Rehearing Denied June 17, 1974.
See 417 U.S. 978.
On petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
The petition for writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr.
Justice MARSHALL, join, dissenting.
Successive prosecutions of petitioner and one Cioffi
Page 416 U.S.
995 , 996
resulted from an alleged agreement to sell an undercover agent
$500,000 worth of counterfeit 6-cent stamps and an alleged delivery
to the agent of a sample sheet of four hundred of the stamps. The
first prosecution was upon a two-count indictment that charged the
pair in the first count with having attempted to sell stamps known
to be falsely made, forged and counterfeited, in violation of 18
U.S.C. 472, and, in the second count, with conspiracy to violate
the same section. The trial on that indictment ended with a
directed verdict of acquittal on the first count as to Cioffi, a
dismissal of the first count as to petitioner and a mistrial on the
second count when the jury could not agree upon a verdict.
Instead of proceeding to a retrial on the second count, the
Government abandoned its efforts under 472 and procured a second
indictment under 18 U.S.C. 501 based upon the very same 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 count
2 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,
Page 416 U.S.
995 , 997
453-454 (1970) (concurring opinion); see Mullin v. Wyoming,
414 U.S. 940
(1973) ( dissenting opinion); Grubb v. Oklahoma,
409 U.S. 1017, 34 L. Ed.
2d 309 (1972) (dissenting opinion); Miller v. Oregon,
405 U.S. 1047 (1972)
(dissenting opinion); Harris v. Washington,
404 U.S.
55, 57 (1971) ( concurring opinion).
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 case thus went to the jury
under instructions limited to the charge 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 first 501 trial may have been insufficient, Bryan v. United
States,
338 U.S.
552 (1950), the Court 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
Page 416 U.S.
995 , 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
defendants 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
does 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 defective indictment , . . .' 487
F.2d, at 501.
The question, however is whether the trial judge's redaction of
the 'sell' charge was a directed verdict of acquittal on that
charge. The lack of a formal direction
Page 416 U.S.
995 , 999
of acquittal is not determinative. United States v. Sisson,
399 U.S. 267,
279, n. 7 (1970). '[T]he trial judge's disposition is an
'acquittal' if it is 'a legal determination on the basis of facts
adduced at the trial relating to the general issue of the case . .
.." United States v. Jorn,
400 U.S. 470, 478, n. 7
(1971); cf. United States v. Oppenheimer,
242 U.S. 85 (1916); Downum
v. United States,
372
U.S. 734 (1963). If it was an acquittal, petitioner did not
forego his constitutional defense of former jeopardy on that charge
by successfully appealing his erroneous conviction on the 'use'
charge. 'Conditioning an appeal of one offense on a coerced
surrender of a valid plea of former jeopardy on another offense
exacts a forfeiture in plain conflict with the constitutional bar
against double jeopardy.' Green v. United States,
355 U.S. 184, 193-194
(1957). See also Price v. Georgia,
398 U.S. 323 ( 1970);
Benton v. Maryland,
395 U.S. 784, 796-797d
707 (1969).
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 Chief Justice
Shaw'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 to warrant conviction 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
Page 416 U.S.
995 , 1000
proof of a different element than possession with intent to
use.
I would grant the petition for certiorari and set the case for
oral argument.
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