United States v. Simon, 11563.
Decision Date | 22 July 1955 |
Docket Number | No. 11563.,11563. |
Citation | 225 F.2d 260 |
Parties | UNITED STATES of America v. Paul SIMON. |
Court | U.S. Court of Appeals — Third Circuit |
Walter D. VanRiper, Newark, N. J. (Morris Pashman, Passaic, N. J., on the brief), for appellant.
Albert G. Besser, Newark, N. J. (Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.
The indictment in its first count charges the defendant-appellant with having received stolen goods (turkeys) on September 14, 1953 and in the second count with guilty possession of those goods on September 17, 1953. The case was tried once before and resulted in an acquittal of the defendant on the first count and a verdict of guilty on the second. Thereafter defendant moved to set the verdict aside, for a new trial and arrest of judgment. Newly discovered evidence was not urged originally as a ground for the motion. The court in view of the verdict, feeling its charge might not have been adequate as to the second count, set aside the verdict on the second count "in the interest of justice". Rule 33, Federal Rules of Criminal Procedure.
At the second trial all of the evidence with respect to the receiving of the goods on the 14th which had been given at the first trial was again introduced. This was over the objection of the defense and included testimony by the admitted thief of delivery of the turkeys to the defendant on the 14th and telling him in effect at that time that they were stolen property. A new conviction was obtained and this appeal followed.
Appellant concedes that receiving and possession of the same stolen merchandise can well be separate crimes, but contends that the only evidence of guilty knowledge has to do with the receipt of the goods on the 14th and hence under the so-called "same evidence" test, see Morgan v. Devine, 1915, 237 U.S. 632, 641, 35 S.Ct. 712, 59 L.Ed. 1153, any trial for possession as well as receiving under these circumstances constitutes double jeopardy. Appellant's factual assumption is erroneous. There was evidence apart from the receipt that appellant acquired knowledge that the turkeys had been stolen after he had received them; for example, that such knowledge was acquired by means of or as a result of appellant's interviews on September 17th with two separate teams of F.B.I. agents who questioned him about stolen "Lynbrook" turkeys, the possession of which he at that time denied. That evidence clearly relates to the possession count and is distinct from the receiving charge.1 See United States v. Adams, 1930, 281 U.S. 202, 205, 50 S.Ct. 269, 74 L.Ed. 807.
In the alternative, appellant contends that it was error to admit in the second trial testimony regarding the events of September 14th. He frankly states that the receipt of the turkeys on the 14th can be shown as by itself it proves nothing2 but he urges that the testimony imputing guilty knowledge to him at the time the turkeys were delivered has been eliminated from the case by his acquittal on the receiving count. We think this argument sound. Since the first jury did not believe that evidence and said so by its verdict it cannot thereafter be used on the theory of it being an integral part of the chain of proof on the possession count.
The issue is not whether there can be inconsistent verdicts from one trial, cf. Dunn v. United States, 1932, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, but rather whether the Government is estopped from relitigating in a second trial facts already determined in the first. This case is accordingly controlled by our decision in United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466.3 There the defendant was acquitted of robbery and then tried for conspiring to commit robbery. We held there was no double jeopardy but on the question of "whether the government is estopped from re-litigating in a criminal trial facts theretofore materially in issue at a former trial between the same parties for a different criminal offense which resulted in a verdict of acquittal" we reversed, saying, 138 F.2d at page 469:
At the trial of the case at bar the issue on the particular point was presented to the court as one of double jeopardy, not as the simple problem, which it was, of re-litigation of decided facts. As a result in addition to competent evidence the Government was allowed to introduce testimony of guilty knowledge on the 14th contrary to the first jury's verdict of acquittal on the receiving count. It is impossible to gauge the effect of this on the jury. It may have been the decisive factor. It may have been disregarded. In that situation the defendant is plainly entitled to a new trial.
Appellee suggests that appellant's motion for a new trial on the second count of the indictment following his first...
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