U.S. v. Sebastian

• Decision Date: 26 September 1977
• Docket Number: D,No. 1499,1499
• Parties: UNITED STATES of America, Appellee, v. Anthony James SEBASTIAN and Patrick Gibbons, Defendants-Appellants. ocket 77-1270.
• Court: U.S. Court of Appeals — Second Circuit

Page 211

562 F.2d 211

UNITED STATES of America, Appellee, v. Anthony James SEBASTIAN and Patrick Gibbons, Defendants-Appellants.

No. 1499, Docket 77-1270.

United States Court of Appeals Second Circuit.

Argued Aug. 18, 1977.

Decided Sept. 26, 1977.

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

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

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

Before VAN GRAAFEILAND and WEBSTER, ^* Circuit Judges, and DOOLING, District Judge. ^**

DOOLING, District Judge:

The Government's version of the facts that underlie both the indictment and the superseding indictment is that defendants-appellants participated in forging endorsements on validly issued Series E United States Savings Bonds and cashing them. The original indictment charged that the defendants

" . . . did knowingly and with intent to defraud pass and utter a forged obligation of the United States; to wit . . . Savings Bond . . . Q2165871669E . . . ; all in violation of Title 18, United States Code, Sections 472 and 2."

Another count charged in identical language the passing of a differently numbered Savings Bond, and a third count charged that defendants

" . . . conspired and agreed together and with other persons to commit offenses against the United States, to wit, to violate Title 18, United States Code, Sections 472 and 2 by uttering and passing with intent to defraud forged obligations of the United States, to wit, thirty-six (36) United States Savings Bonds, Series E, in violation of Title 18, United States Code, Section 371."

The case came on for trial on May 4, 1976, the jury was selected and sworn, and the trial adjourned to May 7, 1976. On that day the United States Attorney advised the court that he had concluded that under no theory of the Government's proof could violation of Section 472 ¹ be proved, since the savings bonds were valid and only the endorsements were forged. Those facts, he continued, would constitute a violation of Section 495. ² The Government moved to dismiss the indictment, reserving its right to seek a reindictment. Defense counsel agreed that the indictment would be vulnerable to a motion to dismiss on the facts as the Government stated them, and, not objecting to the dismissal, reserved their right to move against any future indictment or information. The indictment was thereupon dismissed.

On June 24, 1976, a superseding indictment was filed. Count 1 charged that appellants and one Ames (not joined as a defendant) did

" . . . aid, abet . . . and induce Dolores Dombrowsky to forge the endorsement of Bernice Goulder on a United States Savings Bond . . . Number Q1987602561E . . . owned by Bernice Goulder, for the purpose of obtaining and receiving a sum of money from the United States and its agents; all in violation of Title 18, United States Code, Sections 495 and 2."

There were thirty-five other counts in the same form, each relating to a different bond. Count 37 charged that appellants did

" . . . conspire and agree together and with Richard Ames and Dolores Dombrowsky, named as co-conspirators but not as co-defendants, to commit offenses against the United States, to wit, to violate Title 18 United States Code, Sections 495 and 2, by forging the name of Bernice Goulder on thirty-six (36) Series E United States Savings Bonds, set forth above, for the purpose of obtaining and receiving a sum of money from the United States and its agents; in violation of Title 18, United States Code, Section 371."

The overt acts alleged in the conspiracy counts of the original and superseding indictment were the same in substance. They were (1) that appellant Sebastian gave Ames thirty-six Savings Bonds; the superseding indictment added that the bonds were "in the name of Bernice Goulder"; (2) that Sebastian gave Ames identification in the name of Bernice Goulder; the original indictment omitted Bernice Goulder's name, and instead alleged that the "identification" was sufficient to enable Ames to negotiate the Bonds; and (3) that Sebastian and Gibbons met at a named restaurant for the purpose of receiving part of the proceeds of the cashing of the Bonds.

On appellants' motion to dismiss the superseding indictment on the ground that jeopardy had attached when the jury was impanelled and sworn to try the original indictment (Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; see Serfass v. United States, 1975, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265; cf. Illinois v. Somerville, 1973, 410 U.S. 458, 460, 466, 93 S.Ct. 1066, 35 L.Ed.2d 425), Judge Curtin denied the motion, essentially relying on United States v. Cioffi, 2d Cir. 1973, 487 F.2d 492, 497-498, and Illinois v. Somerville, supra. Appellants argued that the the test for applying the double jeopardy bar should be whether both indictments were the "same in law and facts," or called for the same evidence, or arose out of the same transaction; the parties and Judge Curtin were in agreement that passing a validly issued obligation of the United States on a forged endorsement is not within the proscription of Section 472. Roberts v. United States, 9th Cir. 1964, 331 F.2d 502; cf. Prussian v. United States, 1931, 282 U.S. 675, 677-679, 51 S.Ct. 223, 75 L.Ed. 610.

The order, appealable under 28 U.S.C. § 1291 as one of the small class of cases placed beyond the confines of the final judgment rule, Abney v. United States, 1977, 43 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, must be affirmed.

Appellants' argument, put at its strongest, is that the Government's case could have been proved under the allegations of the original indictment, since the reported cases speak of valid bonds with forged indorsements as forged bonds. Such proof, say appellants, would have supported a valid verdict of guilt of the offense of Section 495, because Rule 7(c)(3) of the Federal Rules of Criminal Procedure treats as harmless error the citation of the wrong statute if that error does not mislead the defendant to his prejudice. Cf. United States v. Calabro, 2d Cir. 1972, 467 F.2d 973, 981 (describing as "possibly over-technical" the view that a charge of conspiring to forge and utter bonds known to have been forged with intent to defraud the United States did not charge a conspiracy under Section 495 to forge indorsements in a case in which some but not all of the bonds were not validly issued but were forged obligations).

But the case is far simpler. Counts 2 and 3 of the original indictment are crystal clear in unambiguously charging the offense of Section 472. The counts track the language of the statute without any addition except the word "knowingly." Counsel and court were in agreement when the case was called for trial that the Government's evidence could not sustain the counts; they were fully familiar with the evidence from an earlier suppression hearing. (The order of suppression was reversed in 497 F.2d 1267.)

The substantive counts of the superseding indictment are equally unambiguous in charging a violation of Section 495. They do not allege forged obligations of the United States but forged endorsements, and allege that they were made for the purpose of obtaining money from the United States and its agents and qualified banks conventionally are the redemption agents for Savings Bonds, 31 U.S.C. § 757c(h). Again, the language of the substantive counts tracks the language of the statute without embellishment.

The conspiracy counts in the two indictments are equally distinct. They clearly allege different conspiracies, one a conspiracy to violate Section 472, the other a conspiracy to violate Section 495. In each count the object of the conspiracy is alleged in the unmistakable language of the substantive statute.

The double...