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

EUGENE A. WRIGHT, Circuit Judge.

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

(1) Were five counts multiplicitous?
(2) Was the Speedy Trial Act violated?
(3) Were harsher sentences imposed because the defendants exercised their right to stand trial rather than accept a proposed plea agreement?

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 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 presen-tence 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 of the pleas.

On March 6, 1985, the appellants withdrew their guilty pleas. After ruling on pretrial motions on March 8, the court scheduled trial for March 11. Conflicting schedules between defense counsel and the court calendar forced a continuance until April 22. Due to unanticipated delay caused by an intervening trial, the trial could not begin until April 30, 74 days after indictment.

The jury convicted the appellants on all six counts. They were sentenced to five years probation on Count I and ten-year concurrent terms for each of Counts II through VI. The court ordered each defendant to pay $148,171.83 in restitution.

STANDARD OF REVIEW

Each issue presented on appeal raises either questions of law or mixed questions *1462of law and fact. We review these de novo. See United States v. Gallardo, 773 F.2d 1496, 1501 (9th Cir.1985); United States v. McConney, 728 F.2d 1195, 1201, 1204 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

ANALYSIS

I. Multiplicity — Aggregation of Shipments Into Several Counts

The government aggregated the shipments of stolen property to Boston in Count II. It aggregated the Chicago shipments in Counts III through VI. The Chicago counts were divided chronologically. Each substantive count satisfied the $5,000 jurisdictional requirement.1

Appellants contend that the aggregation and subdivision of shipments into several counts is multiplicitous. They concede that, under Schaffer v. United States, 362 U.S. 511, 517-18, 80 S.Ct. 945, 948-49, 4 L.Ed.2d 921 (1960), related shipments may be aggregated to meet § 2314’s jurisdictional amount, but argue that only one substantive count could have been charged.2 The government contends that each shipment is a separate transportation chargeable in a separate count but for the jurisdictional amount. It relies on Schaffer and the definition of value in 18 U.S.C. § 2311 to support aggregation of shipments and subdivision into several counts. Section 2314 provides in relevant part:

Whoever transports in interstate or foreign commerce any goods ... of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [sjhall be fined not more than $10,000 or imprisoned not more than ten years, or both.

18 U.S.C. § 2314.

The law is clear that the values of separate offenses may be aggregated. Section 2311 defines value in the aggregate. Further, the Supreme Court has allowed aggregation of transportations within a count if a series of shipments is so related that it may be charged as a single offense. Schaffer, 362 U.S. at 517, 80 S.Ct. at 948. The Court said:

A sensible reading of the statute properly attributes to Congress the view that where the shipments have enough relationship so that they may properly be charged as a single offense, their value may be aggregated. The Act defines ‘value’ in terms of that aggregate. The legislative history makes clear that the value may be computed on a ‘series of transactions.’

Id. (footnotes omitted); see also United States v. Belmont, 715 F.2d 459, 462 (9th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 679, cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984).

But the question we face is whether aggregate offenses also may be subdivided into separate charges. The shipment of stolen record albums was a series of transfers. Each of the 124 shipments is a separate chargeable offense under § 2314 but for the jurisdictional amount.

Other circuits have held that each transportation is a separate chargeable offense if it meets the jurisdictional amount. United States v. Lagerquist, 724 F.2d 693, 694-95 (8th Cir.1984) (five shipments of stolen property did not give rise to five counts because none of the counts satisfied the jurisdictional amount), appeal after remand, 758 F.2d 1279, 1281-82 (8th Cir. 1985) (the five shipments properly could be aggregated in one count to meet the jurisdictional amount); United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) (20 transportations of stolen checks gave rise to 20 counts; the court dismissed the charges because each count did not meet the jurisdictional amount).

*1463We have held that transportation of stolen checks on different occasions gives rise to separate counts, and that it is appropriate to aggregate the values within each count to meet the jurisdictional amount. United States v. Bell, 742 F.2d 509, 511 (9th Cir.1984). “[T]he indictment subdivides one overall scheme (the interstate transport ... of stolen money orders) into its constituent parts (interstate transport on four different days).” Id. We find the charging scheme here to be a logical extension of present case law.

The government divided 124 shipments into five counts which each include a series of related transactions and which each meet the jurisdictional amount. While all the shipments are part of one overall scheme, the government is not limited to charging only one count of violating § 2314.3

The indictment did not divide a single transportation into multiple offenses, but rather treated each series of transporta-tions occurring within a specified time period as a separate offense. Since the appellants concede the logic of charging the transportations to different cities as different offenses, and since Bell allows subdivision of an overall scheme into its constituent parts, we have no difficulty endorsing the subdivision of the overall scheme in this case on a chronological basis. The district court correctly ruled that the counts were not multiplicitous.

II. Speedy Trial Act

Appellants claim that their Speedy Trial Act (STA) rights have been violated because of the 74-day delay after indictment. The court denied their motions to dismiss for STA violations, ruling that the speedy trial clock (STC) had started again under 18 U.S.C. § 3161(i) when they withdrew their guilty pleas.

Section 3161(i) provides:

If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final.

18 U.S.C. § 3161®.

The Act requires that an indicted defendant be tried within 70 days from the filing of the indictment or the first judicial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). The significant dates are these:

November 28,1984 Indictment

January 14,1985 Original trial date; defendants entered guilty pleas

February 19 Court informs defendants that plea agreement will be accepted only if it includes restitution; court gives them an opportunity to reconsider their pleas

March 6 Guilty pleas withdrawn

April 22 Second trial date; unanticipated delay caused by intervening trial forces continuance

April 26 70th day after indictment

April 30 Trial commenced.

Appellants argüe that this case is governed by § 3161(h)(l)(I), which provides:

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
(I) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defend*1464ant and the attorney for the Government; ____

It permits exclusion of time resulting from the court’s consideration of a proposed plea bargain under Rule 11, Fed.R. Crim.P. It does not state that it applies to cases where a plea is withdrawn in the STA time limits. Nor does it mention withdrawn plea situations. It refers only to delays occasioned by the court’s consideration of a proposed plea agreement.

The Ninth Circuit’s Speedy Trial Act Guidelines are instructive. The comment to this section says:

In some courts, when a plea agreement has been reached, the defendant’s guilty plea is immediately taken, subject to his right to withdraw it if the court should reject the plea agreement. In such cases, the timely taking of the plea satisfies the time limit to trial. If the plea is subsequently withdrawn, the new time limit is determined under Section 3161(i).

Guidelines to the Administration of the Speedy Trial Act of 1974, Comment to Section 3161(h)(l)(I), at 45 (1984) (emphasis added). (Guidelines).

We find that § 3161(i), rather than § 3161(h)(l)(I), governs this case. The STC started anew when the defendants withdrew their guilty pleas on March 6, 1985. The purpose of § 3161(i) is to prevent defendants from pleading guilty and then withdrawing the plea to thwart the time limit. United States v. Mack, 669 F.2d 28, 31-32 (1st Cir.1982). Legislative history makes clear that “where a defendant pleads guilty and then withdraws his plea ... the time limits commence again on the day the plea is withdrawn.” S.Rep. No. 1021, 93rd Cong., 2d Sess. 27 (1974).

The Ninth Circuit Guidelines give further support, providing that “if at arraignment a defendant pleads guilty, and later is permitted by the court to withdraw his plea, the indictment is treated as having been filed at the time of such withdrawal.” Section 3161(i), Guidelines at 71.

Here, entry of the pleas prevented trial from commencing on January 14, 1985, and the pleas were subsequently withdrawn when the defendants refused to pay restitution. “The Speedy Trial Act specifically provides that when a defendant pleads guilty but later withdraws that plea ‘the defendant shall be deemed indicted ... on the day the order permitting withdrawal of the plea becomes final.’ ” United States v. Cordero, 668 F.2d 32, 45 (1st Cir.1981) (quoting 18 U.S.C. § 3161(i)) (footnote omitted).

Appellants contend that § 3161(i) applies only where withdrawal of the plea causes trial not to begin within the STA time limit. They argue that trial was delayed due to court congestion, not plea withdrawal. They cite no case law for this novel interpretation of § 3161(i). Nor have we found any.

A common sense interpretation dictates that, if entry and withdrawal of plea prevents trial as scheduled, the STC begins anew. See United States v. Davis, 679 F.2d 845, 849-50 (11th Cir.1982) (70-day period runs anew from the date of court order permitting plea withdrawal), cert, denied, 459 U.S. 1207, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983). When the defendants withdrew their guilty pleas on March 6, 1985, the STC began again under § 3161(i). Trial began on April 30, 1985, within the 70-day requirement. The court correctly denied defendants’ motions to dismiss for STA violations..

III. Sentencing

Finally, appellants urge us to remand for resentencing because of remarks made by the court at the sentencing hearing.. They allege that they were penalized for exercising their constitutional right to stand trial because the court imposed five ten-year concurrent sentences plus restitution compared with a three-year term of imprisonment agreed to in the plea agreement.4

At sentencing, Carter’s counsel requested that the sentence not exceed what had *1465been negotiated in the earlier plea agreement. He explained:

Nothing new has happened since that, other than, of course, the assertion of the statutory right to withdraw that plea and the Constitutional right to go to trial, and obviously. I don’t think anything should be imposed greater than that,

Reporter’s Transcript (RT) at 476 (July 14, 1985).

The court responded:

There’s another way of looking at that, too, Mr. Hillier, with which you’re completely familiar. If the facts are all established and the Govérnment obviously has a good case and the Defendants plead guilty, the Court is entitled to give them credit for doing just exactly that. Now, I know defense counsel say, oh, no, you’re depriving them of their Constitutional rights to exercise their freedom to have a trial.
But that’s not what the Court says. The Court says those who plead guilty under the facts save the Government a lot of money, all the taxpayers of the United States, and those people, those Defendants would be given credit for that fact.

Id. at 477.5

An accused may not be subjected to more severe punishment for exercising his constitutional right to stand trial. United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.1982); United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973). “[Cjourts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice.” Id.

Mere imposition of a heavier sentence, without more, does not invalidate it. Plea bargaining is an approved method of encouraging guilty pleas by offering a defendant “the certainty of a lesser punishment or the possibility of a more severe punishment.” Frank v. Blackburn, 646 F.2d 873, 878 (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981).

When a defendant voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected-sentence. Having rejected the offer of a lesser sentence, he assumes the risk of receiving a harsher sentence. If defendants could demand the same sentence after standing trial that was offered in exchange for a guilty plea, all incentives to plead guilty would disappear. Defendants would lose nothing by going to trial. See id. at 887. The reality of plea bargaining is that “[o]nce the defendant elects to go to trial, all bets are off.” Id.

When the court is involved in plea bargaining and a harsher sentence follows the breakdown in negotiations, “the record must show that no improper weight was given the failure to plead guilty.” Stockwell, 472 F.2d at 1187-88.6 In Medina-Cervantes, 690 F.2d at 716, we remanded for resentencing where the district judge stated during sentencing:

Its [sic] obvious to me that this man wanted a trial, with all his constitutional rights, and he insisted upon them and he had them. To the cost to the government for the jury, with 40 jurors, $30 a piece is $1200, figure that transportation was $1500, cost defenders____

These statements give rise to the inference that “Medina-Cervantes was punished more severely because of his assertion of the right to trial by jury.” Id. Similarly, in United States v. Hutchings, 757 F.2d 11, 13 (2d Cir.), cert. denied, — U.S. —, 105 5. Ct. 3511, 87 L.Ed.2d 640 (1985), the Second Circuit remanded for resentencing *1466based on the court’s remarks after the jury returned its guilty verdict:

Judge Carter stated that the trial had been a ‘total waste of public funds and resources ... there was no defense in this case. This man was clearly and unquestionably guilty, and there should have been no trial.’

In Hutchings, a remand was ordered because the record lacked an “unequivocal statement by the judge as to whether [the defendant’s] decision to go to trial was or was not considered in imposing sentence.” Id. at 14. By contrast, Judge McGovern stated unequivocally that he was not punishing appellants for going to trial.

He distinguished crediting those who plead from punishing those who do not. This distinction appears in the procedures recommended by the American Bar Association Standards for Criminal Justice, Pleas of Guilty (2d ed. 1982). The ABA Standards recognize that “[i]t is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere____” Standard 14-1.8(a); see also Frank, 646 F.2d at 885, 890 (quoting former ABA Standards).

While a judge may not sentence vindictively or punitively, he may have legitimate reasons for sentencing a defendant more severely. J. Bond, Plea Bargaining and Guilty Pleas § 2.7(b), at 2-21 (2d ed. 1983). The court may properly consider the details, flavor and impact upon victims of the offense as presented at trial. Frank, 646 F.2d at 885; United States v. Derrick, 519 F.2d 1, 4 (6th Cir.1975) (per curiam).

After a four-day trial and completion of an updated presentence report, Judge McGovern imposed lawful sentences based on the circumstances of the offense and the defendants’ backgrounds, including lengthy criminal records for larceny, theft and shoplifting.7 The record fails to show that the court improperly imposed harsher sentences as punishment for appellants’ exercise of their right to stand trial. In fact, the record shows that the court expressly disavowed any such motivation. Under these circumstances, the sentences imposed were proper.

AFFIRMED.

. This distinguishes our case from United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) (charges dismissed for failure to meet jurisdictional amount), cited by appellants' counsel at oral argument.

. At oral argument, counsel for appellants appeared to concede that three counts would have been proper: one conspiracy count, one substantive count involving transportations to Boston and a second substantive count including shipments to Chicago.

. The dissent’s position that all Chicago shipments should have been included in one count, not four, overlooks the fact that each transportation is a separate offense. Further, nothing in Schaffer requires the government to combine all shipments having the same logical relationship.

. The ten-year sentences were within the statutory limits.

. Carter’s attorney, who argued this appeal for appellants, then remarked that he had “no dispute with that.” RT 477. Now appellants base their due process claim on those remarks.

. We reject the government’s contention that Judge McGovern was not involved in the plea bargain. His demand that restitution be included caused the breakdown in negotiations that led to trial.

. The dissent asserts that this statement lacks factual support in the record. On the contrary, the court’s remarks to each defendant at sentencing indicate familiarity with their backgrounds and family situations. Moreover, Judge McGovern recited the criminal record of Carter and Carson in considerable detail, noting, "I do have to consider these things.” RT 481.

By contrast, the disputed remarks about trial costs were made in response to defense counsel’s comment that nothing new had happened. except for defendants’ assertion of their constitutional rights. The dissent places more reliance on these remarks as a basis for sentencing than they deserve. Instead, we elect to evaluate them in the context of the entire sentencing hearing. Given Judge McGovern’s express statement that he was not punishing defendants for standing trial and given his concern for the seriousness of their extensive criminal activities, the disputed remarks cannot serve as a basis for invalidating these sentences.