Ross v. United States

• Citation: 197 F.2d 660
• Decision Date: 29 May 1952
• Docket Number: No. 11429.,11429.
• Parties: ROSS et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

197 F.2d 660 (1952)

ROSS et al. v. UNITED STATES.

No. 11429.

United States Court of Appeals Sixth Circuit.

Decided May 29, 1952.

Joseph B. Keenan, Alvin O. West, Washington, D. C., on the brief, for appellant Irving Ross.

Robert N. Gorman, Cincinnati, Ohio, for appellants Martin Ross and Milton Gecker.

Ray J. O'Donnell, Frank J. Richter, Cincinnati, Ohio, on the brief, for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The three appellants have again been convicted by a jury of violation of section 1731(a), Title 12, U.S.Code revised section 1010, Title 18 U.S.Code, and sentenced to fines and imprisonment. On their former trial, they were also found guilty upon a count charging conspiracy, section 88 revised section 371, Title 18 U.S.C., to violate that section; but their second trial resulted in acquittal on the conspiracy count of the joint indictment against them. On both trials, appellants Milton Gecker and Martin Ross were convicted on Counts Two, Four and Eleven, and Gecker was found guilty on both trials on Count Six of the indictment. On the first trial, Irving Ross was found guilty on Counts, Two, Four, Five, Six and Eleven: on the second trial, he was found guilty only on Counts Two and Eleven.

We reversed the former judgment of conviction and sentence as to each appellant and remanded the case to the District Court for a new trial, because of an incorrect instruction given the jury and misconduct of the United States Attorney. In awarding a new trial, however, we pointed out that the Government had adduced abundant substantial evidence to support the verdict of the jury on all counts upon which the respective defendants had been found guilty. Ross v. United States, 6 Cir., 180 F.2d 160. Without indulging in extensive factual narrative, our opinion described the manner in which the appellants operated in violation of section 1731(a) of Title 12, U.S.C.¹

The points on appeal have been urgently pressed by counsel for Martin Ross and Milton Gecker and by separate counsel for Irving Ross. All three appellants insist that the District Court should have entered judgments of acquittal on the substantive counts, which they say contain the same allegations as to the overt acts which were charged in the conspiracy count upon which the defendants were acquitted. They rely upon Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 240, 92 L.Ed. 180, as authority for their position. In that case, the Supreme Court reversed a conviction where, after a first trial had resulted in his acquittal on a conspiracy charge, the defendant was tried and convicted on substantially the same evidence for violating a different section of the United States Code. The opinion of the Supreme Court recognized as long-standing law that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses but held "on the particular facts" involved that the verdict of the jury on the conspiracy trial was a determination favorable to the defendant of facts essential to conviction of the substantive offense charged on the second prosecution, and that res judicata was therefore a valid defense. It was demonstrated that the basic facts in each trial were indentical and that the defendant could have been convicted of either offense only on proof that he wrote a certain letter pursuant to agreement with a particular person and could have aided and abetted that person in no other way. The opinion writer pointed out that the core of the prosecution's case was the same in each case: the letter, the circumstances surrounding it and to be inferred from it, and the false invoices. "It was a second attempt", said the Court, "to prove the agreement which at each trial was crucial to the prosecution's case and which was necessarily adjudicated in the former trial to be non-existent."

In the Sealfon case, there was a second trial on a substantive count after a previous acquittal on a conspiracy count. Here, there was one trial on a conspiracy count and several substantive counts embraced in a single bill of indictment. The Sealfon case did not purport to overrule and has not had the effect of overruling the opinion of Mr. Justice Holmes in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356.

In the Dunn case, it was held that where offenses are separately charged in the counts of a single indictment, though the evidence be the same in support of each an acquittal on one may not be pleaded as res judicata of the other. It was stated that consistency in a verdict is not necessary and that each count of an indictment is regarded as if it were a separate indictment. The language of Judge Hand in Steckler v. United States, 2 Cir., 7 F.2d 59, 60, was quoted with approval: "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." 284 U.S. 390, 52 S.Ct. 190. Mr. Justice Holmes concluded: "That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters."

The Court of Appeals for the Second Circuit has made valuable contributions to the subject matter under discussion. We are in accord with their reasoning. In United States v. Petti, 2 Cir., 168 F.2d 221, 224, the argument of an appellant, based on the Sealfon decision, that his acquittal on a substantive count precluded his conviction on a conspiracy count on the theory of res judicata or double jeopardy was rejected. The Court said: "There the Sealfon case the defendant's acquittal on a charge of conspiracy was a valid defense to a later prosecution for a different offense. The doctrine has no application to different counts in the same indictment or to consolidated indictments." In United States v. Coplon, 2 Cir., 185 F.2d 629, 633, the same court rejected the argument that if an acquittal would have been res judicata had the trials been at different times it was an adjudication when the verdict was simultaneous, saying that when at the same trial a jury renders inconsistent verdicts of acquittal and conviction the inconsistency is immaterial and the conviction will stand. See to same effect Robinson v. United States, 9 Cir., 175 F.2d 4, 9, 10, wherein it was pointed out that nothing in the Sealfon case applies to verdicts which are all received at the same time in a single trial. See also Pilgreen v. United States, 8 Cir., 157 F.2d 427, 428. Cf. Young v. United States, 10 Cir., 168 F.2d 242, 246; United States v. Bazzell, 7 Cir., 187 F.2d 878, 884.

In Coplin v. United States, 9 Cir., 88 F. 2d 652, 661, it was held that, inasmuch as verdicts on different counts in an indictment need not be consistent, acquittal on a count charging conspiracy did not have the effect of preventing the acts of each defendant from being admissible against others under a substantive count not charging conspiracy. See also Bell v. United States, 8 Cir., 2 F.2d 543, in which it was held that where overt acts charged are substantive offenses specifically denounced by statute, an acquittal on a conspiracy count does not prevent conviction on counts charging such acts as offenses.

Appellants Martin Ross and Milton Gecker filed motions to require the United States Attorney to elect upon which counts of the indictment he would proceed to trial and to obtain separate trials for each. This motion stated that, inasmuch as Gecker and Martin Ross had been acquitted on Count Five and Martin Ross on Count Six of the indictment, and Irving Ross was still charged in those two counts, it would be prejudicial to them to be tried jointly with Irving Ross where evidence would be offered in support of the counts on which they had been acquitted. The motion for election or severance was said to be supported by the opinion of this court in Castellini v. United States, 6 Cir., 64 F.2d 636, and by the opinion of the Supreme Court in McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355.

The motion was denied by the District Judge. His action is sustained for the reason that the determination of the question rested in his sound discretion and, under the circumstances revealed, we find no abuse of discretion upon his part in denying the motion.

Rule 8 of the Federal Rules of Criminal Procedure makes provision for the joinder of offenses and of defendants in one indictment, in the following language: "(a) Joinder of offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offense charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. (b) Joinder of defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Rule 14 of the Federal Rules of Criminal Procedure, 18 U.S.C., entitled "Relief from Prejudicial Joinder", reads as follows: "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other...