United States v. Petite

• Decision Date: 17 January 1957
• Docket Number: Crim. No. 23739.
• Citation: 147 F. Supp. 791
• Parties: UNITED STATES of America v. George B. PETITE.
• Court: U.S. District Court — District of Maryland

147 F. Supp. 791

UNITED STATES of America v. George B. PETITE.

Crim. No. 23739.

United States District Court D. Maryland, Criminal Division.

January 17, 1957.

Walter E. Black, Jr., U. S. Atty., Baltimore, Md., for plaintiff.

Bernard J. Flynn, Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

George B. Petite, indicted on two counts for subornation of perjury, in violation of 18 U.S.C. § 1622, seeks dismissal of the indictment on the ground of double jeopardy.

On August 21, 1956, the Grand Jury for the District of Maryland returned an indictment against Petite charging him on two counts with subornation of perjury. The first count charges that Petite suborned Georgios Modestou Kotsatos to commit perjury before the Immigration & Naturalization Service (INS) on February 14, 1952, at Baltimore. The second count charges that Petite suborned Louis Sitaras of Baltimore, Maryland, to commit perjury before the INS on June 16, 1952, at Baltimore.

Previously, the Grand Jury for the Eastern District of Pennsylvania had returned an indictment (No. 17934) against Petite and five other defendants, including Kotsatos and Sitaras. The first count of that indictment charged the defendants with conspiring to make false, fictitious and fraudulent statements to officers of the INS, in violation of 18 U.S.C. §§ 371 and 1001. Among the overt acts charged in that count were: No. 6, that "on or about February 14, 1952, Georgios Kotsatos, also known as George Modestou Kotsatos, did make a certain sworn statement at Baltimore, Maryland"; and No. 7, that "on or about June 16, 1952, at Baltimore, Maryland, Louis Sitaras of Baltimore, Maryland, did make a certain sworn statement". The second count of Pennsylvania indictment No. 17934 charged the same defendants with conspiring to defraud the United States and the INS for the purpose of preventing the deportation of Georgios Kotsatos, in violation of 18 U.S.C. § 371. Overt acts Nos. 6 and 7 charged in the second count of that indictment were the same as overt acts Nos. 6 and 7 charged in the first count. Overt act No. 3 in both counts charged Petite with offering in evidence in the deportation hearing at Baltimore on February 14, 1952, affidavits obtained from Louis Sitaras, of Marcus Hook, Pennsylvania (not the Louis Sitaras referred to in the Maryland indictment), Peter S. Pahides and Gustav Katsaros. Overt act No. 10 in the second count of the Pennsylvania indictment charged Petite with requesting the issuance of a certain baptismal certificate.

After trial in the United States District Court for the Eastern District of Pennsylvania, Petite was convicted upon his plea of nolo contendere on the first count of the indictment and was sentenced to two months' imprisonment and a fine of $500. On the motion of the United States Attorney, the second count of the indictment was dismissed.

The Grand Jury for the Eastern District of Pennsylvania had also returned a three count indictment against Petite (No. 17946), charging him with subornation of perjury. The three counts charged that Petite suborned Pahides, Katsaros and Louis Sitaras of Marcus Hook, Pennsylvania, respectively, to commit perjury before the INS on April 25, 1952, at Philadelphia. Following the trial in the Eastern District of Pennsylvania, this indictment was dismissed by the court, upon the motion of the United States Attorney.

The motion to dismiss the Maryland indictment alleges that a trial on the Maryland indictment will place Petite in double jeopardy because of the prior proceedings in the Eastern District of Pennsylvania. The controlling authorities, however, do not support this contention. "It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both. See Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S. Ct. 1180, 1181-1182, 90 L.Ed. 1489, and cases cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy." Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435.

The defendant contends that the charge in each of the indictments is identically the same. But an examination of the three indictments shows that the charges are not identical. "It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595, 16 S.Ct. 125, 126, 40 L.Ed. 269." Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489.

No doubt, if Petite did procure Kotsatos and Sitaras of Baltimore to testify falsely, as charged in the Maryland indictment, he did so in furtherance of the conspiracies charged in counts 1 and 2 of Pennsylvania indictment No. 17934. But that does not make the offenses identical. "* * * the charge of conspiracy requires proof not essential to the convictions on the substantive offenses —proof of an agreement to commit an offense against the United States — and it...