United States v. Senak

• Citation: 477 F.2d 304
• Decision Date: 24 April 1973
• Docket Number: No. 72-1431.,72-1431.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Nick SENAK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

477 F.2d 304 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Nick SENAK, Defendant-Appellee.

No. 72-1431.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 1972.

Decided April 24, 1973.

Rehearing Denied June 5, 1973.

David L. Norman, Asst. Atty. Gen., Robert A. Murphy, Atty., Civil Rights Division, Department of Justice, Washington, William C. Lee, U. S. Atty., Fort Wayne, Ind., for plaintiff-appellant.

Max Cohen, Gary, Ind., for defendant-appellee.

Before FAIRCHILD, PELL, and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

In February 1972, a federal grand jury returned a five-count indictment against Nick Senak, a public defender for Lake County, Indiana. The indictment charged that Senak, while acting under color of law, "willfully and unlawfully exacted and took" money from various persons, thereby willfully depriving those persons of their right under the Fourteenth Amendment not to be deprived of property without due process of law, in violation of 18 U.S.C. § 242.¹ More specifically, notwithstanding his appointment under Indiana law as a "pauper attorney," by virtue of which he was entitled to governmental compensation,² Senak had allegedly exacted fees from a pauper "client" (Count I) and from friends or relatives of other impoverished "clients" (Counts II-V) by threatening inadequate legal representation of those he had been appointed to represent unless the extra sums were paid to him.

On March 27, 1972, the district court reluctantly sustained Senak's pre-trial motion to dismiss the indictment on the ground that the indictment failed to state an offense against the United States. The Government seeks reversal of the court's order dismissing the indictment.

We must, as an initial matter, determine whether the Government is barred from maintaining this appeal. The indictment involved in this appeal is the second against Senak under 18 U.S.C. § 242. An indictment returned in May 1971 had been dismissed by the district court on October 19, 1971, on Senak's motion. The Government had filed a notice of appeal as to that dismissal but later had moved successfully under Rule 42(b), Fed.R.App.P., to dismiss its appeal. Senak claims that the second indictment is substantially the same as the first one and that "when the Government abandoned the appeal of the dismissal of the May 1971 indictment and the appeal was dismissed for want of prosecution, the judgment of the district court was in effect affirmed and now bars the second indictment on principles of res judicata, collateral estoppel and former jeopardy."

The cases on which Senak relies, including this court's decision in United States v. Ponto, 454 F.2d 657 (7th Cir. 1971) (en banc), are distinguishable. A federal grand jury may return a second indictment for the same offense when the first indictment has been dismissed or otherwise found defective. United States v. Root, 366 F.2d 377, 383 (9th Cir. 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967); Buie v. United States, 76 F.2d 848, 849 (5th Cir. 1935), cert. denied, 296 U.S. 585-586, 56 S.Ct. 97, 80 L.Ed. 414 (1936); United States v. Manetti, 323 F.Supp. 683, 690-691 (D.Del. 1971). Cf. 18 U.S.C. § 3289. Further, we disagree that the Government's decision not to pursue its appeal precluded the grand jury from returning another indictment on the same matter. Cf. United States v. Beard, 414 F.2d 1014, 1017 (3d Cir. 1969). Senak was not put in jeopardy; jeopardy is usually held to "attach" at the time trial commences and a jury is impanelled. See United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); cf. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We therefore hold that the second indictment was not barred.

Rule 7(c), Fed.R.Crim.P., requires that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense." "The true test of the sufficiency of an indictment is . . . whether it contains the elements of the offense intended to be charged." Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932), quoted in United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953). The elements of an 18 U.S.C. § 242 offense are: (1) the defendant's acts must have deprived someone of a right secured or protected by the Constitution or laws of the United States; (2) the defendant's illegal acts must have been committed under color of law; (3) the person deprived of his rights must have been an inhabitant of a State, Territory, or District; and (4) the defendant must have acted willfully. See United States v. Jackson, 235 F.2d 925, 927 (8th Cir. 1956). Only elements (1) and (2) are in dispute on this appeal.

Senak contends that a public defender is immune from liability under § 242 and that, once he is appointed in a given case, he does not act under color of state law but functions purely as a private attorney. For this proposition, Senak relies on Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), where the question was whether a Pennsylvania county public defender could be held liable for damages in an action brought by a former indigent client who alleged constitutional deprivations under 42 U.S.C. § 1983, the civil counterpart of 18 U.S.C. § 242. The district court there held that the complaint failed to state a claim upon which relief could be granted on the basis that the defendant was not acting under color of state law. On appeal, the Third Circuit decided it need not reach the "under color of any law" question. The court instead held that a county public defender enjoys immunity from liability under the Civil Rights Act.

Brown, supra, the one case Senak cites on this issue, is inapposite. The court's remarks about "color of law" are dicta. Further, an examination of the holding there reveals that the court was concerned with immunity for state judges, prosecutors, and public defenders "for acts done in the performance of their judicial functions . . . ." 463 F.2d at 1048. The court recognized an exception to immunity where the officials' acts are clearly outside the scope of the officials' jurisdiction. Id. Also, the court emphasized certain policy considerations which are irrelevant to the charge in the indictment before us, e. g., the importance of encouraging the officials' "free exercise of professional discretion in the discharge of pre-trial, trial, and post-trial obligations." Id.

Senak provides neither binding precedent nor persuasive reasons to lead us to conclude that the Government would be unable, as a matter of law, to satisfy the "color of law" requirement. See United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941): "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." See generally Screws v. United States, 325 U.S. 91, 107-111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). At this juncture we do not know, for example, in what words Senak couched his alleged demands for money or what representations he made to the alleged "victims." Nor do we know all the conditions that attached to Senak's appointment as public defender, i. e., the duties and ethical conduct required by law of someone assuming such a position. If the indictment is sufficient in other respects, the Government should be given the opportunity to try to establish that Senak acted "under color of . . . law."

The district court's objections to the indictment centered on the supposed absence of the "deprivation of a constitutional right" element. Implicit in its discussion, however, were doubts about the "under color of any law" requirement. In the court's view, to hold that the defendant, by charging a fee, had deprived the named persons of property without due process of law was "to strain that concept well past its breaking point."

The "constitutional deprivation" element of the section 242 offense charged here consists of three concepts: the right to "property," a "deprivation," and "due process." It is clear that the right to acquire, enjoy, own, and dispose of property is protected by the Constitution. Each count of the indictment against Senak referred to the named person's right to property under the Fourteenth Amendment and specified the form of that property (money) and the approximate amount allegedly taken. Cf. United States v. Konovsky, 202 F.2d 721, 726 (7th Cir. 1953).

A more difficult problem is whether Senak's alleged conduct constituted a "deprivation" under the Constitution. The district court considered that term to import a "taking" in the sense of "a nonconsensual divestiture compelled by legal authority" and reluctantly concluded that the indictment failed to allege such a "taking":

"When the verbiage concerning `taking\' and `exaction\' is stripped away, all that the indictment alleges is a successful demand for money in exchange for the performance of a preexisting legal duty. . . . The fatal defect in the indictment here is that it fails to allege that defendant\'s `victims\' were ever under any legal obligation to pay the sums demanded. . . . No such obligation in fact existed.

Unless the defendant\'s demands . . . are backed by the power of the state, there is no `taking\' in a constitutional sense."

In its prior opinion sustaining the motion to dismiss directed to the first indictment, which opinion was incorporated by reference in the second opinion, the district court stated: "There is no claim that those charged a fee were ever under any compulsion, legal or otherwise, to pay. . . ." (Emphasis added.)

It would seem obvious that there was no legal compulsion. Senak was being paid by the state and could not have successfully claimed any additional compensation from those he represented, either directly or vicariously. However, that he...