Appeal from judgments of conviction for violation of 18 U.S.C. §§ 371, 924(c)(2), in the Southern District of New York, before Hon. Edmund L. Palmieri, District Judge, and a jury. Affirmed.
Friendly, Timbers and Meskill, Circuit Judges.
In February, 1973, four armed men robbed a branch office of The First National City Bank, which was and is federally insured. All four were indicted for bank robbery, bank larceny and armed bank robbery, 18 U.S.C. §§ 2113(a), (b), (d). Two of the robbers, Oscar Washington and Pedro Monges, pled guilty to bank robbery, 18 U.S.C. § 2113(a), and received sentences of eighteen years each. This Court affirmed without opinion. United States v. Washington, 490 F.2d 1406 (2d Cir. 1974). A third participant, Raul Estremera, was convicted by a jury on all three counts of the indictment in May, 1975, and received a seventeen year sentence. That conviction was also affirmed by this Court. United States v. Estremera, 531 F.2d 1103 (2d Cir.), cert. denied, 425 U.S. 979, 96 S. Ct. 2184, 48 L. Ed. 2d 804 (1976). Victor Cumberbatch, the appellant here, was named in the indictment as the fourth participant in that robbery.
Cumberbatch could not be tried jointly with Estremera because he was on trial at the time on state criminal charges of murdering a policeman, armed robbery and felonious possession of a weapon. He was convicted of the second and third charges, and received a sentence of eight and one-third to twenty-five years on the robbery count, concurrent with a seven year sentence on the weapons count. He began serving that sentence before the trial in this case.*fn1
Before his federal trial began, Cumberbatch was brought from state to federal custody a number of times, generally because his presence was necessary for pre-trial proceedings. The process used for these transfers was a writ of habeas corpus ad prosequendum. Before trial, he moved to dismiss the indictment with prejudice, arguing that these transfers violated the Interstate Agreement on Detainers, 18 U.S.C. Appendix, 84 Stat. 1397 (1970). Judge Palmieri, to whom the case was assigned, concluded that the indictment had to be dismissed under our decision in United States v. Mauro, 544 F.2d 588 (2d Cir. 1976), cert. granted, 434 U.S. 816, 98 S.Ct 53, 54 L. Ed. 2d 71. Accordingly, he entered an order dismissing the indictment with prejudice on December 13, 1976.
Rather than appeal, the government chose to proceed on a supplemental indictment, returned the previous month, charging conspiracy to commit bank robbery, 18 U.S.C. § 371, and carrying a firearm unlawfully during the commission of a felony, 18 U.S.C. § 924(c)(2). These charges arose out of the same robbery. Upon what can be characterized only as an overwhelming case, the jury convicted Cumberbatch on both counts. Judge Palmieri sentenced him to consecutive terms totaling fifteen years. Cumberbatch now appeals from, inter alia, the failure to dismiss the supplemental indictment and the sentence imposed. We affirm.
Cumberbatch's first argument is that the dismissal of the first indictment "with prejudice" required dismissal of the supplemental indictment as well. He argues that any prosecution relating to the same transaction is permanently barred by the dismissal. This contention is without merit.*fn2
The dismissal of the first indictment with prejudice can have no greater effect on this case than if Cumberbatch had been tried on the substantive counts and acquitted. The policy behind the Interstate Agreement on Detainers is no stronger than the constitutional protection against double jeopardy.
It is clear that a prosecution for conspiracy following an acquittal on the underlying substantive crime is permissible. Thus, in United States v. Kramer, 289 F.2d 909 (2d Cir. 1961), we held that the double jeopardy clause did not bar prosecution for a conspiracy to rob after acquittal on substantive charges of robbery. The Court stated:
Offenses are not the same for purposes of the double jeopardy clause simply because they arise out of the same general course of criminal conduct; they are the "same" only when "the evidence required to support a conviction upon one of them [the indictments] would have been sufficient to warrant a conviction upon the other." . . . Here the gist of the offenses charged in the first three counts of the indictment in the Eastern District was an agreement, an element not required to be proved to convict on the substantive charges in Connecticut. Hence the prior acquittal of the substantive offenses did not make prosecution for the unlawful agreement double jeopardy, even though the Government had offered evidence of such an agreement in the Connecticut trial. . . . Similarly conviction for receiving, concealing and retaining stolen goods in violation of 18 U.S.C. § 641 would require proof of something other than participation in the theft - indeed, proof of that would be fatal to a conviction for receiving . . . . Hence acquittal of the offenses charged in the first indictment would not support a plea of autrefois acquit on the receiving charge even though evidence of possession of stolen property after the burglaries had been offered at the first trial.
Id. at 913 (citations omitted). Despite criticism, we have continued to adhere to this rule.*fn3 United States v. Cala, 521 F.2d 605, 607 (2d Cir. 1975). Similarly, prosecution for a violation of § 924(c)(2) would be permissible following an acquittal under § 2113(d). The former requires proof that the defendant was engaged in a felony and was unlawfully carrying a "firearm." The latter requires proof of bank robbery and the use of any "dangerous weapon or device," which is not limited to firearms, United States v. Crew, 538 F.2d 575, 577-78 (4th Cir.), cert. denied, 429 U.S. 852, 97 S. Ct. 144, 50 L. Ed. 2d 127 (1976); Perkins v. United States, 526 F.2d 688, 689-90 (5th Cir. 1976). The "same evidence" test for double jeopardy therefore is not violated. See Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187, 45 U.S.L.W. ...