United States v. Sebastian

• Decision Date: 14 March 1977
• Docket Number: No. CR-1973-237.,CR-1973-237.
• Citation: 428 F. Supp. 967
• Parties: UNITED STATES of America, Plaintiff, v. Anthony James SEBASTIAN a/k/a Tony Sebastian and Patrick Gibbons, Defendants.
• Court: U.S. District Court — Western District of New York

428 F. Supp. 967

UNITED STATES of America, Plaintiff, v. Anthony James SEBASTIAN a/k/a Tony Sebastian and Patrick Gibbons, Defendants.

No. CR-1973-237.

United States District Court, W. D. New York.

March 14, 1977.

COPYRIGHT MATERIAL OMITTED

Richard J. Arcara, U. S. Atty., Buffalo, N. Y. (Roger P. Williams, Buffalo, N. Y., of counsel), for the Government.

Robert C. Macek, Buffalo, N. Y., for defendant Sebastian.

Doyle & Denman, Buffalo, N. Y. (George P. Doyle and Robert S. Sichel, Buffalo, N. Y., of counsel), for defendant Gibbons.

CURTIN, Chief Judge.

The defendants in this case were indicted in June of 1973 in a three-count indictment charging them with two substantive counts of uttering and publishing forged United States Savings Bonds and one count of conspiring to utter and publish forged United States Savings Bonds in violation of 18 U.S.C. §§ 472¹ and 371. After substantial delays caused by pretrial motions and appeals, the case came on for trial in May of 1976. After the jury was impaneled and sworn, the Government, realizing that it had proceeded under the wrong statute and that the proof it was about to present did not conform to the charges alleged, requested the court to dismiss the indictment. What the Government intended to prove was that the defendants had passed genuine United States Savings Bonds with forged payee signatures.

The court dismissed the indictment on the Government's request. The defendants were then reindicted in June of 1976 and charged with violations of 18 U.S.C. §§ 495² and 371. Under this new thirtyseven count indictment, the Government alleges that each defendant "did aid, abet, counsel, command and induce a third individual to forge the endorsement of Bernice Goulder on thirty-six separate United States Savings Bonds." The final count in the 1976 indictment is a conspiracy count which alleges the same overt acts alleged in the conspiracy count of the first indictment.

The defendants have moved to dismiss the 1976 indictment on double jeopardy and speedy trial grounds.

I. DOUBLE JEOPARDY

The double jeopardy clause of the fifth amendment states that ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .." The inclusion of the double jeopardy clause in the Bill of Rights was an acknowledgment by the founding fathers of this country of the severe and onerous burdens put on an individual by a criminal prosecution. The difficulties imposed on a criminal defendant were thought to be so great that it was only fair to allow the Government one chance to convict a person on any one crime. As the Supreme Court has expressed it,

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

The first inquiry for the court is whether jeopardy has attached. In the usual jury trial, jeopardy attaches upon the impaneling and swearing of the jury. Serfass v. United States, 420 U.S. 377, 388 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Downum v. United States, 372 U.S. 734 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Having satisfied that requirement, in order for double jeopardy to apply, the general rule is that the two offenses "must be the same in law and in fact." United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert. denied, 410 U.S. 983 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973).

It is agreed by both the parties, and is evident from the two indictments, that the underlying facts of the charges alleged in each of the indictments are the same. The Government claims, however, that the offense charged in the 1973 indictment and the offense charged in the 1976 indictment are not identical and thus do not give rise to the double jeopardy plea.

A comparison of the two statutes, which are reproduced in the margin, supra, appears to substantiate this analysis. Section 472 pertains specifically only to "falsely made, forged, counterfeited, or altered obligation or other security of the United States," while § 495, on the other hand, under distinct and separate paragraphs, prohibits the counterfeiting, uttering or presenting of "any deed, power of attorney, order, certificate, receipt, contract, or other writing" with intent to receive money from the United States Government. As the Government points out in its brief, forging a signature on a genuine United States Bond is a violation of § 495, whereas the passing of a counterfeit United States Bond or other security is a violation of § 472. See Roberts v. United States, 331 F.2d 502 (9th Cir. 1964).

The defendants argue, however, that the "same in law and fact" test should not be determinative in this case, because, unlike the cases on which the Government relies, the evidence here is not sufficient to support a case under both § 472 and § 495. For example, United States v. Pacelli, supra, cited by the Government, involved a prosecution for drug possession and distribution. The defendant was convicted of conspiracy to possess and distribute, the same offense to which he had earlier pled guilty. However, when the defendant raised the plea as a bar to the conviction, the court expressly pointed out that the alleged conspiracies involved two distinct time periods and different overt acts. The only common conspirator was this particular defendant. Other cases cited by the Government are similar in showing evidence of more than one offense. See United States v. McCall, 489 F.2d 359 (2d Cir. 1973), cert. denied, 419 U.S. 849 95 S.Ct. 88, 42 L.Ed.2d 79 (1974); United States v. Nathan, 476 F.2d 456 (2d Cir. 1973), cert. denied, 414 U.S. 823 94 S.Ct. 171, 38 L.Ed.2d 56 (1973).

The defendants urge the court to apply the "same transaction" test championed by Justice Brennan in Abbate v. United States, 359 U.S. 187 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), in which he stated:

. . . I think it clear that successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment even though brought under federal statutes requiring different evidence and protecting different federal interests. . . .

* * * * * *

. . . I think not mere violence to, but virtual extinction of, the double jeopardy guarantee results if the Federal Government may try people over and over again for the same criminal conduct just because each trial is based on a different federal statute protecting a separate federal interest. 359 U.S., at 197, 201 79 S.Ct., at 672, 674.

It should be noted, however, that these comments are Justice Brennan's alone and have not been joined in by a majority of the Court. See Ashe v. Swenson, 397 U.S. 436, 448 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (J. Brennan, concurring). See also United States v. Cioffi, 487 F.2d 492, 497, n.5 (2d Cir. 1973). Although Justice Brennan's reading of the double jeopardy clause is persuasive, it has not yet been accepted as the law.

Defendants contend, however, that United States v. Sabella, 272 F.2d 206 (2d Cir. 1959), did accept the "same transaction" test for this circuit. That case was later narrowly interpreted by the Second Circuit in United States v. Cioffi, supra, 487 F.2d at 497-98, and, in light of subsequent Supreme Court decisions, the defendants' interpretation of it appears strained.

Illinois v. Somerville, 410 U.S. 458 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), a case that none of the parties have cited, supports our conclusion that double jeopardy does not apply in this case. In Somerville, a nearly identical situation to that before this court had occurred. The defendant was indicted and brought to trial for theft. After the jury was impaneled, the state prosecutor realized that the indictment failed to allege that the defendant intended to deprive the owner of the stolen goods. This omission of a necessary element of the crime charged made the indictment fatally defective. The State moved for a mistrial and the trial court granted the motion.

As the Court explained in Somerville, . . . in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.

United States v. Somerville, supra, 410 U.S., at 467 93 S.Ct., at 1072.

Since the defect in the indictment was jurisdictional, and would be grounds for reversal under Illinois law, the Court held that the declaration of a mistrial and retrial under a new indictment were proper under the "manifest necessity" and "ends of public justice" test of United States v. Perez, 22 U.S. (9 Wheat.) 579 6 L.Ed. 165 (1824).

In the present case, the Government acknowledged that its original indictment was invalid and requested that it be dismissed. Defense counsel acknowledged that had the trial proceeded, a motion to dismiss at the conclusion of the Government's case would have to be granted. (Transcript, May 7, 1976, at 10). In granting the Government's motion to dismiss the indictment, this court stated: ". . . this is an unfortunate turn of events but it is essential and therefore I have no other alternative." (Transcript, May 7, 1976, at 11).

The Somerville Court distinguished three prior Supreme Court double jeopardy decisions, United States v. Jorn, 400 U.S. 470 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); and United States v. Ball, 163 U.S. 662 16 S.Ct. 1192, 41 L.Ed. 300 (1896).

In Ball, the defendant was acquitted by a jury of a charge of murder. Two codefendants, who were convicted, appealed and their convictions were reversed because the indictment was defective. The State reindicted all three...