Opinion
Cause No. IP01-0200-C-H/F
March 5, 2001
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS
This is an action for habeas corpus relief under 28 U.S.C. § 2255. In 1999, Kenneth Wilson pled guilty to one count of conspiracy to commit armed bank robbery, one count of armed bank robbery, one count of carrying a handgun during and in relation to a crime of violence, and one count of carjacking. Wilson was sentenced pursuant to a binding plea agreement under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure.
The presentation of the factual basis in the plea hearing showed that Wilson and co-conspirators planned and carried out a robbery of a branch of the Peoples Bank Trust on March 18, 1999. During the robbery, co-defendant Kyle Clardy was armed with a firearm that Wilson had given him. Wilson was armed with a large wrench, although Wilson also claimed at the plea hearing that he, Wilson, had also carried the gun during the robbery. See Plea Transcript 27-28. The robbers forced the manager at gunpoint to open the vault, and the robbers got away with an unusually large amount of cash, about $292,000.
After Wilson and Clardy left the bank with weapons, masks and money, however, they encountered an unexpected problem. The driver of their "getaway" car had become nervous and had driven away. Wilson and Clardy responded by committing another crime. They approached a woman in a car in the parking lot. Wilson ordered Clardy to point the gun at her, and they forced her to open the car door, get in the back seat, and lie down while they used her car to escape.
Neither Wilson nor Clardy could drive the car very well. They did not know how to drive a manual transmission. Nevertheless, they managed to get away from the bank to a residential neighborhood before the transmission was completely destroyed. The victim was ordered at gunpoint to drive for them, but the gears were stripped by then. Wilson then left on foot to find new transportation. Wilson left Clardy with the victim of the carjacking and warned her that she would be shot if she did anything "stupid." When Wilson returned a little while later with a brand new car (he had lots of cash, after all), he locked the victim in the trunk of her car, and he and Clardy made their escape. After these facts were asserted by the case agent in the plea hearing, the court asked both Wilson and his lawyer whether they disagreed with anything they had heard. Both said no.
Fortunately for everyone involved, the victim was not physically hurt, but she obviously had been terrorized by the experience.
Pursuant to the binding plea agreement under Rule 11(e)(1)(C), a fifth charge for another count of carrying a handgun during and in relation to a crime of violence was dismissed on the government's motion. The court sentenced Wilson to a total of 336 months in prison, which was the amount stipulated in the binding plea agreement.
Wilson appealed. His appointed appellate counsel moved to withdraw under Anders v. California, 386 U.S. 738 (1967), because he believed the appeal was without merit or possibility of success. The United States Court of Appeals for the Seventh Circuit granted that motion and affirmed the convictions and the sentence on August 23, 2000.
Wilson now seeks relief under 28 U.S.C. § 2255 from the convictions and sentence. He raises several grounds in his petition. The court has examined the petition and supporting memorandum, as well as the record of Wilson's criminal case. The papers before the court show "conclusively" that Wilson is not entitled to relief on any ground he has raised. The court therefore is dismissing the petition summarily, without causing notice of the proceeding to be served on the United States Attorney or taking the other steps appropriate for a petition that is not facially inadequate. See 28 U.S.C. § 2255, ¶ 2.
First, Wilson claims that his guilty plea was not a knowing and voluntary plea because he could not be sentenced separately for both bank robbery in violation of 18 U.S.C. § 2113(a) and armed bank robbery in violation of 18 U.S.C. § 2113(d) for the same bank robbery. This claim is based on a misunderstanding of the charge and the sentence. Wilson was charged in Count 2 with armed bank robbery in violation of 18 U.S.C. § 2113(d), which adds the element of use of a dangerous weapon or device to the included offense of bank robbery set forth in 18 U.S.C. § 2113(a). Wilson was sentenced to 168 months in prison on Count 2. He was not punished separately under § 2113(a) and § 2113(d).
From Wilson's somewhat confused memorandum, it appears that he may also be arguing on page 3 that he should not be punished separately for the armed bank robbery in Count 2 and for the carjacking in Count 4 that occurred as Wilson and Clardy made their escape from the bank robbery. These were separate crimes with separate sentences (although the two sentences on those counts were identical and concurrent). If this is what Wilson meant with his first claim, he would still not be entitled to relief.
Second, Wilson claims he was denied effective assistance of counsel at the trial level in several respects. He claims his attorney should have spotted the (non-existent) problem Wilson has raised with respect to 18 U.S.C. § 2113(a) and (d). Because the underlying claim is without merit, Wilson's attorney could not have failed to provide effective assistance by failing to object on this basis. Wilson also claims that his attorney failed to object to what Wilson claims was "perjured testimony" from the case agent at the hearing on the plea agreement as to whether Peoples Bank and Trust is a federally insured financial institution. See Plea Transcript at 26-27. This claim is also without merit, as explained below.
Third, Wilson claims he was denied effective assistance of counsel on appeal because his attorney failed to identify and argue on appeal the other claims Wilson has raised. Because the other claims are all without merit, this claim offers no independent basis for relief.
Fourth, Wilson claims the government failed to "prove" the "jurisdictional element" of the bank robbery charge because it failed to prove that Peoples Bank and Trust was "authorized or acting under laws of the United States" or was insured by the FDIC at the time of the robbery. This claim fails on several grounds. For purposes of the bank robbery statute, the term "bank" is defined broadly to mean:
any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.18 U.S.C. § 2113(f). In setting forth the factual basis for the plea, FBI Special Agent Bervin White concluded with the statement: "Peoples Bank and Trust is a federally insured financial institution." Plea Transcript at 26-27. Such insured status is sufficient to invoke the federal bank robbery statute, as the last phrase of § 2113(f) shows.
In his argument on this point, Wilson has confused a plea hearing with a trial. He has anticipated the obvious counter-argument, for example, that he had stipulated that Peoples Bank Trust is a "bank" for purposes of the federal bank robbery statute by pleading guilty and failing to raise an objection or disagreement on that point in the plea hearing. Wilson has written at pages 7 and 8 of his memorandum: "the defense has no obligation to remind the government of its obligation to prove each element of a crime.
It is axiomatic that the government has the ultimate burden of proof. Wilson should not be penalized for failing to make sure the government proved its case." At page 8, Wilson has also suggested the court apply the standard for a challenge to the sufficiency of the evidence in the case. He cites United States v. James, 987 F.2d 648, 650-51 (9th Cir. 1993), to support his position. However, that case involved not a guilty plea in which the defendant admitted his guilt, but a trial at which the government apparently forgot to offer evidence of FDIC insurance. See also, e.g., United States v. Higgans, 507 F.2d 808, 813 (7th Cir. 1974) (finding 16-month old certificate and testimony of bank officer sufficient to show FDIC insurance status).
Wilson's argument is baseless. A guilty plea hearing is not a trial. The government is not required to prove its entire case, or even the supposedly "jurisdictional" elements, through evidence that meets the standards of the Federal Rules of Evidence. "Ordinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind." North Carolina v. Alford, 400 U.S. 25, 32 (1970).
See Hugi v. United States, 164 F.3d 378, 380-81 (7th Cir. 1999) (affirming denial of § 2255 relief where defendant pled guilty and later claimed his attorney had been ineffective for failing to challenge "jurisdictional" element of use of interstate wires; guilty plea admitted all elements of the offense; the so-called "jurisdictional" element was merely one element of the offense that did not actually affect subject matter jurisdiction at all).
The procedure for establishing the factual basis for the trial is intended to assure the court that there is a reasonable basis for finding that a crime was in fact committed and that the defendant committed it. See id. at 37-38 n. 10 (requiring factual basis for plea when defendant denies guilt but still chooses to plead guilty). That process is not intended to be equivalent to an entire trial. "[T]he plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge." Brady v. United States, 397 U.S. 742, 748 (1970).
Agent White's uncontested assertion that Peoples Bank Trust was federally insured is a sufficient basis for invoking the federal bank robbery statute. See e.g., United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir. 1980) (uncontradicted trial testimony from bank employees that bank's deposits were insured by FDIC was sufficient to prove element of federal bank robbery); accord, United States v. Higgans, supra, 507 F.2d at 813. Where the conviction is based on a guilty plea, there is of course no need to have bank employees testify on the point at the hearing. Both Wilson and his lawyer said they did not dispute anything Agent White said in the proffer. Wilson still has come forward with no basis for even doubting Agent White's statement on this point or any other aspect of the government's case. Wilson even attached to his memorandum a letter from the FDIC to a relative stating that Peoples Bank Trust has been insured, presumably by the FDIC, since 1932.
At page 9, note 2 of his memorandum, Wilson seems to imply that the letter refers to The Chubb Group, which is the insurer to whom Wilson must make restitution. Perhaps Wilson is confused about the difference between a bank's insurance against losses such as bank robberies and the FDIC's insurance of a bank's deposits against potential insolvency of the bank itself. The fact that restitution must be paid to The Chubb Group is not at all inconsistent with FDIC insurance of the bank's deposits.
Because the petition and the files and records of the case "conclusively show that the prisoner is entitled to no relief," see 28 U.S.C. § 2255, the petition is summarily dismissed. Final judgment shall be entered accordingly.
So ordered.