United States v. Kramer

• Decision Date: 02 May 1961
• Docket Number: Docket 26294.,No. 97,97
• Citation: 289 F.2d 909
• Parties: UNITED STATES of America, Appellee, v. Stephen KRAMER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

289 F.2d 909 (1961)

UNITED STATES of America, Appellee, v. Stephen KRAMER, Appellant.

No. 97, Docket 26294.

United States Court of Appeals Second Circuit.

Argued October 13, 1960.

Decided May 2, 1961.

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Cornelius W. Wickersham, Jr., U. S. Atty., E. D. New York, Brooklyn, N. Y. (Judith A. Gelb, Confidential Asst. to the U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

John A. Arcudi, Bridgeport, Conn. (Bernard Green, Bridgeport, Conn., on the brief), for appellant.

Before CLARK, MAGRUDER and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

Defendant-appellant Kramer was found by a jury in the Eastern District of New York to be guilty on each of four counts of an indictment. The District Court's ensuing judgment, here under appeal, in addition to imposing a fine of $1,000 on the fourth count, sentenced Kramer "to serve five years on each of the first three counts and 8½ years on the fourth count all to be served concurrently."

Count I of the indictment charged Kramer with an offense under 18 U.S.C. § 371, in conspiring with others, in the Eastern District of New York, to break and enter into the United States post office at Wilton, Connecticut, with intent to commit larceny and other depredations, in violation of 18 U.S.C. § 2115. Count II made a similar charge with respect to the post office at Orange, Connecticut. Count III charged him with an offense under 18 U.S.C. § 371 in conspiring with others to receive, conceal and retain with intent to convert to his own use money, vouchers and things of value of the Post Office Department, knowing them to have been stolen, in violation of 18 U.S.C. § 641. Count IV charged him with the substantive offense of violating 18 U.S.C. § 641 by receiving, concealing and retaining with intent to convert to his own use money, vouchers and things of value of the Post Office Department, knowing them to have been stolen. The two latter counts alleged the property to have a value in excess of $100.

At a previous trial in the District of Connecticut, more fully described hereafter, Kramer had been acquitted on all eight counts of an indictment alleging substantive crimes arising from the same two post office burglaries. In the earlier indictment Counts I and V charged the burglaries, in violation of 18 U.S.C. § 2115; Counts II and VI alleged depredation of the safes at the two post offices, in violation of 18 U.S.C. § 1361; Counts III and VII charged the stealing of property from the two post offices in violation of 18 U.S.C. § 641; and Counts IV and VIII alleged the stealing of registered mail in violation of 18 U.S.C. § 1708.

Kramer appeals from the District Court's overruling of his contention that the Connecticut judgment barred a later prosecution under the clause of the Fifth Amendment forbidding that "any person be subject for the same offence to be twice put in jeopardy of life or limb," and, alternatively, that it precluded the Government from relitigating issues necessarily determined in the earlier trial. We hold the District Court was right as to the former, wrong as to the latter.

Double Jeopardy

Offenses are not the same for purposes of the double jeopardy clause simply because they arise out of the same general course of criminal conduct; they are the "same" only when "the evidence required to support a conviction upon one of them the indictments would have been sufficient to warrant a conviction upon the other." Morey v. Commonwealth, 1871, 108 Mass. 433, 434, quoted with approval in Ex parte Nielsen, 1889, 131 U.S. 176, 187-188, 9 S.Ct. 672, 676, 33 L.Ed. 118 and Gavieres v. United States, 1911, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489. Here the gist of the offenses charged in the first three counts of the indictment in the Eastern District was an agreement, an element not required to be proved to convict on the substantive charges in Connecticut. Hence the prior acquittal of the substantive offenses did not make prosecution for the unlawful agreement double jeopardy, even though the Government had offered evidence of such an agreement in the Connecticut trial. United States v. Bayer, 1947, 331 U.S. 532, 541-543, 67 S.Ct. 1394, 91 L.Ed. 1654. See Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; Pereira v. United States, 1954, 347 U.S. 1, 11-12, 74 S.Ct. 358, 98 L.Ed. 435. Similarly conviction for receiving, concealing and retaining stolen goods in violation of 18 U.S.C. § 641 would require proof of something other than participation in the theft — indeed, proof of that would be fatal to a conviction for receiving, Milanovich v. United States, 4 Cir., 1960, 275 F.2d 716, reversed in part 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773. Hence acquittal of the offenses charged in the first indictment would not support a plea of autrefois acquit on the receiving charge even though evidence of possession of stolen property after the burglaries had been offered at the first trial.

Res Judicata

Appellant's alternative contention rests on that important principle of the law of judgments, unhappily dubbed "collateral estoppel," which "operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later law suit on a different cause of action between the parties to the original action."¹ It is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of "mutuality" or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain. Coffey v. United States, 1886, 116 U.S. 436, 442-443, 6 S.Ct. 437, 29 L.Ed. 684 criminal judgment applied as collateral estoppel in civil case; United States v. Oppenheimer, 1916, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed 167; United States v. Adams, 1930, 281 U.S. 202, 205, 50 S.Ct. 269, 74 L.Ed. 807; Sealfon v. United States, 1948, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180; Hoag v. State of New Jersey, 356 U.S. 464, 470-471, 78 S.Ct. 829, 2 L.Ed.2d 913.

Application of the principle inevitably has two phases. The first is to determine what the first judgment determined, a process in which, as the Sealfon case makes plain, the court must look not simply to the pleadings but to the record in the prior trial. The second is to examine how that determination bears on the second case.

Here the first phase presents none of the difficulties often encountered with respect to a general verdict of "not guilty" in a criminal case. Despite the multiplicity of counts, the issue in the Connecticut trial was uncomplicated. Post offices at Wilton and at Orange had been burglarized, the former on the night of May 26, 1956, the latter on that of June 14. The Government proved the fact of the burglaries and the extent of the damages and theft with thoroughness and detail. The issue for the jury was not whether "jobs" had been done but by whom. The Government's principal witness on this was Herbert Kosmol. He testified, with circumstantiality, that he and Kramer had been partners in a Brooklyn television store; that on May 26 Kramer and one Madonia (tactfully characterized as "deceased" at the time of the trial) induced Kosmol to join them in a plan to burglarize the Wilton post office; that, equipped with tools and a pistol, they drove from Brooklyn to Wilton on the night of May 26; that they broke into the post office, opened the safe, and removed money, stamps, postcards and registered mail; and that they returned to Kramer's home and divided some of the loot, Mrs. Kramer having been awakened to furnish them with coffee. On the night of June 14, Kramer encountered Kosmol in a Manhattan bar, a good deal the worse for drink; he nevertheless urged Kosmol to join him and Madonia in another similar enterprise. Kosmol sobered up enroute to Orange and waited in the car with the pistol, while Kramer and Madonia burglarized the post office; tools were left on the scene. They then returned to Kramer's home where Kosmol was paid the smaller share deemed equitable for his more limited role in this affair. Kosmol also testified he had advised against taking money orders from the Wilton post office, but later learned from Kramer that Madonia had been arrested for passing some and that Mrs. Madonia had threatened that if Kramer didn't get Madonia out on bail, Madonia "was going to start singing." He also found some 40 or 50 postal money orders at the television shop. In addition, the Government offered testimony by Agnes Morra that she had cashed postal money orders received from Madonia, and by Madonia's widow as to statements by Kramer, after her husband had been released on bail, complaining about Madonia's "bringing the girls in" to cash the money orders, and advising Madonia to destroy any money orders that remained, as Kramer had already done.

Kramer denied participation in either burglary. He testified that in April, 1956, he had had an argument with Kosmol about the latter's taking money from the cash box in the television shop, that thereafter Kosmol was inactive in the business, and that Kramer had arranged for Madonia to help him. He admitted seeing money orders after the dates of the burglaries but attributed all this to Madonia. He was subjected to a long cross-examination which succeeded in eliciting, among other things, that on the night of May 26 he was busy repairing televisions and radios in preparation for the Memorial Day weekend, and that he spent the night of June 14 at the home of his sister, helping to prepare for a birthday party the next day. The latter testimony was corroborated by the sister, by her neighbor, and by Mrs. Kramer, who also denied Kosmol's story as to the coffee serving on the night of May 26.

Judge Anderson charged the Connecticut jury, ...