U.S. v. Huffman, 77-1741

• Decision Date: 29 March 1979
• Docket Number: No. 77-1741,77-1741
• Citation: 595 F.2d 551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Martin HUFFMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 551

595 F.2d 551

UNITED STATES of America, Plaintiff-Appellee, v. John Martin HUFFMAN, Defendant-Appellant.

No. 77-1741.

United States Court of Appeals Tenth Circuit.

Submitted Aug. 8, 1978.

Decided March 29, 1979.

Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellee.

John R. Bucher, Salt Lake City, Utah, for defendant-appellant.

Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Huffman has brought this timely direct appeal of his conviction under 18 U.S.C. § 659 for theft from an interstate shipment. ¹ His primary contentions on appeal are (1) that his prosecution violated the Fifth Amendment guarantee against double jeopardy, (2) that the Government should have been collaterally estopped from introducing evidence on certain issues at his trial, and (3) that his Sixth Amendment right to a speedy trial has been violated.

Viewing the record in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts:

Defendant entered into a lease agreement with Hams Express, Incorporated on May 21, 1975, for the transportation of canned hams and ham hocks from Chicago, Illinois, to the United States Navy at Alameda and Los Angeles, California. The agreement encompassed the lease of a tractor-trailer for hauling the goods and the services of the defendant to drive the shipment to California. When defendant failed to make daily telephone reports, Hams Express, Incorporated contacted the Federal Bureau of Investigation on May 28, 1975, and reported the truck and shipment as missing.

On May 30, F.B.I. agents in Salt Lake City located defendant and interviewed him. He told the agents he had been on a "bender," that he had gone to a bar at a Travelodge and tried to sell some of the hams, and that he got angry and told two men to "just take the whole truck." (I R. 46). There was other proof the hams were sold for $5,500, that defendant got $4,000 in cash, and another man got $1,500. (Id. at 55-56). Since defendant had no authority to sell the cargo of hams, on June 2, 1975, the United States Magistrate issued a complaint against him. On July 11, defendant waived indictment and was arraigned on an information charging him with the theft of Government property in violation of 18 U.S.C. §§ 641 and 2.

After the case was set for trial, the Government discovered in the course of interviews with its witnesses that title to the hams had not yet vested in the United States when defendant sold the hams. On October 28, 1975, the Government filed a supplemental complaint against defendant alleging violation of 18 U.S.C. § 659, theft from an interstate shipment, and a motion to dismiss the charge under § 641. When the § 641 charge was called for trial on November 12, the Government renewed its motion to dismiss. The court ordered a jury impanelled and sworn. After counsel for the Government stated that elements of the offense originally charged could not be proved, the court granted a judgment of acquittal.

On January 16, 1976, when present for arraignment on the second charge, the defendant refused to waive indictment by a grand jury. (III R. 2). A grand jury indicted defendant on July 26, 1976, for violation of 18 U.S.C. §§ 659 and 2, theft of an interstate shipment and aiding and abetting. Defendant filed a "Motion for Order of Acquittal" on December 15, 1976, directed to the new charge under 18 U.S.C. §§ 659 and 2, claiming that the Government was collaterally estopped from proving elements of the new charge and that the defendant was twice put in jeopardy. The trial occurred on July 7, 1977, on the second charge, and the jury returned a guilty verdict that day. After several continuances, the judgment of conviction and sentence was filed on March 15, 1978. (I Supp. R. 1). Defendant appeals, and we turn now to his three major appellate contentions.

I

First, defendant argues that his conviction on the second charge under 18 U.S.C. §§ 659 and 2, theft from an interstate shipment, must be set aside on double jeopardy grounds.

Defendant recognizes the rulings that where one act is a transgression under two statutes, and where different evidence must be used to convict under the statutes, there may be prosecution under both, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. He says however that there is a test of more recent origin since Ashe v. Swensen, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469, and he refers to views in the separate opinions of Justice Brennan in Abbate v. United States, 359 U.S. 187, 198, 79 S.Ct. 666, 3 L.Ed.2d 729, and Ashe, supra, at 448, 90 S.Ct. 1189. He urges adoption of the same transaction test and says that cases applying the same evidence test are distinguishable. He argues that cases applying the same evidence test were ones where the statutes were aimed at substantially different evils, E. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir.) (earlier plea of guilty to driving while intoxicated, etc., and later prosecution for manslaughter), whereas in our case both statutes deal with theft.

The Government replies with two basic contentions. In the first place it is argued that this case is closely parallel to United States v. Appawoo, 553 F.2d 1242 (10th Cir.), where we held that the Government was entitled to appeal a "judgment of acquittal" under the circumstances and that the trial court erred in entering a "judgment of acquittal" for defendant when the court had failed properly to hear a motion to dismiss on constitutional grounds before trial, had impanelled a jury and then taken some evidence, and had then entered the "judgment of acquittal" which was actually based on a holding that the application of the statute was unconstitutional. However, in Appawoo the Government appealed the "judgment of acquittal" and obtained a reversal to lay a predicate for retrial, along with an appellate ruling that the constitutional holding of the trial judge had been in error. Here, there was no appeal by the Government from the "judgment of acquittal." The judgment was not reversed as was the case in Appawoo. The first contention of the Government is thus untenable and we must reckon with the effect of the "judgment of acquittal" on the subsequent prosecution under the theft of interstate shipment charge.

The second response of the Government to defendant's double jeopardy defense is that the two offenses are separate and distinct and not identical in fact and law, that the same evidence could not prove both offenses, and that therefore the Double Jeopardy Clause does not apply at all.

We do agree with this contention. It is true that the same theft of property was charged in both indictments. However, a conviction under 18 U.S.C. § 641 for theft of Government property requires proof that the property taken belonged to the Government. On the other hand, a conviction under 18 U.S.C. § 659 for theft of an interstate shipment requires proof of movement of the property in interstate commerce. Thus each statute requires proof of an ultimate fact in addition to the theft, which the other does not, and double jeopardy principles are not infringed. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 40, 76 L.Ed. 520; Gavieres v. United States, supra, 220 U.S. at 342, 31 S.Ct. 421; Cox v. Gaffney, 459 F.2d 50 (10th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110; Bell v. Kansas, 452 F.2d 783, 792 (10th Cir.).

There remains the contention of defendant that we should adopt the same transaction test and the views on double jeopardy expressed by some Justices of the Supreme Court. See Abbate v. United States, supra, 359 U.S. at 196-201, 79 S.Ct. 666 (Brennan, J., concurring); Ashe v. Swenson, supra, 397 U.S. at 448-460, 90 S.Ct. 1189 (Brennan, J., concurring). The instant case does present directly problems such as have been addressed in these concurring opinions. However, the test of a single transaction or the same criminal episode has not been adopted by the Supreme Court and we have declined to apply it. See United States v. Addington, 471 F.2d 560, 568 (10th Cir.); Birch v. United States, 451 F.2d 165, 167 (10th Cir.).

In sum, since we agree that the charge of theft of Government property under § 641 is separate and distinct from that of theft of an interstate shipment under § 659, we conclude that the judgment for defendant on the former charge does not bar prosecution on the latter.

II

Defendant's second major argument is that in multiple prosecutions the Government should be collaterally estopped in a later trial from introducing evidence on issues decided against it in a first trial. Defendant says that here the Government at the first trial failed to present evidence on any issue and therefore a judgment of acquittal was granted. More specifically, he argues that the issues of intent, identity, taking and the like were necessarily found for the defendant at the first trial and hence the Government was collaterally estopped from introducing evidence on those elements of the charge of theft from the interstate shipment at the second trial. (Brief for Appellant, 7).

It is clear that principles of collateral estoppel are available in proper circumstances in criminal trials. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; Sealfon v. United States, 322 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. The rule is not applied with a hypertechnical and archaic approach, but with realism and rationality. This approach requires examination of the record in the prior proceeding, including the pleadings, evidence, charge and other relevant matters. Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189....