Appeal from the United States District Court for the Southern District of Illinois, No. 84 30039, William L. Beatty, Judge.
Before CUMMINGS and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge. These appeals bring before the court the judgments of conviction rendered against each of the defendants for kidnapping, violating the White Slave Traffic Act (Mann Act) and conspiracy. Mr. Jones was tried separately and, after a four-day trial, found guilty on all three counts. Mr. Young and Mr. Humphrey were tried in a joint trial and also found guilty of all three counts. Another defendant, Erick Mitchell, was tried separately and also found guilty on all three counts. This court has already affirmed Mr. Mitchell's conviction. United States v. Mitchell, 778 F.2d 1271 (7th Cir. 1985). We now affirm the convictions of his confederates.
The facts established by the prosecution at trial are set forth at some length in Judge Cummings' opinion for the court in Mitchell, 778 F.2d at 1272-74. We shall limit ourselves in this rendition to a brief summary.
The incident in question occurred in the early morning hours of July 6, 1983 when two men abducted the victim, 18 year-old Cheryl Chambers, outside a restaurant on Laclede's Landing in St. Louis, Missouri. They forced her into an automobile already occupied by two other men. Ms. Chambers' companions immediately alerted the police.
The four defendants took their victim across a bridge between St. Louis, Missouri and East St. Louis, Illinois. While en route, the two men in the back seat attempted to disrobe and sexually assault the victim. As she screamed and struggled, she was "backhanded" by one of the subjects and told she was going to be raped by all four.
Once across the bridge and into Illinois, the defendants circled to a railroad building adjacent to the Eads Bridge. The victim was pulled from the car, dragged up an embankment and stripped. One of the defendants attempted to force the victim to commit the act of fellatio. As another attempted to rape her, a railroad policeman arrived on the scene. The defendants then fled in their car.
The railroad policeman radioed the car's description and license number and, shortly thereafter, the St. Louis police stopped the defendants' car. All four men were in the car. Mr. Mitchell was naked from the waist down. A pair of men's jeans and undershorts were recovered from the scene together with a tobacco pouch that contained an identification card with Erick Mitchell's name. The police took Ms. Chambers to a hospital, but stopped en route so that she could identify the defendants as her attackers.
The State of Missouri charged all four men with forcible rape, attempted forcible sodomy and kidnapping. Federal authorities in Illinois also filed a complaint for kidnapping against the four men, but in deference to Missouri, later moved to dismiss the federal charges. On August 1, 1983, federal charges were formally dismissed.
The state tried all four men in a single trial. That trial ended on June 22, 1984 with the acquittal of all four defendants. The United States Attorney thereupon sought Petite Policy approval from the Justice Department for defendants' successive federal prosecution. On August 31, 1984, a grand jury returned a three-count indictment for conspiracy, kidnapping, and a violation of the Mann Act against Mr. Jones, Mr. Young and Mr. Humphrey. 18 U.S.C. §§ 371, 1201(a)(1) & 2421. Erick Mitchell was separately indicted for the same offenses. On October 25, 1984, Mr. Mitchell was convicted of all three federal charges. Mr. Jones' conviction followed on November 8, 1984. On January 9, 1985, after a joint trial, Mr. Young and Mr. Humphrey were also convicted.
For kidnapping, the district court sentenced Mr. Young and Mr. Mitchell each to fifty years in prison and Mr. Jones and Mr. Humphrey to forty years each in prison. The court further ordered each defendant to serve two five-year terms on the Mann Act and conspiracy counts, concurrently both with one another and the kidnapping sentence. All four defendants appealed. As noted previously, this court has already affirmed Erick Mitchell's conviction. United States v. Mitchell, 778 F.2d 1271 (7th Cir. 1985). The appeals of Mr. Jones, Mr. Young and Mr. Humphrey have been consolidated and are now before this court for review.
After studying the submissions of all the parties and examining the record, we have decided to address the issues in the following manner: I) those issues common to all defendants; II) those issues raised by particular defendants; III) sentencing matters.
Issues Common to All Defendants
A. Double Jeopardy Clause
Each of the three appellants maintains that his prosecution and conviction offends the Constitution's proscription against Double Jeopardy.*fn1 Mr. Jones and Mr. Young assert that their successive state and federal prosecutions for kidnapping violate Double Jeopardy Clause's guarantee against a second prosecution for the same offense after acquittal. Mr. Young and Mr. Humphrey assert that the Mann Act and kidnapping violations comprise but one offense because the transportation of the victim across state lines was incidental to the commission of the attempted rape. Thus, appellants argue that the dual convictions violate Double Jeopardy's proscription against multiple punishment for a single offense. Both of these contentions are without merit.
1. Successive State and Federal Prosecutions
As Judge Cummings pointed out in Mitchell, the Supreme Court has consistently held that a conviction or acquittal by one sovereign does not constitute prior jeopardy for purposes of prosecution by the other sovereign. Id. at 1276; see Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959) (state prosecution followed by federal prosecution); Bartkus v. Illinois, 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959) (federal prosecution followed by state prosecution). Dual sovereignty remains a vital doctrine. "[P]rosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, 'subject [the defendant] for the same offense to be twice put in jeopardy.'" United States v. Wheeler, 435 U.S. 313, 317, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978); see also United States v. Schwartz, 787 F.2d 257, 266 (7th Cir. 1986). It is clear that appellants' successive state and federal trials do not offend the Constitution.
Nor are the successive prosecutions vulnerable to attack as violating the Petite Policy. The "Petite Policy" is an internal policy statement that was promulgated by the Attorney General in 1959 to establish uniform guidelines for dual and successive federal prosecutions. See Petite v. United States, 361 U.S. 529, 4 L. Ed. 2d 490, 80 S. Ct. 450 (1960) (discussion of Petite Policy by Supreme Court). The Petite Policy generally precludes the initiation of a federal prosecution following a state prosecution absent a "compelling federal interest." This internal directive is to ensure the ethical use of Justice Department resources and to avoid the unfairness that may result from multiple prosecutions for the same misconduct. A prosecutor may, however, obtain special approval for a successive prosecution in a case in which the state proceeding has left "substantial federal interests demonstrably unvindicated" and in which an enhanced federal sentence appears likely. See "Dual Prosecution and Successive Federal Prosecution Policies," United States Attorney Manual § 9-2.142 ...