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April 1, 1955

Ben R. HARRIMAN, Jerry Siner and Frank Louis De Rosa, Defendants

The opinion of the court was delivered by: MURPHY

This is a motion for an order dismissing an indictment made by the defendant Harriman on the grounds that he has been in jeopardy at a previous trial of other consolidated indictments, and that trial of the instant indictment would constitute being in jeopardy twice in violation of the Fifth Amendment of the United States Constitution.

On November 25, 1952, two indictments (No. C 140-65 and C 140-66) were filed against Harriman and others. c. 140-65 charged violation of 18 U.S. C.A. ยง 656 *fn1" in that defendants embezzled, abstracted and wilfully misapplied certain monies of the Royal Industrial Bank of New York. The indictment alleged that this bank was a member bank of the Federal Reserve System. Indictment C 140-66 alleged a similar offense involving monies of the Trade Bank & Trust Company. The two indictments were consolidated for trial.

On August 16, 1954, after a jury had been impanelled and both sides had made opening statements to the jury, and during direct examination of the government's first witness, the government offered in evidence a certificate that the Royal Industrial Bank of New York was a bank insured with the Federal Deposit Insurance Corporation. Defendants objected to its admissibility on the ground that Indictment C 140-65 alleged that the bank in question was a member of the Federal Reserve System. Thereupon the government moved to conform the indictment to the proof, and then withdrew this motion contending that there was an immaterial variance between indictment and proof that should be disregarded under the provisions of Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.

 On the third day of trial the court excused the jury for the following day with announcement that defendants had made a motion and submitted briefs on which argument was to be heard. Upon argument on the fourth day, defendants moved to dismiss Indictment C 140-65. Argument continued on the fifth day in absence of the jury, after which the court dismissed Indictment C 140-65 on the ground of a material variance between indictment and proof. Defendants' motion made thereafter for judgment of acquittal under Rule 29, Federal Rules of Criminal Procedure, was denied. An appeal from this ruling was dismissed by the Court of Appeals without opinion, *fn2" citing United States v. Shelley. *fn3"

 On February 2, 1955, the instant indictment was filed, and defendants pleaded not guilty on February 11, 1955. On this motion addressed to that indictment, defendant Harriman insists that dismissal of the previous indictment was a judgment of acquittal that is res judicata with respect to identical matters presented in the instant indictment, that the instant indictment places him in jeopardy a second time, and that he has not waived his rights against double jeopardy by moving to dismiss the previous indictment. The government contends that the offense alleged in the instant indictment is different from that charged in the dismissed indictment, and that defendant cannot now assert that dismissal of the previous indictment was improper because the variance was immaterial when dismissal was urged on grounds that the variance was material.

 Any review of the cases 'indicate the subtle technical controversies to which the provision of the Fifth Amendment against double jeopardy has given rise.' *fn4" The controversies are posed by varying patterns in which the question of double jeopardy has been raised: (1) The initial case may be taken from the jury without verdict, whether for necessity, or arbitrarily, or on some erroneous ruling on jurisdiction or time limitation; (2) The case may have reached verdict and judgment of conviction that is nullified by defendant's motion or appeal; (3) The first trial may have resulted in acquittal which is set aside because of error prejudicial to the prosecution. In any of these situations a defendant may subsequently be convicted and sentenced for the same offense, or a less serious one includable in the original charge, or of some related offense, and the additional problem of application of the numerous 'same offense' tests and doctrine of res judicata is presented. The instant case falls, of course, in the first category.


 We are met at the outset by the government's contention that different offenses are charged in the dismissed indictment and the one now before the court. Regardless of the manner in which the first trial terminated, former jeopardy cannot bar a second prosecution unless it appears that the same offense is charged in the second indictment. *fn5" Concededly the second indictment is similar to the first one in all respects except these:

 (1) In the second indictment, the words '* * * State bank the deposits of which were insured by the Federal Deposit Insurance Corporation, to wit, the Royal Industrial Bank of New York' are substituted for the words '* * * a member bank of the Federal Reserve System, to wit, the Royal Industrial Bank of New York', found in the first indictment.

 (2) The words 'embezzle' and 'abstract' in the first indictment are omitted from the second one. Thus where the first indictment alleged that the defendant 'did unlawfully, wilfully and knowingly embezzle, abstract and misapply moneys * * *', the second one charges that he 'did unlawfully, wilfully and knowingly misapply moneys * * *.'

 Conceivably by strict application of some tests that courts have employed for closely related offenses, e.g., the 'same or different evidence' one, the second indictment might be construed to charge a separably punishable offense from the first without violation of the double jeopardy safeguard. A different result might follow by applying ofter tests, e.g., the 'same transaction', 'one act and one intent' or possibly the 'same offense in law and in fact.' For purposes of this motion, it may be assumed arguendo, without deciding, that the same offense is charged in the instant indictment as the one alleged in the dismissed indictment.


 Upon this assumption, defendant contends that dismissal of the first indictment amounts to a determination favorable to defendant of material issues that must be proven by the government under the instant indictment. No doubt a prosecution should be barred if it could not result in conviction without finding against the defendant on an issue previously found in his favor, at least in a criminal trial involving the same parties and free from judicial error. The doctrine of res judicata is thus available in criminal cases where there has been a prior acquittal, *fn6" or even an appellate reversal of denial of judgment of acquittal after verdict of guilty. *fn7" But the instant case presents no such final determination on the merits of any material issue that must be proven under the second indictment. Indeed the trial judge denied ...

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