Spriggs v. United States, 14409.

Decision Date23 September 1955
Docket NumberNo. 14409.,14409.
Citation225 F.2d 865
PartiesClaude E. SPRIGGS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Claude E. Spriggs, Jack C. Cavness, Phoenix, Ariz., for appellant.

Jack D. H. Hays, U. S. Atty., Robert S. Murlless, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before STEPHENS, POPE and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

Defendant was indicted February 26, 1953, on a charge of attempting to defeat and evade his income tax1 for the year 1947, and was convicted by a jury on April 5, 1954. Judgment and sentence followed, from which this appeal was taken.

The history of a previous conviction on a substantially similar charge must be reviewed for an understanding of the points raised herein. An indictment returned against Spriggs on April 3, 1951, contained three counts. He was acquitted on the first two counts, which relate to other years, and we concern ourselves only with Count III, which seems to have been in the same terms as the single count of the present indictment. A bill of particulars was granted as to the first indictment. The particulars specified as to Count III were (a) unreported taxable capital gains of $1,698.15 on the sale of the "Collins" property, (b) unreported taxable capital gains of $544.64 on the sale of the "Eastwood" property, and (c) overstatement of depreciation on the "Henshaw Road" property. The specific charge as to the latter was a false representation of cost.

A jury was impaneled and the trial was held. During the course thereof, defendant moved for the striking of portions of the bill of particulars as to Count II and for judgment of acquittal as to that count. Both motions were granted by the trial judge then presiding. There is no question as to this count, and the judgment of acquittal thereon was a finality.

At the same time, defendant moved for judgment of acquittal on Count III, which the trial judge then presiding denied and submitted this count to the jury. However, motion to strike portions of the bill of particulars was allowed. The proceeding was as follows:

"Counsel for defendant now moves for Judgment of Acquittal as to Count 3 of the Indictment on grounds and for the reasons the evidence adduced does not sustain the allegations of Count 3 and moves to strike portions of Bill of Particulars as to Count 3.
"It is Ordered that subdivisions (a) and (b) of said Bill of Particulars as to Count 3 of the Indictment be striken, and
"It is Ordered that said Motion for Judgment of Acquittal as to Count 3 of the Indictment be denied."

The defendant was convicted by the jury on Count III, attenuated by the striking of (a) and (b) of the bill of particulars, by which it may be understood that evidence of these transactions was not to be considered by the jury.

Appeal was taken to this Court, and the judgment of conviction was reversed, Spriggs v. United States, 9 Cir., 198 F. 2d 782, on the ground that no sufficient evidence was adduced to prove the corpus delicti independently of the admissions of defendant. Thereafter, based upon a stipulation of counsel for defendant and the then United States Attorney, the indictment was dismissed.

The present indictment was returned by another grand jury advised by a new United States Attorney, and the cause came on for trial before Hon. Claude McColloch, sitting by assignment. A motion to dismiss the indictment, for bill of particulars, a "motion to dismiss (or quash) the indictment" and a plea in bar were presented. These were all eventually denied. However, after the court ruled that the so-called plea in bar was denied, the United States Attorney presented an order granting the plea in respect to the matters referred to as (a) and (b) above and denying the plea with respect to the fraudulent depreciation designated above as (c), which was entered by the court. The court subsequently vacated this order and entered an order in accordance with its previous oral ruling denying the plea in bar in toto.

On trial, there was a motion for mistrial because the opening statement of the prosecuting attorney contained references to the "Collins" property, referred to above in subdivision (a), and to the "Eastwood" property, referred to above in subdivision (b). These were denied by the trial judge. Evidence was introduced as to the alleged profit on these two transactions and on the alleged fraudulent depreciation referred to above in subdivision (c). At the close of the government's case, defendant moved to strike all matters relating to the "Collins" and "Eastwood" properties, which was denied. There were motions to dismiss the indictment and for judgment of acquittal because of res adjudicata, former jeopardy and insufficiency of the evidence.

These were denied, and, when renewed at the close of all the evidence, again denied. After conviction, defendant made a motion for judgment of acquittal, notwithstanding the verdict, and motion for new trial. Both were denied. Defendant appeals the judgment of conviction.

The questions presented, according to the defendant, are:

"1. Had the defendant been put in double jeopardy since there had been a prior acquittal upon items (a) and (b) of the Bill of Particulars?"
"2. Does res judicata apply where defendant had previously been acquitted of the same offense as in (a) and (b) of Government\'s Bill of Particulars?"
"3. May the Court, by its actions, re-indict a defendant after a plea in bar has been sustained?"
"4. Is the evidence sufficient to sustain the verdict and judgment?"

The basis for all these points can be found in the record above summarized. The dismissal of the former indictment by consent of defendant did not terminate the right of the United States to reindict defendant within the period of the statute of limitations. The consent waived all technical defects. This dismissal of the indictment does not fall within Rule 48, Federal Rules of Criminal Procedure, 18 U.S.C.A., where consent by the court to the termination of the prosecution in that form by the United States Attorney is required. An order of dismissal thus entered is still only the "nolle prosequi" of common law as distinguished from a "dismissal with prejudice" and in the form entered here will not forbid the filing of a second indictment on the same charge. The point that Count III of the first indictment and the count of the present indictment upon which defendant was convicted were in the same language is of no consequence. In any event, further submission to a grand jury was waived by consent of defendant, and the grand jury did reindict. In this there is no error.

The point that the District Judge reindicted the defendant by allowing...

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    ...only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant."); Spriggs v. United States, 225 F.2d 865, 868 (9th Cir.1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956) ("The journal entry or signed document is not the order o......
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