United States v. Sabella

• Decision Date: 13 November 1959
• Docket Number: No. 116,Docket 25767.,116
• Parties: UNITED STATES of America, Appellee, v. Dominick SABELLA and Charles LaCascia, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

272 F.2d 206 (1959)

UNITED STATES of America, Appellee, v. Dominick SABELLA and Charles LaCascia, Appellants.

No. 116, Docket 25767.

United States Court of Appeals Second Circuit.

Argued October 8, 1959.

Decided November 13, 1959.

Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y. (Marie L. McCann, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for appellee.

Menahem Stim, New York City, for appellant, Sabella.

Maurice Edelbaum, New York City, submitted a brief for appellant, LaCascia.

Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

An inadvertent error made by Congress in 1954 in recasting the provisions of the Internal Revenue Code relating to the sale of narcotics has given rise to the problems in the law of double jeopardy which this case presents. Reluctant as we are that two guilty defendants should profit from a mistake that has in no wise prejudiced them, we think their pleas of double jeopardy should have been sustained and accordingly reverse the judgments convicting them of a second offense.

In the course of enacting the Internal Revenue Code that was approved August 16, 1954, Congress revised the arrangement of various provisions which impose taxes upon the traffic in narcotic drugs and make unlawful conduct interfering with the collection of such taxes. One of these is the section, now designated 26 U.S.C. § 4705 (formerly § 2554 of the 1939 Internal Revenue Code) which makes it "unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate." This was included in Sub-Part A, Part I, Sub-Chapter A of Chapter 39. But 26 U.S.C. § 7237, which prescribes the penalties for various narcotic offenses, referred only to Sub-Part C of Part I, the occupational tax on persons engaged in the narcotic traffic. The first Public Act passed by the 84th Congress repaired this omission. Act of January 20, 1955, 69 Stat. 3.

Thereafter, in August, 1955, appellants were indicted for violating 26 U.S.C. § 4705 (a) by the sale of a specified quantity of heroin to one Zirilli within the Eastern District of New York on or about January 17, 1955, three days before the law correcting the inadvertent omission took effect. They pleaded guilty. Apparently neither the Court, the United States Attorney nor the defendants realized that the crime had been committed before the correcting statute had become law. On October 17, 1955, the Court sentenced Sabella to four years in prison and a $1,000 fine and LaCascia to three years in prison and a $500 fine. Defendants began to serve their sentences; the fines were not paid.

In April, 1956, Sabella and LaCascia sought release from imprisonment by writs of habeas corpus on the ground that at the date of the offense there was no law authorizing the sentence. On May 1, 1956, the United States Attorney for the Eastern District of New York moved to set aside the sentences as not authorized. There being no opposition, the Court granted the motions and directed that an order be submitted. The order, made on May 2, 1956, not only vacated the sentences, as sought in the United States Attorney's motion, but also set aside the judgments of conviction and dismissed the indictment.

On May 10, 1956, a new indictment was returned, charging that, on the same date specified in the first indictment, the defendants had sold Zirilli the same quantity of heroin which had been imported into the United States in violation of 21 U.S.C.A. §§ 173 and 174. Concededly this was the identical act involved in the first indictment. The defendants pleaded that this violated the provision of the Fifth Amendment that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," but admitted the facts and consented to trial by the Court. Relying on Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, Judge Rayfiel held that the offense charged in the second indictment was different from that charged in the first; he held also that the proceedings in 1955 did not constitute former jeopardy since no sentence could have been legally imposed. He therefore overruled the pleas of double jeopardy, sentenced Sabella to 15 months in prison and a fine of $250 and LaCascia to one year in prison and a fine of $250. It is noted that the sum of the new prison sentences and the time defendants had already served was less than the original sentences and much less than the maximum authorized, and that, as indicated above, the fines imposed in the original sentences had not been paid.

We meet at the outset the question whether defendants, having themselves attacked the original sentences for their violation of 26 U.S.C. § 4705, have thereby lost their right to plead double jeopardy against renewed prosecution for the same act under 21 U.S.C.A. §§ 173 and 174. At least since United States v. Ball, 1896, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L.Ed. 300, it has been "quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted." This rule has been held to apply also where the initial judgment has been successfully attacked collaterally by habeas corpus, Bryant v. United States, 8 Cir., 1914, 214 F. 51; United States v. Lowrey, D. C.W.D.Pa.1948, 77 F.Supp. 301, affirmed 3 Cir., 1949, 172 F.2d 226. Since defendants could thus have been resentenced consistently with the Fifth Amendment for their violation of 26 U.S.C. § 4705 if a valid sentence had been possible, In re Bonner, 1894, 151 U.S. 242, 260, 14 S.Ct. 323, 38 L.Ed. 149; see Murphy v. Commonwealth of Massachusetts, 1900, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, it might be thought that the Amendment was also no bar to their being tried and convicted for the violation of 21 U.S. C.A. §§ 173 and 174 arising from the same act.

We do not think this follows. Here only the sentence and not the judgment of conviction was unlawful and was attacked. While the petitions for habeas corpus are not before us, it seems that these assailed only the unlawful sentence. So, for that matter, did the government's motion in the Eastern District. Only the order on the motion purported to vacate the conviction and dismiss the indictment. The order thus went beyond the motion, and both were the government's doing, not the defendants'. Yet, as we hold below, it was exposure to a valid judgment of conviction that constituted defendants' initial jeopardy.

We come therefore to the two grounds on which the District Court held that defendants had not sustained their plea:

(1) The claim of no prior jeopardy. There is some degree of unreality in a claim that a convicted defendant who has been in jail has not been in jeopardy. Indeed, such a contention has been characterized as "in the vein of The Mikado," King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, 293. Nevertheless we take it as true that not only an acquittal but also a conviction "before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense." United States v. Ball, supra, 163 U.S. at page 669, 16 S.Ct. at page 1194; People ex rel. Hillman v. Hull, 1928, 131 Misc. 253, 227 N.Y.S. 360. The government asserts that was the situation here since the District Court could not impose a lawful sentence on the first indictment.

As has often been pointed out, the legal lexicon knows no word more chameleon-like than "jurisdiction." In this case the District Court did have jurisdiction in the basic sense that "A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and effect." Lauritzen v. Larsen, 1953, 345 U.S. 571, 575, 73 S.Ct. 921, 924, 97 L.Ed. 1254. See Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185. The District Court had been endowed with jurisdiction of "all offenses against the laws of the United States," 18 U.S.C. § 3231. Defendants were charged with action that had been condemned by Congress in the language usual for defining offenses against the United States — indeed, a criminal penalty for it had long been imposed. The action charged, which was unquestionably an "offense" prior to August 16, 1954, and after January 20, 1955, did not cease to be one in the interval. The District Court likewise had jurisdiction over the persons of the defendants and territorial jurisdiction over the offense charged, F. R.Cr.P. 18, 18 U.S.C.A. It therefore had power to render a judgment convicting the defendants, despite the facts that it could not lawfully impose a penalty and that its doing so constituted that higher degree of error which rendered the sentence subject not merely to being reversed on appeal but to being vacated on collateral attack.

There is more learning on the question whether trial under such circumstances is jeopardy than might be thought. It begins with the famous judgment in Vaux's Case, 4 Coke 44, 76 Eng.Rep. 992, in 33 Eliz. I, that Vaux's plea of autrefois acquit for the murder of Nicholas Ridley by poisoning was not a good plea because the first indictment had alleged only that the unfortunate Nicholas had "received and drunk" and thereafter died of poisoning, without averring, with the nicety demanded in that more accurate age, that what Nicholas drank and what Nicholas died of were the same. Coke adds that the justices also stated that "if a man be convicted either by verdict or confession upon an insufficient indictment, and no judgment thereupon given, he may be again indicted and...