Appeal from a judgment of conviction entered in the United States District Court for the District of Vermont, Coffrin, Ch. J., a jury having found appellant guilty of receiving and possessing firearms after a prior felony conviction in violation of federal law. Appellant also appeals from orders of the district court designating appellant a "dangerous special offender" and enhancing his sentence. Judgment of conviction affirmed; judgment of sentence affirmed in part and vacated and remanded in part.
Pierce, Winter, Circuit Judges, and Stewart, District Judge.*fn*
This is an appeal from a judgment of conviction entered in the United States District Court for the District of Vermont, Albert W. Coffrin, Chief Judge, a jury having found appellant Edwin Towne guilty of receiving and possessing various firearms after a prior felony conviction in violation of federal laws. For the reasons that follow, we affirm the judgment of conviction and the enhancement of appellant's sentences on Counts 1, 3, 4, and 5. However, we believe that the district judge improperly enhanced appellant's sentences under 18 U.S.C. § 924(e)(1) as to Counts 6 and 8; therefore, we vacate the judgment of sentence on those two counts and remand for resentencing.
On December 30, 1986, appellant Edwin A. Towne, Jr., was indicted in the District of Vermont on two counts of receiving and possessing a firearm after a prior felony conviction in violation of 18 U.S.C. § 1202(a)(1); three counts of receiving and possessing a firearm and ammunition after a prior felony conviction in violation of 18 U.S.C. § 922(h)(1); and three counts of receiving and possessing a firearm and ammunition after a prior felony conviction in violation of 18 U.S.C. § 922(g)(1). After a three-day jury trial in June of 1987, the defendant was found guilty on all counts except Count 7. Thereafter, Towne was sentenced to a total of 70 years' imprisonment.
Towne's arrest and subsequent conviction were the culmination of a long chain of criminal events that began in August 1979, when appellant Edwin Towne allegedly raped a nine-year-old girl in New Hampshire. On April 1, 1980, a grand jury in New Hampshire indicted Towne on one count of aggravated felonious sexual assault. When he failed to appear for his arraignment on the charge, his bail was forfeited and a warrant was issued for Towne's arrest.
Sometime after the August 1979 incident, and while the New Hampshire investigation was pending, Towne left New Hampshire and went to Vermont. In February 1980, Towne kidnapped and sexually assaulted a Vermont woman. Shortly thereafter, Towne was apprehended, indicted on sexual assault and kidnapping charges, tried before a jury, convicted, and sentenced to 10-15 years in Vermont state prison. Upon appeal, his convictions were reversed and a new trial ordered by the Vermont Supreme Court. Thereafter, Towne chose to enter into a plea agreement with the State's Attorney for Windham County, Vermont. On March 11, 1983, Towne pleaded guilty in a Vermont state court to the felony charges of kidnapping and sexual assault in return for a reduced sentence.
During the plea negotiations, the Vermont State's Attorney contacted New Hampshire authorities regarding the August 1979 incident which led to the 1980 New Hampshire charges. The Vermont State's Attorney, Towne, and his attorney thereafter reached an oral understanding concerning those charges, based on certain representations that had been made over the phone by authorities in New Hampshire. According to the terms of this oral agreement, which was made part of the sentencing record in Vermont, New Hampshire state authorities promised to drop the pending New Hampshire charges against the defendant, and to "withdraw their detainer from the defendant's file." In accordance with the terms of a separate, written plea agreement between Vermont authorities and Towne, Towne was subsequently placed in a sexual offender program at the Chittenden Correctional Center, where he remained until he was released on parole in September 1984.
Despite New Hampshire's promise to drop its charges against Towne, the New Hampshire indictment remained in an active status in the files of the New Hampshire authorities, and the fugitive warrant was not withdrawn. According to Peter McDonough, the Hillsborough County attorney in that state, New Hampshire authorities maintained the indictment in an active status to assure that Vermont complied with the provisions of its plea agreement with Towne.
On September 10, 1986, two years after Towne's release from the Chittenden Program, fifteen-year-old Paulette Crickmore disappeared on her way to school in Richmond, Vermont. Shortly thereafter, Edwin Towne became a primary suspect in the local police investigation. On October 17, 1986, State Police Sergeant Leo Blais, the principal investigating officer in the Crickmore investigation, requested a background check on Edwin Towne from the National Computer Information Center ("NCIC"). The NCIC check disclosed the existence of the outstanding fugitive warrant for Towne which New Hampshire authorities had promised to withdraw. After Blais learned of the existence of this warrant, he called the Hillsborough County Sheriff's Department in New Hampshire to determine whether the warrant was still outstanding. Upon receiving an affirmative response, Blais requested and received from the Sheriff's Department a certified copy of the New Hampshire warrant. Four days later, on October 21, 1986, Sergeant Blais stopped Towne in his car and arrested him pursuant to 13 Vt. Stat. Ann. § 4954, which permits the warrantless arrest of persons who are fleeing from serious criminal charges in another state. During a search of Towne's car incident to the arrest, Blais discovered a .32 caliber semi-automatic Mauser pistol under the driver's seat. Towne was arraigned on the fugitive charge in Vermont District Court on October 22, 1986, and, following a hearing, probable cause for the arrest was found. Towne pleaded not guilty and was released on a $10,000 appearance bond the same day.
Prior to arresting Towne, Sergeant Blais spoke with two women who had known Towne at Vermont's Chittenden Correctional Center--Joan Mollica, the Case Work Supervisor at the Center, and Linda Beal, who was Towne's case worker and later his supervising parole officer at the Center. Both women were aware of the New Hampshire charges against Towne, and sometime before the arrest Beal informed Blais that she believed the charges had been "resolved," although she was not certain. Mollica expressed a similar belief to other state police officers. The appellant acknowledges, however, that Blais never learned of the Vermont plea agreement, or of its connection with the New Hampshire charges against Towne, prior to his arrest.
On December 2, 1986, approximately one month after Sergeant Blais arrested Towne, a warrant was issued by United States Magistrate Neiderman of the United States District Court for the District of Vermont to search Towne's residence in Eden Mills, Vermont. The magistrate issued the warrant based on the affidavit of Special Agent Varriale of the United States Bureau of Alcohol, Tobacco and Firearms, which referred to Towne's October arrest in Vermont. During the agents' search of Towne's residence, on December 3, 1986, they found, inter alia, a spring and plunger mechanism in a locked box, a 20-gauge shotgun barrel, a quantity of .22-caliber Winchester long rifle ammunition, a .30-.30 Winchester rifle, another rifle, and a Targa pistol. It was on the basis of this evidence and the evidence seized pursuant to Sergeant Blais' arrest of Towne that the December 30, 1986, eight-count federal indictment was filed in Vermont, charging appellant with possession of various firearms in violation of federal law.
In April 1987, prior to Towne's trial in federal district court, the government filed a notice pursuant to 18 U.S.C. § 3575 to have him designated as a "dangerous special offender." The notice was filed with United States District Judge Franklin Billings, who ordered the notice sealed. On September 30, 1987, after Towne had been tried and convicted by a jury before Chief Judge Coffrin, and a motion for a new trial had been denied, the Section 3575 notice was disclosed to the trial judge. On October 20, 1987, Judge Coffrin held an evidentiary hearing pursuant to 18 U.S.C. § 3575(b).
On December 24, 1987, Judge Coffrin issued an Opinion and Order designating Towne as a dangerous special offender with respect to Counts 1, 2, 3, 4, and 5, and ruling that Towne's sentences on all of those counts would be enhanced pursuant to 18 U.S.C. § 3575(b). However, Judge Coffrin reserved ruling on the applicability of the enhancement provisions of 18 U.S.C. § 924(e)(1) to Counts 6 and 8. On March 7, 1988, Judge Coffrin issued a third Opinion and Order, ruling that Towne was subject to enhanced sentencing pursuant to 18 U.S.C. § 924(e)(1) for his convictions on Counts 6 and 8 of the indictment. He also vacated the defendant's conviction on Count 2 as having merged with Count 8. That decision is published at 680 F. Supp. 687 (D. Vt. 1988).
On March 28, 1988, Towne was sentenced on Counts 1, 3, 4, 5, 6, and 8 to a term of imprisonment totalling seventy years. More particularly, he was sentenced to consecutive terms of imprisonment of 15 years each on Counts 3, 4, 6, and 8, and five years each on Counts 1 and 5. Since there is no possibility of parole by the terms of 18 U.S.C. § 924(e)(1), ...