United States v. Leo Potishman, Julian Scott, Transit Grain Company and Charles J. Winters

230 F.2d 271, 1956 U.S. App. LEXIS 3261

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 1956
• Docket: 15533
• Status: Published

Opinions

RIVES, Circuit Judge.

The district court dismissed an indictment against the appellees and the Government appeals. Count 1 of the indictment charged a conspiracy under the provisions of § 714m(d), Title 15, U.S.C.A.,¹ to violate the provisions of § 714m (a),² Title 15, U.S.C.A., and § 714m(c)³, Title 15, U.S.C.A. The remaining three counts are substantive counts charging violations of § 714m(a), Title 15 U.S. C.A.

The dismissal was predicated largely upon former jeopardy, estoppel, or res judicata, on account of previous criminal proceedings had in the federal courts at Houston against some of the defendants and at New Orleans against all of them.

Winters was not named in the Houston indictment. Potishman, Scott, Transit Grain Company, and a man named Fell-rath were indicted at Houston on a ten-count indictment, one count charging conspiracy and nine substantive counts. Upon arraignment each of the defendants pleaded not guilty. At a later date, the defendants were rearraigned, Transit again pleaded not guilty to all counts, and the individual defendants pleaded guilty to Counts 5 and 6 and not guilty to the remaining counts. On that day the Government moved to dismiss the remaining counts as to the individual defendants and all of the counts as to Transit. On the same day, the court accepted the pleas of guilty, dismissed the counts as requested by the Government,⁴ directed the probation officer to make a pre-sentence investigation, and postponed sentencing until a later day, at which time the individual defendants appeared, and, after a pre-sentence hearing, were sentenced.

There is no basis on which the Houston indictment could support a defense of former jeopardy as to Winters or as to Transit for Winters was not named in the Houston indictment, and the Government dismissed all counts as to Transit. The record does not show that the court ever entered upon trial of any of the defendants under the Houston indictment, except upon Counts 5 and 6 to which the individual defendants pleaded guilty. Those two substantive Houston counts charged false statements with respect to grain at the Houston elevator, and clearly do not involve the same offenses as the three substantive counts of the instant indictment which charge different false statements made on different days as to different grain in the New Orleans elevator. Manifestly then, jeopardy did not attach at Houston as to the matters charged in the present indictment.

The defendants Potishman, Scott and Transit urged that the Government was estopped by an alleged agreement made between them and the Government attorneys at Houston, that the pleas of guilty of the individual defendants at Houston would completely and finally dispose of all matters charged in the entire indictment. No proof of such an agreement was attempted, nor did the district court require any such proof. Instead, the judge, after stating at length his familiarity with the general practice of accepting pleas of guilty on some counts and dismissing the others as a complete and final disposition of all matters contained in the indictment, in effect, placed upon the Government the burden of proving affirmatively an agreement to leave the defendants open to later prosecution on the matters charged in the dismissed counts.⁵

In Buie v. United States, 5 Cir., 76 F. 2d 848, 849, Judge Foster speaking for this Court said:

“ * * * On this conflicting evidence it was for the District Judge to say whether the agreement was proven. But we deem that immaterial. It is elementary that an indictment may be dismissed and the defendant reindicted for the same offense, if he had not been put in jeopardy. Appellant cites a number of cases to the effect that the United States is bound by an agreement entered into by her counsel in a civil case; other cases holding that where revenue claims have been compromised and paid criminal prosecutions are barred, and other cases holding that where, witnesses have been compelled to give testimony against themselves before an investigating authority immunity results. It would be useless to review these cases, as none of them are in point, and we are not aware of any decision, either controlling or persuasive, that would support the contention of appellant. We have no hesitancy in holding that the government was not estopped to prosecute appellant in this case regardless of whether an agreement was made as alleged.”

See also, District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 128 F.2d 17, 20; 22 C.J.S., Criminal Law, § 257.

Certainly, in the present state of the record, it cannot be held that the Government is estopped by anything that occurred in the Houston proceedings.

The conspiracy count of the indictment brought at New Orleans was dismissed by the court on the ground that it was duplicitous.⁶ Thereafter the Government, with leave of the court, entered a nolle prosequi of the entire indictment.⁷ The judgment on motion to dismiss appears only in, and must be considered as limited by, the judge’s memorandum (footnote 6, supra) .⁸ The ruling was not on the merits but on a formal or technical defect of pleading and the judgment is no bar to a second action.⁹

The conspiracy count in the New Orleans indictment charged the defendants with conspiracy “to defraud the Commodity Credit Corporation and the United States of America, and to violate Title 15, United States Code, Section 714m(a) and 714m(c).” It thus charged both a conspiracy under the general conspiracy statute, § 371, Title 18, United States Code,¹⁰ and a conspiracy under § 714m (d), Title 15, United States Code Annotated (footnote 1, supra). The conspiracy count in the present indictment omitted any charge of conspiracy to defraud the Commodity Credit Corporation or the United States under § 371, Title 18, United States Code, and confined the conspiracy charged to one under § 714m(d), Title 15, United States Code Annotated, thus curing any duplicity that inhered in the New Orleans indictment.

The other grounds of the motion to dismiss were not relied on by the district court and are not argued in the appel-lees’ brief. They appear to us so clearly without merit that we forego further discussion.

The judgment is

Reversed.

1 . “(d) Whoever conspires with another to accomplish any of the acts made unlawful by the preceding provisions of this section shall, upon conviction thereof, be subject to the same fine or imprisonment, or both, as is applicable in the case of conviction for doing such unlawful" acts.”

2 . “(a) Whoever makes any statement knowing it to be false, or whoever willfully overvalues any security, for the purpose of influencing in any way the action of the Corporation, or for. the purpose of obtaining for himself or another, money, property, or anything of value, under sections 714-714o of this title, of under any other Act applicable to the Corporation, shall, upon conviction thereof, be punished by a fine of not more than $10,000 or by imprisonment by not more than five years, or both.”

3 . “(c) Whoever shall willfully steal, conceal, remove, dispose of, or convert to his own use or to that of another any property owned or hold by, or mortgaged or pledged to, the Corporation, shall, upon conviction thereof, be punished by a fine of not more than $10,000 or by imprisonment for not more than five years, or both.”

4 . The judgment reads:

“On this 30th day of October, 1953, came the attorney for the United States of America and the defendant, Leo Pot-ishman, appeared in person and with counsel, and both parties announcing ready, the said defendant, having been served with a copy of the Indictment, was rearraigned; whereupon the defendant entered a plea of guilty to Counts 5 and 6. Counts I, 2, 3, 4, 7, 8, 9 and 10 were dismissed on motion of the United States Attorney.

“And the Court, having heard the plea of the defendant and all questions of fact as well as of law, finds the defendant guilty as charged in Cts. 5 and 6.

“It is considered by the Court that the defendant be, and he is hereby adjudged guilty of unlawfully making, etc., material false statements, Vio. Sec. 714m(a), Title 15, U.S.Code, as charged in Counts 5 and 6 of the Indictment.

“The probation officer is directed to make a presentenee investigation, and this ease is passed for sentence until November 11, 1953, at 9:30 A.M.

“/s/ Allen B. Ilannay.

Judge.”

The docket entry was as follows:

“Oct 30, 1953: Defts. Leo Potishman, Julian Scott and William Fellrath rear-raigned — Enter plea of Guilty to Cts. 5 and O’. Govt, moved to dismiss Cts. 1, 2, 3, 4, 7, 8, 9 and 10 as to all three defendants — accepted by Court.

“Govt, motion to dismiss Cts. 1, 2, 3, 4, 5, 6, 7, 8, 9 & 10 against deft. Transit Grain Co. — accepted by Court.”

5 . “ * * * the government is bound by what took place, unless there was an agreement, that it can be shown that there was agreement between the District Attorney and defendants’ counsel to accept the plea of guilty on certain counts and leave the others open to formal prosecution or jurisdiction. Unless there is proof offered that there was such an arrangement made, we think the plea of former jeopardy must be sustained. There is no requirement of proof in our practice, but there must be proof of an exception to it.

* * * * *

“If there is no evidence from the former counsel, or the Judge, that this was an exception to the general practice, we think that the plea of former jeopardy must follow * *

6 . “The Court will deny the motion to dismiss the indictment as to all of the Defendants, with exception of Count 1, which it dismisses on the ground that it is duplicitous.”

7 . “Now comes the United States of America, through the undersigned, and suggesting that leave of the Court to file a dismissal of the indictment herein is desired, does now enter, subject to the granting of such leave; a Nolle Prosequi in this cause.

“/s/ Prim B. Smith, Jr.

“Assistant United States Attorney “Granted: at New Orleans, Louisiana, this 17th day of November, A.D. 1954.

“/s/ J. Skelly Wright

“Judge”

8 . Aetna Life Ins. Co. v. Eaton, 2d Cir., 43 F.2d 711, 715.

9 . Gould v. Evansville & C. R. Co., 91 U.S. 526, 534, 23 L.Ed. 416; St. Louis, Southwestern Ry. Co. v. Bolinger & Co., 5 Cir., 17 F.2d 924, 925; Passailaigue v. Herron, 5 Cir., 38 F.2d 775, 776 ; 50 C.J.S., Judgments, § 643, pp. 77, 78.

10 . See 15 U.S.C.A. § 714m(e), providing that general penal statutes apply with certain exceptions.