was tried "successively"

for the same offense twice. Petitioner was

found not guilty first on Count III and,

thus, the impanelment and swearing of the

jury had concluded favorably to Petitioner.

Therefore, when the jury returned a verdict

of guilty on Count IV, it had found him

guilty of the same offense for which it had

just acquitted him.

Petitioner submits that Marzani

applies to the case at bar, and that the

forbidden result of the Marzani_ test

actually occurred. Under Marzani, the

multiplicitous information and resultant

conviction violated the Petitioner’s

Constitutional right to be free from double

33

jeopardy. The overlap in dates between

Counts III and IV amounts to more than an

appearance, as the Sixth Circuit would

label it, of an opportunity for the jury to

convict twice for a crime committed on or

about September 16. It is in fact a second

opportunity, a second jeopardy, and

Petitioner submits that this Honorable

Court should interpret it as_ such.

Discussing the protection of the double

jeopardy provision, this Honorable Court in

Green v U.S., supra, stated that "[if] such

great Constitutional protections are given

a narrow, grudging application they are

deprived of much of their significance."

355 U.S. 198.

Although there are many double

jeopardy cases dealing with greater and

lesser included offenses, there are very

few pertinent multiplicity of Information

cases. Multiplicity is the charging of a

2

Dd

: 34

single offense in several counts. U.S. v

Free, 574 F 2d 1221 (CA 5, 1978). As

already demonstrated, a multiplicitous

Information violates the spirit of the

double jeopardy clause in that it would

allow for prosecutions that are prohibited

by the Blockburger and Vitale cases.

In U.S. v Hearod, 499 F 2d 1003 (CA 5,

1974), the Court stated that one of the

hazards raised by a multiplicitous

indictment is:

"That the repeated assertion of the

details of a singular course of

conduct and multiple counts will

prejudice the defendant and confuse

the jury by suggesting that not one

but several crimes have _ been

committed." (Page 1005).

The Court in Hearod, however, held that

because the two counts in which Hearod was

charged contained simple and_= direct

averments that his assault upon the alleged

victim violated two separate statutes,

there was no threat of generating an

35

adverse psychological effect on the jury

and, thus, no prejudice.

The adverse effect on the jury in the

instant case is not so easily dispensed

with where all counts charged the same

conduct under the same statute and two

counts charged the same conduct under the

same statute on the same dates, and

Petitioner was found guilty on only one

count, a multiplicitous count. In the

instant case, it must naturally be said

that the jury’s deliberations as to all

counts were tainted and prejudiced by the

multiplicity. Surely the appearance that

Petitioner committed more than one

violation increased the probability of

conviction. The shotgun charge in Count

III, together with the other Counts, had

the effect of convincing the jury that

Petitioner undoubtedly committed the

offense at sometime within the allged time

36

frames given, so that the question became

simply a matter of when the offense

occurred. Not only did the multiplicitous

information improperly place the Petitioner

in a position of having to defend himself

twice for the same offense, it also led the

jury in the instant case to quite possibly

conclude that Petitioner was a "bad person"

or that since he was twice charged with

committing the offense on September 16,

1983, he must be guilty of something.

Petitioner's fears that the jury would

be confused by the multiplicitous

Information to the disadvantage of

Petitioner were in fact confirmed near the

conclusion of the trial. There is no

question that the jury was, in fact,

confused by the multiplicitous Information

that was allowed to survive throughout the

trial. By the time the trial court

allegedly "clarified" the confusion, the

37

jury had already been allowed to sit, hear,

and deliberate in light of the shotgun and

multiplicitous Counts. The Court’s

instructions to the jury only suggested to

the jury that a viable alternative would be

to find not guilty on one count and guilty

on the other, a trade-off, so to speak --

hardly a ocure to the already fatal

prejudice.

Therefore, even assuming that the

double jeopardy clause does not apply in

the instant case, Petitioner submits that

the multiplicitous Information in the

instant case substantially prejudiced the

Petitioner and thereby deprived him of his

right to due process of the law.

Petitioner notes that the Michigan Court of

Appeals, in its Opinion affirming

Defendant’s conviction, noted that

Petitioner’s

38

"real concern here is not double

jeopardy, as he labels his claim,

but rather whether there is a denial

of due process arising out of a

vague charge which prevented

Defendant from adequately preparing

his defense and confused the jury."

(4a)

Contrary to what the Michigan Court of

Appeals found, Petitioner submits that the

multiplicitous Information did operate to

prejudice the Defendant to an extent

warranting reversal. While typically, at

the trial stage, election of counts by the

prosecution or appropriate instruction to

the jury are possible remedies, U.S. v

Ketchum, 320 F 2d 3, 8 (CA 2, 1963), cert

denied, 375 U.S. 905; 84 S Ct 194; 11 L Ed

2d 145 (1963), the trial court in the

instant case failed to adequately apply

either remedy, resulting in the

Petitioner’s conviction on Count IV. The

prejudice, Petitioner submits, is all the

more underscored in light of the

39

Petitioner’s acquittal on all other Counts.

Petitioner presented a strong defense

to the charges leveled against him at trial

and successfully defended all but a single

charge. The lone conviction can be

directly linked to the improper

multiplicitous Information that produced a

"trade-off" verdict. The Information in

the instant case unduly forced Petitioner

to twice run the gauntlet on a specific

charge for the same offense, which thereby

enhanced the possibility that even though

innocent, Petitioner would be convicted.

Petitioner repeatedly requested that the

charges against him be more specifically

defined and strenuously objected to the

amendments made to the Information. Left

to stand, the multiplicitous Information

constituted a violation of Petitioner’s

Constitutional right to be free from double

jeopardy, and, acquitta’ on the one Count,

40

therefore, should bar conviction on the

other. Clearly the multiplicitous

Information, as it was allowed to stand in

the instant case, contributed to

Petitioner’s conviction and was contrary to

both the letter and spirit of the Fifth

Amendment. Even absent a double jeopardy

claim, it is clear that the prejudice

resulting from the multiplicitous

Information was substantial. The

possibility for the jury to feel compelled

to convict on at least one Count because of

the number of Counts stressing or including

the September 16, 1983, date cannot be

undermined.

Petitioner respectfully contends that

the simultaneous prosecution in Count III

and Count IV for the same offense requires

the conviction in Count IV to be set aside

and this lone conviction reversed.

Petitioner submits that this is the only

41

remedy available in the instant case to

cure the prejudice occurring at trial the

absence of which may have resulted in a

verdict of not guilty on all Counts.

Moreover, the U.S. Constitution forbids a

"second jeopardy" and not merely multiple

convictions or sentences resulting from

that jeopardy.

CONCLUSION

WHEREFORE, Petitioner respectfully

prays that this Court, grant certiorari and

issue a definitive pronouncement on the

propriety of the multiplicitous Information

in the instant case in order to resolve any

conflicting opinions between the Federal

Courts as well as to clarify an issue of

jurisprudentail significance. Petitioner

respectfully prays that this Court grant

plenary review, reverse the decision of the

United States Court of Appeals for the

Sixth Circuit, hold that the use of the

42

multiplicitous Information at trial in the

instant case was violative of the

Petitioner’s Fifth Amendment protection

against double jeopardy as well as his

right to due process of the law, and remand

for proceedings consistent with this

Court’s opinion. =

February 1, 1991 Respectfully submitted,

DAVID A. DODGE (P22906)

Counsel of Record

JOHN A. VOS (P38643)

Of Counsel

200 North Division

Grand Rapids, MI 49503

616/459-3839

la

STATE OF MICHIGAN

COURT OF APPEALS

Jan. 13, 1986

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, No. 81739

Vv

SHELDON IRWIN WIELAND, JR.

Defendant-Appellant.

f

BEFORE: M.H. Wahls, P.J., G.S. Ailen,

Jr. and J.C. Ravitz*, JJ.

PER CURIAM

Defendant was jury-convicted of first

degree criminal sexual conduct, MCL

750.520b(1) (a); MSA 28.788(2) (1) (a)

(sexual penetration with a person under

13 years of age). Sentenced to a prison

term of four to 20 years, defendant

appeals as of right. We affirm.

*Recorder’s Court Judge sitting on the

Court of Appeals by assignment.

2a

Defendant’s conviction came on count

IV which charged defendant with CSC-1

occurring on or about September 16,

1983. Counts I-III, V and VI, as to

which defendant was acquitted, charged

defendant with CSC-1 respectively on or

about July 26, 1983, August 25, 1983,

September 6 through September 19, 1983,

October 10, 1983, and October 11 through

October 17, 1983. It may be noted that

the date of September 16, 1983, charged

in count IV is included within the dates

of September 6 through 19 1983, charged

in count III. As nis first question on

appeal, defendant asks whether this

overlap in charges did not violate his

right to be free of double jeopardy.

The reason for the overlap between

the two charges is readily explained.

3a

During the period of September 6

through 19, 1983, the complainant babysat

for defendant on several occasions and

allegedly engaged in intercourse with

defendant on each occasion. Also about

that time, defendant engaged in

intercourse with the complainant in a

non-babysitting situation where another

girl was present and observed the

criminal sexual conduct. The people

initially charged this latter incident as

occurring on September 26, 1983, but, as

more evidence became available, the

charge was amended to read September 24

and, finally, September 16. The people

offered to also amend count III to

expressly exclude the September 16 date,

but defendant did not respond to the

offer and the amendmen@ was not made.

During deliberations, the jury expressly

4a

asked for clarification of the

relationship between counts III and IV,

and any confusion about the charges was

cleared up at that time.

On these facts, defendant was not

subject to multiple prosecutions,

convictions or punishments for the same

offense. Hence, we find no violation of

the quaranty against double joepardy.

See North Carolina v Pearce, 395 US 711,

717; 89 S Ct 2072; 23 L Ed 2d 656

(1969). Defendant’s real concern here is

not double jeopardy, as he labels his

claim, but rather whether there is a

denial of due process arising out of a

vague charge which prevented defendant

from adequately preparing his defense and

confused the jury. We are convinced

defendant received a fair trial on the

-charges, that he knew what complained-of

5a

conduct he needed to defend against, and

that the jury was neither coerced by the

multiple counts nor confused.

Defendant also argues that the trial

court erred in permitting certain

testimony of the doctor who examined the

complainant several months after the

charged incidents allegedly occurred.

The doctor testified that complainant’s

vagina was more open than average for a

female of her age and that such a finding

was compatible with sexual activity. In

his opinion, complainant was sexually

active, but.he acknowledged on

cross-examination that his findings told

him nothing about the age or identity of

the person or persons with whom the

complainant had intercourse. Defendant

characterizes the doctor’s testimony as

minimally probative because defendant did

6a

not dispute that the complainant was

sexually active and not a virgin.

Defendant argues that the testimony was

extremely prejudicial and should have

been excluded pursuant to MRE 403.

However, defendant does not convince

us that he suffered any undue prejudice

because of the testimony. Defendant

first argues that the jury was misled

concerning the testimony’s minimal

probative purpose. This argument is

devoid of merit as the doctor’s testimony

was the prosecutor’s only medical

evidence of penetration, an element of

the crime which the prosecutor had to

prove beyond a reasonable doubt. People

v_McGillen #2, 392 Mich 278, 284-285; 220

NW2d 689 (1974). Defendant next argues

that the testimony was unfairly admitted

because he was prohibited by the "rape

>

7a

shield" statute, MCL 750.520}; MSA

28.788(10), from presenting complete

testimony concerning complainant’s prior

sexual history which may have accounted

for the doctor’s observations. This

argument is also without merit. In

People v Mikula, 84 Mich App 108, 114;

269 NW2d 195 (1978) this Court stated the

well-settled rule that "where the

prosecution substantiates its case by

demonstrating a physical condition of the

complainant from which the jury might

infer the occurrence of a sexual act, the

defendant must be permitted to show that

another person might have been

responsible for her condition." In this

case, defendant has not made any offer of

proof to account for the doctor’s

observations so we find no basis for

reversal.

8a

Defendant also assigns error to

various comments by the prosecutor in

rebuttal argument. Defendant challenges

the prosecutor’s characterization of him

as a "child-man", of his sending cards to

the complainant as “atypical, I think, of

an adult", and of his relationship with

the complainant as "basically an affair

between two 12 year olds, owe of which is

really 12 and one of who functions on the

level of a 12 year old child". We

believe these comments were proper

argument. The prosecutor, as an

advocate, rs-frée to relate the facts in

evidence to her theory of the case and to

argue the evidence and all reasonable

inferences therefrom. People v Jansson,

116 Mich App 674; 323 NW2d 508 (1982).

We are more troubled, though, by a

fourth challenged comment by the

prosecutor which occurred as follows:

9a

"MS. CROZIER: Finally, Mr. Dodge

tells you you will hear an instruction

saying good character alone is enough for

you to acquit the Defendant.

"I submit to you that this is a crime

of opportunity, this is a crime of

secrecy, and nobody who was going to be

his character witness is going to have

knewn what happened.

"All of you have known of people,

have read of people who are of

outstanding character and then it came to

the forefront that they had engaged in

sexual behavior with a child.

"The Press reported in 1982 that --

"MR. DODGE: (Interposing) Your

Honor, I would object to this

specifically.

"MS. CROZIER: Your Honor, this is

closing.

10a

"THE COURT: She hasn’t even said

anything yet. How can you object to

something she hasn’t said?

"MR. DODGE: Apparently, she is going

to talk about Press articles about people

who have had -- either there are some

claims regarding sexual improprieties and

whatnot. How does that relate to

anything in this case?

"THE COURT: You may proceed.

"MS. CROZIER: Thank you, Your Honor.

"The Press reported in 1982 that a

Mecosta County teacher was convicted of

molesting two girls.

"MR. DODGE: Your Honor, I object to

that. How in the world does that come

into this case?

"MS. CROZIER: Your Honor, he has

argued that because of his good

character, because of the fact that he

lla

has character witnesses -- I think I have

a right to point out that there are

individuals out there who have wonderful

character who have been guilty of this

type of crime.

"THE COURT: This has been a

difficult case. Let’s confine ourselves

to this case and not some other case.

"MS. CROZIER: Ladies and gentlemen,

all of you know that character ‘s

something that one has by reputation, and

when you engage in behavior that is

perverted, that is amoral, that is

illegal, you don’t share that with anyone

else. It’s something that’s kept a

secret, that is hidden and that none of

those people would have known about or

have any way of knowing about, would have

no opportunity to know about."

The prosecutor’s remark about the 1982

12a

press report was not a comment on facts

in evidence and was error. eople v

Wise, 134 Mich App 82; 351 NW2d 255

(1984), lv den 422 Mich 852 (1985). On

defense counsel’s second attempt, the

court did sustain the objection; counsel

did not request a curative instruction or

a mistrial so we assume he was satisfied

that untoward damage had not been done.

Accordingly, our review is for manifest

injustice.

The comment on the Mecosta teacher

case was part of a proper argument in

response to a matter first raised by

defense counsel. The prosecutor could

properly argue the shortcomings of

character and reputation evidence. In

this context, we do not believe that the

prosecutor’s error in bringing in facts

not of record was done in reckless or

13a

intentional disregard of defendant’s

rights. Further, the prosecutor was not

given the opportunity to get into the

specific facts of the unrelated case, and

it does not appear that the jury was

familiar with it. We do not find any

reason to call into doubt the jury’s

verdict. Contrast People v Kelley, 142

Mich App 671; ____ NW2d _____ (1985).

Defendant’s last issue addresses a

possible situation arising on retrial.

Because we affirm his conviction, we need

not address the issue.

Affirmed.

/s/ Myron H. Wahls

/s/ Glenn S. Allen, Jr.

/s/ Justin C. Ravitz

14a

AT A SESSION OF THE SUPREME COURT OF THE

STATE OF MICHIGAN, Held at the Supreme

Court Room in the City of Lansing, on the

30th day of June in the year of our Lord

one thousand nine hundred and eighty-six.

Present the Honorable

G. MENNEN WILLIAMS,

Chief Justice

CHARLES L. LEVIN,

78105 JAMES H. BRICKLEY,

MICHAEL F. CAVANAGH,

PATRICIA J. BOYLE,

DOROTHY COMSTOCK RILEY,

DENNIS W. ARCHER,

Associate Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv SC: 78015

COA: 81739

LC: 84-34465-FC

SHELDON IRWIN WIELAND, JR.,

Defendant-Appellant.

On order of the Court, the

application for leave to appeal is

considered, and it is DENIED, because we

are not persuaded that the questions

presented should be reviewed by this

Court.

15a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SHELDON I WIELAND, JR.,

Petitioner,

vs File No. K86-282 CA4

ROBERT BROWN, Director of the

Michigan Department of

Corrections,

Respondent.

OPINION

The petitioner in this case filed a

petition for writ of habeas corpus on

July 9, 1986. Magistrate Rowland filed a

Report and Recommendation on September 2,

1987 in which he recommended that the

Court deny petitioner’s petition. See 28

U.S.C. §636(b)(1)(B). Petitioner filed

his objections to the Magistrate’s Report

on September 14, 1987. Having reviewed

the record and petitioner’s claims de

novo, I believe that the Magistrate

16a

correctly analyzed and decided the issues

presented.

I write here to clarify that portion

of the Magistrate’s opinion concerning

the Court’s understanding of the

relationship between "multiplicity" and

double jeopardy. The Magistrate noted

that some courts have held that

multiplicity, that is, the charging of a

Single offense throughout several counts

or in several charging instruments,

violates the double jeopardy clause. See

Unite tates v Rosenthal, 793 F.2d

1214, 1234 (11th Cir. 1986), cert. denied

107 S. Ct. 1377 (1986). The Magistrate

concluded that double jeopardy is

inapplicable to multiple counts under a

Single information.

Petitioner in his objections argues

that the Magistrate’s conclusion that the

17a

double jeopardy clause is inapplicable to

multiple counts under a single

information “ignores logic, common sense,

and the peculiar pretrial and trial

objections to the proceedings by

Petitioner in this case." Petitioner

asserts that while "the Double Jeopardy

clause obviously also applies to

successive Prosecutions and separate

trials, the lack of specific precedent on

point dealing with multiple counts in the

same Information alleging the same

offense on the same dates presents this

case as a case of first impression with

this particular issue." Petitioner

argues that "the lack of precedent and

lack of any prior case where the

Prosecutor has subjected a defendant to

the same charge being tried in two

separate counts with the defendant being

i8a

acquitted in the earlier count

sequentially should mot be the basis for

denial of relief in this matter."

Petitioner’s Memorandum of Objections at

3-4.

It is true that courts have held that

"dismissal during trial of one count of a

multiple count indictment has no double

jeopardy implications with respect to the

remaining counts." Cf. United States v

McDaniel, 538 F.2d 408, 414 (D.C. Cir.

1976). Courts following this line of

analysis make clear that the double

jeopardy clause is not generally

applicable to multiple counts under the

same indictment, but rather the clause

refers to successive prosecutions in

separate trials, Id.

However, some courts have suggested

that a multiple-count indictment may

19a

violate the double jeopardy clause if the

Government charges a single offense in

more than one count. See United States

v. Marzani, 71 F. Supp. 625, 618 (D.C.

1947); affirmed, 168 F.2d 133 (D.C. Cir.

1948); affirmed, 335 U.S. 895 (1948).

Marzani held that "the test of double

jeopardy through a multiplicity of counts

is whether a conviction on one count and

an acquittal on another would bring about

a contradiction on the face of the

verdict." Id. In almost forty years,,

the only reported federal decision

applying the Marzani test did so to

determine "whether an offense is

continuous or not." Harrell v. Israel,

478 F. supp 752, 755 (E.D. Wis. 1979).

In Harrell, the defendant was charged

and convicted of two counts of rape for

twice raping the victim in a twenty-five

20a

minute period. The Harrell cour’: applied

the Marzani test and concluded that

"there would be no contradictions on the

face of the verdict if the jury found the

petitioner guilty of one count and not

the other." Harrell, 478 F. Supp. at

755. The Harrell court emphasized that

the defendant committed two separate acts

of rape. The petitioner, sub judicie,

argues that had the Harrell court

determined that there was only one act of

rape, the information would have been

improper.

The Court notes that it is well

settled that the double jeopardy clause

protects against a second prosecution for

the same offense after acquittal, a

second prosecution after conviction, and

against multiple punishments for the same

21a

offense. See North Carolina v. Pearce,

395 U.S. 711, 717 (1969). However, the

history of judicial interpretation of the

double jeopardy clause has been one

marked by radical breaks and constant

revision. One commentator has noted that

"(t]he history of judicial attempts to

fashion a workable definition of the

concept of ‘same offense’ has been

tortuous." Thomas, Rico Prosecutions and

the Double Jeopardy/Multiple Punishment

Problem, 78 Nw.U.L. Rev. 1359, 1363

(1984) (noting that the prohibition

against multiplicious counts is based in

part on the theory that charging the same

conduct in multiple counts is prejudicial

to the defendant on the issue of guilt or

innocence and distinguishing this concern

from that of multiple punishment. Thomas

aiso suggests that different values are

22a

protected by the two doctrines and after

noting five definitions of "same offense"

-- none of which is applicable here -- he

suggests that perhaps a sixth definition

of "same offense" is necessary.) It is

that suggested sixth definition of the

"same offense" which appears to embrace

the identical issue which petitioner is

raising here. Interestingly, to the

Court’s knowledge, the Marzani double

jeopardy test has not been cited by any

commentator.

It has also been suggested that

recent Supreme Court decisions which have

decided the same offense issue have

broadened the protection of the double

jeopardy clause when offenses are

prosecuted separately and narrowed the

protection when offenses are prosecuted

|

23a

in the same trial. dad. See also Thomas,

A Unified Theory of Multiple Punishment,

47 U. Pitt. L. Rev. 1 (1985).

Assuming that the Marzani double

jeopardy test, decided in 1947, is still

good law and is applicable here -- a

proposition which is anything but clear

to this Court -- it still appears that

the double jeopardy danger which is most

at play when the same offense is charged

twice is that of double punishment. It

is clear that double punishment is not at

issue here as defendant was found guilty

on Count IV and not guilty on Count III.

But defendant protests: "Yes, but I was

first found not guilty as to Count III,

that is, I was acquitted on Count III.

Count III charged me with criminal sexual

conduct on or about September 6, 1983

through September 19, 1983. Immediately

a

24a

thereafter, the jury found me guilty on

Count IV of the same offense -- Criminal

Sexual Conduct -- on September 16, 1983.

Under the Marzani test there is obviously

a contradiction on the face of the

verdict. Therefore, there has been a

double jeopardy violation."

It is clear that defendant’s

argument, and perhaps the rationale of

Marzani itself set forth the hypothetical

"response" above, rests upon the

untenable legal fiction that there has

been a simultaneous "successive"

prosecution. It is this oxymoron that

calls into question the theoretical

underpinnings of the Marzani test. This

observation, of course, does not end our

analysis. There is clearly something

"wrong" with charging a defendant with

the same offense in more than one count.

25a

"‘Multiplicity’ is the charging of a

Single offense in -‘narate counts." U.S.

Hairrell, 521 F.2d 1264, 1266 (6th Cir.),

cert. denied, 423 U.S. 1035 (1975). That

is what occurred here. But multiplicity

like its close cousin, "duplicity," ("the

joining in a single count of two or more

distinct and separate offense. . ." U.S.

v. Starks, 515 F.2d 112, 116 (3d Cir.

1975) does not necessarily require

dismissal of an indictment. The

defendant may ask the government to elect

the count on which proof will be

presented. U.S. v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 225 (1952).

Here, the petitioner did indeed

object both pretrial and at trial during

the jury deliberations. Respondent

argues, however, that any confusion which

resulted from the court’s resolution of

ieee

26a

the jury’s question was resolved in

petitioner’s favor in that petitioner was

acquitted of the sexual criminal conduct

charged on or about September 6th through

September 19th (Count IV). Respondent

suggests that it is clear from the

"interchange" that took place between the

jury foreman and the trial court that the

jury indicated that it felt that the

petitioner had engaged in an act of

sexual intercourse with the victim on

September 16, 1983. Moreover, respondent

argues that the prosecutor twice offered

to amend Count IV so as to exclude the

charge arising on September 16, 1983.

The prosecutor suggests that the

petitioner "sandbagged" on those requests

because the petitioner really wanted to

have the September 16th charge dismissed.

27a

The Court finds it inexplicable that

a formal amendment of Count IV was not

made under these circumstances. Such an

amendment, early on, would have avoided

the tangled arguments with which this

court is now presented. It is not clear

to the Court why the trial court judge

did not order the prosecution to make an

election between Count III or Count IV or

to order the prosecutor to amend Count

III as the prosecutor proposed -- so that

the same date would not be included in

both counts. Petitioner-defendant did

present the argument that the overlapping

of dates in the two counts was either a

double jeopardy problem or a problem of

"lack of specificity". Perhaps the trial

court reasoned that the petitioner-

defendant never made a formal motion.

The Court simply rejects, however, any

il

28a

suggestion that petitioner-defendant

somehow "waived" his double jeopardy

argument. (See Tr. at 5-10; attached as

Ex. A to Petitioner’s Objection to

Magistrate’s Report dated September 1,

1987).

Nevertheless, the Court concludes

that the multiplicity problem was

actually cured by the interchange which

took place between the jury [foreman] and

| the judge. See Magistrate Rowland’s

Report and Recommendation at 5-6. The

Court believes that the trial court judge

actually granted the functional

equivalent of a dismissal -- or perhaps,

more accurately, a directed verdict -- as

to Count III. That appears to be all

petitioner was really entitled to given

the multiplicity problem which existed.

That analysis, however, does not complete

29a

our inquiry. The problem of possible

prejudice remains. This Court has

previously noted the well known dangers

of multiplicity.

The vice of multiplicity is that

it may lead to multiple

sentences for the same offense,

though for this there are

remedies, and that "the prolix

pleading may have some

psychological effect upon a jury

by suggesting to it that

defendant has committed not one

but several crimes."

1 Wright Federal Practice and Prosedure:

Criminal 2d, §142, pp. 475-476 cited in

United States v. Austin, 99 F.R.D. 292

- (W.D. Mich. 1983).

And to the point, the petitioner

argues that in the case sub judicie he

was prejudiced because the government

charged the "same offense" in two

counts. Moreover, petitioner suggests

that the alleged prejudice is pronounced

EE

30a

here because petitioner was found not

guilty on all counts except Count IV: the

alleged sexual penetration which occurred

on September 16, 1983.

This Court agrees with the Michigan

Court of Appeals’ (as well as with the

Magistrate’s analysis) that petitioner’s

multiplicity problem is more accurately

characterized as a claim of a denial of

due process insofar as the jury may have

been coerced, confused, or otherwise

prejudiced by the multiple counts placed

before it. In any event, it is beyond

argument that the trial court’s

clarification assured the petitioner that

he would not receive multiple punishments

for the single offense which the jury

found was committed on September 16,

1983.

31la

Moreover, a review of the facts

supports the Magistrate’s conclusion that

there was more than ample evidence to

support the jury verdict and any possible

prejudice which may have resulted from

hearing multiple overlapping dates was

negligible. The jury was able to observe

the victim’s demeanor as she testified in

detail about the events that occurred on™®

September 16, 1983. Similarly, the jury

was able to observe the demeanor of the

petitioner-defendant as he testified

about his actions on that same date.

Further, the victim’s testimony was

corroborated by her friend who was

present at the time and saw petitioner

and the victim kissing and saw petitioner

lying on top of the victim. (T.T. at

295). Moreover, the date of September

16, 1983 -- as set forth in Count IV --

lel

32a

was verified by a long distance phone

bill. (T.T. at 273. See Magistrate’s

Report and Recommendation at 6-7.

The Court concludes that petitioner

has failed to make a sufficient showing

of prejudice to warrant habeas relief

whether his claim is characterized as a

"double jeopardy claim" or a denial of

due process claim. Accordingly, the

court will adopt the Magistrate’s

recommendation and will enter an order

denying petitioner’s petition.

DATED in Kalamazoo, MI:

3/31/88

/S/ RICHARD A. ENSLEN

U.S. District Judge

33a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SHELDON I. WIELAND, JR.,

Petitioner,

Vv File No. K86-282 CA4

ROBERT BROWN, Director of the

Michigan Department of

Corrections,

Respondent.

JUDGMENT

In accordance with the opinion dated

March 31, 1988;

IT IS HEREBY ORDERED that Magistrate

Rowland’s Report and Recommendation dated

September 2, 1987 is ADOPTED, as

modified, as the opinion of the Court;

IT IS FURTHER ORDERED that

petitioner’s petition for writ of habeas

corpus DENIED.

DATED in Kalamazo, MI:

3/31/88

/s/ RICHARD A. ENSLEN

U.S. District Judge

34a

NO. 89-2213

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHELDON I. WIELAND, JR.,

Petitioner-Appellant,

Vv.

ROBERT BROWN, Director,

Michigan Department of

Corrections,

Respondent-—Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

Decided and Filed

Before: WELLFORD and NELSON, Circuit

Judges; and MEREDITH, District Judge.

PER CURIAM: Defendant, Sheldon

Wieland, Jr., appeals his denial of

habeas corpus following conviction for

first degree criminal sexual conduct in

Michigan state court proceedings. The

35a

issues presented are: whether Wieland

filed a timely notice of appeal and, if

so, whether Wieland was subjected to

double jeopardy or denied due process of

law in respect to overlapping dates in

separate counts of the state indictment.

We affirm.

At 34 years of age Wieland, a school

teacher, was charged with six counts of

criminal sexual conduct, first degree,

with 12-year-old Debbi Hockman, in

February 1984. Mich. Comp. Laws

§750.520b(1)(1). The sexual acts

allegedly took place at the following

times:

Count I. On or about July 26, 1983.

Count II. On August 25, 1983.

Count III. On or about September 5

through September 19, 1983

(ultimately amended to September

6 through September 19, 1983).

Count IV. On or about September 26,

1983 (ultimately amended to

September 16, 1983).

36a

Count V. On or about October 10,

1983.

Count VI. On or about October 11,

through October 17, 1983.

When Wieland was bound over for trial _

on these six charges the third count was

amended to read "On or about September 6,

1983, through September 19, 1983," and

the fourth count was amended to read "On

or about September 24, 1983." There was

no apparent overlap in dates on the face

of the indictment at this juncture.

Prior to trial Debbi Hockman’s mother

discovered a telephone bill which

indicated that Count IV was incorrect in

its date. This phone bill indicated that

Mrs. Hockman had called long distance to

her daughter on September 16, 1983 which

coincided with Debbi’s refreshed

recollection that one act of intercourse

with Wieland had occurred while her

37a

parents were out of town on that night.

After this discovery, the prosecution

filed a pretrial motion to amend count IV

to reflect the September 16 date.

Wieland objected to this amendment

raising the issue of overlap in counts

III and IV since September 16 falls

within September 6 through September 19

(the amended dates of the Count III), and

noted that wn alibi defense had already

been prepared and offered for the

September 24 date.

The prosecution suggested amendment of

count III to eliminate the 16th date, and

Wieland maintained then that he was being

subjected to double jeopardy. The

amendment to count IV was allowed but

count III was not amended. Somehow the

trial court overlooked the apparent

overlap after this change.

38a

At trial Debbi Hockman testified

about her babysitting for Wieland three

to four times a week. She testified that

he began making sexual advances that

eventually resulted in intercourse. The

allegations of sexual misconduct on the

night of September 16 were corroborated

to a greater degree than the other

dates. On that evening Debbi and a

friend stayed the night at Wieland’s

house because the Hockmans were out of

town. The friend, Mary Priest, testified

that she awoke during the night to find

Wieland and Debbi Hockman "lying down and

kissing," and revealed further details of

her observations early on the morning of

September 17.

During the second day of jury

deliberation after the trial the

39a

following exchange took place between the

judge and the jury foreman:

COURT: Mr. Foreman, would you rise,

please? We have a question from you

stating: "Since question number four, on

or about September 16, falls within the

dates of the question number three,

September 6 through 19, does this now

dictate that if guilty on number four,

the answer must also be the same on

number three?" .

The answers to question number three

and question number four need not be

consistent.

Does that answer your question, Mr.

Foreman?

FOREMAN: I don’t believe it fully

answers the question, Your Honor. Since

the 16th does fall within the scope of

the 6th through the i9th, the question

was if it was guilty on the 16th, then it

must also have been guilty somewhere

between the 6th and the 19th, because it

does fall on the same question.

COURT: No, because the 16th is a

specific date and the other dates are

collective, so they need not be

consistent answers.

FOREMAN: Okay. Then I have a

question then. May I ask it?

COURT: Sure.

40a

FOREMAN: Okay. Then one could say

not guilty with the exception of the

16th, which does fall in there, but we

don’t have a slot like that.

COURT: Then just put down not

guilty.

FOREMAN: Very good. Thank you, Your

Honor.

Wieland then raised his objection to

the existence of the two charges stating

that he was in danger of facing double

jeopardy. The prosecution again offered

to exclude September 16 from count III,

but the court ordered no such amendment.

The jury returned a verdict of not guilty

on all counts except as to Count IV. The

trial court sustained the jury verdict

and sentenced Wieland on this count.

The Michigan Court of Appeals

affirmed the conviction, and the Michigan

Supreme Court denied further appeal.

Wieland then pursued a writ of habeas

NAY song as tect a ah al.

4la

corpus to the federal courts. The

district court denied the petition,

finding that a potential for multiplicity

in the overlap between counts III and IV

but that this problem was cured by the

exchange between foreman and court.

Wieland requested a certificate of

probable cause pursuant to Federal Rule

of Appellate Procedure 22(b). The

district court granted the request on

April 14, 1988. No further action was

taken for nearly a year. On March 21,

1989, Wieland filed a motion to enlarge

appeal time, on the basis that he never

received the district court’s order

granting the certificate of probable *

cause. (Neither had prosecution nor the

appeals court clerk received the order).

This motion was denied in an opinion and

order entered May 15, 1989. Wieland

42a

moved for reconsideration which motion

was also denied by the district court on

October 2, 1989, and this appeal ensued.

1. Timeliness of notice of appeal

Nearly one year passed between the

district court’s denial of habeas relief

(March 31, 1988) and Wieland’s original

motion to enlarge the appeal period

(March 21, 1989). Wieland had requested

a certificate of probable cause prior to

appeal on April 8, 1988 since that issue

had not been resolved in the March 31,

1988 order. The certificate was granted

on April 14, 1988, but Wieland did not

file notice of appeal until October 10,

1989, over one year and a half later.

Because he did not receive a copy of the

certificate of probable cause until March

1989 Wieland claims that he should be

43a

allowed to bring this appeal (Wieland

finaly telephoned to request the status

of the matter during the week of March 6,

1989 when he learned for the first time

that the certificate had long since been

issued).

28 U.S.C. §2107 requires a notice of

appeal to be filed within thirty days of

the entry of judgment. It also provides

that the "district court may exend the

time for appeal not exceeding thirty days

from the expiration of the original time

... prescribed, upon a showing of

excusable neglect based on failure of a

party to learn of the entry of the

judgment, order or decree" (emphasis

added). Federal R@le of Appellate

Procedure 4(a) places a similar thirty

day time limit on filing a notice of

appeal and limits the extension a

Oe

44a

district court may grant to thirty days

past the prescribed time or ten days from

the date of order granting an extension,

whichever is later, if the motion for

extension is made within the original

thirty day period.+ In addition Rule

26(b), while allowing enlargement of

times prescried by some of the rules,

specifically prohibits enlargement of the

time for filing a notice of appeal.

1 Rule 4(a) (5) reads: "The district

court upon a showing of excusable neglect

or good cause, may extend the time for

filing a notice of appeal upon motion

filed not later than 30 days after the

expiration of [the 30 day period

initially granted after entry of judgment

or order for filing an appeal] ... No

such extension shall exceed 30 days past

such prescribed time or 10 days from the

date of entry of the order granting the

motion [for extension] whichever occurs

later.

eo CE Be 7 leh DES

45a

Filing of a notice of appeal is

“mandatory and jurisdictional." United

States v. Robinson, 361 U.S. 220, 224

(1958).

Wieland argues that he was forced to

wait because the "course of appeal

proceedings [is] affected by whether or

not [the court] issue(s] a certificate of

probable cause." There is no specific

rule, however, precluding the filing of a

notice of appeal prior to receipt of the

certificate of probable cause as noted by

the distict court, although it may later

be subject to challenge. The certificate

of probable cause is merely an

independent prerequisite to proceeding

with the appeal. Fitzsimmons v. Yeager,

391 F.2d 849, 854 (3rd Cit. 1968), cert.

denied 393 U.S. 868 (1968).

46a

Thus there is a serious question of

jurisdiction here. In his memorandum for

reconsideration of the order denying his

motion to enlarge the time for appeal

Wieland argues that he in fact initially

complied with the applicable rules by

filing a motion for a certificate of

probable cause. In support of this

contention he cites McMillan v.

Barksdale, 823 F.2d 981 (6th Cir. 1987).

In that case the district court accepted

a prisoner’s pro se motion for a

certificate of probable cause as a notice

of apreal although the formal notice of

appeal was not filed until three months

after the order appealed from had been

entered. McMillan looked to the purpose

of the rules and found that the request

for the certificate of probable cause

showed intent to appeal and since it nad

47a

been filed within the thirty day limit

was sufficient under the circumstances to

satisfy the rules.

Although rule 3(c) does suggest a

form to be followed, there is no

magic document called a Notice of

Appeal. Any document that meets the

requirements of Rule 3(c) and is

filed within the time prescribed by

Rule 4(a) can function as a notice of

appeal.

id. at 983.

Despite McMillan, the district court

felt the present case to be

distinguishable because Wieland was

represented by counsel, he was not a

prisoner at the time, and the delay at

issue here was much longer than in

McMillan. We believe that the McMillan

holding is probably limited to prisoners’

pro se requests for certificates of

probable cause filed within the Rule 4(a)

time limits.

TT

48a

McMillan was decided prior to Torres

v. Oakland Scavenger Co., 487 U.S. 312

(1988) and this court’s interpretation of

that holding in Minority Employees v.

Tennessee Dep’t of Employment Sec., 901

F.2d 1327 (6th Cir. 1990) (en banc),

cert. denied sub nom. Davis v. Tennessee

Dep’t of Employment Sec., No. 90-169,

Slip op. (U.S. Oct. 1, 1990). Torres

interpreted Federal Rule of Appellate

Procedure 3(c) which requires that a

"notice of appeal shall specify the party

or parties taking the appeal .. . and

shall name the court to which the appeal

is taken," to preclude jurisdiction over

plaintiffs who were indicated only

through the words "et al." in the notice

of appeal caption. Minority Employees

strictly construed Torres, finding a

failure specifically to name parties

ee

49a

appealing to be more than an excusable

informality. 901 F.2d at 1334. In this

case, defendant does not name this court,

as the rule requires, as the one to which

he takes an appeal.

Without deciding that we have no

jurisdiction, and it is certainly

doubtful, * we conclude that Wieland

cannot prevail on the merits of his

claim.

2. Double jeopardy

The Fifth Amendment provides in part

that "[n]o person shall .. . be subject

for the same offense to be twice put in

2 McMillan notes that the document

taken instead of a notice of appeal must

"meet the requirements of Rule 3(c),"

which rule requires naming the court as

noted above. 823 F.2d at 983.

50a

jeopardy of life or limb." The guaranty

against double jeopardy applies against

states by way of the Fourteenth

Amendment. enton v r nd, 395 U.S.

784 (1969). It is designed to

protect an individual from being

subjected to the hazards of trial and

possible conviction more than once

for an alleged offense .... The

underlying idea, one that is deeply

ingrained in at least the

Anglo-American system of

jurisprudence, is that the State with

all its resources and power should

not be allowed to make repeated

attempts to convict an individual for

an alleged offense, thereby

subjecting him to embarrassment,

expense and ordeal and compelling him

to live in a continuing state of

anxiety and insecurity, as well as

enhancing the possibility that even

though innocent he may be found

guilty.

Green v. United States, 355 U.S. 184,

187-88 (1957).

Wieland argues that the overlapping

time periods in amended counts III and IV

placed him twice in jeopardy for the same

5la

offense. Double jeopardy cases typically

involve attempted second prosecutions

after the defendant has been acquitted,

or convictions of both a substantive

crime and the lesser included offense.

On the other hand, it is clear that a

prosecution is not unconstitutional

merely because it has several counts

which may involve an overlap. The

overlap in dates between counts III and

IV appears to give the jury an

opportunity to convict twice for a crime

committed on or before September 16.°

Nonetheless, the record demonstrates that

the jury understood that count III was a

\ . . .

general count covering activity over a

3 We have no problem with a convition

for an offense charged to have been

committed "on or about September 16," if

the evidence supports a reasonable basis

that it occurred in the early morning

hours of September 17.

52a

period of time during which Debbi Hockman

was allegedly babysitting and

distinguished that from count IV which

alleged a specific instance of conduct ~

tied to a particular date. The proper

course would have been to amend count III

to formally omit September 16 (and

September 17) as did the jury for all

practical purposes, and as the prosecutor

offered to do twice.

In North Carolina v. Pearch, 395 U.S.

711 (1969), the Supreme Court interpreted

the Fifth Amendment to protect

against a second prosecution for the

same offense after acquittal. It

protects against a second prosecution

for the same offense after

conviction. And it protects against

multiple punishments for the same

offense.

Id. at 717 (citations omitted). "In sun,

the double jeopardy clause prohibits both

successive prosecutions and multiple

53a

punishments for the ’same offense’"

Thomas, Rico Prosecutions and the Double

Jeopardy/Multiple Punishment Problem, 78

Nw.U.L. Rev. 1359, 1360 (1984). Wieland

claims that he has been twice prosecuted

for the "same offense" and has suffered

double jeopardy. He also claims to have

suffered under the "multiplicity"

doctrine which is related to double

jeopardy multiple punishment analysis.

The multiplicity claim appears most

relevant here.

Multiplicity is the charging of a

Single offense in several counts or in

several charging instruments. The danger

of a multiplicitous indictment is that it

may violate double jeopardy by resulting

in multiple sentences or punishments for

a single offense, Unitd States v. Hearod,

499 F.2d 1003, 1005 (5th Cir. 1974), or

54a

that it may prejudice the defendants by

causing the jury to convict on a given

count solely on the strength of evidence

on the counts remaining. Id.

A multiplicitous indictment need not

necessarily be set aside. United States _

v, Duncan, 850 F.2d 1104, 1108 n.4 (6th

Cir. 1988) (dictum). Such an indictment

may be cured through election or

dismissal of counts. See e.g. United

States v. Feldhacker, 849 F.2d 293, 298

(8th Cir. 1988), cert. denied sub nom.

Sink v. United States, 488 U.S. 1012

(1989) (election of counts curing

multiplicitous indictment). Even after

trial a multiplicitous indictment need

not necessarily be dismissed, especially

if there was no increased sentence or if

duplicative convictions can be vacated.

55a

See United States v. Wilson, 721 F.2d

967, 971 (4th Cir. 1983) (mere inclusion

of two multiplicitous counts did not

warrant new trial; remand for

resentencing on one count instead of

both); United States v. Kimberlin, 781

F.2d 1247, 1254 (7th Cir. 1985) (remedy

for multiple punishments resulting from

multiplicitous indictment is to vacate

three of four convictions), cert. denied,

479 U.S. 938 (1986); United States v.

Brown, 688 F.2d 1112, 1121 (7th Cir.

1982) (danger of multiplicitous

indictment, multiple punishment, can be

remedied at any time by allowing only a

Single punishment); United States v.

Peacock, 761 F.2d 1313, 1319-20 (9th

Cir.) (remedy for conviction on

multiplicitous indictment is to vacate or

reverse multiplicitous count rather than

56a

to require new trial), cert. denied, 474

U.S. 847 (1985); United States v. Davis,

799 F.2d 1490, 1494 (11th Cir. 1968) (per

curiam) (remedy for duplicative sentence

resulting from multiplicitous indictment

is to vacate duplicative conviction).

This authority demonstrates that the

danger of multiple punishment ina

multiplicitous indictment or information

may constitutionally be remedied at any

stage. In our view, Wieland was not

exposed to multiple punishment under the

circumstances since he was only convicted

for a single specific offense on or about

September 16. See United States v.

Lewis, 716 F.2d 16, 23 (D.C. Cir.), cert.

denied sub nom., Motlagh v. United

States, 464 U.S. 996 (1983).

Furthermore, any possible prejudice

that arose from the overlap in the

57a

information against Wieland was cured

through the interchange between the court

and jury. We are convinced, as were the

Michigan courts, that Wieland received

due process of law and that his trial was

essentially fair, even in the face of the

overlap in time of the indictment counts

III and IV. The jury fully understood

any possible ambiguity in the indictment

and, as a practical matter, eliminated it

to find defendant guilty beyond a

reasonable doubt on or about September 16

and on no other day. See United States

v. Sherman, 821 F.2d 1337, 1339-40 (9th

Cir. 1987). In effect, it may well be

said that the trial court directed the

jury to find not guilty on count III when

the jury explained its dilemma.

Wieland relies on United States v.

Marzani, 71 F. Supp. 615 (D.C. 1947);

58a

aff’d, 168 F.2d 133 (D.C. Cir. 1948);

aff’d, 335 U.S. 895 (1948), to make his

case. Marzani stated that "[t]he test of

double jeopardy through a multiplicity of

counts is whether a conviction on one

count and an acquittal on another would

bring about a contradiction on the face

of the verdict." 71 F. Supp. at 618. No

authority is cited for this proposition.

Despite Marzani, ve believe, along with

the Michigan courts that the dialogue

between the court and jury makes it clear

that the jur found Wieland guilty of

criminal sexual conduct on or about

September 16 only. On this basis we

decline to find any constitutional

violation.

The decision of the district court is

accordingly AFFIRMED.