Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-N-2067 Criminal Case No. 00-cr-00482-EWN-02

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. DALE CHALLONER, Defendant-Movant.

GOVERNMENT'S SUPPLEMENTAL RESPONSE TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

The United States of America, by and through Troy A. Eid, United States Attorney, and David M. Conner, Assistant United States Attorney, hereby responds to the merits of Claim 3 1 in Defendant-Movant's (hereinafter "defendant's") Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, as follows:

By addressing the merits of defendant's Claim 3, the government does not waive its argument that the defendant has not demonstrated cause and prejudice for his failure to raise this issue in a direct appeal. The government therefore incorporates its response to the defendant's motion pursuant to 28 U.S.C. §2255 at 35-36 in the alternative.

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ARGUMENT This Court Did Not Err by Imposing Separate Sentences for Separate Convictions under 18 U.S.C. § 924(c) Defendant's contention that Counts 3 and 5 of the indictment charged multiple firearms violations based on a single predicate offense is factually and legally incorrect. Count 3 charged a violation under 18 U.S.C. § 924(c), for using, carrying, or brandishing a shotgun during the commission of attempted armed bank robbery, as charged in Count 2. Count 5, on the other hand, charged a § 924(c)(1) violation for using or carrying a destructive device during and in relation to the crime of conspiracy to commit bank robbery or the crime of arson, as charged respectively in Counts 1 and 4 of the indictment. As indicated by the notation on their verdict form, the jury found that Count 5 was committed during and in relation to Count 1, the conspiracy. It is well settled that conspiracy and the underlying substantive offense are separate crimes. See Iannelli v. United States, 420 U.S. 770, 777 (1975) ("Traditionally, the law has considered conspiracy and the completed substantive offense to be separate crimes."). See also United States v. Davis, 573 F.2d 1177, 1180 (10 th Cir. 1978) ("[T]he commission of robbery and conspiracy to commit robbery are separate crimes . . . ."); Rossetti v. Curran, 80 F.3d 1, 3 (1 st Cir. 1996) (armed robbery and conspiracy to commit armed robbery are separate offenses for double jeopardy purposes). The Tenth Circuit has repeatedly held that "consecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not constitute a single offense for double jeopardy -2-

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purposes." United States v. Floyd, 81 F.3d 1517, 1527 (10 th Cir. 1996) (quoting United States v. Callwood, 66 F.3d 1110, 1114 (10 th Cir. 1995). Indeed, the same gun may be paired with each underlying offense. United States v. Sturmoski, 971 F.2d 452, 461 (10 th Cir. 1992) (emphasis added). Consequently, the focus of a court's analysis is on the underlying offenses-not on the number of guns used. See United States v. Dahlman, 13 F.3d 1391, 1401 (10th Cir.1993) In this case, Counts 1 and 2 were separate crimes. Therefore, they could each serve as a predicate for separate § 924(c) charges, despite the fact that the crimes may have occurred as part of the same criminal episode. See United States v. Andrews, 75 F.3d 552, 557-58 (9 th Cir. 1996) (crimes occurring as part of the same underlying occurrence may constitute separate predicate offenses if properly charged as separate crimes), citing United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9 th Cir. 1988); Floyd, 81 F.3d at1526 ("Separate crimes do not become a single offense merely because they `arise out of the same criminal episode' or because `the same gun is paired with each underlying offense.'"). Based on his incorrect assertion of the facts, defendant argues that his two convictions under § 924(c) violate the rule announced in United States v. Cappas, 29 F.3d 1187 (7th Cir.1994), in which the Seventh Circuit held that multiple convictions under § 924(c) may not be based on the use of multiple weapons in connection with a single offense. Id. at 1189. See also United States v. Parra, 2 F.3d 1058, 1070-71 (10th

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Cir.1993) (one of defendant's § 924(c) convictions vacated where he used two weapons in the commission of a single drug offense); United States v. Moore, 958 F.2d 310, 313 (10 th Cir. 1992) (same); United States v. Rogers, 921 F.2d 1089, 1092-93 (10 th Cir. 1990); United States v. Ross, 920 F.2d 1530, 1539 (10 th Cir. 1990); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990) (same); United States v. Johnson, 977 F.2d 1360, 1377 (10 th Cir. 1992) (case remanded because court unable to determine whether the jury linked each alleged § 924(c) violation to a separate underlying drug offense). But Cappas did not ban the linking of multiple § 924(c) convictions to different predicate acts. Id. at 1190. It held instead that "[w]hile a defendant cannot be convicted twice under § 924(c) for using two guns in connection with the same drug trafficking or violent offense, separate convictions are permissible so long as the court's instructions require the jury to connect each gun use to a separate predicate offense." Id. (emphasis added). The record in this case establishes that the jury was instructed to connect each § 924(c) offense to a separate predicate offense. See Trial Transcript at 900-04; 907-08. The verdict form demonstrates that the jury followed these instructions. Thus, Cappas and the numerous Tenth Circuit cases that the defendant cites in support of his argument that multiple sentences under § 924(c) may not be linked to a single underlying predicate offense are not applicable here. The defendant's reliance on United States v. Chalan, 812 F.2d 1302 (10th Cir.1987), is similarly unavailing. In Chalan, the defendant was convicted of felony

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murder while committing a robbery and of robbery, as well as of two § 924(c) violations. Chalan was sentenced to concurrent sentences for the felony murder and the robbery convictions, but was sentenced to two consecutive terms for the § 924(c) convictions. He argued that "Congress did not intend to impose consecutive sentences for two violations of Section 924(c) when consecutive sentences may not be imposed for the two underlying offenses." Id. at 1316. Applying the Blockburger test, the Tenth Circuit determined that the predicate offenses of felony murder while committing a robbery and robbery constituted a single crime of violence under § 924(c), and thus the Double Jeopardy Clause was violated. As previously explained above, however, conspiracy to commit bank robbery and attempted bank robbery do not constitute a single crime of violence. See also United States v. Holland, 956 F.2d 990, 993-94 (10 th Cir. 1992) ("It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses."), quoting Pinkerton v. United States, 328 U.S. 640, 644, (1946); United States v. Pursley, 474 F.3d 757, 769 (10 th Cir. 2007) (It is "well settled that commission of a substantive offense and a conspiracy to commit it are separate crimes because the essence of a conspiracy charge is an agreement to commit a substantive offense."), quoting United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir.1992). Accordingly, Chalan provides no support for the defendant's argument.

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Indeed, the fire bomb had exploded and had been "used and carried" well before the shotgun was actively used and carried, possessed or brandished in the attempted robbery. Defendant additionally asserts that the sentence he received on Count 14 should be vacated on the basis of his § 924(c) argument. Defendant was charged in Count 14 of the indictment with using fire to commit a felony: namely, conspiracy to commit bank robbery, as charged in Count 1, and attempted armed robbery, as charged in Count 2, in violation of 18 U.S.C. § 844(h). On the verdict form, the jury indicated that their guilty verdict as to Count 14 related to both Counts 1 and 2, as charged. Section 844(h) expressly provides that an individual who uses fire to commit "any felony . . . shall, in addition to the punishment provided for such felony" be sentenced to an additional term of imprisonment which cannot be made to run concurrently with the term imposed for the underlying felony. See United States v. Shriver, 838 F.2d 980, 982 (8 th Cir. 1988) (emphasis). Several circuits, including the Tenth, have agreed that the language of § 844(h) "makes plain" that "Congress intended that the crimes of using fire to commit a felony and the felony itself may be punished cumulatively. . . ." Shriver, 838 F.2d at 982; United States v. Grassie, 237 F.3d 1199, 1215 (10 th Cir. 2001); United States v. Patel, 370 F.3d 108, 115-16 (1 st Cir. 2004); Blacharski v. United States, 215 F.3d 792, 794 (7 th Cir. 2000); United States v. Stewart, 65 F.3d 918, 928 (11 th Cir. 1995). Therefore, cumulative punishment for a § 844(h) violation does not violate double jeopardy principles.

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Defendant nevertheless seems to be under the mistaken impression that the jury's verdict on Count 14 was connected to his sentences under § 924(c). The government does not believe that any further argument is necessary to correct such an obvious misinterpretation of the facts and charges.

The Same Issues Presently Before the Court Were Raised and Litigated by Trial Counsel To the extent the defendant's claim asserts ineffective assistance of counsel for failure to litigate these claims, such claims is factually inaccurate and without merit. As previously demonstrated, the defendant's claim is without any factual or legal merit. To the extent his claim incorporates a claim of ineffective assistance of counsel as a basis for relief it, likewise, is without factual merit. Indeed following verdict, defense counsel filed a Motion for Judgment of Acquittal and/or Motion for Arrest of Judgment on the precise grounds raised by the defendant in his collateral attack. Indeed the precise logic raised by the defendant in his claim was raised by defense counsel. Defense counsel also cited the pertinent case law to the court, including United States v. Chalan, 812 F.2d 1302 (10 th Cir. 1989) and several other cases cited by the defendant in his third claim. (See pleading at Court Docket number 389). Defense counsel subsequently expanded this challenge to the "stacking" of the 924(c) counts and the 844(h) count when he filed the defense's Supplement to Motion for

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Judgment of Acquittal and/or Arrest of Judgment (See Court Docket number 411). The government responded to these motions in much the same fashion as it has in this pleading in Plaintiff's Opposition to Defendant's Motion for Arrest of Judgment (See Court Docket number 404) and Government's Combined Response to Defendant's Two Additional Presentence Motions (See Court Docket number 417, pp. 8-14) Thus, any assertion defense counsel did not raise and fully litigate the issues now contained in the defendant's third claim is simply wrong. Thus, defense counsel was not "ineffective."

CONCLUSION Fortunately, from the government's perspective, these claims were without merit in 2001 and additional case law decided on this issue since that time has only buttressed the government's position that the defendant was properly charged, the jury properly instructed and the defendant properly convicted and sentenced, then and now. Wherefore, based on the foregoing, the United States respectfully requests that this Court find that Claim 3 in defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody is without merit and that the defendant's Motion be accordingly denied.

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Respectfully submitted, TROY A. EID United States Attorney By: s/David M. Conner DAVID M. CONNER Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 E-mail: [email protected] Attorney for the Government

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CERTIFICATE OF SERVICE

I hereby certify that on this 24 th day of June, 2008, I electronically filed the foregoing GOVERNMENT'S SUPPLEMENTAL RESPONSE TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand deliver, etc.) indicated by the nonparticipant's name:

s/Barbara Gardalen BARBARA GARDALEN Legal Assistant U.S. Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 [email protected]

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