APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Crim. No. 75-280).
Kalodner, Rosenn and Garth, Circuit Judges.
In this case the government appeals from the district court's quashing "as to sentencing purposes only" of one count of an indictment after a guilty verdict by the jury.
On April 14, 1976, the two defendants in this case, Philip Davis and Louis Hazzard, were convicted by a jury on four counts of a thirteen-count indictment charging them with assaulting and robbing a postal truck driver. Count one of the indictment charged that the defendants assaulted the driver with intent to rob and steal the mail matter and money in violation of 18 U.S.C. § 2114; count two charged the defendants with the robbery of the mail pouches in violation of 18 U.S.C. § 2114; count three charged that the defendants used a firearm to commit the assault and robbery in violation of 18 U.S.C. § 924(c)(1). The fourth count charged that the defendants in effecting the robbery, put in jeopardy the life of the driver by the use of a dangerous weapon, a loaded revolver, in violation of 18 U.S.C. § 2114.
The defendants appeared for sentencing on May 27, 1976. The trial judge first heard argument on the sufficiency of the evidence regarding count four of the indictment and denied the motion to dismiss the count for lack of evidence finding the jury verdict "legally sustainable" and "valid."
The question of sentence was then considered. Section 2114*fn1 provides that the penalty for violation of this section is "not more than ten years" imprisonment for the first offense. However, if convicted of the aggravated form of the offense, putting a postal official's "life in jeopardy by the use of a dangerous weapon," a defendant "shall be imprisoned twenty-five years." After considering these provisions, the trial judge imposed a general ten year prison term for defendant Hazzard on counts 1, 2, and 3, and a general nine year prison term for defendant Davis on the same counts.*fn2 The fourth count was "quashed for purposes of sentence" as to both defendants. The government appealed the quashing of count four pursuant to 18 U.S.C. § 3731.
In 1970, Congress passed the new Criminal Appeals Act*fn3 which was intended to enlarge the government's right to appeal to the full constitutional limits. The defendants, however, strenuously argue that the government has no right of appeal in this case under section 3731 because the district court's quashing of the fourth count was the equivalent of an acquittal. Thus, they contend, allowing the appeal would violate the mandate of the double jeopardy clause of the fifth amendment.
The Supreme Court recently has decided the effect of the double jeopardy clause on a postverdict ruling of law by the trial court favorable to the defendant in the case of United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975). In the Wilson case, as in the present one, the jury had returned a guilty verdict, but on a postverdict motion the district court dismissed the indictment. After noting that the purpose of the double jeopardy clause is to protect against multiple punishment or successive prosecutions for the same offense, the Court stated,
Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.
420 U.S. at 345 (footnote omitted). The holding of the Supreme Court is unambiguous: "We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." Id. 352-53. Clearly, the government has the right to appeal the quashing of count four and we turn to the merits of the appeal.
The transcript of the sentencing proceeding makes clear that the trial judge, in light of the twenty-five year sentence required to be imposed after conviction on count four, decided to reinterpret section 2114 on which this count of the indictment was based in order to quash the count "for purposes of sentencing only."*fn4 The tortured ...