Appeal from an order of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, denying defendants' motion to dismiss a superseding indictment; defendants moved on the ground that a trial on the indictment, charging an offense under 18 U.S.C. § 495, would twice put defendants in jeopardy for the same offense, the earlier indictment under 18 U.S.C. 472 having been dismissed on the Government's motion after selection and swearing of the jury.
Van Graafeiland and Webster,*fn* Circuit Judges, and Dooling, District Judge.*fn**
The Government's version of the facts that underlie both the indictment and the superseding indictment is that defendants-appellants participated in forging endorsements on validly issued Series E United States Savings Bonds and cashing them. The original indictment charged that the defendants
". . . . did knowingly and with intent to defraud pass and utter a forged obligation of the United States; to wit . . . . Savings Bond . . . . Q2165871669E . . . .; all in violation of Title 18, United States Code, Sections 472 and 2."
Another count charged in identical language the passing of a differently numbered Savings Bond, and a third count charged that defendants
". . . . conspired and agreed together and with other persons to commit offenses against the United States, to wit, to violate Title 18, United States Code, Sections 472 and 2 by uttering and passing with intent to defraud forged obligations of the United States, to wit, thirty-six (36) United States Savings Bonds, Series E, IN VIOLATION OF Title 18, United States Code, Section 371."
The case came on for trial on May 4, 1976, the jury was selected and sworn, and the trial adjourned to May 7, 1976. On that day the United States Attorney advised the court that he had concluded that under no theory of the Government's proof could violation of Section 472*fn1 be proved, since the savings bonds were valid and only the endorsements were forged. Those facts, he continued, would constitute a violation of Section 495.*fn2 The Government moved to dismiss the indictment, reserving its right to seek a reindictment. Defense counsel agreed that the indictment would be vulnerable to a motion to dismiss on the facts as the Government stated them, and, not objecting to the dismissal, reserved their right to move against any future indictment or information. The indictment was thereupon dismissed.
On June 24, 1976, a superseding indictment was filed. Count 1 charged that appellants and one Ames (not joined as a defendant) did
". . . . aid, abet . . . . and induce Dolores Dombrowsky to forge the endorsement of Bernice Goulder on a United States Savings Bond . . . . Number Q1987602561E . . . . owned by Bernice Goulder, for the purpose of obtaining and receiving a sum of money from the United States and its agents; all in violation of Title 18, United States Code, Section 495 and 2."
There were thirty-five other counts in the same form, each relating to a different bond. Count 37 charged that appellants did
". . . . conspire and agree together and with Richard Ames and Dolores Dombrowsky, named as co-conspirators but not as co-defendants, to commit offenses against the United States, to wit, to violate Title 18 United States Code, Sections 495 and 2, by forging the name of Bernice Goulder on thirty-six (36) Series E United States Savings Bonds, set forth above, for the purpose of obtaining and receiving a sum of money from the United States and its agents; in violation of Title 18, United States Code, Section 371."
The overt acts alleged in the conspiracy counts of the original and superseding indictment were the same in substance. They were (1) that appellant Sebastian gave Ames thirty-six Savings Bonds; the superseding indictment added that the bonds were "in the name of Bernice Goulder"; (2) that Sebastian gave Ames identification in the name of Bernice Goulder; the original indictment omitted Bernice Goulder's name, and instead alleged that the "identification" was sufficient to enable Ames to negotiate the Bonds; and (3) that Sebastian and Gibbons met at a named restaurant for the purpose of receiving part of the proceeds of the cashing of the Bonds.
On appellants' motion to dismiss the superseding indictment on the ground that jeopardy had attached when the jury was impanelled and sworn to try the original indictment (Downum v. United States, 1963, 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033; see Serfass v. United States, 1975, 420 U.S. 377, 388, 43 L. Ed. 2d 265, 95 S. Ct. 1055; cf. Illinois v. Somerville, 1973, 410 U.S. 458, 460, 466, 35 L. Ed. 2d 425, 93 S. Ct. 1066), Judge Curtin denied the motion, essentially relying on United States v. Cioffi, 2d Cir. 1973, 487 F.2d 492, 497-498, and Illinois v. Somerville, supra. Appellants argued that the test for applying the double jeopardy bar should be whether both indictments were the "same in law and facts," or called for the same evidence, or arose out of the same transaction; the parties and Judge Curtin were in agreement that passing a validly issued obligation of the ...