*1 Civ.P. 56;Volpe, Hanley see 32 (E.D.Wis.1971). P.Supp. 1306 America, STATES UNITED Appellee, respect With to the federal de fendants, reasonably the District Court BARKET, Appellant. J. Alexander the Secretary’s implicit concluded acceptance of state’s assurances as Petitioner, BARKET, J. Alexander had a “satisfactory” factual basis. Sec not require tion 4630 does the existence housing. of available relocation in fact OLIVER, Unit John W. The Honorable terms, requires merely its it that the By Judge, and United District ed States Secretary be satisfied with the local America, Respondents. Thus, agency’s assurances. the review 75-1568, 75-1569. Nos. function ing narrowly court’s limited ascertaining Secretary’s whether the Appeals, Court Eighth within Circuit. acceptance assurances was range of sound administrative discre 14, 1975. Nov. Submitted was not arbitrary, capricious tion and Dec. not in Decided otherwise accordance with law. Addition Community Organiza Western Banc Rehearing En Rehearing and Romney, 320 F.Supp. tion v. 9, 1976. Feb. Denied
(N.D.Cal.1969); 706(2) (1970). 5 U.S.C. § No. Rehearing Denied in plaintiffs have their not borne bur 13, 1976. Feb. den of demonstrating that the District ruling was Court’s erroneous in this re
gard. of the District Court is
affirmed. disproportionate injuries trary, pre-
in order as [to avoid] the record indicates the state programs designed pared supplemental study dealing specifical- a result for the benefit whole,” 4621; public ly shortage as a U.S.C. with the of mobile home sites in guarantee County, is not intended identical substi- St. Louis housing for all tute relocatees. On the con- *2 Stephenson, Judge, filed a
concurring dissenting opinion. *3 Walsh, Louis, Mo.,
Thomas C. St. for appellant.
Anthony Nugent, Atty., U. Asst. S. Mo., Kansas City, appellee. for MATTHES, Before Senior Circuit Judge, STEPHENSON, LAY and Judges.
MATTHES, Judge. Senior Circuit Alexander J. Barket appealed has * of the order district court de nying his motion to dismiss Count I of a (our Appeal two-count indictment No. 1568). Alternatively, Barket filed 75— petition for writ of in this mandamus (No. 1569) court compel to the dis 75— trict court to dismiss dis Count I and charge appellant. The peti appeal and tion for mandamus have consolidat been ed for opinion. briefing, argument, and charged Count I of the indictment appellant, that an officer of Civic Plaza Bank, Missouri, National City, Kansas expenditure consented of the bank’s moneys in connection with the election, presidential in violation of 18 U.S.C. 610.1 proceeding Before to an examination presented, a of the issues merits history of this case in the resume of the explain why will serve to district court litigation is before us. was filed on The indictment two-count 9,May charged ap- I 1974.2 * corporation organization, ture or John W. Oliver. labor The Honorable ** * be, may shall be fined as case $1,000 part provides: imprisoned pertinent not more 1. not more than or both; * year, * than one or and if the violation bank, any for national It is unlawful $10,- willful, fined was shall be not more than expenditure in con- a contribution or to make years, imprisoned or more two 000 or than any any political of- election to with nection fice, both. any primary elec- in connection with or original indictment political caucus held to in this action was or convention tion or * * office, any political on filed first October two for select candidates charged appellant counts and the bank with alleged any corpo- every the violations here. The third count officer or director [A]nd organization, ration, any violating with labor 18 U.S.C. officer of or expendi- ap- any 1005. This indictment was dismissed on who consents strength evidence.
pellant violated 18 U.S.C. con- $7,500 senting Particularly, he said: the contribution of Civic in connection money Plaza’s with greatest difficulty, seems presidential the 1968 for election me, proof support and evidence to presidential vice electors. Count II finding any sort of that whatever the charged that, of 18 in violation U.S.C. done, may defendant have he did 656, appellant knowingly and without alleged govern- as $9,144 misapplied authorization injure ment and defraud his bank”' “to * * * bank’s by paying money funds Zatezalo, Rudolph for the purpose of find, my judgment, It is making an unlawful contribu- proof there was an failure of equal tion.3 part Both based on counts were the same purpose of the defendant’s action was *4 alleged payment transactions: an of the making “illegal” an of $9,144 Zatezalo, from to the bank as a contribution. salary, bonus by and a contribution Za- The court then a “not guilty” entered $7,500 presidential tezalo of to the cam- verdict. paign of then Vice President Hubert indictment, I Count the 610 § Humphrey.4 The theory is Thereafter, pending. charge, remained appellant that Zatezalo, approved payment this to appellant to dismiss on moved this count proper authorization, without grounds. several He asserted first that and ing by so violated both misapply- § to try him on I Count would violate the funds, the bank’s and 610 con- § proscription fifth amendment’s of double senting expenditure to an of bank funds jeopardy, the because offense for presidential election. Count I is identical to the offense 28, 1975, January At on a conference charged in II. In Count his motion the the two court ordered that counts be part dismiss relied in at least unclear at separately. tried It is whose Swenson, on Ashe 90 397 U.S. instance this was made.5 order (1970) sup- 25 469 L.Ed.2d event, jury of a waiver any In after port jeopardy this double claim.6 He as- trial, Count II proceeded the case serted also I that Count fails to state an alone, misapplication charge. the 656 offense, and 610 is unconstitution- evidence, the trial At the close the of al. motion for judge granted appellant’s The court denied motion granting In the acquittal. appeal this dismiss Count I and followed. motion, length at he discussed pellant’s alleged ($7,500) apparently motion on November 1973. The contribution filed, present subsequently represented indictment was Zatezalo’s increased li- income tax naming appellant ability resulting receipt alone as defendant. from his of the “bo- nus.” against separate A information the bank was filed, also but the trial was dismissed court. 5. The court’s memorandum of this conference government reads: try “The elected to pertinent part provides: In 656 3. govern- counts in the two cases.” The * officer, director, .* Whoever, being an ment compelled asserts that the court it to any any capacity or connected in eral Reserve with Fed- trial, sever appel- the counts for on motion of bank, bank, member national lant. * * * bank, embezzles, bank or insured abstracts, willfully purloins misapplies or appeal, appellant any On has receded any moneys, or funds credits of such claim pure that Ashe v. Swenson involves dou- funds, any moneys, bank or ties intrusted to the bank, assets or securi- jeopardy. recognizes ble He that Ashe dealt custody or care of such estoppel, incorporated with collateral and * * * be fined shall not more than jeopardy doctrine into the double clause of the $5,000 imprisoned not more than five fifth amendment. * * years, *. or both purport- 4. difference between amount edly paid ($9,144) and the Zatezalo amount motion, judge government argues filed a also that the denying estoppel which and collateral and order in issues
written memorandum
can be determined after another trial
alia :
stated inter
he
entry
of a
final
with
Section
In connection
U.S.C.
II of the
charge contained in Count
indictment,
was obli-
government
Ordinarily,
compelling
absent
rea
beyond reasonable
gated to establish
sons,
order,
interlocutory
an
such as an
defendant,
intent
with
doubt that the
denying
order
a motion to dismiss an
bank of
injure and defraud
indictment,
non-appealable.
Cohen v.
director,
an
he was
officer
;
Beneficial
Corp.,
Industrial Loan
supra
knowingly misapplied
willfully and
Snodgrass
States,
v. United
9 J.
And because we find
Federal Practice
able,
quoted
Churchman,
we
whether man-
457
need not consider
Roach v.
F.2d
(8th
1972).
appropriate.
1101
damus is
Cir.
The order denying
the motion
II.
dismiss here is the trial court’s final de
separate
Appellant
fact makes two
termination of
jeopar
double
First,
jeopardy arguments.
he
double
dy
separable
claim.
It is
from the mer
610 violation
contends that
its of the case. See United States v.
in Count
I and the
656 violation
Lansdown, supra,
25 (1970). L.Ed.2d 469 injure important the bank is an element of now, If a 656 offense. United appeal See States appel- § is not heard Giordano, 327, lant 489 right will F.2d 330 Cir. lose his claimed to be free from a second trial.8 Review thus can- not await final judgment. holdWe 610, contrast, in § Conviction the order is appealable, in so and hold- requires proof that the defendant con-
ing, emphasize we that our conclusion is expenditure sented to the or contribution limited jeopardy to double cases. of connection with the bank’s funds in an to purpose election. No defraud or Also, grounds for dismissal the other injure required. the bank is by appellant of the indictment advanced There a fundamental difference is (failure charge an offense to and the purpose in between the two statutes. 610) can unconstitutionality of be § statute, 656, misapplication is heard, appeal § from final necessary, if on of protect meant the funds banks is another event there in the relationship. with a Accordingly, we do federal trial “[C]ourts and conviction. generally gist our have held that of the We limit not consider them now. jeop- misapplication offense of is the appellant’s double willful consideration to estoppel federally claims. in- ardy conversion of funds of a and collateral DeSiivio, pur- appealability supra (finding It makes no difference for that order similar to course, poses, appealable, of wins or the one holding whether here is See, e.g., appellee merits). loses on merits. States v. United on
187
fense of the offense
in Count II.
some
one connected
bank
sured
aspect
This
jeopardy prohi-
to his own
of
double
the bank either
capacity with
inapplicable,
bition is thus
person,
appel-
with
the use of a third
or to
use
point
lant’s
is
injure
defraud the
without merit.
intent
Wilson, 500
United States
bank.”
III.
1974). The
715,
politi
(5th
720
Cir.
F.2d
610,
statute,
in con
cal
trast,
Appellant’s
argument
second
is
purposes the
for one of its
has
based,
pure
not on
double jeopardy, but
process from
of the electoral
protection
on the
estoppel” principle
“collateral
and union
corporate
influence of
Swenson,
436,
Ashe v.
397 U.S.
90 S.Ct.
v. Auto Work
funds. See
1189,
(1970).
that the
dence at
They
the trial on Count II.10
lesser
610 violation is a
included
the §
lack the clarity which could be found in
656 violation.
offense
findings
written
of fact.
It is therefore
is a lesser
One offense
includ
difficult
to determine
factual
is-
what
if, in
only
order to
ed offense
another
sues the
judge
trial
to resolve
intended
offense,
greater
it is
neces
commit
by the statements.
sary to commit the lesser. See United
Eisenberg,
above,
in ruling on the mo-
As shown
denied,
1972),
us,
U.S.
cert.
before
now
tion
dismiss
(1973).
93 S.Ct.
36 L.Ed.2d
disposition
that his
found
judge
the trial
ways
many
to mis
Manifestly, there are
any issues
not foreclosed
of Count II had
funds, in
with
apply
violation
I. We are
trial of
essential to the
*7
consenting to political
Rather,
out
a
finding.
we
not
this
bound
possible
is thus
in violation of
610. It
§
of the
examination
must make our own
record,
greater
without
commit the
offense
were
issues
what factual
to see
lesser,
the
in
committing the
and
lesser
motion
with the
resolved in connection
inapplicable.
is
cluded offense doctrine
of
and which
acquittal,
for
of
material to
issues,
be
any, would
then,
these
if
counts,
do not
The two
first that
noteWe
prosecution.
§
is the offense
the same offense. Nor
trial court
the
the one
issue
charged in Count I a lesser included of-
23(c).
“findings”
Appellant
here were
referred to
of the
makes much
disposition
oral comments made in the
that
it
at
assertion
will
introduce
trial on
acquittal.
motion for
of
Because
I the same
Count
evidence used at the
of
trial
I,
question
not,
none
it
forecloses an issue essential
to Count
II. The
is
Count
ever,
before us
how-
necessary
is not
whether
“find
to consider
what
to be used at
trial.
evidence is
Rather,
ings”
bring
question
of
v. Swen
the
re-
this kind can
the Ashe
is what evidence is
play.
quired
son rule into
to convict under the two statutes.
findings
Appellant
request
of
did not
formal
fact,
none
made. See Fed.R.Crim.P.
were
the
of a clearer declaration
absence
proof
a failure of
unquestionably found
say that the
judge, we cannot
the trial
proceeding.
to a
is not essential
§
in the
participation
issue of
had
government
the
ruled that
The court
contribution was resolved.
for
acted
appellant
prove that
failed to
defrauding
injuring and
purpose
the
of
case,
any
Ashe v. Swenson
observed,
is not an
this
As
his bank.
is on the defendant to show
the burden
offense,
that this
so
of the 610
element
findings
that
the verdict or the
un-
preclude
not
conviction
finding does
necessarily
prior
fore
court in the
case
that statute.
der
subse
the
closed an
issue essential
“find-
relies on certain other
Appellant
quent prosecution.
See
support his
court to
ings” of the trial
Gugliaro,
first,
points,
He
claim.
Ashe v. Swenson
has not sustained this burden
Appellant
evi-
assertion that the
court’s
to the trial
referred
here. None of the statements
finding
ap-
that
support a
not
dence did
unambiguously
by appellant
forecloses
“wilfully.” It is not at all
acted
pellant
I.
essential to Count
issues
judge
meant
his
the trial
clear what
not shown that the
Appellant has thus
might
He
“wilful.”
the word
use of
by the
prosecution
I is barred
of Count
not
appellant did
say that
have meant to
II,
of Count
ei-
disposition
trial court’s
violating
purpose
specific
act for the
ther under traditional
that
again
or to assert
rule of Ashe
standards or under
so,
If
injure
bank.
not act
did
therefore did
The trial court
Swenson.
wilfulness is
“finding” of lack of
this
to dismiss.
motion
denying
not err in
charge.
irrelevant to the §
government
that
has indicated
I the
present
will
at the trial of
Similarly, the court found that “there
the trial of
at
part
produced
same evidence it
equal
proof
was an
failure of
on the
the trial
Count II. We
government
assume that
that
parties
oppor-
provide
court will
making
was the
both
the defendant’s action
evidence if
tunity
present additional
contribution.”
‘illegal’ political
an
to do so.
they choose
was made in the midst of
This comment
requirement
that a
a discussion of the
writ of mandamus is
petition
necessarily
misapplication
involve
the district court
The order of
denied.
emphasized
The court
a conversion.
motion to dismiss is
denying appellant’s
might well
“illegal.”
word
It
have affirmed.
say,
meant to
not that the
STEPHENSON,
(con-
contribution,
Judge
prove
failed to
dissenting).
prove
curring
that the con-
but that it failed to
unauthorized,
an
resulted from
tribution
order of
Assuming arguendo
e.,
funds.
“illegal,”
i.
of bank
conversion
appellant’s mo-
denying
the district court
require
Conviction under
610 does
appealable
an
tion
I is
to dismiss Count
funds be
the contribution of bank
III
II and
parts
order I concur with
quoted is
unauthorized.
If the sentence
majority opinion.
given
meaning, prosecution
However,
respectfully
dissent
possible.
610 remains
because it
part
majority opinion
I of the
denying dis
my
view that
the order
asserts,
finally,
Appellant
*8
a final decision
I is not
missal of Count
failed
court found that the
1291. I am
28 U.S.C.
appealable
to the
was “tied”
prove
appellant
expressed in
with the views
in accord
record
question. contribution
Bailey,
UNITED STATES
Appellant, BARKET, Appellee.
Alexander J.
No. 75-1320. of Appeals,
United States Court Eighth Circuit. Sept.
Submitted
Decided Jan. Rehearing En
Rehearing and Banc 23, 1976.
Denied March
Henley, Judge, dissented and opinion.
filed