Arnold v. United States, 18170.

• Decision Date: 12 October 1964
• Docket Number: No. 18170.,18170.
• Citation: 336 F.2d 347
• Parties: Ernest "Duke" ARNOLD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 347 (1964)

Ernest "Duke" ARNOLD, Appellant, v. UNITED STATES of America, Appellee.

No. 18170.

United States Court of Appeals Ninth Circuit.

September 4, 1964.

Rehearing Denied October 12, 1964.

Robert A. Seligson, San Francisco, Cal., for appellant.

William N. Goodwin, U. S. Atty., Michael Hoff, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant, Ernest "Duke" Arnold, appeals from a judgment of conviction entered on July 9, 1962, for conspiring to violate 21 U.S.C.A. § 174.¹ Trial was to a jury. This appeal comes to us from the United States District Court for the Western District of Washington, Northern Division. We will hereafter refer to this appeal as the instant case.

The errors assigned are three: (1) that appellant's conviction is in violation of the Constitutional protection against double jeopardy; (2) that there is a fatal variance between the pleading and the proof; and (3) that evidence of a conspiracy separate and distinct from the one charged in the indictment was admitted into evidence.

The facts can best be discussed in conjunction with assignment of error (1) relating to double jeopardy.

Appellant and others were tried in the United States District Court for the Northern District of California, Southern Division, charging conspiracy to violate the same section. Appellant was acquitted of that charge in May of 1959. That action will hereinafter be referred to as the California case.

In his assignment of error in the instant case appellant points to certain similarities in the indictments in the California case and the instant case, and contends that his conviction is violative of the Constitutional protection against double jeopardy.

At the outset we will specify the similarities and differences in the two indictments.

1. Time: In the California case appellant was named in only the first count of a twenty-two count indictment. In that count it is charged that at a time and place to the grand jury unknown, appellant and others conspired to violate 21 U.S.C.A. § 174. The fifty-seven overt acts alleged in that count took place between April 1, 1957 and January 14, 1959. The only overt act naming appellant, number forty-nine, allegedly took place on August 15, 1958.

In the instant case the grand jury charged that appellant and others conspired from or on about September 1, 1957, the exact date being to the grand jury unknown, and continuing to the date of the filing of the indictment on April 19, 1962. It is to be noted that there is time overlap in the two indictments.

2. Persons: In the California indictment, seventeen persons including appellant were alleged to have conspired with twelve other persons and others to the grand jury unknown.

In the instant case, appellant and seven others were alleged to have conspired with thirty-seven other persons and others to the grand jury unknown. Appellant and LeRoy Lemons are common defendants in both indictments. None of the persons listed as co-conspirators is common to both indictments with the exception of one Wallace Hanks who is described as deceased in the indictment in the instant case.

3. Places of Offense: The overt acts in the California case are alleged to have taken place in California, Oregon, Washington, and New York among other places. The locale of the single overt act relating to appellant is Portland, Oregon.

In the instant case, the overt acts are alleged to have taken place in Washington, Oregon, and California. A few cities are different in the two cases. The overt acts naming appellant are alleged to have taken place in Portland, Oregon and Dallasport, Washington.

4. Offense: The offense charged in both indictments is the same — violation of 21 U.S.C.A. § 174. The language of the offenses as set out in the indictments is practically identical with the exception of the persons named in them as before mentioned and the fact that cocaine and heroin are the narcotic drugs enumerated in the California indictment, while heroin alone is the drug specified in the indictment of the instant case.

5. Overt Acts: There are fifty-seven overt acts alleged in the California case and twenty-eight in the instant case. None is the same.

It should also be mentioned that appellant was confined at McNeil Island Federal Penitentiary from June, 1956 until May, 1958 and in Springfield Medical Center, a federal institution from December, 1960 until the trial of the instant case.

The Fifth Amendment to the United States Constitution provides, in part: "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * *". U.S.C.A.Const. Amend. 5.

The question presented here is: are the offenses charged in the two indictments the same within the meaning of the constitutional prohibition?

The test most often cited in resolving the question of identity of offenses is: is proof of the matter set out in a second indictment admissible as evidence under the first indictment, and could a conviction have been properly sustained on such evidence? If the answer is yes, then the plea is sufficient; otherwise it is not. 1 Wharton's Criminal Law 535 (1957); Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1919); McGinley v. Hudspeth, 120 F.2d 523 (10th Cir. 1941); Bacom v. Sullivan, 200 F.2d 70 (5th Cir. 1952); Ballerini v. Aderholt, 44 F.2d 352 (5th Cir. 1930); Waters v. United States, 328 F.2d 739 (10th Cir. 1964). This test was laid down in Morey v. Commonwealth, 108 Mass. 433 (1871). In that case two indictments were found against the defendant, the first for lewd and lascivious cohabitation, and the second for adultery. The period of time charged for the offense of adultery fitted within that charged for cohabitation. The court affirmed convictions on both indictments. As in that case, the cases using the test cited above are found generally to be those which involve different crimes or offenses alleged in two indictments, different counts, or even within one count. But see Piquett v. United States, 81 F.2d 75 (7th Cir. 1936) at p. 79. In the instant case, on the other hand, only one offense is charged in both indictments, to-wit: conspiracy to fraudulently and knowingly receive, conceal, sell and facilitate the concealment and sale of certain quantities of narcotic drugs. The question, then, is not whether the doctrine of former jeopardy will bar prosecution for a single act or continuing offense such as conspiracy which is violative of more than one statute, but, rather, whether the single offense of conspiracy charged in each indictment is the same.

A comprehensive treatment of the subject is found in Short v. United States, 91 F.2d 614 (4th Cir. 1937), 112 A.L.R. 969. In that case it was held that because of the differences in the two indictments for conspiracy to distill, sell, remove, and conceal spirits without complying with internal revenue laws, the question of whether or not judgment in the prior action was a bar to the subsequent action was a matter which should have been submitted to the jury. The differences adverted to were:

"(1) Difference in the periods of time covered by the conspiracies as alleged; (2) difference in the places charged as the places of conspiring; (3) difference in the persons charged as coconspirators; (4) difference in the overt acts alleged to have been committed in furtherance of the conspiracies; and (5) the charging here of the violation of an additional statute. * * * We agree that these differences make it impossible to say as a matter of law upon the face of the indictments that they relate to the same conspiracy; but we think that because of the generality of the language used it is likewise impossible to say upon the face of the indictments that they do not relate to the same conspiracy. The questions raised by the pleas of former jeopardy, therefore, should have been submitted to the jury under appropriate instructions from the court." Short v. United States, supra, pp. 619-620.

Further, at p. 624,

"We think that we should point out, however, that under general indictments of the character here involved the fact that evidence introduced and relied on in the trial below would have warranted conviction under the North Carolina indictments is not alone determinative of the question raised by the pleas of former jeopardy. To sustain such plea, it must appear that the conspiracy here prosecuted is the same as that for which the prior prosecution was had; and whether or not it is the same must be determined from evidence as to the conspiracy involved in the prior prosecution."

In the instant case prior to the trial the appellant and the Government stipulated that the issue of double jeopardy be tried to the Court without a jury at the conclusion of the jury trial. At the close of the trial the Court heard oral argument on the issue from both appellant and the Government, compared the record of both proceedings, and found both as a matter of fact and of law "that the two conspiracies charged in the Washington and California indictments were completely different and unconnected, although they were both general in nature." Our review of the records of both cases discloses ample support for those findings.

In the California case, the evidence introduced by the government is as follows: A narcotics conspiracy had been set up by one LeRoy Jefferson and one Clarence Criss. Jefferson was the moving force of the conspiracy and Criss his lieutenant. These men were the trunk of the tree. They employed several other persons to act as runners who traveled throughout Washington, California and Oregon dispensing narcotics and picking up sums of money from the smaller branches. The...