The opinion of the court was delivered by: TYLER
Defendant Corallo was tried on a three count indictment with codefendant Carmine G. DeSapio. The first count charged Corallo with having conspired to violate sections 1951 and 1952 of Title 18 of the United States Code. 18 U.S.C. § 371. On December 13, 1969 the jury found Corallo not guilty on Count 1. The second and third counts charged Corallo with the substantive offense of having used interstate facilities for the purposes of bribery and extortion. 18 U.S.C. § 1952. The court dismissed the second count at the end of the government's case in chief. The jury convicted Corallo on Count 3.
Corallo now moves to have the conviction on Count 3 vacated on two grounds: first, that on the evidence and the law, he did not have sufficient connection to the interstate telephone call in October of 1967 which was the subject matter of Count 3; second, his conviction should be vacated because it violates the policies of the double jeopardy clause of the Fifth Amendment. I denied the motion to vacate at the end of the hearing held on February 6, 1970 and will not comment further on Corallo's first argument for vacating the conviction. The double jeopardy problem merits further discussion.
As a technical, legal matter, it is easy to dispose of the motion quickly. The test of double jeopardy in this circuit was plainly stated in United States v. Kramer, 289 F.2d 909 (2d Cir. 1961):
"Offenses are not the same for purposes of the double jeopardy clause simply because they arise out of the same general course of criminal conduct; they are the 'same' only when 'the evidence required to support a conviction upon one of them [the indictments] would have been sufficient to warrant a conviction upon the other.' Morey v. Commonwealth, 1871, 108 Mass. 433, 434, quoted with approval in Ex parte Nielsen, 1889, 131 U.S. 176, 187-188, 9 S. Ct. 672, 676, 33 L. Ed. 118 and Gavieres v. United States, 1911, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489." At 913.
This test was reaffirmed in United States v. Friedland, 391 F.2d 378 (2d Cir. 1968).
The earlier case of United States v. Sabella, 272 F.2d 206 (2d Cir. 1959), sets out a different formula for double jeopardy which may still have currency in this jurisdiction:
"The defendant may not later be tried again on that same fact situation, where no significant additional fact need be proved, even though he be charged under a different statute." At 212.
It was with those tests in mind that Judge Metzner denied defendant Corallo's pre-trial motion to dismiss the indictment on the grounds that it violated the double jeopardy clause. United States v. DeSapio, 299 F. Supp. 436 (S.D.N.Y. 1969). Having reviewed the transcript in Corallo's earlier trial for his part in the Jerome Park Reservoir scheme and the indictment in the present case which dealt with the alleged bribery and extortion of Consolidated Edison Company ("Con Ed"), Judge Metzner denied Corallo's motion while explicitly recognizing that after a full trial the trial judge might come to a different conclusion. 299 F. Supp. at 442.
After the plenary trial, I did not reach the conclusion that double jeopardy, seen in the light of Kramer and Sabella, was a clear bar to either the conspiracy charge or the substantive charge.
Corallo's prior conviction was on a conspiracy indictment which named James Marcus, Herbert Itkin, Henry Fried, Daniel Motto, Charles Rappaport and S.T. Grand, Inc. as codefendants in a scheme to bribe Marcus, then Commissioner of Water Supply, Gas and Electricity of the City of New York to award a contract without public bidding to Fried and his company, S.T. Grand, Inc., to clean Jerome Park Reservoir. The conspiracy was alleged to have begun on or about January 1, 1966 and continued to December 18, 1967, the date of the filing of the indictment. The last overt act was alleged to have taken place in June, 1967.
In the indictment tried before me, Corallo was named as a codefendant with Marcus, Itkin, Fried and Carmine G. DeSapio in a plan to extort money from Con Ed and bribe Marcus in Con Ed's application to the City of New York for a permit or letter of permission allowing it to rebuild its high line along the right of way of the City's aqueduct through Westchester County. There is evidence that as early as October, 1966, Corallo, Marcus and Itkin were thinking of a scheme which would involve Con Ed, but the final form of the transaction did not start to emerge until August or September, 1967; moreover, the phone call which was the subject of Count 3 did not take place until October, 1967. There was no evidence that the phone call in any way was intended to or did touch on the Jerome Park Reservoir scheme.
Under Kramer and Sabella, it was proper to send both counts to the jury. The jury found that the government had not proved Corallo's guilt in the conspiracy at issue in this trial beyond a reasonable doubt. In light of the conviction on Count 3 and the double jeopardy defense offered by Corallo at trial, it is highly likely that the jury did not think that the government had proved beyond a reasonable doubt that Corallo had participated in two distinct conspiratorial agreements, one touching the Jerome Park Reservoir and the other Con Ed and its Westchester high line, rather than in a single agreement covering both schemes. I assume, of course, that the verdict is not a legal finding that there was in fact only a single conspiracy. On the third count, to which the present motion is addressed, it is clearly proper to let Corallo's conviction stand under the Kramer and Sabella interpretation of the double jeopardy clause of the Fifth Amendment.
Corallo presses his argument beyond Kramer and Sabella by suggesting that in order to follow the policies of the double jeopardy clause the government has a duty to join multiple charges against a defendant at a single trial in order to minimize both his burden of defending criminal charges and his risk of multiple punishment on separate convictions. Reduction of the harassment and burden a defendant would suffer through successive trials and the number of punishments he might serve for criminal activity touching a single entity doubtlessly are among the underlying policies of the double jeopardy clause. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 266 (1965). To further these policies, there have been various suggestions for the grouping of charges at trial, e.g. the joinder of all offenses which are part of the same transaction or series of transactions; joinder of all related offenses; and, in the extreme, the joinder of all offenses of a defendant then known to the prosecutor in a single indictment, with charges reserved for later trial only in the exceptional case. Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949); Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339 (1956); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 292 (1965). ...