The opinion of the court was delivered by: Eric F. Melgren United States District Judge
Defendant Dlaney Nixon was charged in a one-count indictment with aggravated bank robbery in violation of 18 U.S.C. § 2113(a), (d), and 18 U.S.C. § 2. Nixon pleaded guilty to violating § 2113(a) and § 2. He now moves to dismiss the remaining § 2113(d) charge on double jeopardy grounds (Doc. 89). Because Nixon was aware that the Government intended to proceed to trial on the remaining charge at the time that Nixon entered his guilty plea, this case does not threaten the principles that double jeopardy is intended to protect against. The Court therefore denies Nixon's motion to dismiss the remaining § 2113(d) allegation.
I. Factual and Procedural Background
Defendant Dlaney Nixon was indicted on one count of aggravated bank robbery in violation of 18 U.S.C. §§ 2, 2113(a), and 2113(d). At a hearing held before the Court on March 26, 2013, Nixon pleaded guilty to violating §§ 2 and 2113(a). During the course of that hearing the following conversation occurred between Assistant Federal Defender Joel Mandelman, Assistant U.S. Attorney David Lind, and the Court:
THE COURT: So we're going to go to trial on subsection (d)?
MR. MANDELMAN: Well, we were hope-it appears that way.
THE COURT: All right. I mean, certainly he's entitled to do that. I just wanted to be sure that we knew what we were doing. So he's going to plead to subsection
(a), but we're going to go to trial on subsection (d)?
MR. MANDELMAN: If the Government chooses to proceed.
THE COURT: Well, I think you need to assume that they will. Do you have anything to add, Mr. Lind?
MR. LIND: No, Your Honor, just that I've spoken with Mr. Mandelman about ways to handle it, Your Honor, and we can speak to the Court after the plea about that . . . .
Later in the hearing, Mr. Lind informed the Court, in Nixon's presence, that he had suggested to Mr. Mandelman that the parties proceed with a bench trial on subsection (d), explaining to the Court, "[A]s I understand, Mr. Mandelman's trying to preserve [the last element] for appeal, because we have a BB gun used in this case and he has questions about whether or not that is sufficient for a subsection (d) conviction." Mr. Lind went on to say that a bench trial would last only a day, or two days with a jury, because the trial would focus on what occurred in the bank.
Before taking his guilty plea, the Court spoke directly with Nixon about the U.S. Sentencing Guidelines. When discussing the reduction in offense level for acceptance of responsibility, the Court told Nixon, "Candidly, I'm not sure how that's going to work if you go to trial on part of the [charge] and admit to part of it, but you may be entitled to reduction in what that offense level is . . . ." The Court then informed the parties that sentencing would not be scheduled until all charges against Nixon were resolved.
Before concluding the hearing, the Court discussed setting a date for a bench trial, saying, "Well, I'm trying to do this in the appropriate order, and my first question is knowing whether or not the Government's going to go forward, and the defendant for that matter is going to go forward with respect to this remaining charge, but it sounds to me like you're both saying that you are, so if that's the case I don't know that we need a status conference." The Court was prepared to set a date for a bench trial, but the attorneys asked for time to submit briefs on whether use of a BB gun was sufficient to sustain a conviction under § 2113(d). Instead, the parties set a date for ...