Riadon v. United States, 13777.

• Decision Date: 01 February 1960
• Docket Number: No. 13777.,13777.
• Citation: 274 F.2d 304
• Parties: John Wesley RIADON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F.2d 304 (1960)

John Wesley RIADON, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 13777.

United States Court of Appeals Sixth Circuit.

February 1, 1960.

Dale M. Quillen, Nashville, Tenn., for appellant.

Warner Hodges, Asst. U. S. Atty., Memphis, Tenn. (Rives Manker, U. S. Atty., and Malcolm R. Wilkey, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before McALLISTER, Chief Judge, and SIMONS and CECIL, Circuit Judges.

SIMONS, Circuit Judge.

The appellant was convicted in the Western District of Tennessee, at Memphis, Tennessee, on May 12, 1959, for possessing and transferring counterfeit currency of the United States, in violation of Title 18 U.S.C., §§ 472 and 473. He seeks reversal here on two main grounds: (1) That having waived a jury trial, his motion to withdraw the waiver was erroneously overruled by the District Court and (2) Because his plea of guilty in another case pending in Nashville, Tennessee, in the Middle District of Tennessee, had previously put him in jeopardy, so that when he was tried and convicted in Memphis the judgment and commitment were void because prohibited by the Fifth Amendment of the Constitution, in that it constituted "double jeopardy".

To understand the appellant's contentions, it becomes necessary to closely consider the sequence of events and the specific charges in the indictments severally returned by the Grand Jury in the respective districts of Tennessee.

A Secret Service Agent, posing as an ex-convict, made contact with the appellant, on May 12, 1958, for the delivery to him, in Memphis, of $2,500.00 in counterfeit notes. The delivery was made on May 12, 1958 in the Western District of Tennessee and an arrangement made that an additional amount of counterfeit currency was to be transferred to the Agent in Nashville. This was done in the early morning of May 14th when counterfeit currency in face value of $76,000.00 was transferred to the Agent in Nashville in the Middle District of Tennessee. The appellant was then arrested. He was indicted in Nashville for making counterfeit bills and for their possession and passing on or about May 14, 1958. On August 26, 1958, an indictment covering the Memphis transfer was returned; the appellant was arrested on September 3d, pleaded "not guilty" and waived a jury trial, on September 4. On October 16 he pleaded "guilty" to an indictment covering the Nashville transaction and the plea was accepted but judgment was at that time reserved. On November 10, 1958, the appellant moved to withdraw his waiver of trial by jury in the Memphis case which was denied. The trial to the Court was commenced on November 13, 1958, the appellant found "guilty" on four counts of possession and sentenced to fifteen years on each count, all of them to run concurrently, and on four counts of transferring, each carrying ten years concurrently. At the argument on the appeal, all challenge in the present case appears to have been waived except the two attacks thereon, above cited, and the questions here involve the issues as to whether he should have been permitted to withdraw his waiver of trial by jury, and whether his trial offended against the double jeopardy provision of the Constitutional Amendment and we have to consider the contention of the appellant that he had been previously put in jeopardy by his plea of "guilty" to the indictment in Nashville, and that the Court erred in overruling his motion to set aside his waiver of trial by jury.

Generally, it is held that jeopardy attaches when a person is placed on trial on a valid indictment before a court of competent jurisdiction, has been arraigned and pleaded and the jury impaneled and sworn. The Government contends that no former jeopardy attaches to his plea of guilty and relies entirely upon United States v. Scarlata, 3 Cir., 214 F.2d 807, 809, for the proposition that a plea of guilty, standing by itself, does not put the defendant in jeopardy. But the Scarlata case was decided upon the authority of Title 18 U.S.C. § 659, which provides: "A judgment of conviction or acquittal, on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts", the Court observing: "It may well be that a plea of guilty is a conviction in the same sense in which a jury verdict is a conviction, * * * but a plea of guilty is not a judgment of conviction. Indeed, the very word `judgment' indicates action by the court. A judgment of conviction by the court must follow a plea of guilty just as a judgment of conviction must follow a jury verdict of guilty * * *. In short, something more than a plea of guilty — some action by the court — is necessary before there can be a judgment of conviction. There was no such action by the state court prior to the federal conviction and sentence and, therefore, there was no bar to the federal prosecution."

Thus it will be clear that the Court in Scarlata, supra, followed the express mandate of Title 18, § 659, and it will also be clear that Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (the Mail Bag Case) also followed the Postal Law, 18 U.S.C.A. § 1706, as by it interpreted even though to an opposite result, and the case bears also on another aspect of the problem to be likewise considered. In spite of the clear wording of the jeopardy...