416 U.S. 995 | SCOTUS | 1974
Dissenting Opinion
dissenting.
Successive prosecutions of petitioner and one Cioffi
Instead of proceeding to a retrial on the second count, the Government abandoned its efforts under § 472 and procured a second incfictment under 18 U. S. C. § 501 based upon the verv rsame course of conduct. The second indictment was also a two-count indictment, the first count charging that the pair “knowingly did possess with intent to. use and sell, approximately four hundred forged and counterfeited postage stamps,” in violation of § 501, and‘the second count charging conspiracy to violate, that section. The overt acts alleged were the same as in the first indictment and the evidence at the trials was much the same.
I
Petitioner and Cioffi unsuccessfully claimed that, since the second prosecution grew out of the same transaction, the Double Jeopardy Clause of the Fifth Amendment barred the second prosecution. In my view the rejection of this claim was error. I adhere to the position - that the Double Jeopardy Clause requires the prosecution, except in most limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. Ashe v. Swenson, 397 U. S. 436.
II
I would grant certiorari in any event to decide another Double Jeopardy claim argued, by petitioner based upon the action of the Court of Appeals for the Second Circuit in remanding for a new trial after reversing the conviction of petitioner and Cioffi under the second indictment, 487 F. 2d 492 (1973).
The substantive § 501 first count alleged possession of the stamps “with intent to use and sell.” Shortly before submission of the case to the jury, the indictment was. redacted to delete all references to “sell.” The redaction was acquiesced in by the prosecution when sought by the defense, apparently because the Government’s evidence was insufficient to support the charge of possession with intent to “sell.” 'The caser thus went to the jury under instructions limited to the pharge of possession with intent to “use,” The Court of Appeals held, however, that the instructions defining “use” were erroneous because not confined to use for postal purposes. Instead of remanding for a new trial limited to the “use” charge, as was proper,, although-the Government’s evidence at the § 472 trial may have been insufficient, Bryan v. United States, 338 U. S. 552 (1950), the Coúrt of Appeals remanded for a trial on the “sell” charge, finding that the Government’s evidence on that charge was sufficient to present a jury question of possession with intent to “sell.” The Court of Appeals stated;
“There was no evidence in this case that defendants had any. intention to use the counterfeited*998 stamps for large scale mailing of letters; the evidence was rather that they were intent on a sale. In short, when the judge redacted the indictment, he cut out the wrong word; the case should have been submitted to the jury on the basis of possession with intent'to sell rather than possession with intent to use. If the judge’s action was based on a belief of insufficiency of the evidence to show possession with intent to sell, he was mistaken. From the evidence presented at trial, the jury could permissibly infer that defendants intended to sell the sheet of 400 counterfeit stamps . . . .” 487 F. 2d, at 500."
The Court of Appeals recognized that, a double jeopardy question was raised by the remand for a trial of the-“sell” charge:
“There remains the question whether deféndants can be tried again under the same indictment, with the jury this time instructed that it can convict on proof of intent to sell, a charge which the judge erroneously removed from the indictment at the defendants’ request and which' we direct him to restore. Plainly they can be. It is settled that when a defendant has his conviction^ reversed on appeal, the double jeopardy clause jdoes not prevent his retrial for the same offense. . ; . We see no tenable distinction between a case like this where defendants have procured a reversal because the judge submitted the indictment to the jury on a wrong theory and one where they procured reversal because the judge 'submitted a defectiye indictment.” Id., at 50 F
The question, however, is whether the. trial judge’s redaction of the “sell” charge was a directed verdict of acquittal on that charge. Th'etlack of a formal direction
The Court of Appeals held this principle inapplicable in denying a petition for rehearing. It based its decision on a reading of § 501 as' establishing a single offense', 487 F. 2d, at 501. This conclusion itself presents an important question even under Justice Gray’s formulation in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), that the test of a single offense is whether “the evidence required to support a conviction upon one of [the charges] would have been sufficient fo warrant con-., viction upon the other.” See, e. g., Gavieres v. United States, 220 U. S. 338, 342 (1911); Blockburger v. United States, 284 U. S. 299, 304 (1932). - Under that test, there is clearly a question whether the evidence required to support a conviction upon one of the charges would have been sufficient to warrant conviction upon the other, since proof of possession with intent to sell seems to require
I would grant the petition for certiorari.and set the case for oral argument.
Lead Opinion
C. A. 2d Cir. Certiorari denied.
