Edwards, Starr, and D.H. Ginsburg, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing Denied, January 28, 1988.
Appeal from the United States District Court for the District of Columbia, Criminal No. 1913-71.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
In a case raising issues ranging from the insanity defense to the unique status of the District of Columbia, this court in 1973 affirmed LaVance Greene's conviction of felony murder for his killing of a United States Deputy Marshal during an attempt to free his brother from federal custody. While affirming the felony murder conviction, this court vacated Greene's conviction on the underlying felony -- rescue of a federal prisoner, in violation of 18 U.S.C. § 752(a). In so doing, it avoided the constitutional issue of whether Congress could impose on defendants tried for federal offenses in the District of Columbia a burden of proof for insanity different from that required of defendants tried elsewhere. In the present action, brought under 28 U.S.C. § 2255, Greene contends that his felony murder conviction cannot stand, because his conviction on the underlying felony was vacated.
Although there is a strong argument that the issue Greene now raises was decided on direct appeal and cannot be attacked collaterally, we recognize that there is some ambiguity in the 1973 opinion and in a recent order of a motions panel of this court. We have therefore decided to issue an opinion. We hold, first, that indictment and conviction on the underlying felony are not requisites to a conviction for felony murder. Rather, the Government need only prove all the positive elements of the underlying felony beyond a reasonable doubt. Second, we hold that this court's 1973 decision on direct appeal necessarily concluded that it was proper to apply the District of Columbia insanity burden to a felony murder charge under the D.C. Code, notwithstanding the fact that the underlying felony was a U.S. Code offense. Even were this not so, our subsequent decision in United States v. Cohen, 236 U.S. App. D.C. 36, 733 F.2d 128 (D.C. Cir. 1984) (en banc), which rejected statutory and constitutional challenges to the application of D.C. Code insanity provisions to U.S. Code offenses, would preclude any challenge. For these reasons, we affirm the District Court's denial of Greene's motion to set aside his conviction. *fn1 I. BACKGROUND
The events that gave rise to this case sixteen years ago are not in dispute. Greene's half-brother Randolph, who was serving a prison sentence for bank robbery, was permitted to attend his father's funeral in Washington, D.C., on September 24, 1971. During the funeral service, LaVance Greene attempted to help his brother escape by disarming three marshals accompanying him. In fleeing the scene, LaVance Greene shot to death a fourth marshal who had given chase. Both brothers were apprehended after a high-speed automobile pursuit.
At the brothers' trial in U.S. District Court, seven counts against LaVance Greene were ultimately submitted to the jury. Four were counts of armed robbery under the District of Columbia Code. *fn2 Two were violations of the United States Code -- premeditated murder of a federal officer, in violation of 18 U.S.C. § 1114, and rescue of a federal prisoner, in violation of 18 U.S.C. § 752(a). The last count -- which is at issue here -- was a charge of felony murder under D.C. CODE ANN. 22-2401, for which the federal rescue offense was the underlying felony.
In a bifurcated proceeding, the jury first determined that Greene had in fact committed the acts charged in all of the counts. It then considered his defense of insanity. At the time, different burdens of proof for insanity existed under the D.C. Code and federal common law. While the federal courts generally followed the rule of Davis v. United States, 160 U.S. 469, 40 L. Ed. 499, 16 S. Ct. 353 (1985), which placed on the Government the burden of proving sanity beyond a reasonable doubt, *fn3 section 24-301(j) of the D.C. Code -- recently amended by the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, § 207(6), 84 Stat. 473, 602 -- placed the burden on the defendant to prove insanity by a preponderance of the evidence. The trial judge held that this D.C. burden should apply to all of the counts in the proceeding, including those based on the U.S. Code. The jury found that Greene had failed to carry his burden of proving insanity and that he was therefore guilty on all counts.
On direct appeal, this court affirmed Greene's conviction on the armed robbery counts (which are of no concern in the present litigation) and the felony murder charge. The court held that a felony murder charge under the D.C. Code could be based on an underlying U.S. Code felony. United States v. Greene, 160 U.S. App. D.C. 21, 489 F.2d 1145, 1150-51 (D.C. Cir. 1973), cert. denied, 419 U.S. 977, 42 L. Ed. 2d 190, 95 S. Ct. 239 (1974). It further held that the D.C. insanity burden applied to the D.C. Code offenses, whether they were prosecuted in the United States District Court or the District of Columbia Superior Court, and that the heavier burden for D.C. offenses did not constitute a denial of equal protection. Id. at 1152-53, 1158. *fn4 The court also rejected Greene's argument that the D.C. provision requiring the defendant to prove his insanity amounted to a denial of due process. The court relied on Leland v. Oregon, 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002 (1952), in which the Supreme Court had sustained a similar provision in an Oregon statute. Rejecting Greene's argument that Leland had in effect been overruled by In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), which had held that the prosecution must prove all elements of an offense beyond a reasonable doubt, this court held that proof of sanity was not an essential element of a criminal offense. 489 F.2d at 1153-56.
The court found Greene's convictions on the two U.S. Code counts -- murder of a federal officer and rescue of a federal prisoner -- more problematic. Stating that application of the D.C. insanity burden to U.S. Code offenses raised a serious equal protection issue, the court chose to avoid that issue by vacating Greene's convictions on these two counts on technical grounds. Because the sentence for murder of a federal official was concurrent with the sentence for felony murder, the court used its discretion under United States v. Hooper, 139 U.S. App. D.C. 171, 432 F.2d 604 (D.C. Cir. 1970), to vacate the former. *fn5 489 F.2d at 1157-58. Similarly, the court vacated Greene's rescue conviction because it found that consecutive sentences on the felony murder and rescue counts were improper under Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932) *fn6 and because there had been a "merger" between the felony murder count and the rescue felony on which it was based. 489 F.2d at 1158 (citing United States v. Benn, 155 U.S. App. D.C. 180, 476 F.2d 1127 (D.C. Cir. 1972) (as amended Mar. 8, 1973)).
Over a lengthy dissent by Chief Judge Bazelon, 489 F.2d at 1160-80, the court denied Greene's suggestion for rehearing en banc. Id. at 1159. The Supreme Court, three Justices dissenting, denied certiorari, 419 U.S. 977, 95 S. Ct. 239, 42 L. Ed. 2d 190 (1974).
In moving under 28 U.S.C. § 2255 to set aside his felony murder sentence, Greene argues that because the underlying felony conviction was vacated, his felony murder sentence can no longer stand. The District Court denied Greene's motion on February 28, 1986. Upon appeal to this court, a motions panel found "some support" for the position that one "cannot be guilty of felony murder if he is not guilty of an underlying felony," and therefore ...