USA v. Ward

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:02cr63
UNITED STATES OF AMERICA, )
)
)
vs. ) O R D E R
)
)
DAVID CLARENCE WARD. )
)
THIS MATTER is before the Court on the Defendant’s Motion to Reopen
Case Double Jeopardy Count Three of the Sentencing Punishment [Doc. 37].
On July 9, 2002, the Defendant was indicted in a four count Bill of
Indictment with bank robbery by force and violence, in violation of 18 U.S.C.
§2113(a); armed bank robbery, in violation of 18 U.S.C. §2113(d); using and
carrying a firearm during a crime of violence, in violation of 18 U.S.C.
§924(c)(1)(A)(ii); and being a felon in possession of a firearm, in violation of
18 U.S.C. §922(g). [Doc. 3]. Each charge stemmed from the robbery of one
bank on one day. [Id.].
The Defendant elected to proceed to jury trial and was convicted by jury
verdict of each count on November 5, 2002. [Doc. 25]. On February 10, 2003,
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By sentencing the Defendant on Count One and Count Two concurrently, the1
sentencing court merged these two counts. United States v. Alston, 56 F.3d 62 (4 Cir.th
1995). Count One is a lesser included offense of Count Two and thus merging the
sentence avoided error. Id.; Jackson v. United States, 2001 WL 34563133 (W.D.N.C.),
appeal dismissed 22 F. App’x. 323 (4 Cir. 2001).th
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the Defendant was sentenced to 130 months imprisonment on Counts One
and Two and a term of 120 months on Count Four, all to be served
concurrently. [Doc. 30]. He was sentenced to 300 months imprisonment on1
Count Three to be served consecutively. [Id.]. The Defendant did not appeal
his sentence but did appeal a trial court ruling concerning an expert. His
conviction and that ruling were affirmed. United States v. Ward, 89 F. App’x.
382 (4 Cir.), cert. denied 542 U.S. 910, 124 S.Ct. 2855, 159 L.Ed.2d 278th
(2004).
The Defendant did not file a motion pursuant to 28 U.S.C. §2255 to
vacate, correct or set aside his sentence. Instead, over eight years after his
conviction and sentence became final, he has moved to re-open his case
based on double jeopardy. The Defendant argues that Counts Two and Four
are the same crime for which he should not have been punished twice.
“[C]onviction of the offense under 18 U.S.C. §2113[d] requires proof of
elements not required for conviction under 18 U.S.C. §922(g) and vice versa.”
United States v. Fox, 941 F.2d 480, 486 (7 Cir.), cert. denied 502 U.S. 1102,th
Case 1:02-cr-00063-MR Document 38 Filed 08/03/12 Page 2 of 3

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112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). The elements of the armed bank
robbery crime include the taking of money from a federally insured institution
by means of force and violence with proof that the bank robber assaulted or
put in jeopardy the life of another by use of a dangerous weapon or device.
Id. That device, however, need not be a firearm and the crime may be
committed by anyone, not just a convicted felon. Id. The Defendant’s
argument is frivolous.
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to Reopen
Case Double Jeopardy Count Three of the Sentencing Punishment [Doc. 37]
is hereby DENIED.
Signed: August 2, 2012
Case 1:02-cr-00063-MR Document 38 Filed 08/03/12 Page 3 of 3