The opinion of the court was delivered by: CURTIN
The defendants in this case were indicted in June of 1973 in a three-count indictment charging them with two substantive counts of uttering and publishing forged United States Savings Bonds and one count of conspiring to utter and publish forged United States Savings Bonds in violation of 18 U.S.C. §§ 472
and 371. After substantial delays caused by pretrial motions and appeals, the case came on for trial in May of 1976. After the jury was impaneled and sworn, the Government, realizing that it had proceeded under the wrong statute and that the proof it was about to present did not conform to the charges alleged, requested the court to dismiss the indictment. What the Government intended to prove was that the defendants had passed genuine United States Savings Bonds with forged payee signatures.
The court dismissed the indictment on the Government's request. The defendants were then reindicted in June of 1976 and charged with violations of 18 U.S.C. §§ 495
and 371. Under this new thirty-seven count indictment, the Government alleges that each defendant "did aid, abet, counsel, command and induce [a third individual] to forge the endorsement of Bernice Goulder on [thirty-six separate] United States [Savings] Bonds." The final count in the 1976 indictment is a conspiracy count which alleges the same overt acts alleged in the conspiracy count of the first indictment.
The defendants have moved to dismiss the 1976 indictment on double jeopardy and speedy trial grounds.
The double jeopardy clause of the fifth amendment states that "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." The inclusion of the double jeopardy clause in the Bill of Rights was an acknowledgment by the founding fathers of this country of the severe and onerous burdens put on an individual by a criminal prosecution. The difficulties imposed on a criminal defendant were thought to be so great that it was only fair to allow the Government one chance to convict a person on any one crime. As the Supreme Court has expressed it,
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 [78 S. Ct. 221, 223, 2 L. Ed. 2d 199] (1957).
The first inquiry for the court is whether jeopardy has attached. In the usual jury trial, jeopardy attaches upon the impaneling and swearing of the jury. Serfass v. United States, 420 U.S. 377, 388 [95 S. Ct. 1055, 43 L. Ed. 2d 265] (1975); Downum v. United States, 372 U.S. 734 [83 S. Ct. 1033, 10 L. Ed. 2d 100] (1963). Having satisfied that requirement, in order for double jeopardy to apply, the general rule is that the two offenses "must be the same in law and in fact." United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert. denied, 410 U.S. 983 [93 S. Ct. 1501, 36 L. Ed. 2d 178] (1973).
It is agreed by both the parties, and is evident from the two indictments, that the underlying facts of the charges alleged in each of the indictments are the same. The Government claims, however, that the offense charged in the 1973 indictment and the offense charged in the 1976 indictment are not identical and thus do not give rise to the double jeopardy plea.
A comparison of the two statutes, which are reproduced in the margin, supra, appears to substantiate this analysis. Section 472 pertains specifically only to "falsely made, forged, counterfeited, or altered obligation or other security of the United States," while § 495, on the other hand, under distinct and separate paragraphs, prohibits the counterfeiting, uttering or presenting of "any deed, power of attorney, order, certificate, receipt, contract, or other writing" with intent to receive money from the United States Government. As the Government points out in its brief, forging a signature on a genuine United States Bond is a violation of § 495, whereas the passing of a counterfeit United States Bond or other security is a violation of § 472. See Roberts v. United States, 331 F.2d 502 (9th Cir. 1964).
The defendants argue, however, that the "same in law and fact" test should not be determinative in this case, because, unlike the cases on which the Government relies, the evidence here is not sufficient to support a case under both § 472 and § 495. For example, United States v. Pacelli, supra, cited by the Government, involved a prosecution for drug possession and distribution. The defendant was convicted of conspiracy to possess and distribute, the same offense to which he had earlier pled guilty. However, when the defendant raised the plea as a bar to the conviction, the court expressly pointed out that the alleged conspiracies involved two distinct time periods and different overt acts. The only common conspirator was this particular defendant. Other cases cited by the Government are similar in showing evidence of more than one offense. See United States v. McCall, 489 F.2d 359 (2d Cir. 1973), cert. denied, 419 U.S. 849 [95 S. Ct. 88, 42 L. Ed. 2d 79] (1974); United States v. Nathan, 476 F.2d 456 (2d Cir. 1973), cert. denied, 414 U.S. 823 [94 S. Ct. 171, 38 L. Ed. 2d 56, 94 S. Ct. 123, 94 S. Ct. 124 ] (1973).
The defendants urge the court to apply the "same transaction" test championed by Justice Brennan in Abbate v. United States, 359 U.S. 187 [79 S. Ct. 666, 3 L. Ed. 2d 729] (1959), in which he stated:
... I think it clear that successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment even though brought under federal statutes requiring different evidence and protecting different federal interests....
... I think not mere violence to, but virtual extinction of, the [double jeopardy] guarantee results if the Federal Government may try people over and over again for the same criminal conduct just because each trial is based on a different federal statute protecting a separate federal interest. 359 U.S., at 197, 201 [79 S. Ct., at 672, 674].
It should be noted, however, that these comments are Justice Brennan's alone and have not been joined in by a majority of the Court. See Ashe v. Swenson, 397 U.S. 436, 448 [90 S. Ct. 1189, 25 L. Ed. 2d 469] (1970) (J. Brennan, concurring). See also United States v. Cioffi, 487 F.2d 492, 497, n.5 (2d Cir. 1973). Although Justice Brennan's reading of the double jeopardy clause is persuasive, it has not yet been accepted as the law.
Defendants contend, however, that United States v. Sabella, 272 F.2d 206 (2d Cir. 1959), did accept the "same transaction" test for this circuit. That case was later narrowly interpreted by the Second Circuit in United States v. Cioffi, supra, 487 F.2d at 497-98, and, in light of subsequent ...