United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson

804 F.2d 508 UNITED STATES of America, Plaintiff-Appellee, v. Freeman D. CARTER, a/k/a Daniel Brady, James Patrick Daly, and William Carson, Defendants-Appellants. Nos. 85-3075, 85-3080 and 85-3082. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 5, 1986. Decided July 31, 1986. As Amended Nov. 13, 1986. Tom Hillier, Federal Public Defender, Frederick D. Leatherman, Jr., Terrence Kellogg, Seattle, Wash., for plaintiff-appellee. Tom Wales, Asst. U.S. Atty., Seattle, Wash., for defendants-appellants. Appeal from the United States District Court for the Western District of Washington. AMENDED OPINION Before WRIGHT, TANG and REINHARDT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge. 1 In this appeal from convictions for conspiracy and interstate transportation of stolen record albums, we have these issues: 2 (1) Were five counts multiplicitous? 3 (2) Was the Speedy Trial Act violated? 4 (3) Were harsher sentences imposed because the defendants exercised their right to stand trial rather than accept a proposed plea agreement? FACTS 5 Appellants stole over 68,000 record albums from stores in the Seattle-Tacoma area over a two-year period. The stolen records…

AMENDED OPINION

Before WRIGHT, TANG and REINHARDT, Circuit Judges.

In this appeal from convictions for conspiracy and interstate transportation of stolen record albums, we have these issues:

FACTS

Appellants stole over 68,000 record albums from stores in the Seattle-Tacoma area over a two-year period. The stolen records were then boxed and shipped to Chicago or Boston. At least 124 separate shipments were made to those cities.

The conspirators were arrested and charged on November 28, 1984 in a six-count indictment. Count I charged conspiracy to violate 18 U.S.C. § 2314 . Counts II *510 through VI charged substantive violations of § 2314. Shipments were aggregated so that each count would satisfy the statute’s $5,000 jurisdictional requirement.

Not guilty pleas were entered and trial was set for January 14, 1985. On the trial date, the defendants pleaded guilty under an agreement. The court ordered a presentence report and scheduled sentencing. On the day of sentencing, the court stated the plea agreement would be acceptable only if restitution were to be required. Sentencing was rescheduled to allow time for calculation of the amount of restitution and for reconsideration…

dissenting:

I dissent from Parts I and III of the majority opinion. First, the sentencing proceedings in this case raise the unrebutted inference that the district court abused its sentencing power by penalizing Carter, Daly and Carson for rejecting a plea agreement and standing on their right to trial. Therefore, under our clear precedent, we should reverse and remand for resentencing. Second, the charging scheme in this case is multiplieitous. As the government has chosen to organize the acts for charging purposes, Counts III to VI, each of which alleges a number of shipments to Chicago, constitute a single violation of 18 U.S.C. § 2314 . Carter, Daly and Carson’s convictions and sentences on three of those four counts should be vacated.

A. Vindictive Sentencing

The majority’s approval of the sentencing proceedings in this case flies in the face of our decisions, and those of other circuits, prohibiting the use of the sentencing power to punish defendants for having stood trial. While paying lip service to the principle established by the relevant cases, the majority proceeds to undermine it entirely by its reliance on the purely semantic distinction between “crediting” and…