USCA1 Opinion
June 8, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1043
EDWARD W. SEELEY,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Edward W. Seeley on brief pro se.
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Donald K. Stern, United States Attorney, and June C. Seraydar,
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Assistant United Attorney, on brief for appellee.
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Per Curiam. Petitioner Edward W. Seeley appeals
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pro se from the dismissal of his second petition under 28
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U.S.C. 2255. For the following reasons, we affirm.
In February 1987, a federal grand jury returned a
superseding indictment charging petitioner with conspiracy in
violation of 18 U.S.C. 371 (count I); conspiracy to
interfere with commerce by robbery in violation of 18 U.S.C.
1951 (count II); two counts of interference with commerce
by robbery in violation of 18 U.S.C. 2, 1951 (counts III
and IV); armed bank robbery in violation of 18 U.S.C. 2,
2113(d) (count V); and possession of money stolen from a bank
in violation of 18 U.S.C. 2, 2113(c) (count VII). On
February 24, 1988, a jury acquitted petitioner of the two
conspiracy charges, but convicted him of the remaining four
charges. The district court sentenced petitioner to a total
of thirty-five years imprisonment.
We affirmed petitioner's conviction on direct
appeal. United States v. Seeley, 892 F.2d 1 (1st Cir. 1989).
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On May 18, 1992, petitioner filed his first 2255 motion.
He alleged that counts IV and V were multiplicitous. The
district court vacated the sentence on count V, but left
unchanged the total punishment time. Petitioner appealed
from this decision, and we affirmed. United States v.
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Seeley, 7 F.3d 219 (1st Cir. 1993) (table) (per curiam). On
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August 8, 1994, petitioner filed his second 2255 motion,
claiming that (1) his convictions on counts III and IV
violate the Double Jeopardy Clause and the doctrine of
collateral estoppel because he was acquitted of the two
conspiracy charges; and (2) his thirty-five year sentence
violates due process because the district court considered
evidence of his involvement in the conspiracy. The district
court dismissed the petition on the ground that "petitioner
is not entitled to the relief he seeks." This appeal ensued.
Because the district court disposed of the instant case on
the merits (rather than on abuse of the writ ground), we
shall do likewise.
In support of his claim that his convictions on
counts III and IV violate the Double Jeopardy Clause and the
doctrine of collateral estoppel, petitioner argues that these
counts are multiplicitous with counts I and II. This
argument is meritless. First, double jeopardy is not
implicated here since there was a single trial and
petitioner, who was acquitted of the conspiracy charges, did
not receive multiple punishments for the offenses of
conspiracy and interference with commerce by robbery. See
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United States v. Dixon, 113 S. Ct. 2849, 2855 (1993)
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(observing that the Double Jeopardy Clause protects against
successive prosecutions and successive punishments for the
same offense); United States v. Flores-Rivera, 1995 WL 318726
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at *11, n.5 (1st Cir. June 1, 1995). Second, a substantive
crime and a conspiracy to commit that
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crime are not the same offense for double jeopardy purposes.
United States v. Felix, 503 U.S. 378, 389-92 (1992); Callanan
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v. United States, 364 U.S. 587, 597 (1961) (conspiracy to
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violate the Hobbs Act and a substantive violation of the
Hobbs Act based on the same conduct are two separate offenses
even though both offenses violate the same statute).
Finally, although the doctrine of collateral estoppel bars
relitigation of issues previously determined in a defendant's
favor, it does not, contrary to petitioner's suggestion,
require the verdict rendered at a single trial to be entirely
consistent. See United States v. Console, 13 F.3d 641, 664-
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65 & n.28 (3d Cir. 1993), cert. denied, 114 S. Ct. 1660
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(1994).
Petitioner's due process argument is equally
unavailing. It is well-established that a sentencing court
may consider relevant conduct--including the facts underlying
an acquittal----in determining the length of a defendant's
sentence. See United States v. Mocciola, 891 F.2d 13, 16-17
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(1st Cir. 1989) (sentencing court may consider facts
underlying prior acquittal); United States v. Wright, 873
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F.2d 437, 441 (1st Cir. 1989) (observing that past practice,
and authoritative case law, indicates that the Constitution
does not, as a general matter, forbid consideration of
relevant conduct). Assuming, arguendo, that the sentencing
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court in
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the instant case considered evidence of petitioner's
involvement in the conspiracy in determining the length of
his sentence, this was not error.
Affirmed.
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