United States v. Franke, No. 16673

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtHASTINGS, Senior Circuit , and KILEY and FAIRCHILD, Circuit
Citation409 F.2d 958
Decision Date24 April 1969
Docket NumberNo. 16673,16674.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arthur M. FRANKE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Norman G. LINDSEY, Defendant-Appellant.

409 F.2d 958 (1969)

UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur M. FRANKE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,
v.
Norman G. LINDSEY, Defendant-Appellant.

Nos. 16673, 16674.

United States Court of Appeals Seventh Circuit.

April 7, 1969.

Rehearing Denied April 24, 1969.


409 F.2d 959

Palmer K. Ward, Indianapolis, Ind., for appellants.

Paul C. Summitt, Crim. Div., Dept. of Justice, Washington, D. C., K. Edwin Applegate, U. S. Atty., Sidney Milun, Asst. U. S. Atty., Indianapolis, Ind., for appellee.

Before HASTINGS, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

KILEY, Circuit Judge.

In a joint jury trial, defendants were found guilty of passing counterfeit money in violation of 18 U.S.C. § 472.1 Both have appealed. We affirm.

In their joint brief defendants contend the district court violated their rights under the Fifth Amendment Double Jeopardy Clause, and that the court erred in denying their pretrial motion to suppress evidence gained by an unlawful search in violation of their Fourth Amendment rights.

We find no merit in the double jeopardy contention. The original indictment was returned March 18, 1966. The case was called for trial on September 19, 1966, and defendants filed a motion to dismiss the indictment for insufficiency to state an offense, and during the selection of the jury entered an oral motion to dismiss for a mistake in the date of the alleged offense. The original indictment alleged incorrectly that the offense occurred on December 8, 1966. After the jury was sworn, the indictment was dismissed without prejudice because of the incorrect date. On October 13, 1966, the new indictment was returned, correcting the date of the alleged offense to December 8, 1965, and charging the offense originally charged. On September 8, 1967, the district court denied defendants' motion to dismiss the indictment on the ground of double jeopardy.

We think that since the original indictment was dismissed on defendants' motion the denial of the double jeopardy motion was proper. See United States v. Ewell, 383 U.S. 116, 124-125, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), where defendants' convictions were set aside on their own motion and the Double Jeopardy Clause was found not to bar retrial for the same offense. See also United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), where the Court held the Double Jeopardy Clause not violated by retrial of the same alleged crimes after Tateo's conviction on a plea of guilty had been set aside on his motion. It is enough for us to say that here defendants' motions caused dismissal of the indictment — even though the order of dismissal came after the selection of jury — and retrial under the corrected indictment is not precluded by the Double Jeopardy Clause. If, after convictions are overturned at instance of defendants, retrials are not barred by the Double Jeopardy Clause, a fortiori, defendants' trial under the corrected indictment here is not barred.

Defendants rely on Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In Downum the jury was discharged because the prosecution was not ready to proceed. Pleas of former jeopardy were denied and the Supreme Court reversed. The Supreme Court in Tateo said that Downum was not inconsistent with the Tateo rule. 377 U.S. at 467, 84 S.Ct. 1587. Since...

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12 practice notes
  • Com. v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • 28 Abril 1977
    ...Roberts v. United States, 477 F.2d 544 (8th Cir. 1973); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Conner v. Deramus, 374 F.Supp. 504 (M.D.Pa.1974). See generally Page 108 Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 18......
  • Commonwealth v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • 28 Abril 1977
    ...Roberts v. United States, 477 F.2d 544 (8th Cir. 1973); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Conner v. Deramus, 374 F.Supp. 504 (M.D.Pa.1974). See generally [373 A.2d 108] Commonwealth ex rel. Montgomery v. Myers, 422 ......
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Marzo 1976
    ...1056, 18 L.Ed.2d 62; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Franke (7th Cir. 1969), 409 F.2d 958; Weigel v. State (1969), 252 Ind. 464, 250 N.E.2d An arrest is a significantly more severe invasion of a person's constitutionally protected ......
  • Wirtz v. Ray Smith Transport Company, No. 26478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Julio 1969
    ...in the record that the appellant actually knew of the relevant uses made of the petroleum, we believe it must be charged with such 409 F.2d 958 knowledge because of the type product involved and the nature of the businesses to which it was delivered. It follows that the drivers were engaged......
  • Request a trial to view additional results
12 cases
  • Com. v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • 28 Abril 1977
    ...Roberts v. United States, 477 F.2d 544 (8th Cir. 1973); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Conner v. Deramus, 374 F.Supp. 504 (M.D.Pa.1974). See generally Page 108 Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 18......
  • Commonwealth v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • 28 Abril 1977
    ...Roberts v. United States, 477 F.2d 544 (8th Cir. 1973); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Conner v. Deramus, 374 F.Supp. 504 (M.D.Pa.1974). See generally [373 A.2d 108] Commonwealth ex rel. Montgomery v. Myers, 422 ......
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Marzo 1976
    ...1056, 18 L.Ed.2d 62; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Franke (7th Cir. 1969), 409 F.2d 958; Weigel v. State (1969), 252 Ind. 464, 250 N.E.2d An arrest is a significantly more severe invasion of a person's constitutionally protected ......
  • Wirtz v. Ray Smith Transport Company, No. 26478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Julio 1969
    ...in the record that the appellant actually knew of the relevant uses made of the petroleum, we believe it must be charged with such 409 F.2d 958 knowledge because of the type product involved and the nature of the businesses to which it was delivered. It follows that the drivers were engaged......
  • Request a trial to view additional results

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