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United States v. Jordan

decided: March 22, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANDREW JORDAN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87-CR-856 -- James B. Zagel, Judge.

Harlington Wood, Jr., Kenneth F. Ripple, and Daniel A. Manion, Circuit Judges.

Author: Wood

WOOD, JR., Circuit Judge

Andrew Jordan appeals his federal conviction for possession of a firearm by a career criminal in violation of 18 U.S.C. § 1202(a)(1). He claims that the federal prosecution violated the constitutional prohibitions against double jeopardy and ex post facto punishment. He also argues that the indictment was defective because it failed to include three prior robbery convictions as a necessary element of the federal offense. Finally Jordan appeals the trial court's denial of his pre-trial motion to exclude from evidence a guilty plea he entered in state court. He argues that the state plea was involuntary, unintelligent, and therefore inadmissible because the state failed to advise him that the plea could be used against him in a federal prosecution. We affirm.

I. FACTUAL BACKGROUND

On March 17, 1986, Jordan pleaded guilty in state court to attempted murder. In exchange for his plea, the State's Attorney dismissed related charges of armed violence and unlawful use of a weapon and agreed to recommend the minimum statutory term of six years imprisonment. As initially charged, Jordan could have been sentenced to a maximum term of 30 years imprisonment upon conviction.

Before accepting Jordan's plea, the state judge asked to hear the factual basis for the plea. The State's Attorney responded that if the case were to be tried he would call Officer Martin, a Chicago police officer, who would testify that on April 12, 1985, he was off duty and working as a security guard at a grocery store. According to Martin, a woman entered the store and informed him that there was a man with a gun outside. Martin departed from the store with his gun drawn and observed Jordan with a revolver in his hand standing next to another man. Martin approached and advised Jordan that he was a police officer. Jordan fired at Martin, who returned fire and wounded Jordan. Martin would testify that he recovered a nickel-plated revolver from Jordan.

The state judge advised Jordan of the charges against him, the possible sentence, his right not to plead guilty, his right to a jury trial, the State's burden of proving its case beyond a reasonable doubt, and the effect of a guilty plea. In all instances, Jordan acknowledged his understanding. Finally, the judge asked Jordan if any other promises or any threats had been made to him and whether he had personally made the decision to plead guilty after discussing the case with his lawyer. Jordan stated that no other promises and no threats had been made to him and that he had discussed the case with his attorney. Jordan then pleaded guilty to attempted murder.

Without notifying Jordan, on October 7, 1985, six months prior to the entry of the plea agreement, the State's Attorney notified the Bureau of Alcohol, Tobacco, and Firearms (ATF) of Jordan's arrest and record. Because Jordan had been convicted thrice previously of robbery, the State's Attorney stated that ATF should consider prosecuting Jordan for possession of a firearm by a career criminal.

On November 5, 1987, a federal grand jury indicted Jordan for possession of a firearm by a felon in violation of 18 U.S.C. § 1202(a)(1). Jordan moved to suppress evidence of his state guilty plea, arguing that it was involuntary and unintelligent. The federal judge denied Jordan's motion to suppress the plea. The government then presented its case to the jury. It called five witnesses--Officer Martin, two uniformed Chicago policemen who investigated the incident, a Federal Bureau of Investigation (FBI) fingerprint expert, and the woman who initially informed Officer Martin that there was a man with a gun on the street. The government also introduced physical evidence, including the firearm allegedly possessed by Jordan, and documentary evidence, including Jordan's guilty plea. The defense entered several stipulations--additional excerpts from the state court transcript relating to the circumstances surrounding entry of the guilty plea and medical evidence relating to the path of entry and travel of the bullets which struck Jordan. The jury found Jordan guilty as charged and the judge sentenced Jordan to 20 years imprisonment. Jordan moved for post-conviction relief and argued that the indictment was defective because it failed to list three prior robberies, which he viewed as statutory elements of the federal crime. The judge denied the post-conviction motion in arrest of judgment. Jordan filed a notice of appeal. He appeals his federal conviction and the trial judge's denial of his pre-trial and post-conviction motions.

II. DISCUSSION

A. Double Jeopardy

Jordan claims that a federal prosecution based on a prior conviction in state court violates the double jeopardy clause of the fifth amendment. The double jeopardy clause is intended to protect the accused from multiple prosecution for the same crime. The double jeopardy clause of the fifth amendment, however, bars successive prosecutions "only if the two offenses for which the defendant is prosecuted are the 'same.'" Heath v. Alabama, 474 U.S. 82, 87, 88 L. Ed. 2d 387, 106 S. Ct. 433 (1985). The Supreme Court "has plainly and repeatedly stated that two identical offenses are not the 'same offence' within the meaning of the double jeopardy clause if they are prosecuted by different sovereigns." Id. at 92. In Heath v. Alabama, the Supreme Court explained how this principle of dual sovereignty relates to the double jeopardy clause:

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." . . . Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable."

474 U.S. at 88 (citations omitted). See also United States v. Schwartz, 787 F.2d 257, 266 (7th Cir. 1986). This doctrine has been applied to dual prosecution in state and federal courts on other occasions. See, e.g., Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959) (upholding federal conviction subsequent to state conviction for the same conduct); United States v. Jones, 808 F.2d 561, 565 (7th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1630, 95 L. Ed. 2d 203 (1987) (upholding federal conviction subsequent to state acquittal on charges arising from the same actions).

Jordan acknowledges the "dual sovereignty doctrine," but argues that the government's conduct fits an exception to the general rule. He argues that the State's Attorney had a weak case but wanted Jordan to get a stiff sentence. The State's Attorney, therefore, induced Jordan to plead guilty by agreeing to a six year term of imprisonment because the State's Attorney knew the federal government could use the guilty plea in federal court and obtain a minimum 15-year sentence. Jordan argues that the State used the federal prosecutor as a "tool" and that the federal prosecution was a "sham or cover" for a second state prosecution. See Bartkus v. Illinois, 359 U.S. 121, 123-24, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959). This court has recognized the so-called "Bartkus exceptions." United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979), cert. denied, 445 U.S. 946, 63 L. Ed. 2d 780, 100 S. Ct. 1345 (1980). We noted, however, that these exceptions do not prohibit the use of common witnesses in both trials and that "cooperation between state and federal authorities is a welcome innovation." Aleman, 609 F.2d at 309. See also United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987) (federal prosecution following dismissal of state charges on statute of limitation grounds not necessarily a sham even though deputy state attorney was responsible for both prosecutions and the state ...


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