Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 76-65-Cr - William E. Steckler, Judge.
Fairchild, Chief Judge, Swygert and Cummings, Circuit Judges.
In May 1976, a four-count indictment was returned against defendant. At the start of the ensuing jury trial, the Government dismissed the fourth count,*fn1 and at the conclusion of the trial the jury returned a verdict finding defendant guilty under the remaining counts. Subsequently he received three 2-year concurrent sentences. Since the defendant does not challenge the sufficiency of the evidence, only a capsule version of the case facts need be given.
The Government showed that a Molotov cocktail bomb was thrown against a door of the Naegele Outdoor Advertising Company's building in Indianapolis, Indiana, at 5:30 on the morning of May 11, 1976. Circumstantial evidence pointed to defendant as the culprit.
The defendant does not assail Count II of the indictment, which charged him with knowingly possessing an unregistered firearm*fn2 in violation of 26 U.S.C. § 5861(d). However, he asserts that the indictment is multiplicitous in that Counts I and III charge only one offense and consequently put him in double jeopardy.
Count I charged that on May 11, 1976, Chaney maliciously attempted to destroy Naegele Outdoor Advertising Company's structure by means of an explosive and that Naegele was a business affecting interstate commerce. This act was said to violate 18 U.S.C. § 844(i), which makes it unlawful to "maliciously [attempt] to damage or destroy, by means of an explosive, any building * * * used * * * in any activity affecting interstate * * * commerce." Count III charged that on the same date, defendant knowingly used an explosive to commit a felony prosecutable in a court of the United States, "that is, a malicious attempt to damage and destroy with an explosive material a structure used in a business affecting interstate commerce, contrary to Title 18, United States Code, Section 844(i), in violation of Title 18, United States Code, Section 844(h)(1)." The latter Section makes it a crime to use "an explosive to commit any felony which may be prosecuted in a court of the United States * * *." In answering defendant's motion for a bill of particulars, the Government conceded that only one explosive was alleged to have been used on the date in question. See note 1 supra.
A comparison of Counts I and III shows that the charges in both counts are identical, apart from the fact that Count I alleges a violation of 18 U.S.C. § 844(i) and Count III a violation of 18 U.S.C. § 844(h)(1). The Government's answer to defendant's motion to dismiss admitted that only one basic incident was involved and, as already twice noted, the Government also admitted that the explosive in each count referred to a single explosive. Therefore, the evidence necessary to prove the offense charged under Count I would prove the offense charged under Count III, and vice versa. Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187, 45 LW 4697, 4699, recently reiterated that the test to be applied to determine whether the double jeopardy clause of the Fifth Amendment applies or not "is whether each [statutory] provision requires proof of a fact which the other does not." As in Brown, Counts I and III of this indictment constitute "the same offense" within the meaning of the double jeopardy clause because they would be proved by identical evidence. Therefore, defendant's motion to dismiss Count III of the indictment should have been granted. His counsel urges that in contradistinction to United States v. Tanner, 471 F.2d 128, 142 (7th Cir. 1972), certiorari denied, 409 U.S. 949, 34 L. Ed. 2d 220, 93 S. Ct. 269, reversal of the conviction imposing a concurrent sentence under invalid Count III would be insufficient here because the jury could easily have been prejudiced by the Government's inflated view of defendant's wrongdoing caused by including that Count. Cf. McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir. 1972). That question need not be resolved because a new trial is being ordered on another ground (see Part III infra).
Defendant also argues that under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, the Government should have disclosed prior to trial that on the day preceding the bombing, the Naegele Outdoor Advertising Company received two threatening telephone calls. On this day, the Company had been struck and its union employees commenced picketing of the premises. Defendant was not a member of the striking union nor an employee of the Company although he had been employed at the same building by Naegele's predecessor nineteen years earlier. At 11:30 a.m., the caller threatened to "whip" the receptionist who answered the phone, and at 4:30 p.m., the caller threatened a bomb explosion in the Naegele building at 6:00 o'clock (whether A.M. or P.M. was ambiguous). Because Naegele had brought in out-of-state supervisory personnel to carry on the work of the striking employees, defendant maintains that the bombing could have been perpetrated by union members angered by Naegele's use of strike breakers. In response, the Government submits that these phone calls were inculpatory since the portion of the building which was bombed was the same as the caller claimed would be bombed. They were offered in evidence on the theory that defendant made them (Tr. 203-210). When these telephone calls were received in evidence over defendant's objection, it was not too late for defendant to attempt to show a dissimilarity between his voice and the voice of the caller. Indeed, by objecting to the evidence, defendant recognized its inculpatory nature, making Brady inapplicable. 373 U.S. at 87; see also Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30, 45 LW 4154, 4158. In any case, in the absence of any argument as to the sufficiency of the evidence, defendant has failed to show any prejudice from the failure to make the testimony available to him at an earlier time, so that no Brady error was committed. United States v. Stone, 471 F.2d 170, 173-174 (7th Cir. 1972), certiorari denied, 411 U.S. 931, 36 L. Ed. 2d 391, 93 S. Ct. 1898.*fn3
The jury heard evidence in this case for four days and heard approximately two hours of closing argument before retiring. It commenced deliberations at 5:15 p.m. on October 18, 1976. After it had deliberated approximately seven hours (with two hours' time out for dinner), the district judge called the jury back at 12:20 a.m. on October 19 and gave a supplemental instruction. According to defendant's trial counsel, twenty minutes prior to the giving of the supplemental instruction, counsel for both parties were called into chambers where the judge asked defense counsel if he thought the possibly hung jury should continue on with its deliberations or be bedded down for the night.*fn4 He informed the judge that he thought the jurors should retire for the night (Reply Br. 4.)*fn5 Nevertheless, when the judge returned to the bench, he gave the jurors the following instruction at 12:20 a.m.:
"The Court: Members of the jury. In view of the hour the Court is going to present to the jury two envelopes. One marked 'Sealed Verdict,' the other marked 'Unused Forms' with the instruction that the jury continue its deliberation and if the jury is able to arrive at a verdict to enclose the verdict, the executed verdict, in the envelope marked 'Sealed Verdict' and the unused forms in the envelope marked 'Unused Forms.' The foreman will be instructed, or the forewoman, to carry the sealed verdict on his or her person until tomorrow morning, if you arrive at a verdict. If you do not ...