United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 1998 Decided March 10, 1998
No. 96-3159
United States of America,
Appellee
v.
Calvin Sumler,
Appellant
Consolidated with
Nos. 96-3160, 96-3161
Appeals from the United States District Court
for the District of Columbia
(95cr00154-02)
(95cr00154-04)
(95cr00154-08)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant Calvin Sumler.
Roberto Iraola, appointed by the court, argued the cause
for appellant Michael Jefferson, with whom Benjamin B.
Klubes, appointed by the court, was on the briefs.
William J. Garber, appointed by the court, argued the
cause and filed the briefs for appellant Gerald Smith.
Stuart G. Nash, Assistant United States Attorney, argued
the cause for appellee, with whom Mary Lou Leary, United
States Attorney at the time the brief was filed, John R.
Fisher, Michael L. Volkov, and James H. Dinan, Assistant
United States Attorneys, were on the brief.
Before: Edwards, Chief Judge, Silberman and Henderson,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellants were convicted of
first degree murder while armed, D.C. Code ss 22-2401, 3202
(1981), and killing in furtherance of a continuing criminal
enterprise (CCE), 21 U.S.C. s 848(e)(1)(A) (1994). They
contend that the imposition of cumulative sentences for these
two offenses is improper because the federal murder convic-
tions merge with the D.C. Code convictions. We affirm.
I.
Appellants belong to the so-called Fern Street Crew, an
organization which distributed crack cocaine for seven years
in the District of Columbia and Maryland. The Crew's
activities were facilitated by its use of violence to defend
territory from rival drug dealers and subvert the efforts of
the criminal justice system. Following a four month trial,
appellants were convicted of numerous offenses, including
murder, armed robbery, kidnapping, and drug and RICO
conspiracies; each was given multiple life sentences and other
assorted prison terms. Appellants bring numerous chal-
lenges to their convictions, only one of which merits discus-
sion.1 They contend it was an error of law for the district
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1 We have fully considered all other arguments advanced by
appellants and are satisfied that the district court's judgments
court to sentence them to two life terms for the same killing,
one sentence for violation of the federal CCE murder statute
and the other for violation of the District's first degree
murder statute.2 They argue that in the absence of clear
legislative intent, defendants may not receive multiple punish-
ments for the same act under federal and D.C. statutory
schemes. Such sentences, they claim, run afoul of the Fifth
Amendment's prohibition against double jeopardy.
II.
While literally proscribing successive prosecutions for the
same offense, the Double Jeopardy Clause also has been
interpreted to bar the imposition of multiple punishments for
the same offense. Albernaz v. United States, 450 U.S. 333
(1981). Because certain offenses, while nominally distinct,
might be considered the same, our inquiry is directed to
legislative intent. The Double Jeopardy Clause is only impli-
__________
should stand with the following exceptions. The government con-
cedes that appellant Smith, under District law, cannot stand con-
victed of both first degree murder (premeditated) while armed and
first degree murder (felony murder) while armed with respect to
the same killing. See Byrd v. United States, 500 A.2d 1376, 1384
(D.C. 1985), adopted en banc 510 A.2d 1035, 1037 (D.C. 1986). We
therefore vacate Smith's conviction for the felony murder of Ucal
Riley. The government also concedes that Jefferson and Smith
cannot stand convicted of both felony murder and the underlying
felony. See Leasure v. United States, 458 A.2d 726, 730-31 (D.C.
1983). We therefore vacate the convictions of Jefferson and Smith
for the attempted robbery of Marcus Murray.
2 Appellant Sumler was convicted of one count of premeditated
first degree murder while armed and one count of CCE murder for
the killing of Anthony Hinton. Appellants Jefferson and Smith
were convicted of two counts of first degree felony murder while
armed and two counts of CCE murder for the killings of Marcus
Murray and Victor Hartnett. Appellant Smith was also convicted
of one count of premeditated first degree murder and one count of
CCE murder for the killing of Ucal Riley (Smith's additional
conviction for felony murder regarding the Riley killing was vacated
earlier in the opinion. See supra note 1.)
cated if the legislature intended for two "separate" crimes to
be treated as the same offense. United States v. Hoyle, 122
F.3d 48, 49 (D.C. Cir. 1997); see Missouri v. Hunter, 459 U.S.
359, 366 (1983). To determine Congress' intent, we apply the
test set forth in Blockburger v. United States, 284 U.S. 299
(1932). If, in comparing the elements of the two crimes,
"each provision requires proof of an additional fact which the
other does not," id. at 304, then the offenses are not the
same. If, however, one offense contains all of the elements of
the other offense, then the offenses are presumed to be the
same and multiple punishments may not be imposed unless
the legislature clearly indicated otherwise. United States v.
Baker, 63 F.3d 1478, 1494 (9th Cir. 1995).
In this case, appellants concede that the CCE murder
offense and the District's first degree murder offense each
requires an element not included in the other.3 They claim,
however, that the Blockburger test in this instance should
begin but not end the analysis. They point to a line of our
cases from the 1970s which suggests that even though a
District offense and a federal offense may, under Blockbur-
ger, "require different elements of proof, there must still be a
determination that Congress intended the provisions to bear
separate punishments when applied to a single act or transac-
tion." United States v. Canty, 469 F.2d 114, 127 (D.C. Cir.
1972). Appellants then assert that Congress did not intend
multiple punishments to be imposed for the same killing
under the District's first degree murder statute and the
federal CCE murder statute.
To be sure, support exists in prior case law, at least in
dicta, for appellants' contention. They rely on two notions to
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3 To prove a CCE murder violation, the government must
establish the existence of a continuing criminal enterprise, an
element not required by either the premeditated murder or felony
murder variation of the District's statute. Conversely, the Dis-
trict's felony murder statute requires that the killing occur during
the perpetration of a specified felony, an element not included in the
CCE murder offense. And the District's premeditated murder
statute requires proof of premeditation, an element not necessary to
establishing a CCE murder violation.
support their argument that we must go beyond Blockburger
in assessing whether multiple punishments may be imposed
in cases where a defendant commits a federal crime and a
District crime in the same transaction. Appellants first point
to the general proposition that "in the absence of plain
legislative intention 'doubt will be resolved against turning a
single transaction into multiple offenses.' " United States v.
Knight, 509 F.2d 354 (D.C. Cir. 1974) (quoting Bell v. United
States, 349 U.S. 81, 84 (1955)). Bell, however, dealt with the
appropriate unit of prosecution under a single statutory pro-
vision. The question there was whether the transportation of
more than one woman across state lines for the purposes of
prostitution in a single transaction would be considered one
violation or multiple violations of the Mann Act. The Su-
preme Court, however, quickly clarified that Bell's rule of
lenity did not apply to violations of "separate offenses created
by Congress at ... different times." Gore v. United States,
357 U.S. 386, 391 (1958). And while there has been division
within the Supreme Court recently over whether a "same-
conduct" inquiry should be added to the Blockburger test in
cases involving successive prosecutions, see Grady v. Corbin,
495 U.S. 508 (1990), rev'd by United States v. Dixon, 509 U.S.
688 (1993), the Court has held consistently that satisfying
Blockburger is sufficient for cases involving multiple punish-
ments. See Dixon, 509 U.S. at 704 (Scalia, J., opinion of the
court); Dixon, 509 U.S. at 745-46 (Souter, J., concurring in
the judgment and dissenting in part).
We have also expressed concern about a more specific
issue: the fairness of multiple punishments in the context of
D.C. Code s 11-502(3)(1981), which authorizes the United
States Attorney to combine in one indictment, triable in the
United States District Court for the District of Columbia,
criminal violations of both federal and District law. This
provision places District defendants in the unique position of
being tried under two statutory schemes at the same time;
although the United States Constitution does not bar a
defendant in any one of the 50 states from being charged and
punished under federal law and state law for the same
conduct, see, e.g., Bartkus v. Illinois, 359 U.S. 121 (1959),
such prosecutions must be separate.4 Given that successive
federal and state prosecutions are relatively rare, s 11-502's
joinder provision means that District residents, as a practical
matter, are much more likely to be prosecuted under separate
statutory schemes for the same conduct, and hence, receive
more severe punishments. Though we once suggested that
such a disparity implicates "constitutional considerations," see
United States v. Knight, 509 F.2d at 361, we later rejected
the argument that this result violated the Equal Protection
Clause. See United States v. Jones, 527 F.2d 817, 822 (D.C.
Cir. 1975).
Because District residents live under only one sovereign
while most Americans live under two, current double jeopar-
dy jurisprudence guarantees that some inconsistency will
exist between the treatment of defendants in the District and
their counterparts in the 50 states. While District defendants
suffer to the extent that they are far more likely to be
charged, convicted, and punished under two different statuto-
ry schemes, they also benefit in important respects. A
person acquitted of a crime under District law may not be
charged with that same crime under federal law in a succes-
sive prosecution (or vice versa); the same sovereign may not
take a second bite at the apple. See, e.g., United States v.
Shepard, 515 F.2d 1324, 1331-32 (D.C. Cir. 1975). A defen-
dant across the border in Virginia, however, who has been
acquitted in a state proceeding, may be prosecuted again for
the same conduct under an identical federal statute. More-
over, District defendants cannot be given cumulative sen-
tences for a federal offense and a District offense that fail the
Blockburger test, but the Double Jeopardy Clause of the
Fifth Amendment does not prohibit the imposition of multiple
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4 A defendant may be tried and punished under state law then
federal law in any of the 50 states. See Bartkus, 359 U.S. at 132.
But the Double Jeopardy Clauses of certain state constitutions have
been interpreted, under many circumstances, to prohibit state
prosecution of a criminal act that has already been the subject of a
federal prosecution. See, e.g., Commonwealth v. Mills, 286 A.2d
638 (Pa. 1971).
punishments when a federal offense and a state offense fail
Blockburger.
To take appellants' approach would exacerbate an aspect of
inequality that already works in favor of District defendants.
Under the rule they urge, District defendants could not be
given cumulative sentences for a federal offense and a Dis-
trict offense committed in a single transaction absent some
clear indication of congressional intent, even if these distinct
offenses satisfy Blockburger. But since a federal offense and
a state offense do not even have to pass the Blockburger test
in order for multiple sentences to be imposed, the addition of
a more searching examination of legislative intent in the case
of District defendants would only heighten the degree of the
disparate treatment.
We do not believe that such an outcome is mandated by
precedent. Appellants rely on cases that do not speak pre-
cisely to the issue at hand. In United States v. Spears, 449
F.2d 946 (D.C. Cir. 1971), we interpreted 18 U.S.C. s 2114
(1964) to proscribe assaults which are part of "an unsuccess-
ful attempt to rob a mail carrier." Id. at 953 (emphasis
added). We therefore held that one could not be convicted of
both a completed robbery under the D.C. Code and an assault
under 18 U.S.C. s 2114. Spears turns not on the question of
when to apply Blockburger, but our inquiry into the meaning
of the mail robbery statute.
In United States v. Canty, 469 F.2d 114 (D.C. Cir. 1972),
we held that a defendant could not be sentenced for both
federal bank robbery by force or violence under 18 U.S.C.
s 2113(a) (1970) and assault with a dangerous weapon under
D.C. Code s 22-502 (1967). While the two offenses do satisfy
Blockburger by requiring different elements of proof, we
nevertheless noted that the federal bank robbery statute
established "a comprehensive scheme for prosecuting and
punishing persons who rob federally-insured banks" and
"subdivide[d] the offense into a series of steps--a continuum
running from entry with intent to rob ... to robbery result-
ing in death or kidnapping." Id. at 127. As Congress had
only provided in the federal bank robbery statute for a
maximum punishment of 25 years for thefts involving assaults
with a dangerous weapon, we thought it impermissible for a
defendant to receive a maximum sentence of 30 years by
dividing the offense up into bank robbery by force or violence
under the federal statute (20 years) and assault with a
dangerous weapon under the D.C. Code (10 years). By
neglecting to prosecute entirely within the federal bank rob-
bery scheme, the government sought to evade Congress'
"carefully crafted hierarchy of penalties." Id. at 128.
Applying the principle of Canty in United States v. Knight,
we considered the hierarchy of penalties imposed by the mail
robbery statute. Under 18 U.S.C. s 2114 (1970), an offender
could receive a maximum of 10 years for mail robbery or
assault of a mail custodian with intent to rob and 25 years for
putting a mail custodian's life in jeopardy during such a
robbery by the use of a dangerous weapon. In Knight,
appellants had been convicted of mail robbery and robbery
while armed under D.C. Code s 22-2901 (1967). Examining
the mail robbery statute, we concluded that Congress had
"deliberately addressed itself to the distinction between sim-
ple mail robbery and the case where a dangerous weapon is
involved, and ... provided an increase of punishment only if
the use of the dangerous weapon puts the life of the mail
custodian in jeopardy." Knight, 509 F.2d at 362 (emphasis
added). This hierarchy of penalties, however, would have
been undermined had the District's armed robbery statute
been used to enhance penalties in cases where the jury failed
to find that the weapon had put the mail custodian's life in
jeopardy. The cumulative sentences at issue in Knight,
therefore, could not stand.
While delineating coherent principles from this line of cases
may not be easy, we think it is clear that appellants' sen-
tences are not implicated. We have concluded that a defen-
dant may not be sentenced under both federal and District
statutory schemes only in cases "where the federal offense
and local offense are identical or one would be a lesser
included offense of the other." Jones, 527 F.2d at 821. This
is not the case here. Moreover, the federal CCE murder
statute is not a comprehensive scheme with a step-by-step
hierarchy of increasing penalties as in Canty and Knight.
Those who added the murder provision to the CCE statute
obviously must have had full knowledge that first degree
murder was already illegal in every state of the Union and
the District of Columbia, and there is no evidence that
Congress intended for the punishment under the CCE mur-
der statute to be exclusive. If a defendant in Virginia may be
prosecuted and punished under both the CCE murder statute
and the Old Dominion's first degree murder statute, we see
little problem with allowing a similar outcome in the District.
* * * *
With the exception of the sentencing mergers conceded by
the government, appellants' convictions are hereby affirmed.