81 F.2d 816 (9th Cir. 1936), 7862, Craig v. United States

Docket Nº:7862, 7863.
Citation:81 F.2d 816
Party Name:CRAIG et al. v. UNITED STATES.
Case Date:February 10, 1936
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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81 F.2d 816 (9th Cir. 1936)

CRAIG et al.



Nos. 7862, 7863.

United States Court of Appeals, Ninth Circuit.

February 10, 1936

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Ames Peterson, Mark L. Herron, A. I. McCormick, Paul D. McCormick, and Gavin W. Craig, all of Los Angeles, Cal., and Henderson Stockton, of Phoenix, Ariz., for appellant Craig.

Hugo H. Harris, of Los Angeles, Cal., for appellant Weinblatt.

Peirson M. Hall, U.S. Atty., and Charles H. Carr and M. G. Gallaher, Asst. U.S. Attys., all of Los Angeles, Cal.

Before GARRECHT, DENMAN, and HANEY, Circuit Judges.

GARRECHT, Circuit Judge.

On December 19, 1934, an indictment was returned in the court below against the appellants and Helen Werner. This accusation, which will be hereinafter referred to as the first indictment, contained two counts, each charging a violation of 18 U.S.C.A. § 88. The first count alleged that the defendants had conspired to secure, by corrupt means, dismissal of an indictment and prosecution in which John McKeon and others were charged with violations of 18 U.S.C.A. § 338, or using the mails in execution of a scheme to defraud, and with a violation of 18 U.S.C.A. § 88, the conspiracy statute. The judgment of conviction in the prosecution under the postal laws, hereinafter referred to as the Italo Case, was reversed by this court in a decision handed down on November 8, 1935. Wilkes v. United States, 80 F.2d 285.

The second count of the first indictment charged the same defendants with conspiring to obstruct justice by unlawfully securing the dismissal of the Italo Case, referred to in the first count; such dismissal to be brought about by giving money and other things of value to the same federal officials as those named in the first count. The second count alleged the same overt acts that were set out in the first count.

At the trial under this first indictment, after all the evidence had been introduced and both sides had rested and before the arguments of counsel to the jury, the defense moved to require the government to elect upon which count it would proceed. In that connection, the following occurred:

'Mr. Herron: I, at this time, desire to renew the motion made to compel the Government to elect to further proceed upon one or the other count of the indictment, rather than upon both counts.

'The Court: What do you say about that, Mr. Carr?

'Mr. Carr: Why, if your Honor please, I think there might be some merit in that, and there might be some question that the two counts are very similar, and for that reason, the Government would be willing to proceed on the second count.

'The Court: The Government elects to proceed on the second count?

'Mr. Carr: Yes, sir.

'The Court: The Government proceeds on count 2, and count 1 is dismissed.

'Mr. Herron: I now desire--

'The Court: (Interrupting) Or, rather, instead of dismissing, judgment entered in favor of the defendants on count 1.

'Mr. Herron: That is, the jury will be instructed to do that, or--

'The Court: (Interrupting ) No, that is not necessary.


The jury failed to agree on a verdict on the second count, and was discharged.

On March 14, 1935, the grand jury returned another indictment against the

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same defendants in the court below. This charge, to which we will hereinafter refer as the second indictment, involved the same transaction as the first indictment. There had been an indictment preceding the one to which we are referring as the first, but it is not here necessary to consider that earlier indictment.

The second indictment, which is the one involved in the present appeal, was likewise in two counts. The first count charged the defendants with conspiring to obstruct the due administration of justice in the Italo Case by corruptly securing the dismissal of that prosecution by influencing, etc., government officials to dismiss the indictment in that case, etc. It was upon this first count that the conviction now appealed from was had.

The second count charged each of the defendants with doing certain acts in an endeavor to procure corruptly the dismissal of the Italo Case, etc.

Each of the defendants pleaded not guilty, filed a demurrer, both general and special, to both counts of the indictment, entered a plea in bar and a plea of former jeopardy to the first count, and made a motion to quash both counts.

The trial court granted the appellee's motion to strike the plea in bar and of former jeopardy, sustained the defendants' demurrers to the second count, overruled them as to the first count, and denied the defendants' motions to quash the first count, upon which trial was accordingly thereafter had. The jury returned a verdict of not guilty as to Helen Werner and of guilty severally as to the appellants herein. From a judgment entered in accordance with the verdict, the present appeal has been taken.

Arguing in support of their plea in bar and their plea of once in jeopardy, under which they urge the cognate defense of res judicata, the appellants contend that the action of the trial judge in the first case, in entering a judgment in their favor on the first count of the first indictment, was, in effect, an instruction for a verdict in favor of the appellants; that 'the mere abandonment of the charge was equivalent to an acquittal'; that the abandonment of count 1 was without the appellants' consent; and, finally, that, since count 1 of the first indictment was the same as count 1 of the present indictment, on which the appellants were convicted, the above-mentioned pleas should have been sustained.

The appellants, however, are in error when they state that count 1 of the first indictment was dismissed or abandoned without their consent. The very portion of the record quoted by the appellants, and set out above, shows that their counsel renewed 'the motion made to compel the Government to elect to further proceed upon one or the other count of the indictment, rather than upon both counts.'

When a nolle prosequi as to one count is entered with the consent of the defendant, even after all the evidence is in, such dismissal does not operate as a bar to a subsequent indictment for the same offense. United States v. Shoemaker, 27 Fed.Cas. pp. 1067 and 1069, No. 16,279; United States v. Farring, 25 Fed.Cas. p. 1052, No. 15,075; 16 C.J. § 391, pp. 248, 249; 8 R.C.L. §§ 140, 141, pp. 152, 153.

Count 1 of the first indictment was abandoned by the appellee because it was 'very similar' to count 2. The jury was unable to agree as to count 2. In other words, as the appellee points out, the issue of fact between the appellee and the appellants as to count 2 was not settled by the jury in that case. The appellants now contend that, since counts 1 and 2 of the first indictment charged the same offense as that charged by the first count of the present indictment, a dismissal of count 1 of the first indictment is a bar to a prosecution under count 1 of the present indictment, even though the first jury was unable to agree on the count that was in fact submitted to it. If this rule were adopted, a defendant confronted by an indictment containing similar counts could wait until the taking of testimony had begun, could then insist upon an election, and, in the event of the jury's disagreement on the count elected, could block a second trial on a similar count on the ground that the former count had been abandoned after jeopardy had commenced. We do not think that such an application of the rule as to former jeopardy is a reasonable one, and we decline to adopt it.

In 8 R.C.L. § 141, supra, the following language is used:

'It may be stated as a general rule that where an indictment is quashed at the instance of the defendant, though after jeopardy has attached, he cannot thereafter

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plead former jeopardy when placed on trial on another indictment for the same offense. His action in having the indictment quashed constitutes a waiver of his constitutional privilege.'

We believe that the court below was correct in granting the appellee's motion to strike the plea in bar and the plea of once in jeopardy.

We turn next to an examination of the demurrers to count 1 of the present indictment, on which the appellants were convicted.

Succinctly stated, the allegations of the count, which is lengthy, are as follows:

On December 15, 1931, there was pending in the United States District Court at Los Angeles, an indictment against John McKeon and others, charging them with violations of sections 37 and 215 of the Federal Penal Code. The appellants and Helen Werner conspired with each other and with John McKeon and Fred L. Wilke, who were not indicted, and with other persons, to endeavor corruptly to influence, obstruct, etc., the due administration of justice in the McKeon proceeding. The conspiracy was to be carried out as follows: The three defendants were to approach McKeon and state to him that they could and would, for a large sum of money, bring about corruptly a dismissal of the indictment against him; that the three defendants 'could and would, by means of political influence, things of value, sums of money, or gratuitously, corruptly influence or cause other persons to corruptly influence the decision and action of the persons acting on behalf of the United States in an official function, * * * before whom' the McKeon Case was pending, such influence to be directed toward causing a decision and an action favorable to McKeon and others, without regard to whether or not McKeon and the others were guilty of the crime charged in the pending...

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