Mr. William L. Slover, Washington, D. C. (appointed by the District Court), for appellant.

Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.

Mr. Howard P. Willens, Washington, D. C., argued as amicus curiæ.

Before BAZELON, Chief Judge, and DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.

McGOWAN, Circuit Judge, with whom Circuit Judges DANAHER, BURGER, and TAMM join:

In 1958 appellant, represented by counsel, pleaded guilty to the housebreaking and robbery counts of a 9-count indictment, and received consecutive sentences of two to eight years on the one, and four to twelve years on the other. The other counts were then dismissed. In 1965 he moved under 28 U.S.C. § 2255 to regain his liberty on the ground that the two sentences could not validly have been made to run consecutively. The District Court denied the motion in a long opinion which explored with care the single legal issue raised by the motion. 250 F. Supp. 983 (1965). Upon appeal, a panel of this court reversed, one judge dissenting (No. 19,988, decided March 15, 1967). The Government's petition for rehearing en banc was granted; and, after rehearing, the District Court's judgment is herewith affirmed.

* Because of the existence of District Judge (now Circuit Judge) Robinson's opinion referred to above, there is no occasion for us to cover the same ground in reaching the same result. He recognized, as this court has recently had occasion to do, that there are circumstances where it cannot safely be assumed that simply because the legislature has defined two separate crimes with differing elements and prescribed separate punishments for them, it contemplated that such punishments can be consecutively inflicted.1 The nature of the two criminal specifications, and of the course of conduct in which both crimes may be thought to have been committed, may be such as to raise a doubt as to a legislative purpose to encompass both punishments. In such a case, an aid to the divination of such purpose in the form of a so-called "rule of lenity" has been devised to the end of barring double punishment where there is substantial doubt as to whether Congress would have intended it to be imposed.

A majority of the panel which first heard this appeal thought that there was a sufficiently "substantial doubt about what Congress intended" as to cause the rule of lenity to operate. This point of view was conscientiously and competently urged upon us by appellant's appointed counsel, who has served his client faithfully and well here as in the District Court. However, we agree with the District Court that the degree of doubt discernible on this record does not warrant invocation of the rule of lenity. We note in this regard the District Court's analysis of the historic differences in concept between housebreaking as a crime against property, on the one hand, and robbery as a crime against the person, on the other.

It is not novel that Congress has differentiated between housebreaking and robbery in terms of the one as an invasion of the security of the dwelling, and the other as an intrusion upon the security of the person. This was a distinction familiar to the common law, and it was perpetuated in the statutes found to have been violated here. Stealing something worth $1000 may be only an aggravation of the misdeed involved in stealing something worth $10. But taking something, whatever its worth, from another's person by force and putting in fear brings in a new and different interest which it has been thought important to protect, namely, the person threatened as distinct from the property taken.

One who wrongfully goes into a house to pilfer what he can find may or may not start out with a purpose to rob, if necessary. If he consciously entertains both purposes from the beginning, it can be said that he sets out with an intent to commit both larceny and robbery, or crimes against both property and person, if the opportunity presents itself. In such circumstances, he will be guilty of housebreaking in either event once he crosses the threshold, but, if he retires upon finding the house occupied and without robbing the occupant, he has made the decision which saves him from punishment for robbery. The point is, of course, that his invasion of the premises to steal does not irrevocably commit him to rob from the person of anyone he finds there. The choice is still his up to the moment of confrontation.2 If he decided to rob, consecutive punishments are not made available solely as a means of exacting greater retribution. Congress could well have conceived of them as a deterrent to compromising the safety of the person as well as the security of the premises. They illuminate the differing dangers to society inherent in stealing what one finds in a vacant house, and robbing the occupant as well when he proves to be at home. We cannot, at any rate, say with confidence that Congress did not contemplate some additional disincentive for the latter.3

The problems in this area are not easy. It was for this reason that the court en banc decided to seek the views of a disinterested amicus curiæ. There has been forthcoming, as a result of this appointment, a very helpful brief which has supplied us with useful research information,4 as well as with imaginative reflections upon the judicial approach most cognizant of both the public and private interests involved.

Amicus has concluded that the rule of lenity has a very limited utility indeed as a touchstone of the propriety of consecutive sentences. He suggests that it be abandoned in favor of a supervisory rule to the effect that consecutive sentences may not be imposed for offenses arising out of a single course of conduct unless the sentencing judge (1) finds from the facts that the defendant was not motivated by a single intent and objective, and (2) recites his reasons for believing that consecutive sentences are necessary to achieve at least one of the recognized sentencing goals.

Were this proposal to be deemed wholly meritorious, it could have no application to this case, for the reason that it would require a remand hearing to try to assemble and reconstruct facts which happened nearly a decade ago. The sentencing judge is dead; and it is a commonplace that the passage of even a few years makes it difficult to pursue factual inquiries. An attack on consecutive sentences is one which should be made at the time the sentences are imposed, when there is the opportunity to make a meaningful inquiry into the facts. It is not suited to the vehicle of belated collateral attack.

It is true that where, as here, consecutive sentencing was founded upon a guilty plea, the record is singularly uninformative in respect of those facts which would be most helpful in any appraisal of the Congressional will. Any judge contemplating consecutive sentences in such a situation hereafter would be well advised to cause the record to show the factual circumstances surrounding the commission of the crimes. Such a practice would enable the judicial process to function better at all levels because it would facilitate the search for the legislative intent which primarily defines the limits of the sentencing power.

Affirmed.

I concur in the judgment, since I agree that it is possible that a combination at one scene of a housebreaking, with intent to commit larceny, and a robbery, may reflect sufficiently separate criminal purposes to permit consecutive punishment. While they may also, I think, be so integrated as to preclude consecutive punishment, that objection is one that should ordinarily be put forward when sentence is imposed, or timely in a motion to reduce the sentence. In any event, as will be indicated, I do not believe that appellant's pleading asserted the factual predicate necessary to sustain the conclusion that the "sentence was in excess of the maximum authorized by law."

A new approach, such as that suggested by amicus curiae,1 is left by the court to future consideration, and that seems right to me. In exploring approaches and pondering consequences, we may be aided by the analyses generated by the tensions of the adversary system, and, if they are available, by reflections of a sentencing judge whose attention has been directed to the elements of the approach advanced for consideration.

Meanwhile I believe that it usually avails little to seek out specific legislative intent as to the particular offenses. Occasionally an ascertainable legislative objective concerning pyramiding of penalties may be discernible where Congress is addressing itself to a specific type of anti-social conduct. The Supreme Court has accordingly gleaned from the legislature's successive efforts to tighten the screw in narcotics offenses an intent to pyramid punishments,2 and contrariwise in the laws punishing national bank robberies it has found that the alternative sections broaden the net available for catching up with criminal activity without cumulating punishment for a single episode.3 But for the most part there is no ascertainable legislative intent on cumulation of punishment in relation to any particular offense or group of offenses even when the prohibiting statute is one passed by a national legislature in the exercise of its delegated powers. Legislative intent is even less ascertainable when the Congressional enactment does not relate to a specific crime, or even reflect the narrowing to a sphere of delegated powers, but is part of a code embracing the entire span of criminal activity, a general overhaul undertaken by Congress as a super-territorial legislature, acting in the same broad range as the various state and territorial legislatures.

In the absence of other, specific legislative intention on the side of either lenity or harshness, we can only invoke a generalized legislative intent. This is more likely presumed than real, and embodies a large standard of reasonableness and fairness to offenders and society alike. The standard that best conforms to my estimate of a generalized legislative intention is this: A defendant guilty of a serious crime is subject to judgment of imprisonment. The sentencing judge is given latitude so that a heavier punishment will be appropriate for a crime that is aggravated in its particular facts. When the same act can be classified as different crimes, he may be punished with the most onerous penalty provided for the most extreme crime for which he was charged. But he is not to be given two or more consecutive punishments for what is essentially a single criminal episode — say a robbery, committed of course with intent to rob — merely because the law would also have punished him if he had stopped or been apprehended before completing the robbery, on the ground that his acts and intent constitute either an attempt to commit robbery or a substantive crime which is made punishable because it is a preliminary step taken with that ultimate intent.4

This standard is essentially similar to that announced in the early 1900's, shortly after the adoption of the District of Columbia Code, by competent circuit courts of appeals.5 Reference is particularly made to the reflective analysis in Judge Sanborn's opinion in Munson v. McClaughry, for his review of the division among the state courts and his adoption of what he considers to be the better-reasoned rule (198 F. at 74):6

[W]here one attempts to break into or breaks into a post office building with intent to commit larceny therein, and at the same time commits the larceny, his criminal intent is one, and it inspires his entire transaction, which is itself in reality but a single continuing criminal act. It seems to be unauthorized, inhumane, and unreasonable to divide such a single intent and such a criminal act into two or more separate offenses, and to inflict separate punishments upon the various steps in the act or transaction, such as one for breaking, or for the attempt to break with the criminal intent, and another for a larceny with the same intent, or such as one for the attempt to break, a second for the breaking, a third for the entering, a fourth for the taking of stamps, a fifth for the taking of other property, a sixth for the conversion of the property, and a seventh for carrying it away, all with the same single criminal intent. And there is evidently no limit to the number of offenses into which a single criminal transaction inspired by a single criminal intent may be divided, if this rule of divison and punishment is once firmly established.

Similarily if a defendant breaks into a house at night for the purpose of relieving the bejeweled guests at a dinner party of material encumbrances, the robbery is indeed a heinous offense that should be severely punished. There is not merely a robbery, but a robbery aggravated by housebreaking. But in my view the defendant is not subject to consecutive punishment on the theory that there are consecutive crimes even though it is the same intention — intention to commit the felony of robbery — which makes a felony of his preliminary housebreaking as well as of the robbery that completes the sequence of the criminal episode.

If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumulative punishment, and he must be treated as accepting that risk, whether he in fact knows of it or not.7 Under a general rule of lenity an accused merits the benefit of any reasonable doubt as to legislative intent, but where a man commits a crime with intent, and then expands or modifies his purpose and invades another interest, I see no reasonable basis for inferring a general legislative intent that the change means only a second crime without even a possibility of a second punishment.

My difficulty with general references to disincentives and multiple societal interests is that they may tend to revive the discarded "same evidence" rule formerly used for this problem,8 and to focus on broad and perhaps abstract considerations rather than the purpose that animated the particular defendant and helps define his criminality. I thus fear that they are a distraction from the main problem of the defendant's intention, without genuine compensation in tracing an ascertainable legislative intention.

Appraisal of a defendant's criminal intention(s) may present problems of fact.9 Indeed if a defendant pleads guilty to more than one crime — not the usual situation — he might conceivably desire affirmatively to claim a worse rather than a milder intent at the start of his offense in order to show that there was but one intent and he therefore should not be subject to consecutive punishment.10 But when there is need our law has traditions and mechanisms for coping with even difficult factual questions.

Theoretical difficulties in making the fact determinations that I think requisite are softened by such considerations as these: First, resolution of the fact questions are for the judge. The jury may bring in a verdict of two crimes whether or not there may be consecutive punishments. Second, since the judge in fixing sentence makes an evaluation of the extent and nature of the defendant's criminality, he properly takes into account an appraisal of intention in the particular case which may be more sophisticated than (but not inconsistent with) the jury's verdict. If the judge thinks there is a reasonable doubt whether there was more than one underlying criminal intent, then the case would seem to call for concurrent sentences. It is hard to believe that the maximums authorized for serious crimes — increased by 50% in the case of recidivists11 — are not enough to accomplish essential purposes of punishment, whether deterrence, reformation, or preventive banishment from society. Concurrent sentences have the additional advantage of obviating consequences of any legal error at the trial pertaining to one but not both judgments.

I think a rule that focuses on changes in the extent and direction of the defendant's criminal intention provides a basis for permitting cumulative punishment that is related to mens rea, and that this is sounder than a generalized approach that two or more consecutive punishments are proper for a single episode because criminality of the activity is established by more than one section of the code.

BAZELON, Chief Judge, with whom J. SKELLY WRIGHT, Circuit Judge, concurs (dissenting):

There are two questions before us. The first is whether, in some cases, the D. C. housebreaking and robbery statutes prohibit cumulative punishment. The second is whether Irby's is one of those cases.

The answer to the first question depends entirely upon statutory construction.1 The issue is whether Congress authorized cumulative punishment not whether the trial judge properly exercised judicial sentencing discretion. No doubt, the process of statutory construction, which entails examining the history of these common law crimes, the legislative history of the statutes, the words of each statute, and the relationship between them is very difficult. But the process is not necessarily more difficult here than in many other contexts in which we must construe statutes. In any event, the difficulty of the process does not excuse us from our duty.

We depend upon statutory construction because the authority to punish resides in the legislature, not in the courts, and we cannot arrogate to ourselves authority which has not been granted. Neither can we assume that Congress wanted separate punishment simply because it created separate crimes. To do so would be to allow the prosecutor and the trial judge almost unfettered discretion to multiply punishment since often it takes nothing more than a fertile imagination to spin several crimes out of a single transaction.2 The cases are perfectly clear that the legality of cumulative punishment depends on more than a finding that separate crimes have been committed.3 Indeed, the Supreme Court has established a "rule of lenity" which requires courts to forego cumulative punishment when there is a doubt about what Congress intended.4

This rule of lenity may well be a constitutionally compelled canon of construction. It is persuasively argued that

Double jeopardy precludes a judge from convicting and punishing twice for the same offense. If a court creates multiple units of punishment ad hoc when, from all that appears in the statutes and their history, the legislature created only multiple units of prosecution, the court offends double jeopardy by punishing twice for a single legislative offense. Double jeopardy therefore requires that in determining the unit of punishment for related offenses, doubts should be resolved against punishing twice for what may be a single offense.5

The Government does not challenge the validity of the rule of lenity.6 Nonetheless, the Government argues that these two crimes should be punishable cumulatively simply because they are separate offenses — historically separate as well as codified in separate statutes.7 It may be that housebreaking and robbery were distinct offenses at common law. It should be noted, though, that both burglary (the common law predecessor to housebreaking) and robbery were thought to be aggravated forms of the same crime — larceny.8 Further, certain activity punishable at common law only as a larceny now violates both the housebreaking and robbery statutes.9 In any event, even if the housebreaking and robbery statutes had more distinct ancestors, that fact would not determine whether the two crimes could be punishable separately.10

On the issue of separate punishment, the common law and legislative history are even more ambiguous. Around the time of codification there was a lively debate about the legality of cumulative punishment for crimes similar to housebreaking and robbery.11 Congress does not seem to have taken any position when it codified the D.C. laws, for there is no provision in the original D.C.Code (or the present one) about cumulative punishment. And there is no mention of this problem in the Congressional reports and debates which preceded passage of the Code.

We must turn, then, to the statutes themselves. The housebreaking statute reads as follows: "Whosoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling * * * whether at the time occupied or not * * * with intent * * * to commit any criminal offense, shall be imprisoned for not more than fifteen years." 22 D.C. Code § 1801 (1961). Housebreaking, by the terms of the statute, is committed in preparation for some other criminal offense which is intended at the time of entry. It seems most likely that Congress, instead of desiring to punish for both the preparation and the completion, created two separate crimes in order to punish those housebreakers who are thwarted and who do not complete the intended crime.

The Supreme Court faced a similar situation in Prince v. United States.12 There the defendant was convicted of robbing a federally insured bank and entering the bank with intent to commit a felony. The Supreme Court reasoned that:

It is a fair inference from the wording in the Act, uncontradicted by anything in the meager legislative history, that the unlawful entry provision was inserted to cover the situation where a person enters a bank for the purpose of committing a crime, but is frustrated for some reason before completing the crime. The gravamen of the offense is not in the act of entering, which satisfies the terms of the statute even if it is simply walking through an open, public door during normal business hours. Rather the heart of the crime is the intent to steal. This mental element merges into the completed crime if the robbery is consummated.13

Therefore, the Supreme Court held that Congress did not intend to punish cumulatively for the preparation and the completed crime.14

A similar inference is warranted here, since, as in Prince, our statute defines housebreaking as entry with intent to commit another crime. And, as in Prince, the gravamen of the offense is not simply the act of entering, which need not be forcible to satisfy the terms of the statute.15 Indeed, it is possible that a person may be guilty of housebreaking although he has not committed a criminal trespass as long as he enters the premises with the required criminal intent.

Even if a criminal trespass is a necessary prerequisite to a finding of housebreaking, it is evident that the illegal act of entry is not the gravamen of housebreaking. If nothing more than entering without permission were involved, a penalty in the order of six months would probably be thought enough by Congress.16 However, Congress provided a much stiffer penalty for housebreaking. And the likely reason is that Congress believed that entry with an intent to commit another crime would often, in fact, lead to that other crime. As in Prince, the intent to commit another crime is at the heart of the offense. By deterring housebreaking Congress meant also to deter the intended crime which might follow. If so, then the housebreaking statutes punishes for the possibility or probability of the intended crime. We do not think Congress would have wanted to impose punishment of fifteen years for the probability of the intended crime and an additional fifteen years for the crime itself.17

Under this analysis, however, cumulative punishment is prohibited only if the crime defendant in fact committed was the same as the crime he intended to commit when he entered the dwelling. This seems to be the question which divides the court. The majority does not think "the indictment can be characterized as asserting that appellant's course of conduct was motivated by a single criminal intent." Judge Leventhal thinks the record is unclear and would require more specific allegations of a single intent. We think the record is clear enough to show that Irby had only one criminal purpose when he committed the two crimes.

According to the indictment, Irby entered the complainant's dwelling with an "intent to steal [his] property." While in the house, Irby carried out his intention and stole two rings worth $2,200.18

The fact that in order to steal he did things which made his crime robbery, as opposed, for example, to grand larceny or petit larceny, does not negate the fact that what he did within the house was motivated by the same criminal purpose ("to steal property of another") as his illegal entry.19

Furthermore, it is significant that Irby was originally charged with carrying a dangerous weapon and assault with a dangerous weapon.20 If these charges are correct, they suggest that when Irby entered the dwelling he was already prepared to use "force and violence" (i. e., to commit robbery) if necessary.

A California state court was faced with a similar situation in Downs v. State.21 There two men broke into an office building and were engaged in looting the safe when the janitors entered the room. The two men then tied the janitors up at gunpoint. The state argued that consecutive sentences for burglary and robbery should be upheld since the trier of fact could have found that the intent to commit robbery originated only after the janitors arrived on the scene. The California court disagreed:

Regardless of the wording of the information, petitioner entered the telephone building with the single purpose to rifle its safe, hoping no doubt that this could be accomplished without interference, but prepared for that event by carrying a gun which he intended to and did threateningly use to consummate the crime. * * * The information, had it been worded with strict accuracy, would have accused petitioner of entering to commit either theft or robbery as might become necessary.22

Unless courts are willing to reason in this fashion, no limits can be placed on cumulative punishment in housebreaking cases. A defendant can rarely demonstrate what his mental state was when he entered the dwelling. His original intent must be inferred from his later conduct.23 If there are facts suggesting a departure from the original intent, the Government should have the burden of asserting them.24

We think the record sufficiently shows that defendant entered the dwelling with the objective of stealing property, by force if necessary, and that he carried out this objective. Since there is substantial doubt that Congress intended cumulative punishment in this situation, the rule of lenity must be applied. Irby should have been punished for either housebreaking or robbery but not both consecutively.