Petition — Barket v. United States

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TE JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

ALEXANDER J. BARKET,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the-United States Court of Appeals

for the Eighth Circuit

VERYL L. RIDDLE

THOMAS C. WALSH

ROBERT F. SCOULAR

500 North Broadway

St. Louis, Missouri 63102

Attorneys for Petitioner

BRYAN, CAVE, McPHEETERS & McROBERTS

Of Counsel

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

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ce ee eee seek eee esas Cee ees 2

tenia he chao ee Ka ae Oakes ees 2

Constitutional Provisions Involved .................. 2

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NE Gr OD ED keen cnme ab adakdscseneesscdéus 3

Reasons Why the Writ Should Be Granted ............. 8

ED 5.6 Sn 6% Wau 4055660066400 640 80S ORES SS 13

PEE boo 460556 conrad eenecsadccuatiébeanees A-l

Appendix B ... ee A-14

ES 65 650 Neha cb chicos ones eueshareseeaas A-27

RU a katte esac ane deseahecse hues nanenss A-28

Cases Cited

Ashe v. Swenson, 397 U.S. 436 (1970) ...... 8,9, 10,11, 12

Harris v. Washington, 404 U.S. 55 (1971) ............. 11

In re Neilsen, 131 U.S. 176 (1889) .................. 8

McDonald v. Wainwright, 493 F. 2d 204, 207 (Sth Cir.

BE 6 ch Wks heen ehh bse N16 dee beens ee eenenind 11

Morgan v. Devine, 237 U.S. 632, 641 (1915) .......... 8

Sealfon v. United States, 332 U.S. 575 (1948) .......... 8

Simpson v. Florida, 403 U.S. 384 (1971) .............. 11

Turner v. Arkansas, 407 U.S. 366 (1972) ............. 8,10

United States v. United States Gypsum Co., 404 F. Supp.

as GU HE, HUD ooo cccccceceecsteacens 11

Statutes Cited

ee Ee es ae at alg ware ares 2, 3, 4, 5, 8, 9, 10, 11

I, SR od, te eee eee wae oe 2, 3, 4, 8, 9, 10, 11

ie a i eG ol Pale ae ale kg ee ek me 2

Miscellaneous Cited

United States Constitution, Amendment V ........ 2, 6, 10, 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

ALEXANDER J. BARKET,

Petitioner,

Vv

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Alexander J. Barket, petitioner herein, respectfully prays that

a Writ of Certiorari be issued to review the judgment of the

United States Court of Appeals for the Eighth Circuit entered

in this action on December 9, 1975.

OPINIONS BELOW

The unreported memorandum opinion of the district court

is reproduced in Appendix A, infra. The opinion of the Court

of Appeals is not yet reported but is reprinted in Appendix B,

infra.

JURISDICTION

The opinion and judgment of the Court of Appeals were filed

on December 9, 1975. Petitioner’s timely petition for rehearing

en banc was denied on February 9, 1976 (Appendix C, infra).

This petition was filed within 30 days of February 9.

Jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

QUESTION PRESENTED

May petitioner, who has been acquitted of violating 18 U.S.C.

§ 656, now constitutionally be tried for consenting to an illegal

political contribution under 18 U.S.C. § 610, based on the same

evidence and the same transaction, even though the first-tried

charge incorporated the allegations of the second charge and the

trier of fact found in the first trial that petitioner did not act

willfully and was not “tied” to the transaction, and that the pur-

pose of his actions was not the making of an illegal political

contribution?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

“

. nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb. . .”

STATUTES INVOLVED

The relevant portions of the two substantive statutes involved

in this case, 18 U.S.C. § 610 and 18 U.S.C. § 656, as they ex-

isted at the time of the underlying transaction, are set forth in Ap-

pendix D, infra.

STATEMENT OF THE CASE

On May 9, 1974, petitioner was indicted on two counts based

upon a single alleged incident which had occurred on October

15, 1968. Count I of the indictment purported to allege that

petitioner had consented to an illegal political contribution in

violation of 18 U.S.C. § 610:

“On or about the 15th day of October, 1968, in the

Western District of Missouri, defendant Alexander J. Barket

unlawfully, willfully and knowingly did consent to the con-

tribution and expenditure of moneys belonging to the Civic

Plaza National Bank in the amount of $7,500 in connection

with the 1968 election at which presidential and vice presi-

dential electors for the United States of America were to

be voted fur; all in violation of Title 18, United States Code,

Section 610.”

In a separate Count II, a violation of 18 U.S.C. § 656 was

alleged to have arisen out of the very same incident:

“On or about the 15th day of October, 1968, in the

Western District of Missouri, defendant Alexander J.

Barket, being an officer and director of the Civic Plaza

National Bank, a national bank organized and existing

under an act of Congress, with intent to injure and defraud

said national bank, willfully and knowingly did misapply

moneys and funds of such bank in the amount of $9,144.00

by paying said funds of the said bank to Rudolph E.

Zatezalo under the guise of a bonus salary, which had not

been earned and which had not been authorized by the

Board of Directors of the said bank, for the purpose of

making an unlawful political contribution; all in violation

of Title 18, United States Code, Section 656.”

1 The $7,500 figure referred to in Count I represented the net

proceeds to Sede of the $9,144 bonus mentioned in Count II,

after taxes and other payroll deductions. Emphasis has been supplied

here and throughout this Petition except where otherwise indicated.

en

Petitioner filed a request for a bill of particuiars, and in re-

sponse thereto the government confirmed that the factual under-

pinnings of both counts of the indictment were identical:

“

. the government states that the offense charged

against defendant in Count I of the indictment arises out

of and is based on the same alleged acts and transactions

of defendant and other facts which the government alleges

constitutes the offenses charged in Count II.”

Petitioner urged that the government should be required to

elect between the two counts. The government then chose to

proceed on Count II and, hence, to attempt to prove a viola-

tion of § 656. The trial court commented as follows:

“The parties provided, and the Court approved their

agreement that if there was an acquittal on the Section

656 count, that proceedings directed toward Count I would

be by Motion to Dismiss based upon the obvious theory

and principles articulated in Nash v. Swenson [sic]. 1 think

it is fair to say that all counsel were in general agreement

that an acquittal on Count II would, in all probability, as

a matter of law, be a final disposition of Count I.”

The case proceeded to trial on Count II before the trial judge,

sitting without a jury. The government sought to prove that

petitioner, the President of Civic Plaza, violated § 656 by will-

fully misapplying $7,500 of the funds of Civic Plaza by paying

those funds to Rudolph Zatezalo for the purpose of making an

unlawful political contribution proscribed by § 610. At that

trial, the prosecutor left no doubt that the “unlawful political

centribution” referred to in Count II of the indictment was the

precise act which constituted the subject matter of Count I:

“I believe and I hope that the Court understands what

the government's theory is. That is the theory that under-

lying unlawfulness which is mentioned here [in Count II]

= =

that is, the unlawful political contribution, was the un-

lawful consent given by the defendant Barket to the mak-

ing by the corporation of the payment to the political-——

the ultimate political donee.”

In response to petitioner’s argument that the government was

trying the wrong case, and that in effect it had produced evidence

arguably supportable of a § 610 charge, counsel for the govern-

ment unequivocally acknowledged that Count I had in fact

been tried with, and subsumed by Count II:

“In a sense, [ petitioner's counsel] is correct, the plaintiff,

the Government, would like to try Count I and in effect

tried it in this case . . . [I]t is the Government's position

that the defendant consented to the payment of the bank’s

funds, and I repeat the bank’s funds, the bank’s money to

and for the benefit of a political donee in violation of Sec-

tion 610 and that very same act, without doing more, he

violated Section 656... .”

The prosecutor further told the trial court:

“We have gone so far to say that once Count II is tried,

in our opinion, we probably couldn't try Count I under the

principles of Ash versus Swinson [sic] and other cases

where collateral estoppel was raised. I may be wrong

about that. But that is what I thought when I said it, and I

think [prosecution co-counsel] Schneider thought that.

That is our position today.”

On April 4, 1975, the district court rendered an oral opinion

acquitting petitioner on Count II. Against the background of

the prosecutor’s repeated contentions that the “unlawful political

contribution” forming the nucleus of Count II was the self-same

donation alleged in Count I to be violative of § 610, and that

the “underlying unlawfulness” was the petitioner's consent to that

contribution, the trial court made the following express finding:

—

“It is my judgment, and I find, that there was an equal

failure of proof on the part of the government that the pur-

pose of the defendant’s action was the making of an illegal

political contribution.” |

Another essential component of the government's case in

Count IIl—as indeed it would be under Count I—was the es-

tablishment of a causal nexus between petitioner and the $7,500

payment. The court found such evidence wanting and entered

the following finding:

“There is difficulty, however, in tying the $7,500 bonus

contribution to either Dr. Zatezalo, Barket, Patti or any-

one else...”

One other fundamental ingredient of a successful prosecution

on both Counts is a showing of “willfulness” on the part of pe-

titioner. Because of the invocation by a witness of his Fifth

Amendment privilege against self-incrimination, the court held

that there was insufficient proof of willfulness on petitioner's

part. Referring to evidence which the witness might have been

able to give, the court stated:

“Perhaps with that testimony, there may have been ad-

duced some sort of evidence upon which to make a finding

supported by factual data, as distinguished from conjecture

and speculation, that the defendant acted willfully.”

Following his acquittal on Count II, petitioner filed a mo-

tion to dismiss Count I based, inter alia, on the double jeopardy

provisions of the Fifth Amendment. For the purpose of the

double jeopardy issue, the government twice stipulated that the

evidence which would be adduced by it at a trial of Count I

* The government’s brief in the Court of Appeals acknowledged

that the trial court, by this ry - concluded that petitioner “did

not consent to the making of an illegal political contribution” (Em-

phasis in original).

vam

would be precisely, in all respects, the same evidence previously

offered in connection with its unsuccessful effort to obtain a

conviction on Count II. The trial court denied petitioner's mo-

tion to dismiss, and petitioner filed a notice of appeal and an

alternative petition for a writ of mandamus in the Court of Ap-

peals.

Following full briefing and argument, the Eighth Circuit held

(a) that the order was appealable (one judge dissenting) and

therefore that the petition for mandamus was moot and (b) that

the trial of petitioner on Count I would not be violative of the

principles of double jeopardy or collateral estoppel. Both par-

ties petitioned for rehearing. Petitioner's request was denied on

February 9, 1976, and the government's petition (challenging

the jurisdictional holding) was denied on February 13.

REASONS WHY THE WRIT SHOULD BE GRANTED

At the trial of petitioner on Count II, the government at-

tempted to prove that he willfully misapplied the funds of Civic

Plaza in violation of § 656 by causing them to be paid to a third

person for the purpose of making an unlawful political con-

tribution prohibited by § 610. In the still-pending Count I, pe-

titioner is charged with willfully consenting to the contribution

of the same funds belonging to Civic Plaza, in violation of §

610. It is acknowledged that the same incident, the same funds

and the same “contribution” formed the nucleus of both counts,

and the government has expressly stipulated that it will use pre-

cisely the same evidence at retrial that it presented the first time.

We submit that this establishes a double jeopardy violation under

the rationale of Morgan v. Devine, 237 U.S. 632, 641 (1915),

where it was held that “the test of identity of offenses is whether

the same evidence is required to sustain them.” See also Sealfon

v. United States, 332 U.S. 575 (1948); In re Neilsen, 131 U.S.

176 (1889).

But it is not necessary to dwell at length on the oft-times

thorny issue of double jeopardy, for the instant case presents a

classic example of collateral estoppel, and the Court of Appeals’

holding stands in flagrant disregard of Ashe v. Swenson, 397

U.S. 436 (1970) and is even more squarely defiant of Turner v.

Arkansas, 407 U.S. 366 (1972).

The question presented in Ashe (which, ironically, originated

before the same district judge) was whether the defendant could

be constitutionally tried for the robbery of a second poker player

after he had been acquitted of robbing the first. The jury in

the first trial had returned a general verdict of not guilty, and

upon examination of the record, this Court concluded that the

jury must have found that the defendant was not present at the

scene of the crime. That fact, having been once resolved in de-

fendant’s favor, could not be relitigated by the government in

=

the second trial. The prosecution was collaterally estopped from

even attempting to prove the essential fact of defendant's pres-

ence at the scene, and hence a second trial was forbidden by the

double jeopardy clause. The nub of the Court's holding was as

follows, I.c. 443:

“ ‘Collateral estoppel’ is an awkward phrase, but it stands

for an extremely important principle in our adversary sys-

tem of justice. It means simply that when an issue of ulti-

mate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the

same parties in any future lawsuit.”

The Court, /.c. 444, cautioned that:

“The rule of collateral estoppel in criminal cases is not

to be applied with the hypertechnical and archaic approach

of a 19th century pleading book, but with realism and

rationality.”

The decisive nature of Ashe becomes apparent from an anal-

ysis of the record of petitioner's first trial and, particularly,

from an examination of the government's theory as espoused

by the prosecutor in his closing argument. He stated in no un-

certain terms that the government “in effect tried [Count I] in

this case” and acknowledged that an acquittal on Count Il

would foreclose further prosecution under Count I. The evi-

dence adduced in the first trial focused on the payment of

$7,500 to a political campaign. The government identified this

donation as the “unlawful political contribution” referred to in

Count I and contended that payment was a “violation of $610

and that that very same act, without doing more, violated

§$ 656."*

* The government's brief in the Court of Appeals again acknowl-

edged that “the trial of Count II necessarily involved proof of the

allegations of Count I.”

—

Because of the trial court's detailed findings of fact, it is be

yond dispute on the present record (a) that the government in

the first trial attempted to prove that petitioner willfully par-

ticipated in the making of an illegal $7,500 political contribu-

tion and (b) that it failed to prove (1) that petitioner’s action

was willful, or (2) that it was taken for the purpose of mak-

ing such a contribution, or (3) that petitioner was personally

involved in the making of the contribution.* These are the

identical indispensable elements of the §610 case which the

government now wants another chance to prove. The Fifth

Amendment simply will not permit relitigation of these issues,

even if the government were prepared to offer fresh new evi-

dence at the second trial, as was the case in Ashe.

The constitutional barrier has been made even more impen-

etrable by the government's stipulation that the evidence which

it will offer at the second trial will be identical in all respects

with that previously adduced with respect to Count II. That

Stipulation brings this case squarely within the facts of Turner

v. Arkansas, 407 U.S. 366 (1972), which, we submit, requires

summary reversal. There, as here, it was stipulated that in the

defendant’s second trial (for robbery), the very same evidence

would be used as was adduced in his first trial (for felony-murder

in the course of robbery). The defendant had been acquitted

in the first trial. Because of this stipulation and the prior ac-

quittal, this Court summarily reversed the lower court decision

4 The Court of Appeals distorted and rewrote the district court’s

findings so as to strip them of their obvious import. It ignored the

incontrovertible fact that the prosecution’s fundamental theory in

this entire prosecution was “that underlying unlawfulness which is

mentioned [in Count II], that is, the unlawful political contribution,

was the unlawful consent given by the defendant Barket to the making

by the corporation of the payment to the political—the ultimate

political donee” (pp. 4-5, supra). The panel further disregarded the

government’s express concession in its appellate brief that the trial

court, by this finding, found that petitioner “did not consent to the

making of an illegal political contribution” (emphasis in original).

The “illegality” referred to by the government and the trial court

was under § 610, not § 656, as held by the Court of Appeals.

authorizing a second trial, holding that the case was “squarely

controlled by Ashe v. Swenson.” See also Harris v. Washing-

ton, 404 U.S. 55 (1971); Simpson v. Florida, 403 U.S. 384

(1971).

The Court below, in rejecting petitioner's double jeopardy

plea, erroneously and abstractly focused upon the distinction be-

tween the statutory elements of $610 and §656 and ignored

the fact that the government has in effect mergea the two stat-

utes in this case. This was clear error of constitutional dimen-

sions, for the focus should be on what the government sought

to prove, not under what statute it was proceeding. In Mc-

Donald v. Wainwright, 493 F. 2d 204, 207 (Sth Cir. 1974),

the Court said:

“Having failed to prove certain illegal acts once, [the

government] cannot be permitted to prove them again sim-

ply by changing the name of the crime.”

In United States v. United States Gypsum Co., 404 F. Supp.

619 (D.D.C. Dec. 10, 1975), the court rejected the precise

approach employed by the panel below and applied the “same

evidence” test of Ashe, I.c. 622:

“Contrary to the Government’s submission, this Court

is persuaded that the proper application of the ‘same evi-

dence’ test focuses not merely on a comparison of the

Statutory elements of these two offenses, but on whether

either trial will involve any significant categories of proof

absent from the other . . . Both prosecutions will require

proof of the same facts by means of the same evidence .. .

“[T}his Court is persuaded that a double jeopardy anal-

ysis which focuses on technical comparison of the elements

of the two statutes rather than on the overwhelming simi-

larities in the proof the Government intends to present at

the [second] trial will result in serious injustice.

— pe

“The Constitutional protection against double jeopardy

should not be undermined by an overly formal or techni-

cal application of the ‘same evidence’ test.”

In this case, the Eighth Circuit's emphasis on the “technical

comparison of the elements of the two statutes,” unrelated to

the actual charges, facts and evidence, if allowed to go un-

remedied, will result in precisely that “serious injustice” that

the court warned against and that the Fifth Amendment was

designed to prevent.

The government itself has acknowledged that “this is an im-

portant . . . case involving issues of law of great significance

to the administration of criminal justice both within [the Eighth]

Circuit and throughout the federal judicial system.” The Court

of Appeals’ opinion has effectively nullified Ashe v. Swenson.

If its judgment stands unreviewed, the government will be li-

censed to splinter one act into two or more criminal charges

and to run an accused through the gauntlet again and again

until a conviction is finally obtained. Such a procedure is con-

stitutionally intolerable.

—_—

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

VERYL L. RIDDLE

THOMAS C. WALSH

ROBERT F. SCOULAR

500 North Broadway

St. Louis, Missouri 63102

BERNARD D. CRAIG, JR.

916 Walnut Street Building

Kansas City, Missouri 64106

BRYAN, CAVE, McPHEETERS &

McROBERTS

LEVY & CRAIG

Of Counsel

APPENDIX

_— *

APPENDIX A

In the United States District Court for the

Western District of Missouri

Western Division

United States of America, 7

Plaintiff,

vs. | No. 74 CR

f —141-W-

Alexander J. Barket,

Defendant. |

MEMORANDUM AND ORDER DENYING

MOTIONS TO DISMISS COUNT I

I

Defendant's pending motions to dismiss are based on nu-

merous grounds most recently stated in a four paragraph mo-

tion filed April 8, 1975 and in defendant’s supplemental motions

and suggestions filed April 25, 1975. Final briefs were sub-

mitted June 23, 1975. Many of the questions presented were

the subject of briefs earlier filed. We have carefully considered

all briefs filed by the parties and conclude that none of the

grounds relied upon in any of defendant’s motions are tenable

and that all of defendant’s pending motions to dismiss Count I

should be denied.

In stating the reasons for our determination we shall first

discuss the grounds alleged in each of the four paragraphs of

defendant's April 8, 1975 motion and then the grounds alleged

in defendant's April 25, 1975 filings.

—_* po

Paragraph | of defendant's April 8, 1975 motion alleges two

grounds for dismissal. The first ground alleges that Count I

of the indictment should be dismissed on the ground that:

The prosecution of Defendant upon Count I is barred

by the Fifth Amendment's guarantee against double jeop-

ardy because of the acquittal of Defendant upon Count II

of the Indictment and the dismissal of the Information

against Civic Plaza National Bank for the same alleged

offense, as set forth in, inter alia, Ashe v. Swenson, 397

U.S. 436 (1970)...

Defendant argues in one of his recent briefs (April 25, 1975)

that “reprosecution is barred both by the fact (a) that the two

crimes charged in Counts I and II of the indictment are in

reality the ‘same offense’ and (b) that, whether or not they may

strictly be classified as the ‘same offense,’ the Court's disposi-

tion of Count II forecloses further proceedings under Count I by

reason of the principle of collateral estoppel as articulated by

the Supreme Court in Ashe v. Swenson.”

The defendant, of course, would not be subjected to a “re-

prosecution” by the trial of Count I unless (a) the defendant's

contention that Counts I and II are in reality the “same offense”

is tenable, or unless (b) defendant's contention in regard to the

applicability of collateral estoppel principles articulated in Ashe

v. Swenson, supra, is tenable.'

' In United States v. Sabella (2d Cir. 1959), 272 F. 2d 206, 211,

cited by defendant, Judge Friendly commented on the difference be-

tween a case involving a subsequent or repeated indictment, and a

case involving the trial of a single multiple count indictment. We quite

agree with Judge Friendly’s comment that “confusion has been cre-

ated by the citation of successive indictment cases in opinions where

the issue was only what charges could be joined in a multiple count

indictment and vice versa... .”

Defendant in this multiple count indictment case relies for the most

part on language quoted from successive indictment cases. Those

—_ Tt

There can be no doubt that Ashe determined that the Double

Jeopardy guarantee of the Fifth Amendment embodies collateral

estoppel as a constitutional principle.“ Defendant properly recog-

nized that the procedural and factual circumstances presented

in this case are not the same as those presented in Ashe v. Swen-

son, supra. See page 7 of defendant's April 25, 1975 brief. De-

fendant has also recognized that double jeopardy questions are

more easily posed than answered. Ibid, p. 9.

Mr. Justice Stewart's opinion for the Court in Ashe v. Swen-

son, supra, stated the following test to be applied in double

jeopardy cases:

Where a previous judgment of acquittal was based upon

a general verdict, as is usually the case, this approach re-

cases fail to put in focus what Judge Friendly said in Sabella in re-

gard to the historical and practical differences in the two categories

of cases. See also footnote 14 in Mr. Justice Brennan's concurring

opinion in Ashe v. Swenson, supra, on page 460 of 397 US., in

which other distinctions are stated.

Other closely analogous questions are presented by the line of

cases dealing with inconsistent verdicts in a multi-count indictment.

Whether the rule of Dunn v. United States, 284 U.S. 390 (1932),

permitting inconsistent jury verdicts is applicable to a trial before

a judge is a question which has received contrary answers

in the Circuits. Compare McElheny v. United States (9th Cir.

1944), 146 F. 2d 932 with United States v. Maybury (2nd Cir.

1960), 274 F. 2d 899. See also United States v. King (2nd Cir.

1967), 373 F. 2d 813, cert. den. 389 U.S. 881 (1967); United

States v. Rosengarten (2d Cir. 1966), 357 F. 2d 263; United States

v. Wilson (2d Cir. 1965), 342 F. 2d 43; United States v. Sells (2d

Cir. 1960), 325 F. 2d 16; United Liates v. Robinson (2d Cir. 1963),

320 F. 2d 980; United States v. Sambardi (2d Cir. 1960), 276 F.

2d 169, cert. den. 364 U.S. 342 (1960), in which principles stated

in Maybury were applied.

2 “Collateral estoppel” was defined as follows: “ ‘Collateral es-

toppel’ is an awkward phrase, but it stands for an extremely impor-

tant principle in our adversary system of justice. It means simply that

when an issue of ultimate fact has once been determined by a valid

and final judgment, that issue cannot again be litigated between the

same parties in any future lawsuit.”

— -

quires a court to “examine the record of a prior proceed-

ing, taking into account the pleadings, evidence, charge,

and other relevant matter, and conclude whether a rational

jury could have grounded its verdict upon an issue other

than that which the defendant seeks to foreclose from con-

sideration.” The inquiry “must be set in a practical frame

and viewed with an eye to all the circumstances of the

proceedings.” Sealfon v. United States, 332 U.S. 575, 579."

Our memorandum and order of March 26, 1975 denying de-

fendant’s motion to dismiss Count II reflects our careful exami-

nation of the government's Section 656 allegations. We noted

that in its second and pending indictment the government had

changed the language of its original dismissed indictment to

include an allegation that the moneys were paid “for the purpose

of making an unlawful political contribution.” We rejected the

defendant’s argument that the quoted language be treated as

surplusage, and therefore subject to being stricken, so that its

elimination would leave an indictment which failed to add the

necessary gloss to a Section 656 misapplication charged, as re-

quired by United States v. Britton, 107 U.S. 655 (1882).

Count II contained no reference whatsoever to Section 610

and no determination of any sort was made in connection with

Count II which could be said to constitute a finding that the

defendant may not have violated Section 610, as alleged in

Count I. Such a question of fact or of law simply was not pre-

sented. The government's continued fascination with the notion,

exemplified in its closing argument, that the defendant could

simultaneously be found guilty of both Count I and Count II

does not support the conclusion that Count I must be dismissed

* The broader test suggested in Mr. Justice Brennan’s concurring

opinion has not received the approval of a majority of the Supreme

Court or of our Court of Appeals. The broader test suggested may

not properly be applied by this Court. See Moton v. Swenson (8th

Cir. 1973), 488 F. 2d 1060.

—_ So

for the reason the government did not obtain a conviction in

regard to Count II.

In connection with the Section 656 charge contained in Count

II of the indictment, the government was obligated to establish

beyond reasonable doubt that the defendant, with intent to in-

jure and defraud the bank of which he was an officer and di-

rector, willfully and knowingly misapplied $9,144.00 for the

purpose of making an unlawful political contribution. The Sec-

tion 610 charge alleged in Count I does not require proof of

any factual data essential to a Section 656 conviction under

Count II. The charge in Count I requires that the government

prove beyond reasonable doubt that the defendant “consented”

to a $7,500 contribution made by the bank in violation of Sec-

tion 610. That is an entirely different charge than Count Il

which alleged that the defendant had made an unidentified un-

lawful political contribution with money which he had converted

from funds formerly owned by the bank.

It is, of course, obvious that there are many factual circum-

stances which are relevant and material to each count. Indeed,

much of the factual situation presented is virtually undisputed.

But to say that is not to say that questions of fact essential to a

conviction in connection with the Section 610 charge contained

in Count I were in fact litigated and conclusively determined in

defendant’s favor in connection with the trial of the Section 656

charge contained in Count II. Nor is it to say that, as a matter

of law, a verdict of not guilty in regard to Count II commands

a like verdict of not guilty in regard to Count I.

Our review of the entire record, in which we have taken into

account the essential elements which the government must estab-

lish beyond reasonable doubt under each of the Counts of the

two count indictment, and our familiarity with the grounds upon

which Count Il was determined, requires that we find and con-

clude that the determination of Count II was in fact and in law

based on grounds which may consistently permit a finding of

—~ vm

guilty in regard to the Section 610 charge contained in Count I.

In accordance with the mandate of Ashe v. Swenson, supra, we

have conducted our inquiry in a practical frame with an eye

toward all the circumstances of the proceedings. In short, we

find the first ground stated in paragraph 1 of defendant's motion

to dismiss, filed April 8, 1975, to be without merit.

Ill

The second ground alleged in paragraph 1 of defendant's

April 8, 1975 motion to dismiss alleges that the prosecution

of the defendant under Count I is barred for the reasons stated

in defendant’s motion:

Memorandum and Reply Memorandum in Support of

Motion to Dismiss Count I of the Indictment Because of

the Dismissal of the Information Against Civic Plaza

National Bank for the same alleged offense, as set forth

in, inter alia, Ashe v. Swenson, 397 U.S. 436 (1970).

The files and records of the Court show that initially, and

on October 11, 1973, the government jointly indicted the

Bank and the defendant ‘in a single count, purporting to al-

lege a Section 610 violation against both. On November 23,

1973, this Court granted the joint motion of the defendant

and the Bank to dismiss the original indictment. The appeal

noticed by the government to that order was subsequently dis-

missed on the government’s motion. A second indictment

containing Count I of the pending indictment was filed against

the defendant on May 9, 1974.

On May 21, 1974, the government filed an information

against the bank for an alleged violation of Section 610. For

all practical purposes, the second indictment of defendant and

the information against the Bank simply separated the charges

initially made jointly against both in a single count of the

—

original indictment. On June 25, 1974 Judge Hunter granted

the Bank’s motion to dismiss the inforraation on the ground

that the statute of limitations had expired in that §3282, Title

18, U.S.C. was not broad enough to “save” the government's

charge against the Bank because it elected to proceed by way

of information rather than by indictment.

Defendant’s argument that Judge Hunter’s dismissal of the

Section 610 information against the Bank somehow bars

prosecution of the defendant under Count I is explicitly based

upon the fundamental premise that a bank and its officers

share a derivative liability relationship under Section 610 and

that the liability of a corporate officer or director is therefore

dependent upon the bank’s conviction of making a political

contribution prohibited by the statute. Defendant, on page 28

of its memorandum of July 19, 1974, argues that “[U]nder

Section 610, the criminal liability of an officer or director of

a corporation is dependent upon that of the corporation.”

The same question v as presented to Judge Richey in United

States v. Boyle (D. D.C. 1972), 338 F. Supp. 1028. The

labor organization of which defendant Boyle was an officer

was not indicted. Judge Richey concluded that “the Court

disagrees with the defendants’ contention that the United Mine

Workers of America should be indicted and convicted as a

condition precedent to the indictment and conviction of its

officers.” Defendant Boyle’s conviction was affirmed in United

States v. Boyle (D.C. Cir. 1973), 482 F. 2d 755, cert. den.

414 U.S. 1076 (1973). Defendant's contention that the “is-

sue of defendant’s derivative liability, present in the instant

case, was not raised in Boyle” (p. 4 of defendant’s August 19,

1974 brief) is not tenable. We find and conclude that Sec-

tion 610 establishes separate and independent offenses in re-

gard to a bank and in regard to one of its officers or direc-

tors. Because the major premise upon which defendant's

argument is based is untenable, we find and conclude that

—

the second ground stated in paragraph 1 of defendant's April

8, 1975 motion to dismiss is without merit.

IV

Paragraph 2 of defendant's April 3, 1975 motion to dismiss

alleges that:

Count I fails to state an offense against the United States,

as set forth in Supplemental Memorandum in Support of

Defendant’s Motion to Dismiss Count I for Failure to State

an Offense filed herein on July 19, 1974, and unanswered

by the government.

Defendant filed an additional brief in support of this ground

on his motion on April 25, 1975. That brief reiterates the sub-

stance and, for the most part, is a copy of an earlier memoran-

dum filed July 19, 1974.

Counsel for the defendant, in their letter to the Court dated

June 23, 1975, directs our attention to the government’s failure

to file any separate suggestions in opposition to either of the

defendant’s briefs and suggests that such failure “may be viewed

by the Court as a concession by the government of the defend-

ant’s position.” The government's failure to file a separate

brief should not, under the circumstances of this case, be viewed

as any concession of the validity of the defendant’s argument.

Other briefs filed by the government in opposition to the numer-

ous motions and briefs filed by the defendant have served to give

the Court the benefit of government’s view in regard to the

question presented.

Defendant’s argument is based primarily upon principles ap-

plied in United States v. Denmon (8th Cir. 1973), 483 F. 2d

1093, and cases decided by this Court, such as United States v.

Howe (W.D. Mo. 1973), 353 F. Supp. 419. While Count I of

the pending indictment clearly is not a model to follow in future

—_

cases, we find and conclude that all necessary elements of the

offense are sufficiently alleged to apprise the defendant of what

he must be prepared to meet and that the looseness of the gov-

ernment’s choice of language does not offend the principles

applied in the cited cases. Accordingly, we find and conclude

that the ground alleged in paragraph 2 of defendant's April 8,

1975 motion to dismiss is without merit.

Vv

Paragraph 3 of the defendant's April 8, 1975 motion alleges

that:

Count I faiis to state an offense against the United States

because of the purported offense is only a misdemeanor

and Count I attempts to allege a felony, as set forth in

Memorandum and Reply Memorandum in Support of De-

fendant’s Motion to Dismiss Count I of the Indictment

filed herein on July 1, 1974 and August 19, 1974.

Both sides have filed lengthy briefs in regard to whether a

violation of Section 610 by an officer and director of a national

bank should be considered a misdemeanor or a felony. Both

sides, in our judgment, have uselessly expended a great deal of

time and effort briefing that question. An election by the gov-

ernment to commence a criminal prosecution of a misdemeanor

by indictment rather than by information does not subject such

an indictment to a motion to dismiss.

Rule 7(a) of the Rules of Criminal Procedure expressly pro-

vides (1) that a capital offense shall be prosecuted by indict-

ment; (2) that a felony shall be prosecuted by indictment unless

indictment is waived; but (3) that “[aJny other offense may be

prosecuted by indictment or by information”. [Emphasis ours]

The text and the cases cited in Section 121 of Wright, Federal

Practice and Procedure make clear that an indictment may be

— A-10 —

used to commence prosecution of a misdemeanor although

prosecution may also have been commenced by an information.

Paragraph 7.02 of Moore’s Federal Practice cites additional

cases to support the statement that “[w]hile the Constitution does

not require indictment in cases of misdemeanor, there is nothing

to prevent the prosecution from presenting a misdemeanor to

the grand jury.” The question of whether Section 510 provides

for a misdemeanor or a felony may not properly be decided on

a motion to dismiss. Indeed, it is entirely conceivable, even if

it be assumed that the defendant should be found guilty as

charged in Count I, that this Court would not have to determine

the question which the parties have so fully briefed. Certainly

the determination of such a question at the present time is pre-

mature. We therefore find and conclude that the ground alleged

in paragraph 3 of defendant’s April 8, 1975 motion to dismiss

is without merit.

VI

Paragraph 4 of defendant’s April 8, 1975 motion alleges that:

The statute upori which Count I is based, 18 U.S.C.

§ 610, is unconstitutional as written and as applied to

Defendant, as set forth in Defendant’s Motion to Dismiss

Indictment and Each Count Thereof and Memorandum and

Reply Memorandum in Support of Defendant’s Motion to

Dismiss Count I of the Indictment on the Ground of the

Unconstitutionality of 18 U.S.C. § 610 filed on June 7,

1974 and June 21, 1974.

Derendant does not cite any cases to support his contention

that Section 610 is unconstitutional as written and as applied

to the Defendant in this case. Defendant's arguments are based

upon language in cases construing statutes other than Section

610.

== 53 —

Section 610 has been subjected to constitutional attack in

some of the relatively few prosecutions commenced under that

statute. The Supreme Court, however, did not reach any con-

stitutional question in either United States v. Pipefitters, 407

U.S. 335 (1972) or in Cort v. Ash, No. 73-1308, — U.S. —.

decided June 17, 1975, but not yet reported [43 L.W. 4773].

Judge Heaney of our Court of Appeals has expressed his view

on the constitutionality of Section 610 but that view was ex-

pressed in a dissenting opinion in the Court of Appeals decision

in Pipefitters, 434 F. 2d 1127, 1132 (8th Cir. en banc 1970).

While we recognize the force of some of the arguments made

by the defendant, we feel bound by presently controlling de-

cisions and therefore conclude that the ground stated in para-

graph 4 of defendant's April 8, 1975 motion to dismiss is with-

out merit.

VII

On Apnil 25, 1975 defendant filed a motion to dismiss Count

I based on the alleged ground that because the government

elected to proceed to trial on Count II, the government is now

barred from proceeding against defendant on Count I. Defend-

ant’s recently filed suggestions in support of that ground concede

that the “inconsistency issue” presented was extensively briefed

in connection with other grounds upon which defendant relies.

The same thing is true in regard to the double jeopardy argu-

ments made in support of the ground alleged in defendant's re-

cent motion.

What we have said above in connection with both of those

questions supports our finding and conclusion that defendant's

motion filed April 25, 1975 based on the “election ground” is

without merit.

— A-12 —

VIII

Defendant's final ground in support of his motion to dismiss

Count I is based on the statute of limitations. Defendant's mem-

orandum in support of that ground, filed April 25, 1975, reflects

that it is based upon the contention that because, in accordance

with defendant’s view, the alleged offense is only a misdemeanor,

§ 3288, Title 18, United States Code, could not effectively ex-

tend the statute of limitations because that statute extends the

Statute of limitations only in regard to felony prosecutions. Sec-

tion 3288 is broad enough to extend the time for filing any new

indictment, regardless of whether the offense charged may be

a misdemeanor or a felony. We have concluded above that a

misdemeanor prosecution may properly be commenced by in-

dictment. Defendant’s contention to the contrary is without

merit.

Defendant’s second statute of limitations argument is based

upon its contention that the liability of the individual defendant

under Section 610 is “derivative” and that because the manner

in which the government lost its prosecution of the Bank requires

the dismissal of what we have held to be a separate offense

against the individual defendant. We have fully stated our find-

ing and conclusion that the liability of the defendant is not de-

rivative. It follows that we find and conclude that both grounds

upon which defendant’s statute of limitations motion is based

are without merit.

IX

For the reasons stated, we find and conclude that none of the

grounds alleged in support of defendant’s various motions to dis-

miss are tenable. An order therefore will be entered denying all

pending motions to dismiss. We shall also enter orders direct-

ing further proceedings in connection with the trial of Count I.

It is therefore

—_*; oo

Ordered (1) that all of defendant's pending motions to dis-

miss Count I should be and the same are hereby denied. It is

further

Ordered (2) that counsel shall meet with the Court for the pur-

pose of determining a convenient time for the trial of Count I.

Counsel shall be prepared to state at the conference how much,

if any, of the evidence adduced at trial of Count II may be

considered by the Court in connection with the trial of Count I.

It is further

Ordered (3) that such conference shall be convened on the

earliest convenient date, after counsel for both parties have < .-

vised the Court.

JOHN W. OLIVER

District Judge

Kansas City, Missouri

July 15, 1975

—_

APPENDIX B

OPINION

United States Court of Appeals

For the Eighth Circuit

Nos. 75-1568 and 75-1569

No. 75-1568

United States of America,

Appellee,

v.

Alexander J. Barket,

Appellant. |

No. 75.1569

Alexander J. Barket, ,

Petitioner,

v.

The Honorable John W. Oliver, United

States District Judge,

and

United States of America,

Respondents. |

Appeal from the

United States Dis-

trict Court for the

Western District of

Missouri.

Petition for Writ of

Mandamus.

— A-15 —

Submitted: November 14, 1975

Filed: December 9, 1975

Before Matthes, Senior Circuit Judge, Lay and Stephenson,

Circuit Judges.

MATTHES, SENIOR CIRCUIT JUDGE.

Alexander J. Barket has appealed from the order of the dis-

trict court* denying his motion to dismiss Count | of a two-

count indictment (our Appeal No. 75-1568). Alternatively,

Barket filed a petition for writ of mandamus in this court (No.

75-1569) to compel the district court to dismiss Count I and

discharge appellant. The appeal and petition for mandamus

have been consolidated for briefing, argument and opinion.

Count I of the indictment charged that appellant, an officer

of Civic Plaza National Bank, Kansas City, Missouri, consented

to the expenditure of the bank’s moneys in connection with the

1968 presidential election, in violation of 18 U.S.C. § 610.'

Before proceeding to an examination of the merits of the is-

sues presented, a resume of the history of this case in the district

court will serve to explain why this litigation is before us.

* The Honorable John W. O.iver.

' In pertinent part § 610 provides:

It is unlawful for any national bank, * * * to make a con-

tribution or expenditure in connection with any election to any

political office, or in connection with any primary election or

political convention or caucus held to select candidates for any

political office, * * *

[A]nd every officer or director of any corporation, or officer

of any labor organization, who consents to any contribution or

expenditure by the ration or labor organization, as the

case may be, * * * shall be fined not more than $1,000 or im-

edeaned oat more than one year, or both; and if the violation

was willful, shall be fined not more than $10,000 or imprisoned

not more than two years, or both.

— A-16 —

The two-count indictment was filed on May 9, 1974.* Count I

charged that appellant violated 18 U.S.C. § 610 by consenting

to the contribution of $7,500 of Civic Plaza’s money in connec-

tion with the 1968 election for presidential and vice presidential

electors. Count II charged that, in violation of 18 U.S.C. § 656,

appellant knowingly and without authorization misapplied $9,-

144 of the bank’s funds by paying the money to Rudolph Zate-

zalo, for the purpose of making an unlawful political contribu-

tion.”

Both counts were based on the same transactions: an alleged

payment of $9,144 from the bank to Zatezalo, as a bonus sal-

ary, and a contribution by Zatezalo of $7,500 to the presiden-

tial campaign of then Vice President Hubert Humphrey.* The

government’s theory is that appellant approved this payment to

Zatezalo, without proper authorization, and so violated both

§ 656, by misapplying the bank’s funds, and § 610 by consent-

ing to an expenditure of bank funds for a presidential election.

2 The original indictment in this action was filed on October 11,

1973. The first two counts charged appellant and the bank with the

violations alleged here. The third count charged appellant with

violating 18 U.S.C. § 1005. This indictment was dismissed on ap-

pellant’s motion on November 23, 1973. The present indictment

was subsequently filed, naming appellant alone as defendant.

A separate information against the bank was also filed, but was

dismissed by the trial court.

* In pertinent part § 656 provides:

Whoever, being an officer, director, * * * or connected in

any capacity with any Federal Reserve bank, member bank,

national bank or insured bank, * * * embezzles, abstracts, pur-

loins or willfully misapplies any of the moneys, funds or credits

of such bank or any moneys, funds, assets or securities intrusted

to the custody or care of such bank, * * * shall be fined not

a than $5,000 or imprisoned not more than five years, or

*> * *

' The difference between the amount purportedly paid to Zate-

zalo ($9,144) and the amount of the alleged contribution ($7,500)

apparently represented Zatezalo’s increased income tax liability re-

sulting from his receipt of the “bonus.”

aos £89 an

At a conference on January 28, 1975, the court ordered that

the two counts be tried separately. It is unclear at whose in-

stance this order was made.”

In any event, after waiver of a jury trial, the case proceeded

on Count II alone, the § 656 misapplication charge. At the close

of the evidence, the trial judge granted appellant’s motion for

judgment of acquittal. In granting the motion, he discussed at

length the strength of the government's evidence.

Particularly, he said:

The greatest difficulty, it seems to me, is proof and evi-

dence to support any sort of finding that whatever the de-

fendant may have done, he did for the purpose as alleged

by the government “to injure and defraud his bank” * * *.

It is my judgment, and I find, that there was an equal

failure of proof on the part of the government that the

purpose of the defendant’s action was the making of an

“illegal” political contribution.

The court then entered a “not guilty” verdict.

Count I of the indictment, the § 610 charge, remained pend-

ing. Thereafter, appellant moved to dismiss this count on several

grounds. He asserted first that to try him on Count I would

violate the fifth amendment’s proscription of double jeopardy,

because the offense charged in Count I is identical to the offense

charged in Count II. In his motion to dismiss appellant relied

in part at least on Ashe v. Swenson, 397 U.S. 436 (1970) to

support this double jeopardy claim.® He asserted also that

5 The court’s memorandum of this conference reads: “The gov-

ernment elected to try the § 656 counts in the two cases.” The gov-

ernment asserts that the court compelled it to sever the counts for

trial, on motion of appellant.

® On appeal, appellant has receded from any claim that Ashe v.

Swenson involves pure double jeopardy. He recognizes that Ashe

dealt with collateral estoppel, and incorporated that doctrine into the

double jeopardy clause of the fifth amendment.

22 ———

— A-18 —

Count I fails to state an offense, and that § 610 is unconstitu-

tional.

The court denied appellant's motion to dismiss Count I and

this appeal followed. In denying the motion, the judge filed a

written memorandum and order in which he stated inter alia:

In connection with the Section 656 charge contained in

Count II of the indictment, the government was obligated

to establish beyond reasonable doubt that the defendant,

with intent to injure and defraud the bank of which he was

an Officer and director, willfully and knowingly misapplied

$9,144.00 for the purpose of making an unlawful political

contribution. The Section 610 charge alleged in Count I

does not require proof of any factual data essential to a

Section 656 conviction under Count II. The charge in

Count I requires that the government prove beyond reason-

able doubt that the defendant “consented” to a $7,500 con-

tribution made by the bank in violation of Section 610.

That is an entirely different charge than Count II which

alleged that the defendant had made an unidentified un-

lawful political contribution with money which he had con-

verted from funds formerly owned by the bank.

I

Initially, we consider the question whether the order com-

plained of is a “final decision” appealable under 28 U.S.C.

§ 1291.

The parties disagree on this vital question. The appellant re-

lies on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949), and cases cited below from four courts of appeals in

support of his contention that even though the order denying the

motion to dismiss is collateral in nature, it should be treated as

final and appealable. The government argues that the order

does not fall within the ambit of the Cohen doctrine and submits

—_

that the four cases relied upon by the appellant are distinguish-

able. The government argues also that the double jeopardy and

collateral estoppel issues can be determined after another trial

and entry of a final judgment under 28 U.S ~. § 1291.

Ordinarily, absent compelling reasons, an interlocutory order,

such as an order denying a motion to dismiss an indictment, is

non-appealable. Cohen v. Beneficial Industrial Loan Corp.,

Supra; Snodgrass v. United States, 326 F.2d 409 (8th Cir.

1964). However, where, as here, the appellant in good faith

contends that another trial is barred by former jeopardy, this

general rule does not apply. Rather, denial of the motion to

dismiss is deemed appealable as a collateral order, within the

doctrine of Cohen v. Beneficial Industrial Loan Corp., supra.

United States v. DeSilvio, 520 F.2d 247 (3d Cir. 1975); United

States v. Beckerman, 516 F.2d 905 (2d Cir. 1975); United

States v. Lansdown, 460 F.2d 164 (4th Cir. 1972); see also

Thomas v. Beasley, 491 F.2d 507 (6th Cir. 1974); contra,

United States v. Bailey, 512 F.2d 833 (Sth Cir. 1975).‘

The denial of the motion to dismiss in this case has all the

characteristics of a collateral order. These characteristics are

enumerated by Professor Moore:

(1) [T)he order must be a final determination of a claim

of right “separable from, and collateral to,” rights asserted

in the action;

(2) it must be “too important to be denied review,” in

the sense that it presents a “serious and unsettled question”

and

* We agree with the government that the factual contexts of the

cases relied upon by appellant are dissimilar from the circumstances

here. But central to all of the cases was a double jeopardy plea and,

more importantly, whether that issue could be tested and determined

on an appeal from an interlocutory judgment such as an appeal from

a denial of a motion to dismiss.

— A-20 —

(3) its review cannot, in the nature of the question

that it presents, await final judgment because “when that

time comes, it will be too late effectively to review the * * *

order and rights conferred * * * will have been lost,

probably irreparably.”

9 J. Moore, Federal Practice © 110.10, quoted in Roach v.

Churchman, 457 F.2d 1101 (8th Cir. 1972).

The order denying the motion to dismiss here is the trial

court’s final determination of appellant’s double jeopardy claim.

It is separable from the merits of the case. See United States v.

Lansdown, supra, 460 F.2d at 171. As a question of constitu-

tional right, it is too important to be denied review. /d.

Most importantly, review of the double jeopardy claim can-

not await final judgment. The double jeopardy prohibition is

meant to spare a once-jeopardized defendant not only a subse-

quent conviction, but also a subsequent trial. It is designed to

prevent the government from “subjecting [a defendant] to em-

barrassment, expense and ordeal and compelling him to live

in a continuing state of anxiety and insecurity, as well as en-

hancing the possibility that even though innocent he may be

found guilty.” Green v. United States, 355 U.S. 184, 187-88

(1957); Accord United States v. Lansdown, supra, 460 F.2d

at 171; United States v. Brown, 481 F.2d 1035, 1041 (8th

Cir. 1973); see also Ashe v. Swenson, 377 U.S. 436 (1970).

If this appeal is not heard now, appellant will lose his claimed

right to be free from a second trial.* Review thus cannot await

final judgment. We hold that the order is appealable, and in so

holding, we emphasize that our conclusion is limited to double

jeopardy cases.

* It makes no difference for appealability purposes, of course,

whether appellant wins or loses on the merits. See, e.g., United

States v. DeSilvio, supra (finding that order similar to the one here

is appealable, and holding for appellee on merits).

a nee wise

— A-21 —

Also, the other grounds for dismissal of the indictment ad-

vanced by appellant {failure to charge an offense and the un-

constitutionality of § 610) can be heard, if necessary, on appeal

from final judgment in the event there is another trial and con-

viction. Accordingly, we do not consider them now. We limit

our consideration to appellant’s double jeopardy and collateral

estoppel claims.

And because we find the order appealable, we need not con-

sider whether mandamus is appropriate.

Appellar* in fact makes two separate double jeopardy argu-

ments. First, he contends that the § 610 violation charged in

Count I and the § 656 violation charged in Count II are the

“same offense,” so that his acquittal for the latter bars prose-

cution for the former. Secondly, he argues that the second

prosecution is barred by the “collateral estoppel” rule of Ashe

v. Swenson, 397 U.S. 436 (1970). We consider each argument

In “urn.

Two statutes charge the same offense, for double jeopardy

purposes, if the violation of each statute is proved by the same

evidence. Blockburger v. United States, 284 U.S. 299 (1932);

Kistner v. United States, 332 F.2d 978, 980 (8th Cir. 1964).

Conviction of a bank officer under 18 U.S.C. § 656 requires

proof that the officer wilfully misapplied funds for the benefit of

himself or another person, for the purpose of defrauding or in-

juring the bank. This purpose to defraud or injure the bank is

an important element of a § 656 offense. See United States v.

Giordano, 489 F.2d 327, 330 (2d Cir. 1973).

Conviction under § 610, in contrast, requires proof that the

defendant consented to the contribution or expenditure of the

bank’s funds in connection with an election. No purpose to de-

fraud or injure the bank is required.

— A-22 —

There is a fundamental difference in purpose between the

two statutes. The misapplication statute, § 656, is meant to

protect the funds of banks with a federal relationship. “[CJourts

have generally held that the gist of the offense of willful misap-

plication is the conversion of funds of a federally insured bank

by one connected in some capacity with the bank either to his

own use or to the use of a third person, with the intent to injure

or defraud the bank.” United States v. Wilson, 500 F.2d 715,

720 (Sth Cir. 1974). The political contribution statute, § 610,

in contrast, has for one of its purposes the protection of the

electoral process from the influence of corporate and union

funds. See United States v. Auto Workers, 352 U.S. 567 (1952).

Because of these different purposes, the two offenses contain

different elements. As noted, § 656 requires a purpose to in-

jure or defraud the bank; § 610 requires consent to a political

contiibution. Violations of the two statutes must be proved by

different evidence. Therefore, the two counts here charge dif-

ferent offenses.” See United States v. Blockburger, supra.

Appellant in reality is arguing not that the offenses are iden-

tical, but that the § 610 violation is a lesser included offense

of the § 656 violation.

One offense is a lesser included offense of another only if,

in order to commit the greater offense, it is necessary to commit

the lesser. See United States v. Eisenberg, 469 F.2d 156, 162

(8th Cir. 1972), cert. denied, 410 U.S. 992 (1973). Mani-

festly, there are many ways to misapply funds, in violation of

§ 656, without consenting to a political contribution in violation

of § 610. It is thus possible to commit the greater offense

* Appellant makes much of the government’s assertion that it

will introduce at trial on Count I the same evidence used at the trial

of Count II. The question before us is not, however, what evidence

is to be used at trial. Rather, the question is what evidence is re-

quired to convict under the two statutes.

a en Danan mremamestl

— A-23 —

without committing the lesser, and the lesser included offense

doctrine is inapplicable.

The two counts, then, do not charge the same offense. Nor is

the offense charged in Couat I a lesser included offense of the

offense charged in Count II. This aspect of the double jeopardy

prohibition is thus inapplicable, and appellant's point is with-

out merit.

Ill

Appellant’s second argument is based, not on pure double

jeopardy, but on the “collateral estoppel” principle of Ashe v

Swenson, 397 U.S. 436 (1970). The Supreme Court there held

that, where an issue of ultimate fact has been determined by a

final judgment in a criminal case, to relitigate the issue in a

subsequent trial for a different offense violates the double

jeopardy prohibition. Appellant contends that the trial judge,

in commenting on the weight of the government's evidence,

decided certain factual issues in appellant's favor which would

be crucial to a prosecution on Count I.

The statements referred to were made from the bench at the

close of the evidence at the trial on Count II.!° They lack the

clarity which could be found in written findings of fact. It is

therefore difficult to determine what factual issues the trial judge

intended to resolve by the statements.

As shown above, in ruling on the motion to dismiss which

is now before us, the trial judge found that his disposition of

Count II had not foreclosed any issues essential to the trial of

Count I. We are not bound by this finding. Rather, we must

'© Appellant did not request formal findings of fact, and none were

made. See Fed. R. Crim. P. 23(c). The ‘find referred to Rese

weve end canmueate mate to Ge Gapasiion of Oo sxntion Sor tety

ment of acquittal. Because none forecloses an issue essential to _s

I, it is not necessary to consider whether “findings” of this kind

can bring the Ashe v. Swenson rule into play.

= Ot

make our own examination of the record, to see what factual

issues were resolved in connection with the motion for judgment

of acquittal, and which of these issues, if any, would be ma-

terial to a § 610 prosecution. We note first that the one issue

on which the trial court unquestionably found a failure of proof

is not essential to a § 610 proceeding. The court ruled that the

government had failed to prove that appellant acted for the pur-

pose of injuring and defrauding his bank. As observed, this is

not an element of the § 610 offense, so that this finding does not

preclude conviction under that statute.

Appellant relies on certain other “findings” of the trial court

to support his Ashe v. Swenson claim. He points, first, to the

trial court's assertion that the evidence did not support a finding

that appellant acted “wilfully.” It is not at all clear what the

trial judge meant by his use of the word “wilful.” He might

have meant to say that appellant did not act for the specific

purpose of violating § 656, or to assert again that appellant

did not act to injure the bank. If so, this “finding” of lack of

wilfulness is irrelevant to the § 610 charge.

Similarly, the court found that “there was an equal failure

of proof on the part of the government that the purpose of the

defendant's action was the making of an ‘illegal’ political con-

tribution.” This comment was made in the midst of a discus-

sion of the requirement that a § 656 misapplication necessarily

involve a conversion. The court emphasized the word “illegal.”

It might well have meant to say, not that the government failed

to prove the political contribution, but that it failed to prove that

the contribution resulted from an unauthorized, i.e., “illegal,”

conversion of bank funds. Conviction under § 610 does not re-

quire that the contribution of bank funds be unauthorized. If

the sentence quoted is given this meaning, prosecution under

$ 610 remains possible.

Appellant asserts, finally, that the court found that the govern-

ment failed to prove that appellant was “tied” to the contribution

— A-25 —

in question. The record shows that the court did not in fact so

find. Although it indicated that there was “some difficulty” in

tying the alleged contribution to appellant in light of certain

documentary evidence, it did not expressly rule on the question.

In the absence of a clearer declaration by the trial judge, we

cannot say that the issue of appellant's participation in the con-

tribution was resolved.

In any Ashe v. Swenson case, the burden is on the defendant

to show that the verdict or the findings of the court in the prior

case necessarily foreclosed an issue essential to the subsequent

prosecution. See United States v. Gagliardo, 501 F.2d 68, 70

(2d Cir. 1974). Appellant has not sustained this burden here.

None of the statements referred to by appellant unambiguously

forecloses issues essential to Count I.

Appellant has thus not shown that the prosecution of Count

I is barred by the trial court’s disposition of Count II, either

under traditional double jeopardy standards or under the rule of

Ashe v. Swenson. The trial court therefore did not err in deny-

ing the mction to dismiss.

The government has indicated that it will present at the trial

of Count I the same evidence it produced at the trial of Count

II. We assume that the trial court will provide both parties the

opportunity to present additional evidence if they choose to

do so.

The petition for writ of mandamus is denied. The order of the

district court denying appellant’s motion to dismiss is affirmed.

STEPHENSON, CiRCUIT JUDGE, CONCURRING AND DISSENTING.

Assuming arguendo that the order of the district court deny-

ing appellant’s motion to dismiss Count I is an appealable order

I concur with parts II and III of the majority opinion.

—_—S

However, | respectfully dissent from part I of the majority

opinion because it is my view that the order denying dismissal

of Count I is not a final decision appealable under 28 U.S.C.

§ 1291. I am in accord with the views expressed in United

States v. Bailey, 512 F.2d 833 (Sth Cir. 1975). Cf. United

States v. Nixon, 418 U.S. 683, 690-92 (1974).

I would deny the petition for writ of mandamus for the rea-

son that exceptional circumstances justifying invocation of this

extraordinary remedy do not exist. Will v. United States, 389

U.S. 90, 95 (1967). -

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

See We te

= £37 —

APPENDIX C

OPINION

United States Court of Appeals

For the Eighth Circuit

September Term, 1975

75-1568 )

United States of America,

Appellee,

vs.

Alexander J. Barket, Appeal from the

Appellant. | United States Dis-

» trict Court for the

75-1569 Western District of

Alexander J. Barket, Missouri

Petitioner,

vs.

The Honorable John Oliver, etc., et al.,

Respondents. |

Petition for Writ of Mandamus

The Court having considered petition for rehearing en banc

filed by counsel for appellant-petitioner Alexander J. Barket and,

being fully advised in the premises, it is ordered that the petition

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

February 9, 1976

— A-28 —

APPENDIX D

TITLE 18 U.S.C. § 610

Contributions or Expenditures by National Banks,

Corporations or Labor Organizations:

It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make a

contribution or expenditure in connection with any election

to any political office, or in connection with any primary elec-

tion or political convention or caucus held to select candidates

for any political office, or for any corporation whatever, or

any labor organization to make a contribution or expenditure

in connection with any election at which Presidential and Vice

Presidential electors or a Senator or Representative in, or a

Delegate or Resident Commissioner to Congress are to be

voted for, or in connection with an, primary election or po-

litical convention or caucus held to select candidates for any

of the foregoing offices, or for any candidate, political com-

mittee, or other person to accept or receive any contribution

prohibited by this section.

Every corporation or labor organization which makes any

contribution or expenditure in violation of this section shall

be fined not more than $5,000; and every officer or director

of any corporation, or officer of any labor organization, who

consents to any contribution or expenditure by the corpora-

tion or labor organization, as the case may be, and any person

who accepts or receives any contribution, in violation of this

section, shall be fined not more than $1,000 or imprisoned

not more than one year, or both; and if the violation was will-

ful, shall be fined not more than $10,000 or imprisoned not

more than two years, or both. . . .

— A-29 —

TITLE 18 U.S.C. § 656

Theft, Embezzlement, or Misapplication by

Bank Officer or Employee:

Whoever, being an officer, director, agent or employee of,

or connected in any capacity with any Federal Reserve banh.,

member bank, national bank or insured bank, or a receiver

of a national bank, or any agent or employee of the receiver,

or a Federal Reserve Agent, or an agent or employee of a

Federal Reserve Agent or of the Board of Governors of the

Federal Reserve System, embezzles, abstracts, purloins or will-

fully misapplies any of the moneys, funds or credits of such

bank or any moneys, funds, assets or securities intrusted to

the custody or care of such bank, or to the custody or care

of any such agent, officer, director, employee or receiver, shall

be fined not more than $5,000 or imprisoned not more than

five years, or both; but if the amount embezzled, abstracted,

purloined or misapplied does not exceed $100, he shall be

fined not more than $1,000 or imprisoned not more than one

year, or beth... .

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