United States v. McGee

• Decision Date: 10 November 1953
• Docket Number: Cr. No. 6247.
• Citation: 117 F. Supp. 27
• Parties: UNITED STATES v. McGEE et al.
• Court: U.S. District Court — District of Wyoming

117 F. Supp. 27

UNITED STATES v. McGEE et al.

Cr. No. 6247.

United States District Court D. Wyoming.

November 10, 1953.

John F. Raper, Jr., U. S. Atty., Cheyenne, Wyo., for plaintiff.

Alfred M. Pence, Laramie, Wyo., for defendant Fred F. McGee.

J. D. Fitzstephens, Cody, Wyo., for defendant Ernest J. Goppert.

KENNEDY, District Judge.

The above entitled case is before the Court on a joint motion of defendants for a bill of particulars and for a dismissal of the indictment upon grounds therein set forth. Upon the hearing the motion for bill of particulars was confessed and the same was filed instanter by the attorney for plaintiff. The motion of defendants for dismissal was argued orally and memorandum briefs submitted, which are before the Court for consideration.

An intelligent discussion of the points involved seem to necessitate a review of the facts upon which the motion seems to be based. The defendants were indicted in May 1952 on a charge of conspiracy and thereafter on pleas of not guilty were tried at the Sheridan Term of the court in August 1952, resulting in a disagreement of the jury, and they were thereupon discharged. At the close of the evidence motions for acquittal were interposed and overruled by the Court, who elected to send the case to the jury for consideration. This action was taken by the Court with the realization that the matter would still be within its control should the Court decide upon more mature consideration that the grounds of the motion were well taken. It was realized that should the jury find a verdict of not guilty under these circumstances the case would be ended. Thereafter the defendants timely interposed their written motion for a judgment of acquittal upon the ground that the evidence in the case was not sufficient to justify a verdict of guilty. This motion was evidently taken in accordance with Rule 29(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. A., which reads as follows:

"(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the motion is denied and the case is submitted to the jury, the motion may be renewed within 5 days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned the court may on such motion set aside the verdict and order a new trial or enter judgment of acquittal. If no verdict is returned the court may order a new trial or enter judgment of acquittal."

In this respect the Court and counsel seem to have followed this provision of the rule strictly. The motion was subsequently heard and sustained, the Court giving in a memorandum filed in the case its reasons why the motion should be sustained and a verdict of acquittal was thereupon entered discharging the defendants and their bondsmen. This action of the Court in that case has been deemed important here by counsel for the purpose of determining in advance whether or not the action of the Court there was a final determination of that case in view of the fact that a subsequent indictment was found against the same defendants involving similar charges and the same circumstances as were presumed to be litigated in the former case.

In that light I have considered the former case, 108 F.Supp. 909, No. 6118 Criminal, for the purpose of determining the point presented. The controlling factor in that case was that the indictment alleged but one overt act, which upon the trial it was shown occurred a considerable time after the alleged conspiracy, if there was one, had been completed with no connection in the evidence showing that the alleged overt act was a part of the conspiracy charged and therefore under the law could not be relied upon as an overt act, which must be established by the same manner of proof as the conspiracy itself. Reviewing the memorandum filed at the time I am satisfied that the motion for judgment of acquittal was made upon the entire record and the evidence presented in the case, and that the Court at the time so understood it and passed upon the motion with the evidence in that case before it. The memorandum shows this repeatedly, that the Court considered the motion as based upon the evidence in the trial and came to its conclusion accordingly. My view is, under these circumstances, that the judgment upon the motion was as effective as such as though the jury had itself returned a verdict of not guilty. This seems to be the reasoning within the scope of Rule 29(b). As a matter of fact, the jurisdiction conferred upon the Court under Rule 29 is as absolute in regard to a judgment of acquittal as the verdict of a jury. Counsel for the government contends that the judgment of acquittal entered by the Court was upon technical grounds and that "the case fell, however, because for technical reasons only, the indictment was not sufficient to fit the facts actually presented". This seems to me an erroneous and at least a back-handed way of stating the legal proposition. It would be correct to say that the case failed because the proofs were not sufficient to sustain the allegations of the indictment. The indictment on its face was sufficient in every particular and no one could tell until the proofs were presented at the trial but that the matter alleged as an overt act was not in fact a part of the conspiracy, in which respect the proof failed because the overt act under the proofs took place after the conspiracy, if any, had been completed. For the reasons stated the judgment of acquittal in that case must be held to have been upon the merits, rather than upon any technical grounds.

The matter becomes important here because of the fact that it is the basis of a claim for double jeopardy in that it is claimed that the second indictment now challenged, alleges the same offenses contained in the indictment in the former case. This leads to the necessity of a comparison and consideration of the two indictments. In case No. 6118 Criminal it is alleged that the two defendants did conspire with each other and divers other persons unknown to defraud the United States of America and the Reconstruction Finance Corporation by aiding and abetting Alford F. Leggett and Motor Sales Company in procuring from the Reconstruction Finance Corporation loans contrary to the provisions of the Act for the purpose of personal gain and secreting from the Reconstruction Finance Corporation the true condition of the Motor Sales Company and Leggett and in furtherance of said conspiracy removing collateral previously pledged to support the loan. It will be noted that only one overt act is charged in that indictment and also that the alleged conspiracy took place between the 22nd day of January 1948 and the 17th day of November 1950. The challenged indictment in the case at bar is in the form of three counts, in which in the first count it is charged that the defendants between January 28, 1948, and July 28, 1949, conspired with each other and divers persons unknown to defraud the United States and the Reconstruction Finance Corporation by aiding and abetting one Leggett and the Motor Sales Company in procuring a loan from the Reconstruction Finance Corporation contrary to provisions of law for personal gain for themselves by falsely representing the true financial condition of the Motor Sales Company and Leggett and in furtherance of said conspiracy setting forth seven overt acts, all of which I think the record in No. 6118 Criminal will show were offered as proof of the alleged conspiracy in the trial of that case. In count two a conspiracy is alleged upon the same ground as alleged in count one but as having taken place between July 28, 1949, and November 14, 1950, in which respect there is set forth thirteen different overt acts, the proofs of which I think the record will show in case No. 6118 Criminal were offered as tending to support the conspiracy charge in that case. It should be noted, however, that as to the dates in count two it is set forth as a separate and distinct conspiracy from that alleged in count one.

In count three the same basic allegations as to the conspiracy are set forth but as occurring between different dates, beginning on February 27, 1950, and extending to December 1, 1950, but in addition allegations that it was a part of that conspiracy to dispose and convey things of value of the United States, towit: the accounts and notes receivable, assigned to the Reconstruction Finance Corporation and setting forth seven separate overt acts, the proof of which I think the record in case No. 6118 Criminal will show was offered and received in evidence.

The question is — were the facts alleged in the indictment in this case and the socalled repetition of the charge made in a sense coincident or the same so that the judgment of acquittal in No. 6118 Criminal would create a situation amounting to a double jeopardy under Amendment V to the Constitution of the United States: "* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *."

For the purpose herein stated a comparison of the indictment in No. 6118 Criminal, together with the proofs offered in support of the same, should be compared with the indictment in the case at bar. The defendants are the same in the case at bar as in the former case and the parties alleged to have been aided and abetted are the same in both cases. It is noted that the allegations in No. 6118 Criminal and in counts one and two in the present case are essentially the same in stating that the conspiracy was to assist in procuring loans from the Reconstruction Finance Corporation by false representation and secreting from the ...