United States v. Seals, William H.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 1997 Decided December 5, 1997
No. 96-3108
United States of America,
Appellee
v.
William H. Seals, a/k/a Puddin,
a/k/a William Brooks,
Appellant
No. 96-3109
United States of America,
Appellee
v.
Gary W. Sweatt,
Appellant
---------
Appeals from the United States District Court
for the District of Columbia
(No. 95cr00284-01 & 03)
---------
Daniel H. Bromberg, appointed by the court, argued the
cause for appellant William H. Seals.
Lisa K. Coleman argued the cause for appellant Gary W.
Sweatt. John P. Dean, appointed by the court, was on brief.
Mary-Patrice Brown, Assistant United States Attorney,
argued the cause for the appellee. Eric H. Holder, Jr.,
United States Attorney at the time the brief was filed, and
John R. Fisher, Thomas J. Tourish, Jr., and G. Bradley
Weinsheimer, Assistant United States Attorneys, were on
brief.
Before: Williams, Ginsburg and Henderson, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The appellants,
William Seals and Gary Sweatt, appeal their convictions on
federal conspiracy, kidnapping and extortion charges. They
contend that the Speedy Trial Act, 18 U.S.C. ss 3161 et seq.,
and Article III of the United States Constitution require
dismissal of the indictment underlying their convictions. In
addition, Sweatt argues that there was insufficient evidence
to convict him of kidnapping and that the district court
improperly sentenced him as a "career offender" under sec-
tion 4B1.1 of the United States Sentencing Guidelines (Guide-
lines). We affirm the appellants' convictions but vacate
Sweatt's sentence and remand to the district court to resen-
tence him not as a career offender.
I. BACKGROUND
On August 2, 1995 Seals and Sweatt were arrested and a
criminal complaint was filed against them in D.C. Superior
Court, charging them with armed kidnapping in violation of
D.C. Code Ann. ss 22-2101, 22-3202 (1981 & Supp. 1995).
They were not, however, immediately indicted on these
charges. After their arrest by Federal Bureau of Investiga-
tion (FBI) agents, the FBI and the D.C. Metropolitan Police
Department continued their joint investigation into the kid-
napping. The investigation resulted in the arrest of two
other suspects and additional evidence which persuaded the
United States Attorney to alter his tentative decision to lodge
D.C. charges against them and to instead indict them on
federal charges. As a result, on October 31, 1995 a D.C.
Superior Court grand jury returned an indictment in the
United States District Court for the District of Columbia.
Before trial Seals and Sweatt moved to dismiss the indict-
ment on Speedy Trial Act and constitutional (Article III)
grounds. The lower court denied the motion, finding that the
United States Attorney had not sent "the case back to D.C.
Superior Court ... for the purpose of gaining additional time
for federal prosecution." Pre-Trial Mot. Tr. 225. It further
held that the Congress, with plenary authority over the
District of Columbia, validly authorized the D.C. Superior
Court, an Article I tribunal, to supervise a grand jury that
can indict for both D.C. and federal offenses. Id. at 201.
At the appellants' trial the Government presented evidence
showing that Sweatt had assisted in detaining the kidnap
victim and in retrieving the ransom money. There was no
evidence, however, from which the jury could infer that
Sweatt had either been present at or assisted in the abduction
and transport of the victim across state lines. At the close of
the Government's case, Sweatt moved for acquittal on the
ground that he could not be found guilty of kidnapping unless
he was shown to have participated in the abduction or trans-
port of the victim across state lines. His motion was denied.
The district court charged the jury on the kidnapping and
extortion counts of the indictment under three theories: (1)
liability as a principal under 18 U.S.C. s 1201(a) (kidnapping)
and 18 U.S.C. s 1951 (extortion); (2) liability as an aider and
abettor under 18 U.S.C. s 2; and (3) liability as a Pinkerton
co-conspirator (Pinkerton v. United States, 328 U.S. 640, 647-
48 (1946)). The jury returned a general verdict, finding both
Seals and Sweatt guilty of conspiracy, kidnapping and extor-
tion. Seals and Sweatt were subsequently sentenced to iden-
tical, concurrent terms of imprisonment. They each received
60 months for conspiracy, 240 months for extortion and life
imprisonment for kidnapping.
At sentencing, Sweatt argued that he should be sentenced
under the November 1994 version of Chapter 4, Part B, of the
Guidelines and that, according to the 1994 version, as modi-
fied by United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993),
he did not have the requisite number of prior convictions to
qualify as a career offender. The district court disagreed,
concluding that the November 1994 and November 1995
versions of the Guidelines were substantially identical, the
only difference being that the 1995 version of section 4B1.1
contained amended Background Commentary. Thus, the
lower court ruled that Sweatt's prior convictions of robbery
and attempted distribution of heroin required that he be
sentenced as a career offender under both the 1994 and 1995
versions of section 4B1.1.1
II. DISCUSSION
Despite the parties' contentions to the contrary, all of the
appellants' claims involve the trial court's legal conclusions or
its application of legal standards to the facts. Accordingly,
we review their claims de novo. See United States v. Abdul-
Saboor, 85 F.3d 664, 667 (D.C. Cir. 1996).
A. Timeliness of Indictment
The Speedy Trial Act (STA) provides that "[a]ny informa-
tion or indictment charging an individual with the commission
of an offense shall be filed within thirty days from the date on
which such individual was arrested or served with a summons
__________
1 If Sweatt had not been sentenced as a career offender under
section 4B1.1, the maximum term of imprisonment he could have
received for the kidnapping conviction would have been 235 months,
reducing his term of imprisonment from life to 240 months--the
longest of the concurrent sentences imposed.
in connection with such charges." 18 U.S.C. s 3161(b). The
appellants contend that the clock began on the date of their
August 1995 arrests and expired thirty days later in Septem-
ber 1995. They therefore argue that their October 1995
indictment should be dismissed as untimely pursuant to 18
U.S.C. s 3162(a)(1).2 We disagree.
In United States v. Mills, 964 F.2d 1186 (D.C. Cir.) (en
banc), cert. denied, 506 U.S. 977 (1992), we determined that
"[u]nder the most natural reading" of section 3161(b), "an
arrest starts the clock only if it is 'in connection with' federal
charges" and thus, "[i]f ... the arrest [is] accompanied by a
complaint charging violations of the D.C. (not U.S.) Code, it
[is] not 'in connection with' federal charges." 964 F.2d at
1189 (emphasis original). Further, we concluded that the
remedial provision for an untimely indictment, 18 U.S.C.
s 3162(a)(1), "also suggests that the [STA] is triggered only
by arrests that are accompanied by the filing of a federal
complaint against the defendant." Id. (emphasis original); see also id. at 1193 (Congress adopted "language in 3161(b)
that addresses solely federal complaints and their attendant
arrests") (emphasis added). We therefore held that because
the Mills defendants were initially charged with violations of
the D.C. Code, the section 3161(b) clock did not start on their
arrest dates and thus the federal indictments (returned, in
__________
2 This subsection provides:
If, in the case of any individual against whom a complaint is
filed charging such individual with an offense, no indictment or
information is filed within the time limit required by section
3161(b) as extended by section 3161(h) of this chapter, such
charge against that individual contained in such complaint shall
be dismissed or otherwise dropped. In determining whether to
dismiss the case with or without prejudice, the court shall
consider, among others, each of the following factors: the
seriousness of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a reprosecu-
tion on the administration of this chapter and on the adminis-
tration of justice.
18 U.S.C. s 3162(a)(1).
one instance, one year after arrest) were not untimely. 964
F.2d at 1188-93.
Our Mills decision disposes of the appellants' STA claims.
Their August arrests, accompanied by the filing of D.C.
charges only, cannot be deemed arrests "in connection with"
federal charges and thus cannot start the STA clock. None-
theless, Seals and Sweatt invite us to fashion an exception to
Mills for the "unusual" circumstances of this case which (in
their view) consist of (1) the FBI's involvement in the arrests
and its continuing role in the post-arrest investigation of the
kidnapping, (2) the United States Attorney's "contemplation"
of federal charges when they were arrested and charged with
violations of the D.C. Code, (3) the alleged tentativeness of
the U.S. Attorney's initial decision to bring D.C. rather than
federal charges and (4) the identity of the prosecuting person-
nel. We decline their invitation.
First, the fact that the FBI was actively involved in their
August arrests does not make them arrests "in connection
with" federal charges. See United States v. Gerald, 5 F.3d
563, 566 (D.C. Cir. 1993) (where arrest was followed by
indictment for D.C. Code violations, fact that defendant ar-
rested by federal law enforcement officer held not to trigger
STA clock), cert. denied, 511 U.S. 1144 (1994); cf. Mills, 964
F.2d at 1192 (recognizing "the now well-established principle
that a state arrest does not start the clock no matter how
extensive the federal involvement in the original arrest")
(emphasis added). Nor does the fact that the FBI actively
participated in the post-arrest investigation make Seals's and
Sweatt's August apprehension an arrest "in connection with"
federal charges. See United States v. Iaquinta, 674 F.2d 260,
262-69 (4th Cir. 1982) (federal investigation undertaken after
defendant's arrest and indictment on state charges and lead-
ing to discovery of additional evidence prompting federal
indictment did not mean STA clock began on date of original
arrest); cf. Gerald, 5 F.3d at 565 (STA clock not triggered by
original arrest on D.C. charges even though prosecutor subse-
quently decided to seek federal indictment as result of post-
arrest review of defendant's criminal record and seriousness
of D.C. charges); United States v. Candelaria, 704 F.2d 1129,
1130 (9th Cir. 1983) (arrest by military police did not trigger
STA clock despite subsequent FBI involvement).
Second, whether the prosecutor contemplated the filing of,
or only tentatively decided not to bring, federal charges at
the time of the appellants' arrests is irrelevant to deciding
when the clock starts. Cf. Iaquinta, 674 F.2d at 269 (sug-
gesting inappropriateness of probe into federal prosecutor's
motives because prosecutor not required to file federal
charges as soon as he has enough evidence to prosecute). At
the very least, such an inquiry is proscribed by the long line
of cases holding that a federal prosecution based on the same
conduct as a failed state prosecution--and which is pursued in
order to salvage the prosecution--is not prohibited by the
STA because the state arrest does not start the STA clock.
See Mills, 964 F.2d at 1189-90 (citing Second, Third, Fourth,
Fifth, Seventh, Eighth and Ninth Circuit decisions for "the
undisputed rule that a state arrest does not trigger the
Speedy Trial Act's clock, even if the arrest is for conduct that
is the basis of a subsequent indictment for a federal offense").
Nor do the decisions upon which the appellants purport to
rely--e.g., United States v. Benitez, 34 F.3d 1489, 1494 (9th
Cir. 1994), cert. denied, 513 U.S. 1197 (1995); United States v.
Cepeda-Luna, 989 F.2d 353, 357 (9th Cir. 1993)--require a
different result. The cases do not authorize a wide-ranging
judicial inquiry into the prosecutor's motives or the finality of
his decisionmaking processes. Rather, they merely carve out
a narrow exception to prevent prosecutorial manipulation of
STA deadlines. The "ruse" exception is inapposite here
because the court below expressly found that "there was no
effort to manipulate the system to gain more time" (Pre-Trial
Mot. Tr. 225) and the appellants do not contest the finding.
Third, as the Government properly notes, the fact that the
same personnel were responsible for prosecuting Seals and
Sweatt in the D.C. Superior Court and United States District
Court does not transform their arrests on D.C. charges into
arrests "in connection with" federal charges. See Mills, 964
F.2d at 1192-93 (rejecting claim that identity of non-federal
and federal prosecutorial personnel triggers STA clock on
date of arrest accompanied by filing of non-federal charges).
Fourth, we reject the appellants' other arguments--name-
ly, that the STA's language, structure and purpose suggest
that an arrest on D.C. charges merely establishes a "pre-
sumption" that the arrest does not trigger the STA clock and
that the "presumption" is rebutted by the unique circum-
stances of this case. To the extent that the arguments have
any merit, they are plainly foreclosed by Mills. See 964 F.2d
at 1193 (section 3161(b) "addresses solely federal complaints
and their attendant arrests") (emphasis added).3
B. Constitutionality of Indictment
D.C. Code Ann. s 11-1916(a) (1981 & Supp. 1995) (section
1916(a)) provides that "[a] grand jury serving in the District
of Columbia may take cognizance of all matters brought
before it regardless of whether the indictment is returnable in
the Federal or District of Columbia Courts." The appellants
argue that the provision is unconstitutional because it vests
the judicial power of the United States outside Article III and
it does so by improperly empowering the executive branch.4
__________
3 Thus, contrary to the appellants' argument, we decline to read
section 3161(b) without reference to section 3162(a)(1) (see supra
note 2). See Mills, 964 F.2d at 1189 ("There appears to be
undisputed support among the circuits for this reading of the
interplay between ss 3161(b) and 3162(a)(1)."). Similarly, we reject
their assertion that the STA clock should be understood to start on
the same date the Sixth Amendment clock starts. See id. at 1193 ("[T]he [STA] is not intended to track the Sixth Amendment.
Within the set of cases covered, it establishes bright-line rules
assuring minimum speed, while at the same time preserving defen-
dants' Sixth Amendment claims in full.").
4 The appellants also claim that section 1916(a) deprives them of
the constitutional safeguards associated with Article III supervision
of federally-indicting grand juries. See Commodity Futures Trad-
ing Comm'n v. Schor, 478 U.S. 833, 848 (1986) ("Article III, s 1,
serves both to protect the role of the independent judiciary within
the constitutional scheme of tripartite government, ... and to
safeguard litigants' right to have claims decided before judges who
are free from potential domination by other branches of govern-
ment.... Although our cases have provided us with little occasion
to discuss the nature or significance of the latter safeguard, our
prior discussions of Article III, s 1's guarantee of an independent
and impartial adjudication by the federal judiciary of matters within
the judicial power of the United States intimated that this guaran-
tee serves to protect primarily personal, rather than structural,
interests.") (internal quotation marks and citations omitted); Peretz
v. United States, 501 U.S. 923, 929 (1991) (noting that Gomez v.
United States, 490 U.S. 858, 864 (1989), had construed statute to
avoid "substantial question whether a defendant has a constitutional
right to demand that an Article III judge preside at every critical
stage of a felony trial"); but cf. Palmore v. United States, 411 U.S.
389, 400 (1973) (rejecting view "that criminal offenses under the
laws passed by Congress may not be prosecuted except in courts
established pursuant to Art. III [because] [i]n our view, ... there is
no support for this view in either constitutional text or in constitu-
tional history and practice"); Swain v. Pressley, 430 U.S. 372, 382
(1977) ("[T]he Constitution does not require that all persons
charged with federal crimes be tried in Article III courts.").
To the extent this claim is distinguishable from the appellants'
other claims, it implicates personal, not structural, constitutional
rights--insofar as such rights might exist in the grand jury context
(about which we express no opinion here). Assuming the right
exists and assuming it was violated as alleged, the appellants would
not be entitled to a dismissal of the indictment unless the violation
prejudiced them, which they do not contend and which the trial
judge explicitly rejected. See Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988) ("We hold that as a general matter,
a district court may not dismiss an indictment for errors in grand
jury proceedings unless such errors prejudiced the defendants.").
While Bank of Nova Scotia involved violations of Fed. R. Crim. P.
6(d) & (e), the decision plainly suggests that the analysis for
constitutional errors is no different from that used to assess other
types of errors. See id. at 256 ("It would be inappropriate to devise
a rule permitting federal courts to deal more sternly with nonconsti-
tutional errors than with constitutional errors."). Moreover, if the
petit jury ultimately returns a guilty verdict, any error committed
at the grand jury stage is (with exceptions not applicable here) non-
prejudicial. See United States v. Mechanik, 475 U.S. 66, 70 (1986)
("But the petit jury's subsequent guilty verdict means not only that
there was probable cause to believe that the defendants were guilty
(1) Judicial Supervision of Grand Jury as
"Judicial Power of United States"
The only reference to the grand jury in the Constitution is
found in the first clause of the Fifth Amendment.5 The grand
jury "has not been textually assigned, therefore, to any of the
branches described in the first three Articles." United States
v. Williams, 504 U.S. 36, 47 (1992).6 Accordingly, it has been
described as "an institution separate from the courts, over
whose functioning the courts do not preside." Id.; see also
id. at 48 ("[I]n its day-to-day functioning, the grand jury
generally operates without the interference of a presiding
judge."); but cf. Blair v. United States, 250 U.S. 273, 278
(1919) ("At the foundation of our federal government the
inquisitorial function of the grand jury and the compulsion of
witnesses were recognized as incidents of the judicial power
of the United States."); Levine v. United States, 362 U.S.
610, 617 (1960) ("The grand jury is an arm of the court and its
in camera proceedings constitute a judicial inquiry.") (inter-
nal quotation omitted).
The independence of the grand jury reflects the protective
role it plays in our system of criminal justice: "Historically,
this body has been regarded as the primary security to the
innocent against hasty, malicious and oppressive persecution;
it serves the invaluable function in our society of standing
__________
as charged, but also that they are in fact guilty as charged beyond a
reasonable doubt. Measured by the petit jury's verdict, then, any
error in the grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.") (note omitted).
5 The Grand Jury Clause of the Fifth Amendment recites:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger;....
U.S. Const. Am. V, cl. 1.
6 The grand jury's lineage is outlined in Hurtado v. California,
110 U.S. 516 (1884), and dates back to at least 1164. Id. at 529.
between the accuser and the accused, whether the latter be
an individual, minority group, or other, to determine whether
a charge is founded upon reason or was dictated by an
intimidating power or by malice and personal ill will." Wood
v. Georgia, 370 U.S. 375, 390 (1962); accord Williams, 504
U.S. at 47.7
The grand jury does depend on the judiciary in its role as
an investigative body: "A grand jury is clothed with great
independence in many areas, but it remains an appendage of
the court, powerless to perform its investigative function
without the court's aid, because powerless itself to compel the
testimony of witnesses." Brown v. United States, 359 U.S.
41, 49 (1959), overruled on other ground by Harris v. United
States, 382 U.S. 162 (1965); accord United States v. Calan-
dra, 414 U.S. 338, 346 n.4 (1974) ("[T]he grand jury must rely
on the court to compel production of books, papers, docu-
ments, and the testimony of witnesses, and the court may
quash or modify a subpoena on motion if compliance would be
unreasonable or oppressive.") (internal quotation omitted).
But even this dependence is limited as the grand jury must
"remain 'free to pursue its investigations unhindered by
external influence or supervision so long as it does not trench
upon the legitimate rights of any witness called before it.' "
Williams, 504 U.S. at 48-49 (quoting United States v. Dioni-
sio, 410 U.S. 1, 17-18 (1973)) (emphasis added).
Moreover, an Article III judge's role in the grand jury's
investigative process is often more attenuated as the respon-
__________
7 Under the Fifth Amendment, an indictment is not required to
initiate prosecution of a state "capital[ ] or otherwise infamous
crime." See Hurtado, 110 U.S. at 538. Although the District is
treated like a state in many respects--see, e.g., Palmore, 411 U.S.
at 397 (1973) (in District of Columbia "Congress may also exercise
the police and regulatory powers which a state legislature or
municipal government would have in legislating for state or local
purposes")--the Supreme Court has held that the prosecution of a
D.C. Code offense carrying the possibility of "infamous punishment"
may not be commenced other than by grand jury indictment or
presentment as required by the Fifth Amendment. See United
States v. Moreland, 258 U.S. 433 (1922).
sibility for issuing subpoenas and for accepting returned
indictments is vested in United States magistrate judges who
are not Article III judges. See Fed. R. Crim. P. 17(a)
(subpoenas "shall be issued by United States Magistrate
Judge[s]"); Fed. R. Crim. P. 6(e)(4) & 6(f) (indictment is to
be returned to magistrate judge). Indeed, the significance
attached to Article III supervision of a grand jury is so minor
that the Supreme Court has held that the judge's absence
from the federal judicial district in which the grand jury is
sitting neither implicates constitutional rights of the defen-
dant nor otherwise constitutes cognizable error. See Badders
v. United States, 240 U.S. 391, 394 (1916). Therefore, "[g]iv-
en the grand jury's operational separateness from its consti-
tuting court, it should come as no surprise that [the Supreme
Court] ha[s] been reluctant to invoke the judicial supervisory
power as a basis for prescribing modes of grand jury proce-
dure." Williams, 504 U.S. at 49-50.
Accordingly, to the extent that the supervision of a federal-
ly competent grand jury implicates the Article III "judicial
power of the United States," the power is a circumscribed one
and is far removed from "the essential attributes of the
judicial power" with which Article III is principally con-
cerned. Crowell v. Benson, 285 U.S. 22, 51 (1932). More-
over, section 1916(a) is applicable only to the "unique federal
enclave," Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 75 (1982) (plurality op.) [hereinafter
Northern Pipeline], that is the District of Columbia.
(2) Expanded Executive Branch Involvement with Grand
Jury as Encroachment on Judicial Branch
Seals and Sweatt contend that section 1916(a), by substitut-
ing Article I for Article III supervision of a federally-
competent grand jury, unconstitutionally encroaches on the
judicial branch. Their argument rests on the notion that a
D.C. Superior Court judge, lacking life tenure and salary
protections, is less able to curb federal prosecutorial abuses
than his United States District Court counterpart. We think
this notion is questionable at best. See Palmore v. United
States, 411 U.S. 389, 402 (1993) ("Nor, more particularly, has
the enforcement of federal criminal law been deemed the
exclusive province of federal Art. III courts. Very early in
our history, Congress left the enforcement of selected federal
criminal laws to state courts and to state court judges who
did not enjoy the protections prescribed for federal judges in
Art. III."); cf. Testa v. Katt, 330 U.S. 386 (1947) (Supremacy
Clause required Rhode Island trial court to enforce non-penal
provisions of federal penal price control statute). The delega-
tion of certain Article III powers to United States magistrate
judges, who are not Article III judges, has also been upheld.
See, e.g., Peretz v. United States, 501 U.S. 923, 937 (1991)
(structural constitutional protection not abrogated by allowing
magistrate to conduct voir dire); United States v. Raddatz,
447 U.S. 667, 683 (1980) (delegation of suppression hearing to
magistrate did not violate Article III or Due Process Clause
so long as Article III court retained final authority). More-
over, the Supreme Court has held that a D.C. Superior Court
judge is presumed competent to pass on federal constitutional
questions that may arise in the course of a criminal trial. See
Swain v. Pressley, 430 U.S. 372, 383 (1977) ("[T]he judges of
the Superior Court of the District of Columbia must be
presumed competent to decide all issues, including constitu-
tional issues, that routinely arise in the trial of criminal
cases.").8
__________
8 We do not here conclude that there are no constitutional limita-
tions on the Congress's authority to delegate either grand jury
supervisory functions or federal felony trial supervisory powers to
state and Article I judges, as controlling precedent suggests that, in
at least some instances, a non-consenting defendant may have a
personal constitutional claim to adjudication by an Article III
judge. See Gomez v. United States, 490 U.S. 858, 872 n.25 (1989);
Peretz, 501 U.S. at 936 ("[I]t is arguable that a defendant in a
criminal trial has the right to demand the presence of an Article III
judge at voir dire."). Even if a defendant has such a constitutional
right to Article III adjudication, it is far from clear that he has a
corresponding right to indictment under Article III supervision.
Further, because the grand jury conducts its proceedings ex parte,
it would be difficult (if not impossible) to obtain the accused's
consent to non-Article III supervision without altering the funda-
The appellants' challenge requires us to assess the "prac-
tical effect" of the alleged infringement of Article III power:
[I]n reviewing Article III challenges, we have weighed a
number of factors, none of which has been deemed
determinative, with an eye to the practical effect that the
congressional action will have on the constitutionally
assigned role of the federal judiciary. ... Among the
factors upon which we have focused are [1] the extent to
which the 'essential attributes of judicial power' are
reserved to Article III courts, and, conversely, [2] the
extent to which the non-Article III forum exercises the
range of jurisdiction and powers normally vested only in
Article III courts, [3] the origins and importance of the
right to be adjudicated, and [4] the concerns that drove
Congress to depart from the requirements of Article III.
Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,
851 (1986) (emphasis added). Applying the Schor test here,
we conclude that section 1916(a) does not abrogate Article III
structural protections.9
First, as discussed earlier, the power to supervise a federal-
ly-competent grand jury cannot fairly be described as an
"essential attribute" of the "judicial power of the United
States." The limited authority a supervising judge wields,
the independence of the grand jury from both the judicial and
__________
mental and independent role of the grand jury in the investigative
and indictment process--something Williams plainly proscribes.
See Williams, 504 U.S. at 52-55 (rejecting judicial rule requiring
presentation of exculpatory evidence to grand jury because it would
"alter the grand jury's historical role").
9 While Schor addressed the constitutionality of the Commodity
Futures Trade Commission's power to decide a state-law counter-
claim in an administrative reparation proceeding, there is no reason
that the structural constitutional analysis should be any different in
the criminal context. See, e.g., Mistretta v. United States, 488 U.S.
361, 382-83 (1989) (citing Schor in describing separation of powers
analysis to be applied in determining constitutionality of grant of
authority to Sentencing Commission to set mandatory minimum
punishments for criminal violations of U.S. Code).
executive branches, as well as the fact that such supervisory
responsibilities are often discharged by a magistrate judge
(without requiring the accused's consent)--all manifest that
the supervisory power at issue is not an "essential attribute"
of the "judicial power of the United States." See generally
Williams, 504 U.S. at 47-55.
Second, even if supervision of a federally-competent grand
jury qualified as an "essential attribute," section 1916(a)
authorizes only a limited sharing of the supervisory power
with an Article I court. An Article III judge continues to
preside at the defendant's trial and retains his authority to
dismiss an indictment. Cf. Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988) ("We hold that, as a general
matter, a district court may not dismiss an indictment for
errors in grand jury proceedings unless such errors preju-
diced the defendants."); United States v. Raddatz, 447 U.S.
667, 683 (1980) (delegation of authority to conduct suppres-
sion hearing to magistrate judge "does not violate Article III
so long as the ultimate [suppression] decision is made by the
district court").
Third, while indictment or presentment by a grand jury is a
right secured to felony defendants by the Fifth Amendment,
the history and origins of the grand jury suggest that any
constitutional right to have it supervised by an Article III
judge is of much more recent vintage:
The grand jury is an English institution, brought to this
country by the early colonists and incorporated into the
Constitution by the Founders. There is every reason to
believe that our constitutional grand jury was intended to
operate substantially like its English progenitor. The
basic purpose of the English grand jury was to provide a
fair method for instituting criminal proceedings against
persons believed to have committed crimes. Grand ju-
rors were selected from the body of the people and their
work was not hampered by rigid procedural or evidential
rules. In fact, grand jurors could act on their own
knowledge and were free to make their presentments or
indictments on such information as they deemed satisfac-
tory. Despite its broad power to institute criminal pro-
ceedings the grand jury grew in popular favor with the
years. It acquired an independence in England free
from control by the Crown or judges.
Costello v. United States, 350 U.S. 359, 362 (1956) (emphasis
added); accord Hurtado v. California, 110 U.S. 516, 530
(1884) ("When we add to this that the primitive grand jury
heard no witnesses in support of the truth of the charges to
be preferred, but presented upon common fame and general
suspicion, we shall be ready to acknowledge that it is better
not to go too far back into antiquity for the best securities for
our 'ancient liberties.' "). Thus, the grand jury's reliance on a
judge for subpoenas, immunity orders and the like is a
relatively recent development in the history of the institution,
resulting, no doubt, from proscribing the jurors' reliance on
personal knowledge of events in the vicinage to form their
opinions. Cf. Edward J. Finley II, Note, Ignorance as Bliss?
The Historical Development of an American Rule on Juror
Knowledge, 1990 U. Chi. Legal F. 457, 468 (jurors' use of
personal knowledge not prohibited by many states until end
of nineteenth century); see also Badders, 240 U.S. at 394-95 (1916) (finding no error, constitutional or otherwise, in district
judge's absence from District during grand jury deliberation).
Fourth, section 1916(a) promotes efficiency resulting from
the identity (both in composition and function) of the D.C.
Superior Court grand jury and the federal grand jury:
[G]rand jurors for both the District Court and the Supe-
rior Court are selected from the same pool of names, by
the same jury commissioners, by use of the Superior
Court computer, and pursuant to an identical method.
Moreover the grand jurors in the two courts have identi-
cal qualifications and it is only by chance that a person
may be selected to serve on one grand jury rather than
the other. The grand jury procedure is virtually identi-
cal in both.
United States v. Hackney, 389 A.2d 1336, 1340 (D.C. 1978),
cert. denied, 439 U.S. 1132 (1979). In addition, the provision
immediately following section 1916 directs:
To the extent feasible, the Superior Court and the Unit-
ed States District Court shall consider the respective
needs of each court in the qualification, selection, and
service of jurors. Nothing in this chapter shall be con-
strued to prevent such courts from entering into any
agreement for sharing of resources and facilities (includ-
ing automated data processing and hardware and soft-
ware, forms, postage, and other resources).
D.C. Code Ann. s 11-1917 (1981 & Supp. 1995). Given the
limited pool of potential jurors available to serve both the
D.C. Superior Court and the United States District Court, it
is hardly surprising that the Congress should vest a grand
jury empaneled by either court with authority to return an
indictment in the other or that judicial supervisory authority
should be shared by the courts. See Atkinson v. United
States, 295 A.2d 899, 901-02 (D.C. 1972) (observing that as of
February 1971, grand jury sitting in one court could return
indictment to other court). While the grand jury arrange-
ment in the District of Columbia may be unique, "[o]ur
constitutional principles of separated powers are not violated
... by mere anomaly or innovation." Mistretta v. United
States, 488 U.S. 361, 385 (1988).
The two cases Seals and Sweatt rely on do not suggest a
different conclusion. They first cite O'Donoghue v. United
States, 289 U.S. 516 (1932), in which the Supreme Court
upheld the classification of District of Columbia courts as
Article III courts because (1) the Congress did not expressly
denominate them Article I tribunals, (2) the Congress consis-
tently treated them like other Article III courts, (3) it vested
them with broad powers to determine matters under national
laws and (4) they were the only courts to which District of
Columbia residents could turn to protect their federal statuto-
ry rights. See 289 U.S. at 534-35, 544-49; cf. Palmore, 411
U.S. at 405-07 (O'Donoghue "[r]el[ied] heavily on congres-
sional intent" to uphold D.C. courts as Article III courts).
Some forty-one years later, after the Congress established
separate Article I and Article III courts in the District of
Columbia, the Supreme Court held that Article III did not
prohibit the Congress from authorizing D.C. Superior Court
judges to hear federal criminal cases brought under corre-
sponding provisions of the D.C. Code. Palmore, 411 U.S. at
389. Accordingly, O'Donoghue offers the appellants no sup-
port for their challenge.
Second, the plurality opinion in Northern Pipeline does not
support the appellants.10 In that opinion, Justice Brennan
likened the Congress's plenary Article I authority over the
District of Columbia to its authority over territorial matters
pursuant to Article IV and, with three other justices, held
that, with respect to such enclaves, "the general principle of
independent adjudication commanded by Art. III does not
apply." 458 U.S. at 76 (emphasis added).
(3) Other Considerations
The line of cases confirming the Congress's plenary author-
ity over the District of Columbia pursuant to Article I, s 8, cl.
17, further fortifies our holding today.11 In particular, Pal-
more recognizes that "[i]t is apparent that the power of
Congress under Clause 17 permits it to legislate for the
District in a manner with respect to subjects that would
exceed its powers, or at least would be very unusual, in the
context of national legislation enacted under other powers
__________
10 The precedential value of Northern Pipeline, which did not
produce a majority opinion, has been subsequently weakened. See
Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 584
(1985) ("The Court's holding in [Northern Pipeline] establishes only
that Congress may not vest in a non-Article III court the power to
adjudicate, render final judgment, and issue binding orders in a
traditional contract action arising under state law, without the
consent of the litigants, and subject only to ordinary appellate
review.") (emphasis added); cf. Fields v. Washington Metro. Area
Transit Auth., 743 F.2d 890, 894 n.10 (D.C. Cir. 1984).
11 Article I, s 8, cl. 17, in relevant part provides:
[The Congress shall have Power] To exercise exclusive Leg-
islation in all Cases whatsoever, over such District (not exceed-
ing ten Miles square) as may, by Cession of particular States,
and the Acceptance of the Congress, become the Seat of the
Government of the United States....
delegated to it under Art I...." 411 U.S. at 397-98. Subse-
quently, the plurality opinion in Northern Pipeline went even
further in describing the extent of the Congress's plenary
authority under Article I, s 8, cl. 17: "Congress' power over
the District of Columbia encompasses the full authority of the
government, and thus, necessarily, the Executive and Judi-
cial powers as well as the Legislative." 458 U.S. at 76.
Moreover, we cannot find in the Fifth Amendment any
basis for concern regarding the assignment of the grand jury
supervisory function to a non-Article III judge. Instead, we
conclude that if a D.C. Superior Court judge is competent,
despite lacking life tenure and salary protections, to adjudi-
cate a constitutional right as fundamental as that guaranteed
by the writ of habeas corpus--see Swain, 430 U.S. at 383--we
see no reason that the same judge cannot likewise protect
whatever Fifth Amendment right the appellants might have
to indictment by a federally-competent grand jury supervised
by an impartial and independent judge.
C. Sweatt's Kidnapping Conviction
The federal kidnapping statute, in relevant part, provides:
Whoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom
or reward or otherwise any person, except in the case of
a minor by the parent thereof, when--
(1) the person is willfully transported in interstate or
foreign commerce;
(2) any such act against the person is done within the
special maritime and territorial jurisdiction of the
United States;
(3) any such act against the person is done within the
special aircraft jurisdiction of the United States as
defined in section 46501 of title 49;
(4) the person is a foreign official, an internationally
protected person, or an official guest as those terms
are defined in section 1116(b) of this title; or
(5) the person is among those officers and employees
designated in section 1114 of this title and any such act
against the person is done while the person is engaged
in, or on account of, the performance of official duties;
shall be punished by imprisonment for any term of years
or for life and, if the death of any person results, shall be
punished by death or life imprisonment.
18 U.S.C. s 1201(a) (emphasis added). Sweatt contends that
the word "when" as used in section 1201(a) means that the
kidnapping ended after the victim was transported across
state lines and before he became involved in holding the
victim and retrieving the ransom.12 He therefore reasons
that he cannot be held criminally liable as a principal, aider
and abettor or Pinkerton co-conspirator under 18 U.S.C.
s 1201(a). He is mistaken.
Sweatt's crabbed reading of section 1201(a) is contrary to
the "natural meaning" of the term "when." See United
States v. Wells, 117 S. Ct. 921, 927 (1997) ("the first criterion
in the interpretive hierarchy, a natural reading of the full
text") (citing United States v. American Trucking Ass'n, Inc.,
310 U.S. 534, 542-43 (1940)). The term "when" is used in
section 1201(a) not in its temporal sense--i.e., "at the time
that"--but rather in its categorical sense--i.e., "in cases
where." This is evident from the syntax and structure of the
provision: the list of factors immediately following "when"
describes activities the provision intends to forbid, not their
chronology. Moreover, if "when" had the meaning Sweatt
ascribes to it, the word "while" in subsection (5) of section
1201(a) would be superfluous--again, a disfavored construc-
tion. See Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)
(courts should "give effect, if possible, to every clause and
word of a statute"); cf. Moskal v. United States, 498 U.S. 103,
__________
12 According to the Government's evidence, Sweatt assisted in
holding the victim in Maryland while the ransom demand was made
and he and Seals traveled to the District of Columbia to pick up the
ransom. See Trial Tr. 612-14, 619-20, 709-10, 1156, 1171. There
was also evidence that a telephone call was placed to Sweatt shortly
after the victim was abducted. Id. at 713-16.
111 (1990) (declining to read provision narrowly so as to "limit
it to instances of fraud rather than the class of fraud
encompassed by its language") (emphasis added); Bell v.
United States, 462 U.S. 356, 362 (1983) ("[F]ederal criminal
statutes that are intended to fill a void in local law enforce-
ment should be construed broadly.").
Other courts have held that, even though a violation of 18
U.S.C. s 1201(a) occurs when all of the essential elements of
the offense have been satisfied, the crime of kidnapping
continues while the victim remains held and a ransom sought.
See United States v. Denny-Shaffer, 2 F.3d 999, 1018 (10th
Cir. 1993) ("The broad language of s 1201(a) defines a con-
tinuing offense."); cf. United States v. Garcia, 854 F.2d 340,
344 (9th Cir. 1988) (federal kidnapping is continuing offense
and therefore statute of limitations does not begin with
transport of victim across state lines), cert. denied, 490 U.S.
1094 (1989); cf. also Grunewald v. United States, 353 U.S.
391, 403 (1957) ("Kidnapers in hiding, waiting for ransom,
commit acts of concealment in furtherance of the objectives of
the conspiracy itself, just as repainting a stolen car would be
in furtherance of a conspiracy to steal; in both cases the
successful accomplishment of the crime necessitates conceal-
ment.") (note omitted); see also McElroy v. United States,
455 U.S. 642, 654-56 (1982) (rejecting, as contrary to statute's
purpose of aiding in apprehension of criminals who misuse
channels of interstate commerce, argument that federal for-
gery conviction must be overturned because prosecutor had
failed to establish instrument was forged before transport
across state lines); United States v. Toledo, 985 F.2d 1462,
1467 (10th Cir.) (in enacting section 1201(a) "Congress was
attempting to address the misuse of interstate commerce by
kidnappers to frustrate the efforts of state police"), cert.
denied, 510 U.S. 878 (1993). Accordingly, there was sufficient
evidence to convict Sweatt as at least an aider and abettor--
which is all that is required to sustain his conviction. See
Griffin v. United States, 502 U.S. 46, 49 (1991) ("[A] general
jury verdict [is] valid so long as it [is] legally supportable on
one of the submitted grounds....").
Nor do the cases Sweatt cites compel a different conclusion.
The cases hold only that unlawful abduction and transport
across state lines is sufficient to violate section 1201(a); they
do not hold, nor does it follow from their holdings, that the
kidnapping concludes once the abduction and transport occur.
See, e.g., United States v. Broadwell, 870 F.2d 594, 601 & n.16
(11th Cir.) (holding that unlawful restraint began when victim
was abducted and "continued" after he was transported
across state lines even though crime "complete" upon trans-
port), cert. denied, 493 U.S. 840 (1989). Accordingly, we
uphold Sweatt's conviction on the kidnapping charge.13
D. Sweatt as "Career Offender" Under Section 4B1.1
We held in United States v. Price, 990 F.2d 1367 (D.C. Cir.
1993), that "the Sentencing Commission adopted ss 4B1.1 &
4B1.2 solely in an effort to fulfill the mandate of 28 U.S.C.
s 994(h)" and therefore only those offenses specified in sec-
tion 994(h) can render the defendant a "career offender." 990
F.2d at 1368. Because aiding and abetting, conspiring and
attempting to commit certain narcotics offenses are not
among those offenses listed in section 994(h), we held that the
defendant could not be sentenced as a career offender on the
basis of prior convictions of those offenses. Id. Price con-
cluded that Application Note 1 to section 4B1.2 of the Guide-
__________
13 We express no opinion regarding the Government's and
Sweatt's opposing arguments as to his culpability on a Pinkerton
theory. We also note that although the trial court's charge, in
describing the elements of kidnapping required to convict Seals and
Sweatt as principals, declared that Sweatt could not be convicted
unless he was shown to have participated in the abduction or
transport of the victim across state lines (Trial Tr. 1926), the aiding
and abetting charge (id. at 1917-19) contained no such limitation
and could have been used by a reasonable jury to convict Sweatt of
kidnapping. See Griffin, 502 U.S. at 49. In any event, although we
need not reach the issue today, we doubt that a criminal defendant
can obtain reversal of his conviction solely on the basis of instruc-
tions that create erroneous and unnecessary impediments to convic-
tion. See United States v. Bomski, 125 F.3d 1115, 1116 (7th Cir.
1997).
lines was invalid to the extent it suggested that convictions of
certain inchoate offenses counted in treating the defendant as
a career offender. Id. We held open the question, however,
whether the Sentencing Commission could repromulgate Ap-
plication Note 1 pursuant to statutory authority other than
section 994(h), including its discretionary authority under
section 994(a). See id. at 1370 ("Thus, without passing on the
Commission's authority to re-adopt Application Note 1 to
s 4B1.2 (or some variation of Note 1) on alternative grounds,
we vacate the sentence and remand the case to the district
court for resentencing.").
The Commission responded by amending and repromulgat-
ing the Background Commentary to section 4B1.1 of the
Guidelines. The repromulgated version clarified that, pursu-
ant to the Commission's general statutory authority, 28
U.S.C. s 994(a)-(f), and its amendment authority, 28 U.S.C.
s 994(o)-(p), prior convictions that can count toward career
offender status include convictions of attempts, aiding and
abetting and other inchoate offenses. See 1995 Guidelines
Manual, App. C, Am. 528 at 434-35. The repromulgated
Background Commentary to section 4B1.1 became effective
on November 1, 1995.
Sweatt argues that in light of Price, the district court
improperly sentenced him as a career offender under the
repromulgated version of section 4B1.1 because his 1987
conviction of attempted distribution of heroin could not be
used under the November 1994 version of section 4B1.1--the
version in effect when he committed the crimes.14 By retro-
actively applying the November 1995 version of section 4B1.1,
he reasons, the trial court imposed a greater punishment than
it could have imposed under the law as it existed when the
crimes were committed, violating the Ex Post Facto Clause.
See, e.g., United States v. Stover, 93 F.3d 1379, 1386 (8th Cir.
1996); United States v. Smallwood, 35 F.3d 414, 417-18 n.18
(9th Cir. 1994); United States v. Saucedo, 950 F.2d 1508, 1515
(10th Cir. 1991).
__________
14 Sweatt does not dispute that his 1987 robbery conviction was
properly counted as a prior conviction under section 4B1.1.
The Government essentially concedes that Sweatt's reading
of Price is correct but it contends that we should overrule
Price. See Appellee Br. at 43. Nevertheless, the law is well
settled that one panel may not "overrule the decision of
another panel of this court." United States v. Doe, 730 F.2d
1529, 1531 n.2 (D.C. Cir. 1984). Accordingly, we vacate
Sweatt's sentence as a career offender pursuant to section
4B1.1 of the Guidelines and remand to the district court for
resentencing. See supra note 1.
III. CONCLUSION
For the foregoing reasons, we affirm the appellants' convic-
tions. We vacate appellant Sweatt's sentence as a career
offender and remand for resentencing in accordance with the
terms of this opinion.
So ordered.