United States v. Wapnick

E.D. New York

United States v. Wapnick

198 F. Supp. 359, 1961 U.S. Dist. LEXIS 3405

CourtDistrict Court, E.D. New York

DecidedOctober 17, 1961

Docket60-Cr-63

StatusPublished

Cited by9 cases

This text of 198 F. Supp. 359 (United States v. Wapnick) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Wapnick, 198 F. Supp. 359, 1961 U.S. Dist. LEXIS 3405 (E.D.N.Y. 1961).

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Opinion

BARTELS, District Judge.

Motion by defendant Harold Wapnick to dismiss the indictment herein, which indictment alleges substantive violations of the Dyer Act (18 U.S.C.A. § 2312) and conspiracy to violate the same (18 U.S. C.A. § 371). The moving affidavit alleges that defendant Wapnick was tried by the State of New York and acquitted in the County Court, Bronx County, on charges covering the same automobiles involved in the instant indictment. He states that “this motion to set aside the indictment and/or to dismiss the indictment is predicated on the theory of double jeopardy, res judicata, collateral estoppel”.

There is no double jeopardy involved in prosecution by two different sovereigns for crimes against them, even though each prosecution is predicated upon the same acts, because -there is no identity of offenses. The same act may be a crime against both the national and state sovereigns, and hence punishable by each. United States v. Lanza, 1922, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314; Abbate v. United States, 1959, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, and cases therein at 359 U.S. 192-194, 79 S.Ct. 669, 670.

A distinction must, however, be made between a plea of former jeopardy and the principle of res judicata. “Former jeopardy” involves identity of offenses, while “collateral estoppel” (an extension of res judicata), upon which this defendant bases his motion, is conclusive as to matters actually litigated *360 and determined by the judgment only if the judgment is between the same parties. Cosgrove v. United States, 9 Cir., 1955, 224 F.2d 146, 150. Here the United States Government was not a party to the prior action. As observed in Serio v. United States, 5 Cir., 1953, 203 F.2d 576, 578: “ * * * The United States was not a party to the state court prosecution, and is not bound by it. While the same facts can not be twice litigated by the same sovereign against the same defendant, that principle is inapplicable where, as here, the subsequent prosecution is by another sovereign who was not a party to the first. * * * ” Rios v. United States, 9 Cir., 1958, 256 F.2d 173; see Smith v. United States, 6 Cir., 1957, 243 F.2d 877, 878, and United States v. Lanza, supra.

The eases cited by defendant in his memorandum are inapplicable, since they deal with situations in which two actions or prosecutions were commenced by the same sovereign. Accordingly, the motion must be denied.

Settle order within five (5) days on two (2) days’ notice.

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BARTELS, District Judge.

Motion by defendant Harold Wapnick to dismiss the indictment herein, which indictment alleges substantive violations of the Dyer Act (18 U.S.C.A. § 2312) and conspiracy to violate the same (18 U.S. C.A. § 371). The moving affidavit alleges that defendant Wapnick was tried by the State of New York and acquitted in the County Court, Bronx County, on charges covering the same automobiles involved in the instant indictment. He states that “this motion to set aside the indictment and/or to dismiss the indictment is predicated on the theory of double jeopardy, res judicata, collateral estoppel”.

There is no double jeopardy involved in prosecution by two different sovereigns for crimes against them, even though each prosecution is predicated upon the same acts, because -there is no identity of offenses. The same act may be a crime against both the national and state sovereigns, and hence punishable by each. United States v. Lanza, 1922, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314; Abbate v. United States, 1959, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, and cases therein at 359 U.S. 192-194, 79 S.Ct. 669, 670.

A distinction must, however, be made between a plea of former jeopardy and the principle of res judicata. “Former jeopardy” involves identity of offenses, while “collateral estoppel” (an extension of res judicata), upon which this defendant bases his motion, is conclusive as to matters actually litigated *360 and determined by the judgment only if the judgment is between the same parties. Cosgrove v. United States, 9 Cir., 1955, 224 F.2d 146, 150. Here the United States Government was not a party to the prior action. As observed in Serio v. United States, 5 Cir., 1953, 203 F.2d 576, 578: “ * * * The United States was not a party to the state court prosecution, and is not bound by it. While the same facts can not be twice litigated by the same sovereign against the same defendant, that principle is inapplicable where, as here, the subsequent prosecution is by another sovereign who was not a party to the first. * * * ” Rios v. United States, 9 Cir., 1958, 256 F.2d 173; see Smith v. United States, 6 Cir., 1957, 243 F.2d 877, 878, and United States v. Lanza, supra.

The eases cited by defendant in his memorandum are inapplicable, since they deal with situations in which two actions or prosecutions were commenced by the same sovereign. Accordingly, the motion must be denied.

Settle order within five (5) days on two (2) days’ notice.

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198 F. Supp. 359, 1961 U.S. Dist. LEXIS 3405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wapnick-nyed-1961.

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