Gondron v. United States
| Decision Date | 30 July 1958 |
| Docket Number | No. 17134.,17134. |
| Citation | 256 F.2d 205 |
| Parties | Ray Edward GONDRON and Daniel Elchuk, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. Gabriel Nahas, Jr., James Royall, Houston, Tex., for appellants.
Charles L. Short, Asst. U. S. Atty., Laredo, Tex., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
When these appellants were first here by their appeal in Cause No. 16334 on the docket of this court1 seeking a reversal of judgments of conviction on three counts of an indictment charging violation of the customs and marihuana tax laws of the United States, this court on March 14, 1957, by its mandate and judgment2 reversed the judgments of the district court and remanded the cause to it for a new trial.
The cause returned to the district court, the defendant Elchuk alleging that the former judgments had not been reversed on appellant's appeal but had been set aside and vacated on the government's motion in the appellate court to set aside the convictions and remand the cause for new trial, and claiming former jeopardy, brought habeas corpus proceedings to secure his release.
The district judge, treating the application as a plea of former jeopardy in bar of further prosecution, rather than a habeas corpus proceeding, in an opinion3 with which we find ourselves in full agreement, overruled and denied the plea.
On Feb. 17, 1958, both defendants renewing by pleas in bar their claims of former jeopardy, sought a dismissal of the indictment and their discharge from further prosecution, and, these pleas denied, the cause was fully tried to a jury. The evidence concluded, defendant's motion for acquittal was sustained as to counts one and two, the customs counts charging unlawful importation and concealment after importation, and denied as to count three, charging acquisition of marihuana without paying the transfer tax. Submitted to the jury on a thorough and careful charge, to which defendants made no objection and both defendants convicted and sentenced on count three, they have appealed.
Their application for release on bail, on the ground that there were substantial questions to be determined upon appeal, was denied by the district judge for the reasons stated in his opinion in United States v. Gondron, D.C., 159 F.Supp. 691, and appellants applied to this court for bail. The cause advanced on the docket for early hearing and decision and the application for bail taken with the case, the defendants are here on brief and oral argument, asserting two grounds for the reversal of the judgment. The first is their plea of jeopardy based on the claim that their prior convictions were not reversed on their appeal but were set aside on the government's motion, and defendants are not, therefore, prevented by the fact of their appeal from urging the plea. The second is that the demand for the production of the order form required by Sec. 4742 of the 1954 Code, 26 U.S.C.A. § 4742, was not a reasonable demand, and the evidence is therefore insufficient to support the verdict.
We think it quite plain that, as pointed out by the district judge in his two opinions in this cause, supra, neither of these positions is well taken, that indeed they are without substance.
The first, based on a wholly inadmissible attempt, without evidence to support it, and in the face of a record establishing the contrary, to present the judgment of reversal on their appeal as not such a reversal, is completely answered by our opinion and that of the district judge, supra, and by the record and our mandate and judgment in the case, note 2, supra. Finally, as the slightest reflection upon the nature and object of such a plea and a reading of the cases dealing with the effect upon the plea of the fact that the second trial, of which the defendant complains, has come about from the defendant's own act in seeking it, will show, this contention is answered by the controlling consideration that the plea, which when soundly laid is based and sustained upon the profoundest grounds of public policy, is not a mere catch penny contrivance, by the use of which one who has sought and obtained reversal and new trial can obtain and keep the benefit, without the burden, of the new trial.
When it comes to the second point, it is quite plain that appellants have misconceived the purpose and effect of the statutory provisions...
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