Michener v. United States, 13375.

• Decision Date: 20 January 1947
• Docket Number: No. 13375.,13375.
• Citation: 157 F.2d 616
• Parties: MICHENER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F.2d 616 (1946)

MICHENER v. UNITED STATES.

No. 13375.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1946.

Writ of Certiorari Granted January 20, 1947.

Elliott W. Michener, per se, for appellant.

James J. Giblin, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order denying appellant's motion to vacate the sentence imposed and the judgment entered on the second count of an indictment. The motion was based upon the ground that the arraignment upon the second count of the indictment was in violation of the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. The indictment, drawn under Section 264, Title 18 U.S.C.A., was in two counts. Count 1 charged that appellant and a co-defendant "unlawfully did cause and procure to be made a certain plate in the likeness of a plate designated and prepared by the direction of the Secretary of the Treasury of the United States, for the printing in the Bureau of Printing and Engraving of the United States, of that certain obligation of the United States; to-wit, * * *." Then followed a description of the plate. The second count charged that at the same time and place, appellant and his co-defendant "unlawfully did have in their control, custody and possession that certain plate made after and in the similitude of a plate from which genuine Federal Reserve Notes of ten-dollar denomination have been printed in the Bureau of Printing and Engraving of the United States, with intent then and there on the part of defendants to use said plate in counterfeiting Federal Reserve Notes on the Federal Reserve Bank of Minneapolis, * * *." Then followed a description of the obligation, being identical with the description set out in Count 1 of the indictment. From the facts disclosed by the indictment and those admitted with commendable frankness by the government's attorney on oral argument, it is clear that there was but one plate involved.

To this indictment appellant pleaded guilty and upon such plea he was sentenced to a term of fifteen years and a fine of $5,000 on each count, the sentences to be served consecutively.

On this appeal appellant urges that he has been twice placed in jeopardy for the same offense in that the same evidence which proves Count 1 will sustain a conviction on Count 2.

The statute under which the indictment was drawn, omitting parts not here material, reads as follows:

"* * * whoever by any way, art, or means shall make or execute, or cause or procure to be made or executed, or shall assist in making or executing any plate, stone, or other thing in the likeness of any plate designated for the printing of such obligation or other security; or whoever shall sell any such plate, stone, or other thing, or bring into the United States or any place subject to the jurisdiction thereof, from any foreign place, any such plate, stone, or other thing, except under the direction of the Secretary of the Treasury or other proper officer, or with any other intent, in either case, than that such plate, stone, or other thing be used for the printing of the obligation or other securities of the United States; or whoever shall have in his control, custody, or possession any plate, stone, or other thing in any manner made after or in the similitude of any plate, stone, or other thing, from which any such obligation or other security has been printed, with intent to use such plate, stone, or other thing, or to suffer the same to be used in forging or counterfeiting any such obligation or other security, or any part thereof; * * * shall be fined not more than $5,000, or imprisoned not more than fifteen years, or both." Sec. 264, Title 18 U.S.C.A.

It is argued by appellant that one can not make, cause or procure to be made a mechanism such as is described in Count 1, without having control, custody and possession of it, and that the offense of unlawful possession is complete at the moment of possession and that such possession is a continuing offense, not augmented because it may continue for more than a day, nor subject to arbitrary division into separate offenses or periods of time. We agree with appellant that he could not have made or procured to be made, the plate described in the indictment without having possession of the plate. Patrilo v. United States, 8 Cir., 7 F.2d 804, 805; Morgan v. United States, 4 Cir., 294 F. 82. If he procured it to be made, the person making it for him was his agent and he was in constructive possession when the plate was completed by his procurement. Richardson v. United States, 3 Cir., 181 F. 1; Moffitt v. United States, 10 Cir., 154 F.2d 402; United States v. DeNormand, 2 Cir., 149 F.2d 622. If he made it himself, he was of necessity in possession of the plate when it was completed.

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test usually applicable, and the one which appellant here invokes to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Hewitt v. United States, 8 Cir., 110 F.2d 1; Roark v. United States, 8 Cir., 17 F.2d 570; Spencer v. Cox, 8 Cir., 140 F.2d 73. The test of identity of offenses is whether the same evidence is required to sustain them. If it is not, then the mere fact that both charges relate to and grow out of one and the same transaction does not necessarily make a single offense where two are defined by the statute. There need not, however, be formal, technical, absolute identity, but substantial identity is sufficient. To sustain the plea of double jeopardy, it must appear that appellant upon the first charge could have been convicted of the offense in the second. The possession with which appellant is charged in the second count resulted from and was an incident to the act charged in the first count. In other words, he became possessed of this plate by the unlawful act of making it or procuring it to be made. There was but one transaction and one plate and the act of procuring possession was an integral part of the unlawful act of creating this plate.

There can be no doubt but that separate offenses might be charged and proved under this statute, but that does not solve the question here presented. We must interest ourselves not with what might have been done, but what was actually done in this case. As said by Judge Faris, speaking for this court in Cain v. United States, 8 Cir., 19 F.2d 472, 474:

"The trouble is not with the law but with the facts. This possibility of a violation of either statute by wholly different acts is readily demonstrable. Many of the cases seem to make the latter possibility the test which saves the situation from double jeopardy. We think, however, it is a question of what was actually done rather than a question of what might have been done. Defendant concededly might have made a sale of morphine without sending such morphine through the mail, or he might have sent morphine through the mail, or shipped it by express or by freight, and thus have been guilty on the second count, without making a sale."

So in the instant case, it may be conceded that under a possible state of facts one could properly be convicted of the two offenses charged in the indictment, but as stated by Judge Faris in Cain v. United States, supra, "It is a question of what was actually done rather than a question of what might have been done." This thought is expressed by Judge Rutledge, now Mr. Justice Rutledge, in a concurring opinion in District of Columbia v. Buckley, 75 App. D.C. 301, 128 F.2d 17, 21, where, in referring to the evidence type of test, he says:

"That test is useful to spell out the elements of the crimes charged, and therefore to disclose what, if any, difference exists between them. If there is none that ends the matter. But if difference is disclosed there is in my view always another step which must be and is taken either intuitively or with deliberation. That is to weigh the difference to determine whether it is substantial or too minor to be material for purposes of double jeopardy. The court must evaluate as well as spell out the difference, and determine whether the element it affects is sufficiently important in relation to other elements involved in both crimes to justify refusal to apply the constitutional protection."

Substantially the same test is suggested by the Circuit Court of Appeals of the Seventh Circuit, in the case of Murphy v. United States, 285 F. 801, 817, where in an opinion by Judge Evans it is said:

"The Fifth Amendment to the Constitution protects all against double...