The opinion of the court was delivered by: WALSH
LEONARD P. WALSH, District Judge.
This matter comes before this Court on remand from the Supreme Court of the United States by a per curiam opinion, 394 U.S. 575, 89 S. Ct. 1300, 22 L. Ed. 2d 557, decided April 7, 1969, (Justices Black, Harlan and Stewart dissenting), requiring further consideration of defendant's motion for writ of error coram nobis, or, in the alternative, for relief under Rule 35, F.R. Cr. P., to correct an illegal sentence, in the light of Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068, 22 L. Ed. 2d 227, decided March 24, 1969.
Counsel for defendant and the government were given time to file memoranda on the issues presented and for defendant to reply to the government's brief. A hearing was held on November 5, 1969, after which both parties were permitted to file supplemental briefs in the light of questions raised at the hearing.
The Court having considered the motion, the opposition of the government, reply of the movant, the files and records in the case, argument of counsel, and supplemental memoranda of both parties, now makes the following findings of fact and conclusions of law:
Petitioner is not presently confined pursuant to sentence of this court. On February 14, 1963, while on trial for robbery in Criminal Case No. 735-62 before a jury, petitioner threw an ice-filled water pitcher at the Assistant United States Attorney prosecuting the case, striking him in the shoulder. The Trial Judge immediately excused the jury and told petitioner that whether he had been in contempt would be considered at sentencing if he were found guilty. On February 14, 1963, the jury returned a verdict of guilty on the robbery charge. On February 21, 1963, the trial judge held petitioner in contempt and sentenced him to one year for contempt, to run consecutively with a three to nine-year sentence imposed on the robbery conviction. Four days later, on February 25, 1963, petitioner was indicted on two counts in Criminal case No. 209-63 for assault with a deadly weapon (22 D.C. Code, Section 502), and assault on an Assistant United States Attorney engaged in the performance of his duties (18 U.S.C. Section 111).
Subsequently, on July 15, 1963, a jury found petitioner guilty on both counts of assault. On July 26, 1963, he was sentenced to concurrent terms of one to three years on each count, to run consecutively with the sentence previously imposed.
At the remand hearing on March 4, 1965, the Trial Judge rejected petitioner's claim that reimposition of the contempt sentence would violate the Fifth Amendment guarantee against double jeopardy. On March 5, 1965, the District Court vacated the prior sentence for contempt, found petitioner unaffected with a mental disease or defect at the time he threw the water pitcher, and sentenced defendant to 90 days for contempt, to run consecutively to the sentence imposed in the assault case. Petitioner did not appeal this judgment. However, on March 9, 1967, he did move for issuance of a writ of error coram nobis, or, in the alternative for relief under Rule 35, F.R. Cr. P., voiding the assault conviction for asserted exposure to double jeopardy since he had previously been found guilty of contempt for the same act. On October 11, 1967, this Court denied petitioner's motion, and among other things ruled as a matter of law that:
"[assuming] arguendo that petitioner may raise the issue of double jeopardy on this motion, * * * his right under the Fifth Amendment of the Constitution of the United States to be protected from being placed twice in jeopardy was not violated by his prosecution and sentence for assault with a dangerous weapon on an Assistant United States Attorney engaged in the performance of his duties (18 U.S.C. Sec. 111) * * *".
On November 26, 1968, the Court of Appeals affirmed this denial, without reaching the merits of the double jeopardy claim, on the ground that the claim could not be reached for the first time on collateral attack where there was no explanation of why it was not raised at trial. Rollerson v. United States, 132 U.S. App. D.C. 10, 405 F.2d 1078 (1968).
On April 7, 1969, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case to the District Court.
In his renewed motion and supporting memoranda petitioner makes four basic assertions: (1) contempt is not distinguishable from any other crime for the purpose of determining whether the same act can be the subject of successive trials; (2) the constitutional test of double jeopardy in prosecution after an initial conviction and sentence is simply whether the same act or transaction is the basis for both punishments, it being immaterial that the two statutes under which the convictions took place were designed to protect the separate interests of two separate governmental elements, the court and the federal prosecuting authority; (3) the only basis upon which a court before which a sentence is collaterally attacked upon constitutional grounds may refuse to reach the merits of that claim is a showing that the petitioner intentionally relinquished or abandoned a known right or privilege as part of a deliberate by-passing of the earlier proceedings leading to his conviction; and (4) the only basis for the Supreme Court's remand to the District Court must have been to afford the government an opportunity to present evidence that petitioner intentionally relinquished his double jeopardy claim at trial six years previously.
In directing its attention first to petitioner's claims (3) and (4), the Court has considered carefully the Supreme Court's decision in Kaufman v. United States, supra. In Kaufman, the Supreme Court specifically disapproved the decision in Thornton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (1966), which was the controlling factor in the Court of Appeal's decision in Rollerson not to reach the merits of petitioner's claim. In Thornton, the Court of Appeals held that in Federal cases, in the absence of "exceptional circumstances" explaining a failure to raise the issue at trial, a claim of illegal search and seizure could not be made for the first time in a collateral proceeding. Judge Wright, dissenting, took the position that prior decisions of the Supreme Court, principally Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), indicated that failure to make a constitutional claim at trial neither ...