Gilbert v. United States

• Decision Date: 07 April 1969
• Docket Number: No. 62 CR. 664.,62 CR. 664.
• Citation: 299 F. Supp. 689
• Parties: Edward M. GILBERT, Petitioner, v. UNITED STATES of America and the Attorney General of the United States, Respondents.
• Court: U.S. District Court — Southern District of New York

299 F. Supp. 689

Edward M. GILBERT, Petitioner, v. UNITED STATES of America and the Attorney General of the United States, Respondents.

No. 62 CR. 664.

United States District Court S. D. New York.

April 7, 1969.

Stanley J. Reiben, New York City, for petitioner.

Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, for respondents; Stephen F. Williams, Asst. U. S. Atty., of counsel.

OPINION

TENNEY, District Judge.

On September 24, 1964, the petitioner, Edward M. Gilbert, entered a plea of guilty to Counts One, Five and Seven of a fifteen-count indictment returned on June 28, 1962¹ in the United States District Court for the Southern District of New York. Judge Palmieri of this court sentenced petitioner on April 27, 1967 to a term of two years' imprisonment on each of the three counts, to be served concurrently. The execution of sentence on Count One was suspended, and petitioner was placed on unsupervised probation for a period of five years, to begin upon the expiration of the sentence imposed on Counts Five and Seven.

The first count of this indictment charged petitioner, in substance, with having used interstate and foreign wire communications in furtherance of a scheme to defraud E. L. Bruce Company (of which petitioner was president, a director and a controlling shareholder) of $1,953,000.00 in violation of 18 U.S.C. § 1343. Count Five charged petitioner, in substance, with having transported from New York to Paris a stolen check of Rhodes Enterprises, Inc. in the amount of $50,000.00, payable to Joseph Danon & Co., in violation of 18 U.S.C. § 2314. The seventh count charged petitioner, in substance, with having failed to file statements with the American Stock Exchange and the Securities and Exchange Commission relating to his ownership of E. L. Bruce Company common stock in May 1962, in violation of 15 U.S.C. §§ 78p(a), 78ff.

On February 29, 1967, petitioner pleaded guilty to Counts Five, Six and Ten of a twelve-count indictment returned on July 9, 1962 in the Court of General Sessions of the State of New York, County of New York.² Counts Five, Six and Ten of the New York State indictment charged petitioner with the theft from E. L. Bruce Company of checks totalling $1,117,000.00, drawn on the account of Bruce and payable to Rhodes Enterprises, Inc. on May 29, 1962, June 1, 1962 and June 6, 1962, respectively (grand larceny in the first degree). Appearing for sentence before Justice Culkin of the Supreme Court of the State of New York on May 8, 1967, petitioner argued that the basic wrongful acts which resulted in both the Federal and State indictments were the same, and that he had previously been prosecuted and sentenced by the Federal courts for this series of acts. The April 27, 1967 Minutes of Sentence (Palmieri, J.) were made available to the court. Justice Culkin observed that:

"Whatever happened in the Federal Court had to do with Federal law, acts committed against certain laws of the United States which he violated in the act of performing the larcenies committed here.

Technical violations of the law. Here it's a substantive crime."³

A term of imprisonment of two to four years on each count to run concurrently was imposed, and petitioner was remanded forthwith to begin service of this sentence.

Thereafter, petitioner moved before Judge Palmieri for a reduction of his Federal sentence or, in the alternative, for a modification of sentence to include a recommendation to the Attorney General to designate the State prison in which petitioner was then incarcerated as the place of confinement for his Federal sentence. On June 16, 1967, Judge Palmieri, in denying this motion, said:

"At the time of the sentence which was imposed by this Court on April 27, 1967, this Court was aware that there was an outstanding state indictment for misappropriation of funds to which the defendant had pleaded guilty and with respect to which sentence had not yet been imposed. It was not the intention of this Court to preempt in any way the functions of the New York State Supreme Court with respect to the disposition of the plea of guilty then pending before it. The defendant was sentenced in this Court for violations of specific federal statutes * * * and nothing in the proceedings before this Court justifies the conclusion that the functions of the state court were impinged upon in any way. Each court exercised a separate and distinct function with respect to separate and distinct crimes."⁴

After having served sixteen months in satisfaction of the New York State judgment, petitioner was released from State custody on September 24, 1968, at which time he began service of the Federal judgment.

Petitioner now moves this Court for an order under 28 U.S.C. § 1361 directing the Attorney General of the United States to credit him, pursuant to 18 U.S.C. § 3568, as amended by Section 4 of the Bail Reform Act of 1966,⁵ with time spent in State custody which he alleges was in connection with the acts for which sentence was imposed by Judge Palmieri.

Title 18, United States Code, Section 3568, in pertinent part, provides:

"The sentence of imprisonment of any persons convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term `offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress."

Petitioner contends that the acts which formed the basis of the Federal prosecution were committed in order to effectuate or accomplish the theft which formed the basis of the State prosecution and that, therefore, insofar as intent and purpose are concerned, these series of acts are essentially the same. Accordingly, where the acts or offenses upon which the State prosecution is based are either factually related or chronologically or regionally intertwined with the acts or offenses upon which the Federal prosecution is based, there exists sufficient connection between these acts to entitle petitioner to credit toward service of his Federal sentence with the sixteen months spent in State custody pursuant to the valid sentence imposed upon his plea. In deference to Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), petitioner concedes that Section 3568, as amended, has not disturbed the power of each sovereign to prosecute or the inherent judicial right to impose separate sentences.⁶ He argues, rather, that the "simplicity and sophistication" of the amendment to Section 3568 is achieved by effectively precluding double punishment in these circumstances by eliminating the inherent judicial power to execute consecutive sentences.

Applicable case law and legislative history not only fail to support petitioner's contentions but, on the contrary, compel the denial of his application.

The petitioner in Bartkus v. Illinois, supra, was tried and acquitted in a Federal district court for robbery of a Federally-insured bank in violation of 18 U.S.C. § 2113. On substantially the same evidence, he was later tried and convicted in an Illinois State court for violation of an Illinois robbery statute. The United States Supreme Court, by a slim majority (5-4), found no violation of the due process clause of the Fourteenth Amendment to the Constitution in the second State prosecution. In Abbate v. United States, supra, decided by the Supreme Court that same day, the petitioners were indicted in an Illinois State court for violating a State statute making it a crime to conspire to injure or destroy the property of another. The petitioners entered pleas of guilty to the indictment and were each sentenced to three months' imprisonment. Thereafter, petitioners were indicted and convicted in a Federal district court for the same acts which provided the basis of the Illinois convictions. A majority of the Court (6-3) rejected the claim that the Federal prosecutions, based on the same acts as were the prior State convictions, placed petitioners twice in jeopardy contrary to the Fifth Amendment to the Constitution.

Whatever the present validity of Bartkus and Abbate regarding successive Federal and State prosecutions based upon the same acts it is well settled that offenses are not the same for purposes of the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment merely because they arise out of the same general course of criminal conduct or relate to and grow out of one transaction. United States v. Friedland, 391 F.2d 378, 381 (2d Cir. 1968); United States v. Bruni, 359 F.2d 807, 808-809 (7th Cir.), cert. denied, 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966); United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961); Smith v. United States, 277 F.Supp. 850, 863-864 (D.Md. 1967). The test of identity of offenses, as stated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), is that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Offenses are the "same" only when the evidence required to support a conviction upon a Federal indictment would have been sufficient to warrant a conviction upon the State indictment. In other words, it is necessary to determine whether the same evidence would have been required to sustain...