UNITED STATES v. GILLISS

McMILLIAN, Circuit Judge.

Louis Gilliss appeals from a judgment entered in the District Court1 for the Eastern District of Missouri upon a jury verdict finding him guilty of kidnapping (count I) (18 U.S.C. § 1201(a)) and interstate transportation of a stolen motor vehicle (count II) (18 U.S.C. § 2312). The district court sentenced appellant to twenty years imprisonment on count I and three years on count II, to be served consecutively.

For reversal appellant argues that the district court erred in (1) failing to dismiss the indictment for violation of the Speedy Trial Act and local speedy trial plan, (2) refusing to grant appellant's motion for judgment of acquittal, (3) refusing to subpoena appellant's former wife as a defense witness, (4) giving certain instructions to the jury, and (5) sentencing appellant to a term of imprisonment in excess of twenty years and without specifying that he would be eligible for parole consideration after three years. For the reasons discussed below, we affirm the convictions, vacate the sentence imposed on court I, and remanded to the district court for resentencing consistent with this opinion.

Appellant does not challenge the sufficiency of the evidence.2 Because of a gambling problem, appellant faced a financial crisis in early 1978. The police wanted him on a variety of outstanding warrants in several states for writing bad checks, larceny and embezzlement. In April, 1978, he was in Louisville, Kentucky, looking for a car. On April 8, 1978, at about 3 p. m., appellant approached George Hunter, Jr., as Hunter was getting into his car. Appellant told Hunter that he had a gun, displayed the handle of the gun, and directed appellant to move over to the passenger seat. Hunter testified that he asked appellant if he could leave the car and that appellant refused to let him go. Appellant placed the gun in his lap and told Hunter to give him directions to Nashville, Tennessee. For the next fifteen hours, appellant drove from Kentucky to Tennessee, back to Kentucky, through Illinois, and then to Missouri.

At about 6 a. m. on April 9, 1978, a St. Louis County police officer stopped the car because of appellant's erratic driving. While appellant showed identification to the police officer, Hunter waved his hands in a suspicious manner. The officer radioed for assistance. When the officer asked appellant if anything was wrong with his passenger, appellant jumped in the car and drove off. Hunter in some way managed to roll out of the passenger side. Hunter explained the situation to the police. Another police car chased appellant and forced him off the highway. The police arrested appellant and found the gun about ten feet from the car. The gun was loaded but the cylinder next to the hammer was empty. The police found one round of ammunition in appellant's pocket.3

Appellant was originally charged on May 11, 1978, in a two-count indictment with kidnapping and interstate transportation of a stolen motor vehicle. Appellant entered a plea of not guilty on June 2, 1978. On the first day of trial, June 17, appellant withdrew his plea of not guilty and pleaded guilty to kidnapping.4 Count II was dismissed. Appellant was originally sentenced to life imprisonment pending a psychiatric evaluation pursuant to 18 U.S.C. § 4205(c). The district court thereafter reduced the sentence to twenty years imprisonment. The district court subsequently amended the sentence to provide for parole consideration after three years pursuant to 18 U.S.C. § 4205(b)(1).

In April, 1979, appellant filed a § 2255 motion.5 The district court (Judge Filippine) granted this motion, finding that the record of the guilty plea proceedings failed to disclose a factual basis for the guilty plea as required by Fed.R.Crim.P. 11(f). Gilliss v. United States, No. 79-494-C-(3) (E.D.Mo. Sept. 27, 1979) (order vacating judgment). The government reindicted appellant on the original two counts. Appellant pleaded not guilty by reason of insanity. The second trial6 began April 7, 1980. Appellant was found guilty on both counts and sentenced to twenty years imprisonment on count I and three years on count II, to be served consecutively.

I. Speedy Trial Act7

Appellant filed several pretrial motions to dismiss the indictment for failure to comply with the provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976 & Supp. III 1979), as implemented by the Eastern Missouri District Court Rules app. (Speedy Trial Plan) (approved by the Eighth Circuit Judicial Council on June 13, 1978). The district court found that the government had complied with the provisions of the Speedy Trial Act because the 60-day time limit from arraignment to trial began to run with the filing of the superseding indictment in October 1979 and because twenty-seven days counted as excludable delay for psychiatric examinations. United States v. Gilliss, No. 78-101-CR-(4) (E.D.Mo. Nov. 19, 1979) (Hungate, J.) (order denying pretrial motions).

Appellant argues that the time limit for commencement of trial with respect to count II (interstate transportation of a stolen motor vehicle) should be calculated under § 5(d)(3) of the 1978 local speedy trial plan which refers to superseding charges.8 Appellant contends that the time limit began to run on June 2, 1978 (first arraignment), was tolled by the holding in abeyance and dismissal of count II on the motion of the United States Attorney on June 17, 1978, and began to run again on October 19, 1979 (second arraignment upon superseding indictment filed October 18, 1979). Excluding time chargeable to pretrial defense motions and psychiatric examinations, appellant argues that trial should have begun on January 28, 1980, under the 1978 local speedy trial plan's 60-day limit.9 Appellant also applies this timetable to count I, arguing that, because the district court erred in accepting appellant's guilty plea, any delay attributable to the guilty plea should be "constructively chargeable to the government," citing United States v. Carini, 562 F.2d 144, 152 (2d Cir. 1977). Because the second trial did not begin until April 7, 1980, appellant argues that his statutory right to a speedy trial was clearly violated and the district court erred in failing to dismiss the indictment.

We note preliminarily that, assuming the Speedy Trial Act, as implemented by the local speedy trial plan, had been violated, appellant was not necessarily entitled to dismissal of the indictment in the present case. Section 10(b) of the 1978 local speedy trial plan provides only:

(Emphasis added.) Mandatory dismissal10 of an indictment as a sanction for noncompliance with the Speedy Trial Act was not available until July 1, 1980. See 18 U.S.C. §§ 3162, 3163(c) (1976 & Supp. III 1979); e. g., United States v. New Buffalo Amusement Corp., 600 F.2d 368, 376-77 (2d Cir. 1979). During the transition period from January 3, 1975 (the date the Speedy Trial Act became effective, Speedy Trial Act of 1974, Pub.L.No.93-619, 88 Stat. 2076) until July 1, 1980 (the date the sanctions in 18 U.S.C. § 3162 became effective, 18 U.S.C. § 3163(c) (Supp. III 1979), as amended by Speedy Trial Act Amendments Act of 1979, Pub.L.No.96-43, § 6, 93 Stat. 328), violation of the Speedy Trial Act was not per se grounds for dismissal of an indictment.11 E. g., United States v. Peters, 190 U.S.App. D.C. 370, 587 F.2d 1267, 1270 n.6 (1978); United States v. Carini, supra, 562 F.2d at 148.

Like the district court, we find no violation of the Speedy Trial Act or the 1978 local speedy trial plan. While there may be presented a question whether the applicable section of the Speedy Trial Act is § 3161(e)12 (trial following appeal or collateral attack) or § 3161(i)13 (trial following withdrawal of a guilty plea), the day the time limit begins to run is the same under either section, that is, the day the order occasioning the retrial or trial becomes final.14 Similarly, under the 1978 local speedy trial plan whether the present case falls under § 5(b) (retrial following appeal or collateral attack)15 or § 5(c) (withdrawal of guilty plea),16 the operative date remains the same as under the Speedy Trial Act, that is, the day the order occasioning the retrial or trial becomes final.17

The meaning of the phrase "the date the action occasioning the retrial becomes final" is not wholly clear. The Speedy Trial Act Guidelines suggest that if a successful collateral attack is not appealed, then the action occasioning the retrial "becomes final" whenever the time for post-judgment motions expires (ten days after entry of order or judgment) or when the district court's ruling on such motions is entered, but if an appeal or a petition for certiorari is filed, the action occasioning the retrial should not be considered final until the appeal or petition has been disposed of and the district court receives the mandate of the court of appeals or the Supreme Court. Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended 17-18 (rev. Dec. 1979) (hereinafter Guidelines). In the present case no appeal was filed. The order granting appellant's § 2255 motion was entered on September 27, 1979, and became final, at least for Speedy Trial Act purposes, ten days later on October 8, 1979. Thus, the time limit (60 days under the 1978 local speedy trial plan) began running on that date.

Moreover, even though the government filed a superseding indictment,18 we think that the applicable section of the Speedy Trial Act should be the same for both counts I and II. Such a unified treatment of the counts is provided for in 18 U.S.C. § 3161(i) (1976). "If the defendant pleads guilty to only some counts of an indictment or information pursuant to a plea agreement under which the other counts are to be dismissed, this provision makes it clear that withdrawal of the plea will establish a new time period with respect to all counts." Guidelines, supra, at 60.

We have carefully reviewed the district court's docket sheets and conclude that most of the days from October 8, 1979 (the date the 60-day time limit began running) to April 7, 1980 (the first day of trial) were chargeable as excludable delay under 18 U.S.C. § 3161(h) (1976 & Supp. III 1979), which is expressly incorporated by reference in 18 U.S.C. § 3161(e) (Supp. III 1979). See appendix A. The government had approximately 30 days left of the 60-day time limit and thus was not in violation of either the Speedy Trial Act or the 1978 local speedy trial plan.

II. Judgment of Acquittal

Appellant next argues that the district court erred in failing to grant appellant's motion for judgment of acquittal. Appellant argues that the government failed to sustain its burden of proving sanity beyond a reasonable doubt.19 We disagree.

Each of the three expert witnesses who testified at the trial agreed that appellant was a compulsive or pathological gambler and that pathological gambling was an impulse disorder under the classification of disorders in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980) (hereinafter DSM-III). The expert witnesses disagreed about whether pathological gambling was a "mental disease or defect" as used in the ALI (American Law Institute) Model Penal Code test adopted by this circuit in United States v. Frazier, 458 F.2d 911 (8th Cir. 1972), and whether appellant lacked "substantial capacity ... to conform his conduct to the requirements of the law." Id. at 918, citing ALI, Model Penal Code § 4.01 (Final Draft 1962).

Dr. Robert L. Custer, Chief of Treatment Services, Mental Health and Behavioral Sciences Division, Veterans Administration, is a psychiatrist who specializes in pathological gambling. Dr. Custer testified on behalf of the defense that he had examined appellant and had diagnosed him as a pathological gambler. Dr. Custer then explained the symptoms and characteristics of a pathological gambler. Dr. Custer concluded that in his opinion appellant could appreciate the wrongfulness of his conduct but that he could not conform his conduct to the requirements of the law. On cross-examination, Dr. Custer indicated that the term "disorder" was the only term used by the American Psychiatric Association and probably included "mental disease or defect."

Dr. David Reuterfors, a staff psychologist at the United States Medical Center for Federal Prisoners in Springfield, Missouri, and Dr. Robert B. Sheldon, Chief of Psychiatry and Forensic Psychiatry at the federal Medical Center, testified on behalf of the government. They had examined appellant and agreed with Dr. Custer's pathological gambling diagnosis. They also agreed that pathological gambling is an impulse disorder, but testified that in their opinion pathological gambling is not a mental disease or defect and, therefore, appellant did not suffer from any mental disease or defect.

"A criminal defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt." United States v. Dresser, 542 F.2d 737, 742 (8th Cir. 1976) (citations omitted), citing Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-58, 40 L.Ed. 499 (1895). Assuming the evidence of insanity offered by the defense was sufficient to shift the burden of proving appellant's sanity to the government,20 we conclude without hesitation that the government produced sufficient evidence to allow the jury to find that appellant was sane beyond a reasonable doubt and that, therefore, the submission of the insanity question to the jury was proper.21 United States v. Dresser, supra, 542 F.2d at 742; United States v. Thomas, 536 F.2d 274, 276 (8th Cir. 1976), cert. denied, 434 U.S. 1077, 98 S.Ct. 1270, 55 L.Ed.2d 784 (1978).

As part of his attack on the sufficiency of the government's evidence of sanity, appellant challenges the qualifications of both of the government's expert witnesses. Appellant argues that the district court erred in permitting Dr. Reuterfors to testify as an expert because he had not received his doctorate degree during most of the time he examined appellant and because he had had no prior clinical experience with pathological gamblers. Appellant similarly challenges the admissibility of Dr. Sheldon's testimony on the grounds that Dr. Sheldon's had limited clinical experience with pathological gamblers and no specialized knowledge about pathological gambling. We disagree.

Appellant seeks to apply a too demanding and too narrow test for qualification as an expert witness.

Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856, 857-58 (8th Cir. 1975) (citations omitted). In Holmgren this court held that a proposed expert witness need not have actually manufactured or previously designed machinery to understand principles of safe design; it was sufficient that the subject of safe design was within the proposed expert's experience in or overall knowledge of engineering. Id. at 858.

Here, Dr. Reuterfors satisfied all the requirements of his doctorate degree program in September 1979, before he examined appellant, but had not yet received his diploma. He received his diploma during the fall commencement exercises in December 1979. Under these circumstances, the lack of a doctorate degree should not in itself disqualify Dr. Reuterfors as an expert witness. Cf. Tank v. Commissioner, 270 F.2d 477, 486 (6th Cir. 1959) (absence of certificates or memberships); see also Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637, 642-46 (1962).

Nor do we agree that a lack of clinical experience with pathological gamblers or a lack of specialized knowledge about pathological gambling should necessarily disqualify either Dr. Reuterfors or Dr. Sheldon as expert witnesses. Appellant would apply a test for qualification as an expert witness that is too specialized. According to the trial testimony, the incidence of pathological gambling is relatively rare and the classification of pathological gambling as a distinct mental disorder is relatively recent. It is sufficient that the subject of pathological gambling is within the witnesses' specialized knowledge of psychology or psychiatry. See Holmgren v. Massey-Ferguson, Inc., supra, 516 F.2d at 858. In any case, we note that Dr. Reuterfors and Dr. Sheldon did not testify as experts on pathological gambling but as psychological or psychiatric experts. We find no abuse of discretion in the district court's admitting their testimony in evidence.

Appellant further argues that Dr. Sheldon incorrectly stated the requirements of the ALI test for legal responsibility, as adopted by this circuit in United States v. Frazier, supra, 458 F.2d at 918. Dr. Sheldon incorrectly stated that, under the ALI test, an individual must lack the substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. The correct formulation of the ALI test is in the disjunctive. Id. We find no reversible error in the present circumstances. Defense counsel objected to Dr. Sheldon's testimony on the grounds that his opinion improperly invaded the province of the jury, not because Dr. Sheldon incorrectly stated that ALI test. Defense counsel did explore the fact that Dr. Sheldon misstated the ALI test, but made no specific objection or request for a correct statement of the ALI test. The district court in the instructions to the jury correctly stated the ALI test. We note that Dr. Sheldon specifically testified that, in his opinion, appellant was suffering from no mental disease or defect at the time of the alleged offense and that appellant had the substantial mental capacity to appreciate the wrongfulness of his acts and to conform his conduct to the requirements of the law. Dr. Sheldon's testimony thus addressed each part of the ALI test.

Moreover, the fact that Dr. Sheldon misunderstood (or at least misstated) the requirements of the ALI test really affects his credibility as an expert witness rather than his qualifications as such. Any "weakness in the underpinnings of such [expert] opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony." Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976). Similarly, "[c]omparisons between [the] professional stature [of the government's expert witnesses] and the stature of witnesses for an opposing party may be made by the jury, if it becomes necessary to decide which of two conflicting opinions to believe." United States v. Barker, 553 F.2d 1013, 1024 (6th Cir. 1977).

III. Refusal to Subpoena a Defense Witness

Appellant next argues that the district court erred in refusing to subpoena his former wife Sharon Barry as a defense witness pursuant to Fed.R.Crim.P. 17(b).22 Appellant argues that Ms. Barry would have testified that appellant's gambling severely disrupted their married life. A "disrupted family or spouse relationship" caused by gambling is one of the diagnostic criteria of pathological gambling. DSM-III, supra, at 292-93. Appellant thus argues that the presence of Ms. Barry was necessary to adequately present his insanity defense. We disagree.23

Compulsory process under Fed.R.Crim.P. 17(b) is not an absolute right but, like many other trial decisions, is a matter committed to the sound discretion of the trial court.24 E. g., United States v. Morris, 451 F.2d 969, 971 (8th Cir. 1971); Slawek v. United States, 413 F.2d 957, 960 (8th Cir. 1969); Terlikowski v. United States, 379 F.2d 501, 508 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967). We find no abuse of discretion here. Appellant testified without contradiction and at some length about his personal and employment history, specifically his unsatisfactory marital relationships and three divorces. Moreover, it was undisputed that gambling had severely disrupted appellant's married life and that appellant was a pathological gambler. Under these circumstances, we agree with the district court that Ms. Barry's testimony about her married life with appellant would have been repetitive and cumulative and therefore was not necessary to the presentation of an adequate defense.

IV. Instructions

Appellant next argues that the district court erred in giving certain instructions to the jury. First, appellant argues that instructions # 9 and # 13 as given were confusing, misleading and contradictory. Instructions # 9 and # 1325 contained the elements of each offense and are based upon those set forth in 2 E. Devitt & C. Blackmar, Federal Jury Practice & Instructions §§ 43.06, 45.05 (3d ed. 1977) (hereinafter Devitt & Blackmar). Appellant argues that the district court erred in refusing to include in these instructions the burden of proof "tail"26 and a statement of the insanity defense.27 We disagree.

"A defendant is entitled to an instruction on his theory of the case if there is evidence to support it and a proper request is entered." United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976). A defendant, however, is not entitled to an instruction in a particular form. "Even if the requested instruction is proper and in form suitable for use by the court, the court retains discretion in framing the instruction; it is therefore sufficient that the charge to the jury adequately and correctly covers the substance of the requested instruction." Id. We are satisfied, upon an examination of the instructions taken as a whole, that the instructions given by the district court adequately advised the jury of the essential elements of the offenses charged and the burden of the government to prove each element of the offenses charged, including the sanity of the defendant at the time of the commission of the offenses charged, beyond a reasonable doubt. Instead of incorporating the burden of proof and insanity defense instructions in the instructions on the elements of the offenses (see note 25 supra), the district court gave the burden of proof and insanity defense instructions separately.

Second, appellant argues that the district court erred in refusing to modify the insanity defense instruction to include the term "disorder" in addition to "mental disease or defect." Appellant contends that contemporary psychiatric practice uses the term "mental disorder" rather than "mental disease or defect." Appellant stresses that Dr. Custer, the expert witness for the defense, repeatedly characterized pathological gambling as a "disorder," while the government's expert witnesses expressly testified that pathological gambling was not a "mental disease or defect." Appellant argues that the insanity instruction as given to the jury was confusing, misleading and prejudicial.

We decline appellant's invitation to evaluate the implications of an apparent lack of congruity between the terminology presently used by the American Psychiatric Association and that used in the ALI Model Penal Code, as adopted by this circuit in United States v. Frazier, supra, 458 F.2d at 918. The instruction as given here substantially follows the instruction specifically approved in Frazier and set forth in 1 Devitt & Blackmar, supra, § 14.17. While not a model of drafting, we find no error in the instruction as given. See Government of Virgin Islands v. Fredericks, 578 F.2d 927, 930-33 (3d Cir. 1978); United States v. Gay, 522 F.2d 429, 433 (6th Cir. 1975). But see United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 983-84 (1972) (banc) (holding that the McDonald definition should be retained to cure the "inherent ambiguity" of the terms "mental disease or defect"), citing McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851 (1962) (banc).

The terms "mental disease or defect" are used inclusively in the instruction. Any mental disease or defect which deprives the defendant of the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law will relieve him of legal responsibility. The only exception is that any abnormality manifested only by repeated criminal or otherwise antisocial conduct is not a mental disease or defect. See United States v. Thomas, supra, 536 F.2d at 277 (approving ALI, Model Penal Code § 4.01(2) (Final Draft 1962)); see also United States v. Austin, 533 F.2d 879, 885 (3d Cir. 1976), cert. denied, 429 U.S. 1043, 97 S.Ct. 746, 50 L.Ed.2d 756 (1977); Blake v. United States, 407 F.2d 908, 915-16 (5th Cir. 1969). But see Wade v. United States, 426 F.2d 64, 73 (9th Cir. 1970) (banc), citing United States v. Smith, 404 F.2d 720, 727 & n.8 (6th Cir. 1968) (disapproving § 4.01(2)). Here, the expert witnesses agreed that appellant had a mental disorder, but disagreed sharply over whether appellant was suffering from a mental disease or defect. Resolution of this question was properly left to the jury.

V. Sentencing

Appellant lastly argues that the district court violated due process in sentencing him after the second trial to a term of imprisonment greater than twenty years and without specifying that he would be eligible for parole consideration after three years pursuant to 18 U.S.C. § 4205(b)(1). See Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Stacey, 571 F.2d 440, 444 (8th Cir. 1978). We agree in part and vacate the sentence imposed for count I and remand for resentencing.

As noted above, in the first sentence following the guilty plea the district court imposed a sentence of twenty years, modified to provide for consideration for parole after three years pursuant to 18 U.S.C. § 4205(b)(1) for kidnapping (count I); count II was dismissed. Following the successful collateral attack, the government reinstated the original two-count indictment, appellant was tried and found guilty on both counts, and the district court28 sentenced appellant to twenty years on count I and three years on count II, to be served consecutively, without specifying the particular statute under which parole was to be available.29

In North Carolina v. Pearce, the Supreme Court held that the imposition of a more severe sentence upon reconviction following a successful appeal or collateral attack may violate due process. 395 U.S. at 723-24, 89 S.Ct. at 2079-80. The Court emphasized that due process requires

Id. at 725, 89 S.Ct. at 2080. In Blackledge v. Perry, the Supreme Court extended the due process principles set forth in Pearce to prosecutorial conduct as well. 417 U.S. at 27-29, 94 S.Ct. at 2102.

We find no due process violation in appellant's reindictment for count II. "[A] prosecutor may, without explanation, refile charges against a defendant whose bargained-for guilty plea to a lesser charge [or to a reduced number of charges] has been withdrawn or overturned on appeal [or collateral attack], provided that an increase in the [severity or number of the] charges is within the limits set by the original indictment." Hardwick v. Doolittle, 558 F.2d 292, 301 & n.8 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Here, count II was charged in the original indictment but was later dismissed by the government following appellant's plea of guilty to count I (the more serious kidnapping charge), evidently as a result of plea negotiations.

United States v. Anderson, 514 F.2d 583, 588 (7th Cir. 1975), cited with approval in United States v. Williams, 534 F.2d 119, 122-23 (8th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976).

We find no due process31 violation in the imposition of a three-year consecutive sentence for count II. Under the present circumstances, appellant cannot complain that this sentence was a retaliatory penalty because count II was not part of the first trial and no sentence on count II was imposed. We distinguish United States v. Mathis, 579 F.2d 415, 419-20 (7th Cir. 1978), in which the court found that the imposition of consecutive sentences of six years for robbery of government property (18 U.S.C. § 2112 (count II)) and three years probation for unarmed assault or interference with a federal agent (18 U.S.C. § 111 (count I)) upon reconviction following a successful appeal violated due process. After entering a guilty plea, the defendant had received concurrent sentences of eight years imprisonment on the robbery count and three years on the assault count. The defendant on appeal argued that "the change in sentence from concurrent to consecutive imposed upon him `the possibility of a longer period of incarceration than he faced under his previous sentence.'" Id. at 419. Unlike the defendant in Mathis, appellant herein did not receive consecutive sentences, instead of concurrent sentences, on the same counts upon reconviction. Appellant's consecutive sentence was imposed for an additional count, which was properly reinstated and prosecuted. See text supra.

Appellant also argues that the district court's failure to specify parole eligibility under 18 U.S.C. § 4205(b)(1)32 in its sentence on count I following appellant's reconviction made that sentence more severe than the sentence imposed following the guilty plea. Appellant contends that because the record of the sentencing proceeding following his reconviction discloses that the district judge had no "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original proceeding," as required by North Carolina v. Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081, the more severe sentence violates due process. We agree.

We conclude that appellant's resentencing to twenty years with parole eligibility controlled by 18 U.S.C. § 4205(a) (see note 29 supra) was a harsher sentence than his previous sentence pursuant to 18 U.S.C. § 4205(b)(1). This question was expressly addressed in United States v. Hawthorne, 532 F.2d 318, 322-25 (3d Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976).33 See also United States v. Mathis, supra, 579 F.2d at 419; United States v. Barash, 428 F.2d 328, 331 (2d Cir. 1970) (absent justification, Pearce prohibits an increase in the punishment imposed after a conviction on retrial regardless of the form of punishment, whether it is imprisonment, suspended sentence with probation or fine), cert. denied, 401 U.S. 938, 91 S.Ct. 928, 28 L.Ed.2d 217 (1971). Appellant's first sentence provided that he would be eligible for parole consideration after serving three years. United States v. Gilliss, No. 78-101-CR-(4) (E.D.Mo. Feb. 22, 1979) (modification of sentence pursuant to Fed.R.Crim.P. 35 motion). Appellant's second sentence made no similar provision and as a consequence appellant would have been eligible for parole consideration only after serving one-third of his total sentence (or after 72/3 years, see note 29 supra) pursuant to 18 U.S.C. § 4205(a). Thus, the district court's failure to resentence appellant to parole eligibility after three years deprived him of the possibility of earlier parole eligibility.

395 U.S. at 726, 89 S.Ct. at 2081.

Here the district court articulated the following reasons for imposing a more severe sentence: the twenty-year sentence was the same sentence imposed originally, count II was not part of the first trial, the four days of trial testimony, and the benefit of expert testimony. We conclude that these reasons do not meet the requirements set forth in Pearce to justify the imposition of a more severe sentence. None of these reasons are based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. In particular, we note that additional testimony34 that "merely describes in further detail the crime in which the defendant participated and the extent of this involvement ... does not meet the Pearce standards for the reason that only `intervening detrimental deportment' on the part of the defendant may justify a harsher sentence." United States v. Tucker, 581 F.2d 602, 606 (7th Cir. 1978) (citations omitted); see also United States v. Cunningham, 529 F.2d 884, 888 (6th Cir. 1976) (Pearce does not allow increased sentences on retrial based upon "amplified knowledge" about a defendant's criminal activity which occurred before the first trial). Cf. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (perjury by the defendant will support increased sentence).

For these reasons we vacate the sentence imposed on count I and remand35 this case to the district court for the limited purpose of imposing a sentence on count I no more severe than that originally imposed. See United States v. Tucker, supra, 581 F.2d at 607-08 (limited remand); United States v. Hawthorne, supra, 532 F.2d at 325 (limited remand).

Accordingly, the convictions are affirmed, the sentence imposed on count I is vacated, and the case is remanded to the district court for resentencing consistent with this opinion.

APPENDIX A

Sept. 22, 1979      order vacating judgment
                    of conviction

Oct. 8, 1979        order becomes final; time           § 3161(e),(i)
                    limit begins to run (1-day
                    delay)

Oct. 9-12, 1979     defense motions to reduce           § 3161(h)(1)(F)
                    bond

Oct. 12-19, 1979    defense motions to suppress         § 3161(h)(1)(F)
                    evidence and statements,
                    to dismiss indictment,
                    for discovery

Oct. 19-24, 1979    motion by government                § 3161(h)(1)(A)
                    for psychiatric examination
                    (competency)

Oct. 24 -           psychiatric examination,            § 3161(h)(1)(A),(H)
Nov. 19, 1979       defendant transportation

Nov. 19 -           motion by government                § 3161(h)(1)(A)
Dec. 26, 1979       for further psychiatric
                    examination

Dec. 26, 1979 -     additional defense motions          § 3161(h)(1)(F),(J)
Jan. 24, 1980       filed

Jan. 24 -           suppression hearing; motions        § 3161(h)(1)(F),(J)
Feb. 5, 1980        taken under submission

Feb. 5-20, 1980     15-day delay

Feb. 20 -           defense motion to transfer          § 3161(h)(1)(F)
Mar. 5, 1980        place of confinement

Mar. 5-24, 1980     physical examination and            § 3161(h)(1)(A),(F)
                    recommendation of proper
                    medical treatment; defense
                    motions for subpoenas

Mar. 24 -           14-day delay (April 7,
April 7, 1980       1980 is first day of trial)