RULING ON MOTION TO QUASH THE INDICTMENT
Defendant moves to quash an indictment charging him with embezzlement of $4,103.14 of the money and property of the Health & Welfare fund of his union local on the ground that a prosecution on the indictment would constitute double jeopardy.
A True Bill was first returned on May 17, 1965, charging the defendant Wagner with embezzling $4,103.14. On June 7, 1965, a plea of not guilty was entered. After the case was assigned for trial sometime in September, a conferеnce of attorneys took place as a result of which the government’s аttorney agreed not to oppose the defendant’s proposal to plead nolo contendere to a lesser amount. Thus, on October 4, 1965, the оriginal indictment was dismissed by leave of court (Judge T. Emmet Clarie). At the same time, a criminal information charging defendant with the embezzlement of $1,986.67 was filed when the defendant wаived indictment. A plea of nolo contendere was tendered, accеpted, and a finding of guilty entered by the court. On the date of disposition, October 18, 1965, defendant, during his allocution statement, denied that he had converted the money tо his own use with guilty intent. While not an unusual claim from one charged with embezzlement, since thе defendant was represented by counsel there was ample reason fоr the judge to refrain from conducting a full exploration into all elements of his guilt at the time of his plea. Since the court most properly would not have aсcepted a plea of guilty from one who claimed to be innocent, thе court immediately ordered the finding of guilty and the nolo contendere plea erased, and a plea of not guilty was entered. On October 22, 1965, the Grand Jury again rеturned a True Bill charging defendant with the embezzlement of the higher amount.
The defendаnt claims that during the two weeks from October 4th to October
In the first place, the plea of nolo contendere, becausе of its unique character, can only be made with the consent of the court. Rulе 11, Fed.R. Crim.P. When the defendant aided by his counsel sought that consent, he knew that a finding of guilty must be entered on his plea of nolo contendere. It would imperil the integrity of the rule to constrain a judge from erasing that finding shortly after it had been entered for thе purpose of protecting the interests of a defendant who protestеd his innocence.
This is not a case where the indictment was dismissed after pleа to benefit the prosecution. United States v. Barbosa,
Once the plea was withdrawn, the finding erased, and a plea of not guilty entered, there was nothing on the record to embarrass or adversely affect the defendant thereafter. Jeopardy cannot be said to attach in such a situation. In the only federal case that could be uncovered directly in point, it was held that the offer, aсceptance and entry of the plea of nolo contendere does not constitute jeopardy once promptly set aside by the court. Stewart v. United States,
The presence of a plea of not guilty to the indictment does not constitute jeopardy and a second indictmеnt will not be double jeopardy. Cf. Clawans v. Rives,
The motion is denied.
Notes
. The existence of two complaints presenting the same charge against the defendant — one by indictment and one by information — presents no problem. The government will have to elect on which one it will try the defendant. The other one will be dismissed. Rule 48(a), Fed.R.Crim.P.