U.S. v. Cala

• Decision Date: 23 July 1975
• Docket Number: No. 1078,D,1078
• Citation: 521 F.2d 605
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph CALA, Defendant-Appellant. ocket 75-1043.
• Court: U.S. Court of Appeals — Second Circuit

Page 605

521 F.2d 605

UNITED STATES of America, Plaintiff-Appellee, v. Joseph CALA, Defendant-Appellant.

No. 1078, Docket 75-1043.

United States Court of Appeals, Second Circuit.

Argued May 27, 1975.

Decided July 23, 1975.

David Gerald Jay, Buffalo, N. Y., for defendant-appellant.

Roger P. Williams, Asst. U. S. Atty. (Richard J. Arcara, U. S. Atty., for the Western District of New York, Buffalo, N. Y., of counsel), for plaintiff-appellee.

Before CLARK, Associate Justice, ^* and HAYS and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Joseph Cala was convicted after a jury trial of conspiracy, 18 U.S.C. § 371, to transfer counterfeit currency in violation of 18 U.S.C. § 473. His principal contention on this appeal is that by reason of his prior acquittal in an earlier trial on charges of possessing the same counterfeit currency with intent to defraud, 18 U.S.C. § 472, the government was collaterally estopped in the present prosecution from proving his intent to defraud. After review of the records in both prosecutions, we conclude that there was no such estoppel with respect to the intent element and affirm.

On August 9, 1972, Cala was arrested at his residence and place of business in Studio City, California, and charged with possession of approximately $160,000 in counterfeit ten dollar bills, which Secret Service agents seized at the time of the arrest. Following indictment for violation of 18 U.S.C. § 472, ¹ which prohibits, among other things, possession of counterfeit currency "with intent to defraud," he was tried in the Central District of California at Los Angeles on January 2 and 3, 1973. At this trial Cala took the stand and admitted possession of the counterfeit notes but claimed his possession was innocent. Cala's story was that he had received the currency via Greyhound bus from an unknown source, had become scared, and had attempted only to destroy or otherwise to rid himself of the currency. The jury acquitted.

On September 5, 1973, Cala was again indicted, this time in the Western District of New York. This two-count indictment charged him with transferring and delivering approximately $200,000 in counterfeit ten dollar bills with intent that they be used as genuine Federal Reserve Notes, in violation of 18 U.S.C. § 473, ² and with conspiring to do so, in violation of 18 U.S.C. § 371, with one James Gambacorta, who was not named as a co-defendant. The counterfeit currency was the same currency for possession of which Cala had been acquitted in California. The government's bill of particulars limited the time of the alleged conspiracy to the period July 2 to August 3, 1972.

At the second trial, held in the Western District of New York before Lloyd F. MacMahon, Judge, sitting by designation, the government relied almost entirely upon the testimony of Gambacorta, who stated that he and Cala met at a During the New York trial, Cala's counsel moved to dismiss the indictment on the ground of former jeopardy and on the ground that the government was collaterally estopped from proving the critical element of intent to defraud, that issue having been resolved in Cala's favor by the California jury. Judge MacMahon reserved decision on these motions. Defense counsel was allowed to introduce into evidence the fact of the California acquittal, and urged it to the jury as evidence of Cala's innocence. Following the jury's verdict, Judge MacMahon, in a written opinion, rejected the double jeopardy and collateral estoppel claims.

restaurant in Tonawanda, New York, on several occasions beginning in May, 1972, that they discussed the possibility of Cala's obtaining paper suitable for printing counterfeit, and that on July 11, 1972, Cala asked Gambacorta to let him take all the counterfeit currency Gambacorta then possessed to California and attempt to dispose of it. Gambacorta further testified that he delivered a brown suitcase to Cala in the middle of July, and that after Cala left for California, the two discussed the currency by telephone on several occasions. Cala did not take the stand at the New York trial. The jury acquitted him of the substantive count, but convicted him on the conspiracy count.

DISCUSSION

We have no difficulty concluding that the prosecution here was not barred on the ground of former jeopardy. To support a former jeopardy claim, it must be shown that the offenses charged were in law and fact the same, United States v. McCall, 489 F.2d 359, 362 (2d Cir. 1973), Cert. denied,419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974); United States v. Pacelli,470 F.2d 67, 72 (2d Cir. 1972), Cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973). Unless " 'the evidence required to support a conviction upon one (indictment) would have been sufficient to warrant a conviction upon the other,' the double jeopardy defense must fail," United States v. Cioffi, 487 F.2d 492, 496 (2d Cir. 1973), Cert. denied, 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974), Quoting, Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Prosecution for multiple statutory violations arising out of a single transaction is permissible, and each violation may be tried separately, United States v. Nathan, 476 F.2d 456, 459 (2d Cir.), Cert. denied, 414 U.S. 823, 94 S.Ct. 171, 38 L.Ed.2d 56 (1973).

Here the California indictment charged Cala with possession of counterfeit currency on August 9, 1972, in violation of 18 U.S.C. § 472, whereas the subsequent New York indictment charged him with violation of a different statute (i. e., 18 U.S.C. § 371) and the alleged violation did not arise out of the transaction forming the basis of the California case but out of earlier events (an agreement made in New York during the period from July 4, 1972 to August 2, 1972). Moreover, although the later-discovered evidence upon which the New York case was based would probably have been admissible in the California trial, the evidence required to support the California charge would not have sustained the New York conviction, since the gist of the New York conspiracy count was an agreement, an element wholly unnecessary to the California case. See United States v. Cioffi, supra, 487 F.2d at 498; United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961). Indeed, the government did not offer evidence of the earlier agreement, which it did not discover until after the California trial.

Defendant's collateral estoppel claim poses a more difficult question. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment embodies the doctrine of collateral estoppel and applies it to criminal prosecutions, precluding prosecution of an offense when an issue of ultimate fact or an element essential to conviction has necessarily been determined in favor of the defendant by a valid and final judgment in a prior proceeding between the same parties. United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.), Cert. denied 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974); see United States v. Gugliaro, 501 F.2d 68, 70 (2d Cir. 1974); United States v. Kramer, supra, 289 F.2d at 913. The burden, however, is on the defendant in the second case to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict. United States v. Tramunti, supra, 500 F.2d at 1346; United States v. Friedland, 391 F.2d 378, 382 (2d Cir. 1968), Cert. denied, 404 U.S. 867, 92 S.Ct. 143, 30 L.Ed.2d 111 (1971). In determining what issues were necessarily resolved by the prior proceedings, the court is to take a practical approach, examining the record, pleadings, evidence and jury instructions in order to decide " 'whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' " Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194; Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Tramunti, supra, 500 F.2d at 1346. If the jury could have done so in the prior case, the claim of collateral estoppel must fail, since the defendant can prevail only if the issue...