The opinion of the court was delivered by: BRYAN
Defendant, Joseph Valachi, moves to dismiss two indictments pending against him. The first, No. C.147-207, in which Valachi is named with a number of codefendants, remains open after the Court of Appeals of this circuit reversed, as to him, a judgment of conviction entered against him and several of his codefendants upon the verdict of a jury, and affirmed the judgment of conviction as to his codefendants. United States v. Reina, 242 F.2d 302. The second, No. C.153-156, was returned against Valachi by the grand jury subsequent to the reversal by the Court of Appeals of the prior judgment of conviction against him.
I will deal first with the motion to dismiss the first indictment No. C.147-207. Valachi contends that this indictment must be dismissed because such dismissal is required by the decision of the Court of Appeals reversing his prior conviction. There is no merit to this contention.
This one-count indictment charges that Valachi, eight other defendants, and ten persons named as co-conspirators but not as defendants, entered into a conspiracy in violation of 18 U.S.C. § 371 to sell narcotic drugs not in or from original stamped packages as required by 26 U.S.C. § 2553(a), not in pursuance of written orders on forms issued in blank for that purpose by the Secretary of the Treasury, as required by 26 U.S.C. §§ 2554(a) and 2606, and which had been imported into the United States contrary to law in violation of 21 U.S.C.A. §§ 173 and 174.
Valachi and his codefendants Reina, Moccio, Pagano and Quartiero were convicted on this conspiracy charge after trial before a jury. The Court of Appeals affirmed the conviction of Valachi's codefendants but reversed Valachi's conviction. The court held (242 F.2d at page 305) that the three year statute of limitations contained in 18 U.S.C. § 3282 applied to the charges against Valachi, and that there was insufficient evidence to link Valachi with the conspiracy charged during this three year limitation period. The only two overt acts committed within the three year period of limitation were not alleged to have been participated in by Valachi, and the evidence did not connect Valachi with either of them. The court said that if Valachi had been proven to have been a member of the overall conspiracy he would have been bound by the overt acts committed by his co-conspirators within the period of limitation even though he did not personally participate therein. But the court went on to say (at page 306):
'* * * We should accept this reasoning, if we thought that Valachi's sale of the parcel to Pocoroba was evidence that he knew it was in execution of the larger venture: that is, that he was cooperating in the series of importations that made up the conspiracy charged. His sale was indeed not inconsistent with that knowledge; but it was equally consistent, so far as we can see, with his being an independent peddler of narcotics, whom Shillitani selected as the most immediately available source of supply of Pocoroba's needs. * * *'
The Court of Appeals therefore held (at page 308):
'Convictions of Reina, Quartiero, Pagano and Moccio are affirmed.
'Conviction of Valachi is reversed.'
Judgment was entered in the Court of Appeals accordingly and by order of this court the judgment of the Court of Appeals was made the judgment of this court, in accordance with the usual practice.
Valachi has misconceived the effect of the reversal by the Court of Appeals. A reversal of a conviction without an express direction for the dismissal of the indictment does not dispose of the indictment finally but leaves it open and pending. See United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300.
Pursuant to 28 U.S.C. § 2106, the Court of Appeals is empowered to order the dismissal of an indictment upon reversal, or to order a new trial if it sees fit. Bryan v. United States, 338 U.S. 552, 70 S. Ct. 317, 94 L. Ed. 335. This is so whether the reversal is based on technical errors committed during the course of the trial or on insufficiency of the evidence to sustain a conviction. The Court of Appeals is not bound by Rule 29, F.R.Cr.P., 18 U.S.C.A., which requires the district judge, at trial, to grant a motion for judgment of acquittal if the evidence is insufficient to sustain a conviction. Bryan v. United States, supra.
Thus, in the case at bar the Court of Appeals was at liberty to direct the dismissal of the indictment if it saw fit. It did not choose so to do. It is defendant's contention that because the Court of Appeals failed to specify that it directed a new trial, it follows that the Court of Appeals meant that the indictment should be dismissed as to Valachi though it did not say so.
This does not follow from the failure of the Court of Appeals to make a specific direction to dismiss. For example, in United States v. Bonanzi, 2 Cir., 94 F.2d 570, the Court of Appeals of this circuit reversed as to the defendants Butto and Buda and directed that the indictment be dismissed. They merely reversed as to the defendant Bonanzi without such a direction, clearly indicating their intention that Bonanzi should be retried. The court evidently felt that the evidence against Butto and Buda was so deficient as to make it unfair for them to be tried again. As to Bonanzi, on the other hand, it was evidently the view of the court that the interests of justice required that the Government be given a further opportunity to prove a case against him upon a new trial if it could. The court expressed this by reversing without direction to dismiss though without specific direction for a new trial.
In Spriggs v. United States, 9 Cir., 225 F.2d 865, the question of the effect of a reversal of a conviction without either a direction for dismissal of the indictment, or for a new trial, was directly considered and passed upon. The Court of Appeals of the Ninth Circuit held (at page 868):
'* * * Defendant was not acquitted either by the trial judge or the jury in the previous case. Instead, the jury found sufficient evidence to convince them of his guilt beyond a reasonable doubt. He was not discharged by this Court. A reversal sets aside the judgment, but allows the indictment to stand. * * *'
As the Supreme Court said in United States v. Ball, supra, 163 U.S. at page 672, 16 S. Ct. at page 1195:
'* * * It is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted. * * *. The court therefore rightly overruled their plea of former jeopardy * * *.'
See, also, Green v. United States, 355 U.S. 184, 189, 78 S. Ct. 221, 2 L. Ed. 2d 199; Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356; State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S. Ct. 374, 91 L. Ed. 422; United States v. Russano, 2 Cir., 257 F.2d 712, 716; Brandt v. United States, 6 Cir., 256 F.2d 79.
Thus, indictment C. 147-207 remains open against Valachi and there is no bar to his retrial upon the charge made in that indictment.
I therefore pass to consideration of the motion to dismiss the second indictment No. C. 153-156 returned on June 21, 1957, after the Court of Appeals had reversed Valachi's prior conviction. Valachi advances several grounds on which he says the motion should be granted. First, he urges that because of the judgment of the Court of Appeals reversing his prior conviction a prosecution under the second indictment would place him in double jeopardy for the same offense in violation of his rights under the Fifth Amendment to the United States Constitution. Secondly, he contends that the judgment of reversal is res judicata as to the charges in ...