UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: August 6, 1974.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
ANN HAYGOOD, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 CR 456 RICHARD W. MCLAREN, Judge.
Swygert, Chief Judge, and Pell and Stevens, Circuit Judges.
STEVENS, Circuit Judge.
The question presented is whether appellant has impermissibly been twice punished for the same offense in view of the fact that before she was sentenced in this case this charge had been considered by another sentencing judge.
Appellant was involved in the purchase of drugs from a Detroit source and their subsequent resale to a Chicago outlet. She was indicted twice, once for the Detroit purchases (71 CR 456) and separately for the Chicago sales (71 CR 457). As a result of a plea bargain, the latter charge was dismissed and superseded by a lesser charge (71 CR 1091), to which appellant pleaded guilty. After a presentence investigation which included reference to the Detroit purchases and the charge in this case (No. 456), then pending before Judge Parsons, Judge McMillen imposed a sentence of four years probation in Case No. 1091.
On the following day the parties appeared before Judge Parsons to discuss the possible dismissal of this charge (No. 456); no action was taken on that day and before any formal motion was filed, the case was transferred to Judge McLaren. Apparently after giving some consideration to a voluntary dismissal, the government decided to go forward with this case. Appellant's counsel then moved to dismiss on double jeopardy grounds.
Judge McLaren found as a fact that when Judge McMillen imposed sentence in Case No. 1091, he had relied in part on the charge pending in this case. Judge McLaren held, however, that such reliance by the sentencing judge in another proceeding did not place the appellant in jeopardy and, therefore, this action was not barred. In due course the parties stipulated to the relevant facts, appellant was convicted, and Judge McLaren sentenced appellant to five years imprisonment. She now appeals, contending that she has, in effect, been punished twice for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072.
Appellant's primary reliance is on the constitutional protection against double jeopardy. She also argues, by analogy to the Wisconsin "read-in" practice,*fn1 that procedural error was committed, which we may use our supervisory power to correct.
Jeopardy usually does not attach until the jury is impanelled,*fn2 or at least until the judge before whom a charge is pending considers the evidentiary basis for the charge.*fn3 When Judge McMillen imposed sentence in Case No. 1091, he clearly did not place appellant in jeopardy in this case. The offense to which appellant pleaded guilty in No. 1091 carried a lesser maximum sentence than this charge. Judge McMillen had no power to find appellant guilty on this charge or to impose the sentence which the law authorizes after a finding of guilt. Judge McLaren was, therefore, correct in holding that jeopardy in this case (No. 456) did not attach when the factual basis for this charge was brought to the attention of Judge McMillen in Case No. 1091.*fn4
If anything which happened in Case No. 1091 created a constitutional bar to this proceeding, it must have been the entry of the judgment, predicated in part on the judge's conclusion or assumption that there was a factual basis for the charge in No. 456. Quite clearly, however, a sentencing judge's consideration of the biography of a convicted defendant does not confer transactional immunity for every possible misdeed which may have been revealed to the judge. The fact that a particular charge is pending in another court may make it inappropriate for the sentencing judge to inquire into that matter, but if he should attach some minimal significance to it, his exercise of the human faculty of judgment is not the constitutional equivalent of a formal judgment of the court forever barring a proceeding before another tribunal.
As a matter of constitutional law, we think the same result must obtain even though the two prosecutions were pending in the same district court -- albeit before different judges -- and even though they arose out of related transactions. Appellant argues to the contrary, but we think it is perfectly clear that the government had the right to separate the conspiracy charge involving the Detroit purchases (No. 456) from the substantive charge involving a Chicago sale (No. 1091) for purposes of trial and disposition.*fn5 We therefore hold that the entry of judgment in No. 1091 did not constitute a constitutional bar to this proceeding.
Appellant's claim that procedural error was nevertheless committed is supported by the policies which undergird the constitutional protection against double jeopardy. There is an element of unfairness in allowing the prosecutor to bring an unadmitted and unproven charge to the attention of a sentencing judge; presumably the decision to dismiss or to prosecute that charge will normally depend upon the prosecutor's appraisal of the first punishment as either adequate or inadequate to vindicate the government's interest in disposing of two separate charges. In a practical sense, therefore, the prosecutor has two opportunities to use one charge as a basis for imposing what he regards as an adequate sentence.*fn6 The constitutional protection is intended to forestall such unfairness and to give a defendant the right to one final disposition of any pending charge.
The government argues that this use of one charge in two different proceedings is comparable to the accepted practice of considering prior convictions at the time of sentencing. It is, of course, well settled that such consideration is not the equivalent of multiple punishment for the earlier offense, but rather is a permissible method of determining the degree of punishment that should be imposed for the later offense.*fn7 The analogy is imperfect, however, because the cases rejecting the double punishment argument have involved sentences based, in part, upon prior convictions, not as in this case, a sentence based in part upon a pending charge.*fn8
A somewhat closer, though also imperfect, analogy is provided by the Wisconsin read-in practice and by English cases considering the effect of a sentence predicated, in part, upon an uncharged offense. The English courts have held that the plea of autrefois convict is unavailable to a defendant simply because the subject matter of a charge was considered by the sentencing judge in another proceeding.*fn9 Nevertheless, the prevailing practice in England is not to prosecute for an uncharged offense upon which a sentencing judge has relied.*fn10
The English practice is comparable to Wisconsin's "read-in" procedure. In Wisconsin the prosecutor and the accused may make an enforceable agreement pursuant to which the sentencing judge may take uncharged offenses into account on condition that prosecution of those uncharged offenses be waived.*fn11 We assume that there is no reason why such a practice might not be followed in the federal courts.*fn12
In this case, the terms of the agreement between the prosecutor and appellant which led to the entry of the guilty plea in Case No. 1091 are not before us.*fn13 Appellant does not claim, however, that the government expressly agreed to dismiss this case either in exchange for the plea in No. 1091 or in exchange for waiving any objection that appellant might have raised to the consideration of this charge by the sentencing judge in No. 1091. Accordingly, even if this prosecution might have been barred by an agreement made in connection with the disposition of the other charge,*fn14 this record does not support an argument predicated upon an analogy to the Wisconsin practice.
Necessarily, therefore, appellant must contend that when the sentencing judge in No. 1091 gave consideration to the charge in this case -- and to the factual basis for the charge -- he committed an error of such magnitude that it should be remedied by barring this prosecution. We assume that there are situations in which a defendant might validly object to consideration of unproved charges as a basis for sentencing.*fn15 Nevertheless, it is clear that there is no flat prohibition against such consideration.*fn16 We therefore need not decide whether Judge McMillen would have erred if, in the face of an objection by appellant, he had considered the facts underlying a charge pending against her; for clearly she made no such objection.*fn17 Without such an objection, the judge was entitled to consider as much information concerning appellant's background as he could.*fn18 Nor need we decide whether such an error might bar a second prosecution or would only be subject to correction on direct appeal. In this case we need only hold that, since no such objection was made, it was not fundamentally unfair for the government to proceed with the second charge.
We therefore conclude that the record does not support a claim that error was committed either in this case or at the time of sentencing in No. 1091. Accordingly, notwithstanding our concern that the practice of relying upon pending charges as a basis for the sentence determination contains a potential for unfairness, the judgment is