Petition — Hutul v. United States

NOV

MICH AE!

j Supreme Court, U. &

FILED

27 1978

RODAK, JR., CLERK

No. 8-854

In the

Supreme Court of the Anited States

Octoser Term, 1978

HARRY P. HUTUL,

Plaintiff -Petitioner,

vs.

UNITED STATES OF AMERICA,

Defendant-Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Wri J. Harte

111 West Washington Street

Chicago, Illinois 60602

Tel. No. (312) 726-5015

Attorney for Plaintiff-Petitioner,

Harry P. Hutul

The Scheffer Press, Inc. (312) 263—6850

SUBJECT INDEX

PAGE

Ce BI aicclanecenioincitinssinsiniciniteneianeiiiimanial 1

I iitiadcininnsnciictnnitianincinisttniiaacnieanilian 1

I I ecscctcticeitintpitncieahcctiinpsbincnieiialiabcianntialit 2

Constitutional provisions iNVO]VEd .........ccsseseeseseseeeeeeeees 2

SD: GE GD I acts tieitenhnretinncicsiagtecincescnnieaeiens 4

Reasons for granting the Wit ..............cccccsssssssseessesseeees 7

III Sickie iiscciicenitaadccicsenishcsinsenetiniiepnidupaeandeiaeninennialnaiiael 26

Appendix A:

Opinion of the Seventh Cireuit Court of Appeals la

Appendix B:

Order of the United States District Court Dis-

i re eee Ta

List Or Cases ANp OTHER AUTHORITIES

CasEs

Abbate v. United States, 359 U.S. 187 (1959) oe 7

Ashe v. Swenson, 397 U.S. 436 (1970) voce ccsccssseeees 12

Bartkus v. Illinois, 359 U.S. 121 (1959) wou esseseeeeeees 7

Benton v. Maryland, 395 U.S. 784 (1968) .......cccssesseeeees 7

Chambers v. Mississippi, 410 U.S. 284 (1978) ............ 23

Elkins v. United States, 364 U.S. 206 (1964) ............ 15

Glasser v. United States, 315 U.S. 60 (1941) w..... 19

Green v. United States, 355 U.S. 184 (1957) woe 16

Murphy v. Waterfront Commission, 378 U.S. 52 (1964) 15

ii

PAGE

North Carolina v. Pearce, 395 U.S. 711 (1969) ........ 8

Palko v. Connecticut, 302 U.S. 319 (1937) w.ceeeesees 12

Pointer v. Texas, 380 U.S. 400 (1965) wo. eseseeeseeee 24

State v. Fletcher, 22 Ohio App. 2d 83, 259 N.E. 2d

EE IE | MII, IIE. dctasenisadiesgaiktonsedicnbasnuiiens vedeciioedaanse 7

Smith v. Illinois, 390 U.S. 129 (1968) wn.cccesseees 24

Somerville v, Illinois, 410 U.S. 458 (1973) ...cccccsseeees 9

United States v. Ball, 163 U.S. 662 (1896) wo. 9

United States v. Cerrone, 452 F.2d 274 (7th Cir.

MUUTUIET salssdiiiinocthancdgrecuctiicancsdcobsanshnsestioehnncthiabiieneerthiiaenasitiaimnaucane 18

United States v. Furlong, 18 U.S. 86, 5 Wheat. 184

IE .“Gisesleceissossiocatusciinasinidcsdbiiuiohetelejieesndipbeieabuinnsnabesenaianine 11

United States v. Hutul, 416 F. 2d 607 (7th Cir. 1969) .. 14

United States v. Lanza, 260 U.S. 377 (1922) ............ 11

United States v. Spock, 416 F. 2d 165 (1st Cir. 1969) .. 19

United States v. Wheeler, 98 S. Ct. 1079 (1978) .........0 7

Waller v. Florida, 397 U.S. 387 (1970) .......ssccccsssoseseees 12

CONSTITUTIONAL PROVISIONS

Fifth Amendment to the Constitution of the United

States (Double Jeopardy and Due Process Clauses)

cae banshee iets tdigsis lances cabana aasbiabanaaaiamcucaba idle 2

Sixth Amendment to the Constitution of the United

States (Confrontation and Jury Trial Clauses) ........ 3

Fourteenth Amendment to the Constitution of the

United States (Due Process Clauses) .......ccccccesseseeseees 8

OTHER AUTHORITIES

ALI, Model Penal Code, See. 1.10 w.sccccsscsesesesesseres 14

Brandt, “Overruling Bartkus and Abbate: A New

Standard for Double Jeopardy,” 11 Washburne

sa: a TIED aciaiciaies hasasestecesteiyspaesseanueabatiaansicdiiaiamaaiaaas 10

iii

PAGE

Fisher, “Double Jeopardy, Two Sovereigns, and the

Intruding Constitution,” 28 U. Chi. L. Rev. 591

SU a erashctsnnscsecsinasttacelaciliaesenesuastuveesinitentaninedignevenacatiiansibiare

Note, “Double Prosecutions by State and Federal

Governments: Another Exercise in Federalism,” 80

ik Ns RUE) ETINE D Saasstitnnssncaishvcsvennastsbelienssnsisies

Note, “Double Jeopardy and Dual Sovereignty: The

Impact of Benton v. Maryland on successive prose-

cutions for the same offense by State and Federal

Governments,” 46 Ind. L. J. 413 (1971) veces

Franck, “An International Lawyer Looks at The

Bartkus Rule,” 34 N.Y. U.L. Rev. 1096 (1959) ........

Grant, “Successive Prosecutions by State and Nation:

Common Law and British Empire Companies,” 4

Sat aks a TG EE, Wehidicidesacpidlareaenrininiinns

Pontikes, “Dual Sovereignty and Double Jeopardy: A

Critique of Bartkus v. Illinois and Abbate v. United

States,’ 14 West Res. L. Rev. 700 (1968) ...........

Schaefer, “Unresolved Issues In The Law of Double

Jeopardy: Waller and Ashe,” 58 Cal. L. Rev. 391

SETI scaesakehsisshaeasisapuniannusdlelolabalabsesincelarmestieionveiseeeinlonsubnision’s

10

10

12

10

10

10

In THE

SUPREME COURT OF THE UNITED STATES

Octroser Term, 1978

No.

HARRY P. HUTUL,

Plaintiff -Petitioner,

US.

UNITED STATES OF AMERICA,

Defendant-Respondent.

PETITION FOR WRIT Oc CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Petitioner respectfully prays that a Writ of Certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered in this case

on August 28, 1978.

Opinion Below

The Opinion of the Seventh Circuit is reproduced in

Appendix ‘‘A’’ infra. The Order of the trial court is

reproduced as Appendix ‘‘B’’. This Opinion and Order

is not reported.

Jurisdiction

The judgment of the Seventh Circuit was entered on

August 28, 1978. No petition for rehearing was filed,

pas, ee

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. 1254.

Questions Presented For Review

1. Whether Petitioner was twice placed in jeopardy in

violation of the Fifth Amendment when he was pro-

secuted in Federal Court after a prior acquittal in

the State Court after trial for the same offense.

2. Whether the trial court’s mid-trial instruction to the

jury that all of the evidence was admitted against all

of the defendants was tantamount to a directed ver-

dict of guilty and deprived petitioner of his Sixth

Amendment right to trial by jury.

3. Whether the trial court erroneously permitted intro-

duction of statements impeaching two government wit-

nesses and thereby deprived petitioner of his con-

stitutional right to present a defense.

4. Whether petitioner was denied his Sixth Amendment

right to confront the witnesses against him when the

court admitted certain exhibits prepared by persons

who did not testify and could not be cross-examined.

Constitutional Provisions Involved

The Fifth Amendment to the Constitution of the United

States provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger,

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

sas

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

The Sixth Amendment to the Constitution of the United

States provides:

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.

ar Woe

STATEMENT OF THE CASE

This action was brought by petitioner Harry Hutul

pursuant to Sec. 2255, Titl 28, U.S.C., to set aside a

judgment of conviction and sentence entered by the United

States District Court for the Northern District of Llinois

in case No. 64 CR 408 on August 12, 1966. On motion

of the government, the petition was dismissed for failure

to state a claim upon which relief could be granted.

Petitioner appealed from the order dismissing the peti-

tion. The Seventh Circuit affirmed the trial court’s or-

der.

Petitioner Hutul 1s a former member of the Illinois

Bar who during 1959 represented several individuals in

claims for personal injury and lost wages filed as the

result of various automobile accidents which were later

alleged in both state and federal prosecutions to have been

part of a scheme to defraud various insurance companies.

Petitioner was first charged by the Cook County, Illinois,

grand jury in Indictment 61-2942 with obtaining money

under false pretenses, operating a confidence game and

conspiracy to defraud, in violation of Illinois law. Peti-

tioner was acquitted after trial by jury resulted in a

verdict of not guilty on July 3, 1962. (R. 1, pp. 1-6)

Subsequently, petitioner and several other individuals

were charged by a federal grand jury in the Northern

District of Illinois in Case No. 64 CR 408 with conspiracy

to defraud insurance companies (18 U.S.C. See. 371) and

with the substantive offenses of use of the mails in a

scheme to defraud the same insurance companies by

knowingly making false pretenses and representations.

(18 U.S.C. $1341). As stated in the petition for relief

are tes

pursuant to §2255, Title 28, U.S.C., the evidence and

testimony in the prior state trial which resulted in an

acquittal was essentially the same as in the subsequent

federal trial although additional witnesses were called

in the federal trial. The evidence on each conspiracy

charge covered essentially the same period of time and

involved the same alleged scheme to defraud. Many

of the exhibits and witnesses were the same at both trials.

In fact all of the witnesses utilized in the federal court

case were listed in the state court case. Most of the ac-

cidents relied upon in the state trial were also relied

upon in the federal trial, although more details were

also relied upon in the federal trial, although more details

were testified to in the federal trial. Each case required

proof of the same specific intent to defraud. (R. 1, pp.

1-6) (These facts well-pleaded were admitted by the

government’s motion to dismiss the petition for relief

under $2255.)

After trial by jury during May and June of 1966, peti-

tioner was found guilty of conspiracy to defraud (Count

16) and guilty of nine separate substantive counts based

upon the six accidents testified to at the trial. (Further

evidentiary details are stated in United States v. Hutul,

416 F. 2d 607 (7th Cir. 1969)). Petitioner was sentenced

to the custody of the Attorney General of the United

States for concurrent terms of 5 years on each count.

On appeal to the Seventh Circuit, petitioner argued

that the government was estopped from prosecuting him

because he had previously been prosecuted by the State

of Illinois on the same set of facts and that the prior

acquittal on state charges barred the subsequent federal

prosecution by reason of principles of res judicata and

collateral estoppel. In rejecting this argument, the court

held that the principles of collateral estoppel and res

judicata did not apply because the Federal government

a ie

was neither the same nor in privity with the State of

Illinois, and therefore those principles “do not provide a

substitute for the defense of double jeopardy.” (416 F.

2d 607, 626). Although petitioner had asserted his reliance

in the double jeopardy clause in his reply brief, the court

stated in a footnote that:

“Defendant Hutul does not claim that his Fifth

Amendment right against double jeopardy was abridg-

ed. Indeed, it is well established that a federal gov-

ernment is not barred by the double jeopardy clause

from prosecuting a person for the same acts for which

he was previously acquitted in a state court. Bartkus

v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L, Ed. 2d

684 (1959); Abbate v. United States, 259 U.S. 187,

79 S. Ct. 666, 3 L. Ed. 2d 729 (1959)’’ (416 F.2d 607,

26 fn. 35).

The Seventh Circuit affirmed petitioner’s conviction on

September 9, 1969 (United States v, Hutul, 416 F. 2d 607

(7th Cir. 1969). A petition for certiorari was denied on

January 12, 1970. 396 U.S. 1012 (1970) (petition for re-

hearing denied, May 4, 1970, 397 U.S. 1081).

Thereafter, while still serving the sentence imposed by

the United States District Court, petitioner filed a mo-

tion to vacate the conviction pursuant to $2255, Title 28,

U.S.C. In his petition it was alleged, inter alia, that pe-

titioner’s trial and conviction by federal authorities on

charges of conspiracy and mail fraud by false pretenses

and operation of a confidence game, violated the Fifth

Amendment prohibition against being put twice in jeop-

ardy for the same offense. On motion of the government,

the petition was dismissed for failure to state a claim

upon which relief could be granted.

Petitioner’s notice of appeal was filed February 17,

1976 (C. 30). The Seventh Circuit affirmed the trial court’s

order on August 28, 1978,

a oo

REASONS FOR GRANTING THE WRIT

I.

PETITIONER WAS PLACED TWICE IN JEOPARDY

WHEN HE WAS PROSECUTED IN THE FEDERAL

COURT AFTER A PRIOR ACQUITTAL IN THE STATE

COURT FOLLOWING A TRIAL FOR THE SAME

OFFENSE.

Petitioner respectfully submits that his subsequent trial

and conviction in the federal courts after acquittal in

the state courts on essentially the same charge of fraud

and conspiracy to defraud violated the Fifth Amendment

prohibition against double jeopardy which has been recog-

nized as fundamental to our concept of ordered liberty.

Benton v. Maryland, 395 U.S. 784 (1969).

Petitioner is of course aware that successive state and

federal prosecutions have been sanctioned under the “dual

sovereignty” theory of double jeopardy advanced by the

Supreme Court in United States v. Wheeler, ...... )

98 S. Ct. 1079 (1978); Bartkus v. Illinois, 359 U.S. 121

(1959); and Abbate v. United States, 359 U.S. 187 (1959),

but contends that as the result of other decisions, the ex-

tension of the doctrine has been severely questioned. (See,

State v. Fletcher, 22 Ohio App. 2d 83, 259 N.E, 2d 146,

152 (Ohio App. 1970). And although we recognize that —

Wheeler, Barikus, and Abbate remain the law, we unhesi-

tatingly urge this Court to hold that the dual sovereignty

doctrine no longer permits a federal prosecution after a

state trial and acquittal for the same offense.

As an initial premise we wish to point out that Wheeler,

Bartkus, nor Abbate involved the precise question here

presented. In Bartkus, defendant had been acquitted in

the federal court and was subsequently brought to trial

in the state court. Since the double jeopardy clause had

not yet been made applicable to the states, the question

os

presented was solely whether a second prosecution in the

State court after acquittal in the federal court violated

the Due Process Clause of the Fourteenth Amendment

and the Court held that there was no due process viola-

tion. In Abbate, the question was whether a prior convic-

tion in a state court precluded a subsequent prosecution

in the federal court for the same offense and the Court

held that a subsequent federal prosecution was not pro-

hibited by the Double Jeopardy Clause.

This case presents the reverse of the factual situation

in Bartkus. Instead of a prior federal acquittal followed

by a state prosecution, this case presents the situation

of a prior acquittal in the state courts followed by a

subsequent prosecution in the federal courts, The impor-

tance of this distinction, of course, is that the precise

issue which arises in this case under the Double Jeopardy

Clause was not present in Bartkus. Although Bartkus

likewise involved a prior acquittal rather than a prior

conviction, Bartkus was decided under the Due Process

Clause and not under the Fifth Amendment. And since

the Abbate case, which was decided under the Fifth Amend-

ment, involved not a prior acquittal, but a prior convie-

tion, the precise issue here presented has not been de-

cided under the Fifth Amendment Double Jeopardy Clause.

In Wheeler, the defendant had been convicted of a lesser

erime (contributing to the delinquency of a minor) in the

tribal court, and was therefore indicted in the federal

district court for statutory rape arising out of the same

incident,

The distinction we urge between a prior acquittal and

a prior conviction is a reasoned distinction not without

support. In North Carolina v, Pearce, 395 U.S. 711 (1969),

the Court observed that the Double Jeopardy Clause has

been said to consist of three separate constitutional pro-

tections :

—

“Tt protects against a second prosecution for the same

offense after acquittal. It protects against a second

prosecution for the same offense after conviction.

And it protects against multiple punishment for the

same offense.” (895 U.S, 711, 717)

It is the first protection that petitioner Hutul seeks and

it has in the main been recognized as the most important

of the three. As stated by Justice Black in his dissenting

opinion in Bartkus:

“One may, I think, infer from the fewness of the cases

that retrials after acquittal have been spooug? tp par-

ticularly obnoxious, worse, even, in the eyes 0 many,

than retrials after convictions.’’ (359 U.S. 121, 162).

Further support for the contention that a prior acquit-

tal should afford a greater protection under the Double

Jeopardy Clause than the other two categories is found

in Somerville v. Illinois, 410 U.S. 458 (1973). In Somer-

ville, the Court held that the existence of a void indict-

ment created a manifest necessity for declaration of a

mistrial over a defense objection and that respondent

there was not placed twice in jeopardy when he was sub-

sequently put to trial on a valid indictment charging the

same offense. The Court distinguished United States v.

Ball, 163 U.S. 662 (1896), when the Court held that a

prior acquittal, even if rendered on a fatally defective

indictment, barred subsequent prosecution of the acquitted

defendant on the grounds that Ball involved a case which

had gone to verdict and resulted in an acquittal.

It obviously follows that a person who has been once

acquitted is afforded greater protection under the Double

Jeopardy Clause than one who has been merely put to

trial but the trial did not go to verdict. A similar result

should follow here where petitioner was previously ac-

quitted.

—_ —

Petitioner’s argument gains in strength from the erosion

of the dual sovereignty concept upon which Bartkus and

Abbate were decided from the initial weakness of the

concept.

As noted by the renowned Justice Walter V. Schaefer

of the Illinois Supreme Court, both Bartkus and Abbate

have been subjected to “severe criticism by judges and

legal scholars as illogical and as a violation of the policy

if not the letter of the double jeopardy clause.” [Schaefer,

“Unresolved Issues in the Law of Double Jeopardy: Waller

and Ashe,” 58 Cal. L. Rev. 391, 400 (1970) (hereinafter

cited as “Schaefer”)]. See also, Fischer, “Double Jeop-

pardy, Two Sovereigns and the Intruding Constitution,”

28 U. Chi. L. Rev. 591 (1961); Note, “Double Prosecu-

tion by State and Federal Governments—Another Exer-

cise in Federalism,” 80 Harv. L. Rev. 1538 (1967); Grant,

“Successive Prosecution by State and Nation: Common

Law and British Empire Companions,” 4 U.C.L.A. L. Rev.

1 (1956); Franck, “An International Lawyer Looks at

the Bartkus Rule,” 34 N.Y.U.L. Rev. 1096 (1959).

In a well reasoned article, a Chicago lawyer, George

C. Pontikes, argued that the dual sovereignty concept

found no support in the common law and only limited

support in the prior decisions of the United States Su-

preme Court. Pontikes, “Dual Sovereignty and Double

Jeopardy: A Critique of Bartkus v. Illinois and Abbate

v. United States,” 14 West Res. L. Rev. 700 (1963) (here-

inafter cited “Pontikes”). Several cases were cited which

held under the English common law that an acquittal in

one jurisdiction barred a prosecution in another, (Pon-

tikes, pp. 704-706); see also, Brandt, “Overruling Bartkus

and Abbate: A New Approach for Double Jeopardy,” 11

Washburn L. J, 188 (1972) (hereinafter cited as “Brandt”).

eiieeien

And Justice Schaefer has observed that it is a “princi-

ple of international law [that] a plea of autrefois acquit

or autrefois convict will bar prosecution in one country

after a defendant has already been tried for the same

offense in another country properly exercising concurrent

jurisdiction.” Justice Schaefer went on to point out that

the United States Supreme Court itself has recognized

this principle in a case involving the exercise of concur-

rent jurisdiction over pirates on the high seas. (Schaefer,

p. 401) In the case referred to, United States v. Furlong,

18 U.S. 86, 5 Wheat. 184 (1820), the Court said:

“There can be no doubt that the plea of autrefois

acquit should be good, in any civilized state, though

resting on a prosecution instituted in the courts of

any other civilized state.” (18 U.S. at 87, 5 Wheat.

at 195).

And when the Constitution of the United States was

promulgated, the First Congress in 1789 rejected an

amendment to what later became the Fifth Amendment

to the Constitution which would have restricted the Double

Jeopardy Clause to federal offenses. [See Abbate v. United

States, 359 U.S. 187, 203-04 (1959) (dissenting opinion) ].

Pontikes suggests that it “is possible that this rejection

was based on the English common law view that succes-

sive state-federal prosecutions for the same offense should

be barred.” (Pontikes, pp. 705-706)

When Abbate was decided, the principal case relied

upon was United States v. Lanza, 260 U.S. 377 (1922),

in which the Court held that a prior state conviction did

not bar a subsequent prosecution in the federal court.

The Lanza case, however, has been criticized as badly

reasoned and resting upon dicta from cases concerned

with the issue of whether federal criminal statutes pre-

empted state court jurisdiction or the same or similar

— | a

cases as defined by state law. (See Pontikes, pp. 706-711)

Further supporting this contention is the observation

of the Court of Appeals of Ohio that:

“Reliance on United States y. Lanza, [citation

omitted] by the Bartkus majority only accentuates

doubts about the precedential foundations for the

Bartkus decision. For, although Lanza supports dual

sovereignty, successive prosecutions, it relies in turn

on the dicta in some of eleven Supreme Court pre-

cedents, in none of which is the dual sovereignty sue-

cessive prosecution doctrine essential to decision .. .”

(State v. Fletcher, 259 N.B. 2d at 151, n. 14).

Several commentators have joined the Ohio Court of

Appeals in /'letcher in concluding that the dual sovereignty

approach to Double Jeopardy has been eroded by several

subsequent decisions of the Court. See Brandt, pp. 198-

203; Note, “Double Jeopardy and the Impact of Benton

v. Maryland on Successive Prosecutions for the Same

Offense By the State and Federal Governments,” 46 Ind.

L. J. 413 (1971); Note, “Successive Prosecutions by Two

Sovereigns After Benton v. Maryland,” 66 N.W. L. Rev.

248 (1971).

The decision of Benton v. Maryland, 395 U.S. 784 (1969),

Ashe v. Swenson, 397 U.S. 486 (1970), and Waller v.

Florida, 397 U.S. 387 (1970), to name a few, eroded the

dual sovereignty concept of Bartkus and Abbate. (See

Schaefer, pp. 398-402). The Bartkus case was predicated

upon the view that the Double Jeopardy Clause of the

Fourteenth Amendment did not apply to the States, as

had been previously decided in Palko v. Connecticut, 302

U.S. 319 (1987). In Benton v. Maryland, 395 U.S. 784

(1969), the Court overruled Palko and held that the Fifth

Amendment Double Jeopardy Clause was fully applicable

to the States. The Court observed that “the fundamental

pe! ae

nature of the guarantee against double jeopardy can

hardly be doubted” (395 U.S. at 795), and referred to its

origins in Greek and Roman times along with its role

in the common law of England. The Court held that the

validity of petitioner’s conviction must be judged “not

by the watered-down standard enunciated in Palko, but

under this Court’s interpretation of the Fifth Amend-

ment Double Jeopardy provision.” (395 U.S. at 796).

The Court’s rejection of the watered-down standard of

Palko, which had of course been the basis for the Court’s

decision in Bartkus, led the Ohio Court to Appeals in

Fletcher to hold that the dual sovereignty doctrine no

longer would be relied upon to permit successive state

and federal prosecutions. In I’letcher, the Court consid-

ered two cases involving prior prosecutions under the

federal bank robbery statute. In one case, the defendant

had been acquitted, and in the other he had been con-

victed upon a plea of guilty. Both defendants were sub-

sequently indicted under a state statute for robbery of

a financial institution. In upholding pleas of former jeop-

ardy under both the state and federal constitutions, the

Court ruled principally on Benton v. Maryland for the

proposition that “the rule of Bartkus is so enfeebled as

to lack all binding force” (259 N.E. 2d at 152) and pre-

dicted that it would eventually be overruled by the Su-

preme Court. (259 N.E, 2d at 153). The Court also stated

that the Abbate decision as well was clouded by the hold-

ing of Benton that the Double Jeopardy Clause was “fun-

damental to the American scheme of justice.” (395 U.S.

707, 717) Although recognizing that Benton did not spe-

cifically address itself to the dual sovereignty doctrine,

the Court in I’letcher observed that nonetheless “Bartkus

casts a long shadow that makes it necessary to say that

the resolution of the . . . question is in little doubt.” (259

N.E, 2d at 150).

eal

Justice Schaefer agreed that after Benton the dual

sovereignty doctrine has a dubious future:

“The close division of the Supreme Court in Bartkus

and Abblate, coupled with the subsequent decision in

Benton v. Maryland, which extended the protection

against double jeopardy state court actions, requires

us to anticipate that the two sovereignties rule may

be abandoned.’’ (Schaefer, p. 402),

The conclusion that the Double Jeopardy Clause is now

so fundamental that successive state-federal prosecutions

should be restricted where the first trial ends in an ac-

quittal finds support in other areas as well. The state of

Illinois and at least 15 other states have adopted legisla-

tion prohibiting prosecutions of a person in a state court

who has already been prosecuted in a federal court for

the same offense. (See Brandt, p. 198). The Model Penal

Code has a provision barring successive prosecutions in

different jurisdictions where the offenses are identical,

require the same proof and are from the same transac-

tions. (ALI, Model Penal Code, Sec. 1.10) And the At-

torney General of the United States has announced a

policy limiting successive state-federal prosecutions and

requiring prosecutors to seek permission from the De-

partment of Justice before proceeding to try a person

who has already been prosecuted for the same offense in

the State courts—a policy which was flagrantly ignored

in this case. (See United States v. Hutul, 416 F. 2d 607,

626)

The dual sovereignty rationale of Bartkus and Abbate

has been undermined by several other recent cases. In

Waller v. Florida, 397 U.S, 387 (1970), the Court rejected

the dual sovereignty rationale in the context of successive

municipal and state prosecutions. The case prompted Jus-

tice Schaefer to ask “whether the concept of dual sover-

ee

—_

a ee

eignty is not an anachronism in the state-federal context.”

(Schaefer, p. 398).

Two other Supreme Court cases decided after Bartkus

and Abbate were cited by Justice Schaefer as represent-

ing “a departure from the dual sovereignty doctrine,”

(Schaefer, p. 401) In Murphy v. Waterfront Commassion,

378 U.S. 52 (1964), the Court held that a state could not

compel a witness to give testimony which could be used

against him in a federal prosecution.

Justice Schaefer observed that “in so holding the Court

rejected the contention that the state and federal govern-

ments were ‘separate and distinct sovereignties, acting

separately and independently of each other, within their

respective spheres,’ and that it would be an intolerable

interference if one sovereign would immunize a witness

against the use of testimony by another.” (Schaefer, p.

401) (footnote omitted). Schaefer pointed out that the

Court in Murphy observed that we are in an age of “co-

operative federalism” where “the federal and state gov-

ernments are waging a united front against many types

of criminal activity.” (378 U.S. at 55-56) The existence

of the united front, of course, undermines the idea thought

important in Abbate that federal prosecutions would be

hindered by application of the Double Jeopardy Clause

to successive state-federal prosecutions.

Justice Schaefer also cited Elkims vy. United States, 364

U.S. 206 (1960), in which the Court overturned the “silver

platter” doctrine which permitted use in a federal court

of evidence obtained in violation of the Fourth Amend-

ment by state law enforcement officers. After observing

that the silver platter doctrine “also had its underpinnings

in the dual sovereignty theory,” Schaefer quoted Justice

Stewart’s recognition of the “entirely commendable prac-

tice of state and federal agents to cooperate with each

ot tins

other in the investigation and detection of criminal ac-

tivity.”

Justice Stewart also emphasized that from defendant’s

point of view ‘‘it matters not whether his constitutional

right has been invaded by a federal agent or a state

officer.’’ (364 U.S. 206, 215) This latter observation is

particularly significant in view of the dissenting opinion

in Bartkus that: “If double punishment is what is feared,

it hurts no less for two sovereigns to inflict than for one.”

(364 U.S. at 154) (Black, J. dissenting)

It is, of course, obvious that from petitioner Hutul’s

point of view, he was in fact placed twice in jeopardy by

the successive prosecutions. The rationale of the Bartkus-

Abbate decision were further undermined by the Court’s

recognition in Ashe v. Swenson, 397 U.S. 436 (1970) of

the importance of a prior acquittal. In Ashe, defendant

invoked the doctrine of collateral estoppel to preclude

successive prosecutions for robbery of several patrons of

a poker game. After having been acquitted of the rob-

bery of one of the participants in the poker game, the

Court held Ashe could not constitutionally be tried for

the robbery of another participant after the state refined

and strengthened its case. The Court held that the federal

rule of collateral estoppel was part of the Double Jeopardy

Clause which ‘‘protects a man who has been acquitted

from having to ‘run the gauntlet’ a second time.’’ (397

U.S. at 446)

Ashe relied upon Green v. United States, 355 U.S, 184

(1957), where the Court held that a prior acquittal bar-

red a subsequent prosecution for the same offense. In

Green, the Court made the frequently-quoted observation

that:

—

‘¢ . . the state with all its resources and powers

should not be allowed to make repeated attempts to

convict an individual for an alleged offense, thereby

subjecting him to embarassment, expense and or-

deal and compelling him to live in a continued state of

anxiety and insecurity, as well as enhancing the pos-

sibility that even though innocent he may be found

guilty.” (355 U.S. 184, 187-188)

The Court in Ashe concluded that ‘‘after a jury had

determined by its verdict that petitioner was not one of

the robbers, the state could [not] constitutionally hale

him before a new jury to litigate that case again.” (397

U.S. 4386, 446).

The Seventh Cireuit felt compelled to deny relief on

the strength of United States v. Wheeler, supra, The

Court ignored the distinction between the prior-acquittal-

and-subsequent-conviction cases, deeming it ‘‘a difference

without legal significance.’’ We disagree. The difference

lies in the fact that a failure to impose a bar to sub-

sequent federa! prosecution after acquittal is tantamount

to a repudiation of the state judicial system. In Wheeler,

the entire thrust of the Court’s opinion is to uplift the

Tribal Court.

Petitioner has alleged that the state court jury by its

verdict of not guilty determined that petitioner did not

have the specific intent to defraud the insurance companies

referred to in both cases. In view of the increased pro-

tection the Double Jeopardy Clause now affords, it is

simply inconceivable for the federal government to hale

him before a different jury to relitigate that ultimate issue

again. Accordingly, it was error for the Seventh Circuit

to affirm the district court’s order dismissing the petition

for failure to state a claim upon which relief could be

granted, and the order of the district court should be

—

reversed and a hearing should be held at which petitioner

can prove the allegations of the petition. In this context

we note that under Ashe, the district court will have to

examine the record of the prior proceeding and determine

whether a jury could have grounded its verdict on an issue

other than that which petitioner sought to foreclose from

consideration in the subsequent proceedings, (3897 U.S. at

444) To that end, the district court should be ordered to

hold a hearing on the allegations of the petition,

Il,

THE TRIAL COURT'S MID-TRIAL INSTRUCTION TO

THE JURY THAT ALL OF THE EVIDENCE WAS

ADMITTED AGAINST ALL THE DEFENDANTS WAS

TANTAMOUNT TO A DIRECTED VERDICT OF

GUILTY AND DEPRIVED PETITIONER OF HIS

SIXTH AMENDMENT RIGHT TO TRIAL BY JURY.

Petitioner respectfully submits that the trial court’s

instruction to the jury, given on motion of the govern-

ment at the close of the government’s case, that the

evidence previously admitted against individual defen-

dants was not admitted against all defendants was tan-

tamount to a directed verdict of guilty and invaded the

province of the jury and effectively deprived petitioner

of his Sixth Amendment right to trial by jury.

Throughout the government’s case, much evidence was

received as to individual defendants only and was not

and could not be admitted against any other defendant

unless it was shown that a conspiracy existed and that the

other defendant became a member of the conspiracy, The

acts and declarations of co-conspirators, of course, can-

not be admitted against any absent defendant unless there

is ‘‘independent evidence establishing his participation in

the conspiracy,’’ United States v. Cerrone, 452 F, 2d

—

274, 283 (7th Cir. 1971). A classic statement of the law

in found in Glasser v. United States, 315 U.S. 60 (1941),

where the Court, speaking of hearsay declarations of an

alleged co-conspirator, said;

‘*However, such declarations are admissible over

the objections of an alleged co-conspirator, who was

not present when they were made, only if there 1s

proof aliunde that he is connected with the con-

spiracy. . . Otherwise, hearsay would lift itself by

its own’’ bootstraps to the level of competent evi-

dence, (Glasser v. United States, 315 U.S. 60, 74-75).

The same principle applies to acts of alleged co-conspira-

tors.

It is for the jury to determine whether or not each in-

dividual defendant joined the conspiracy, for if he joined

the conspiracy, he is guilty, The case is over, And if it is

the law that the acts and declarations of alleged co-con-

spirators are not admissible against another alleged con-

spirator unless it is shown by independent evidence that he

joined the conspiracy, then for the trial court suddenly

to tell the jury that the evidence is now admitted against

all defendants is to tell the jury that a conspiracy has

been proven, And since the charge is conspiracy, the

court has in effect invaded the province of the jury and

directed a verdict of guilty,

The Sixth Amendment guarantees to each defendant

in a criminal case the right to trial by jury. Unlike the

practice in civil cases, ‘*[i]n a criminal case, a court may

not order the jury to retnrn a verdict of guilty, no

matter how overwhelming the evidence of guilt.’’ (United

States v. Spock, 416 F. 2d 165, 180 (1st Cir, 1969)),

These rules were violated in this case when, at the

close of the government’s case, the court, over defense

objections, granted the government’s motion to admit

— 20 —

all the evidence against all the defendants. (Tr. 1879)

When the court later instructed the jury that this was

proper when a conspiracy has been shown to exist and

and that the defendants are shown to be involved in the

conspiracy (Tr, 2995-96), it, of course, became apparent

to the jury that the court had already determined that a

conspiracy existed and that defendants had joined the

conspiracy,

By granting the government’s motion to admit all the

evidence against all the defendants, the court directed

the verdict of the jury on the factual issue of whether a

conspiracy existed and whether the defendants were in-

volved in that conspiracy, without question, reservation

or doubt. The jury was told by the court that a con-

spiracy did exist, in fact, and that all of the defendants

were involved in that conspiracy by admitting in all the

evidence against all of the defendants prior to their

instructions and the arguments of counsel, There was no

decision left for the jury on those issues, By its action

in this regard, petitioner submits that the court directed

a verdict on all remaining issues or counts, too, Since the

court declared that the conspiracy to devise a scheme

and artifive to defraud by use of the U. S. Mails and that

all the defendants were part of the conspiracy, obviously

there was no question but that they all devised a scheme

and artifice to defraud, likewise, as part and parcel of their

conspiracy to do so,

It is no answer that the court later instructed the jury

on the question of conspiracy prior to the time the jury

returned to consider its verdict. The instructions given

were confusing and contradictory, Although the jury was

told that it could consider the statements and acts of co-

defendants only if it first found that a conspiracy existed,

and that a particular defendant joined the conspiracy,

—21—.

this instruction was rendered a nullity by the court’s

earlier instruction that all of the evidence was to be ad-

mitted against all of the defendants. In view of the earlier

instruction, the jury would well conclude that the court

had already determined that a conspiracy existed and

that all of the defendants had joined the conspiracy, The

jury was not able to follow the confusing instructions and

was not able to separate the evidence, as demonstrated

by the fact that petitioner was found guilty upon the

charge which was not even submitted to the jury (Count

XITT),

Since the trial court’s action in instructing the jury,

at the close of the government’s case, that all of the evi-

dence was admitted against all of the defendants, amounted

to telling the jury that a conspiracy existed and all defen-

dants had joined it, the trial court effectively directed a

verdict of and invaded the province of the jury, in vio-

lation of petitioner’s Sixth Amendment right to trial by

jury.

III,

THE TRIAL COURT ERRONEOUSLY PROHIBITED

INTRODUCTION OF STATEMENTS IMPEACHING

TWO GOVERNMENT WITNESSES AND THEREBY

DEPRIVED PETITIONER OF HIS CONSTITUTIONAL

RIGHT TO PRESENT A DEFENSE,

At trial, the witness Vaccarello, an attorney for Allstate

Insurance Company, testified that petitioner Hutul was

present when he took the deposition of a claimant who

used a false name, At trial, Vaccarello identified co-de-

fendant, Basan, as the person who claimed to be a claimant

named Schwerdlin, An insurance investigator named

Mazzone also testified that Vaccarello had identified a

photograph of Basan.

ow 29 ou

The government tendered to defense counsel, under

See. 3500, Title 12, U.S.C., a report of Mazzone for use

during cross-examination of Vaccarello. As alleged in pe-

titioner Hutul’s petition to vacate the sentence, the state-

ment was impeaching because it reported that Vaccarello

could not identify Basan.

During the trial, the statements were offered as de-

fense exhibits (Tr. 1964) and the court refused to admit

these statements (defendants exhibits 4, 4A, 4B and 24)

as impeaching evidence. Government witness Vaccarello’s

statement to Mazzone, an investigator, was recorded con-

temporaneously and in a substantially verbatim recital

of the interview, and in the alternative, was a memo and

report of that interview by that investigating “officer”,

at least. That statement (defendants exhibit 4, 4A, 4B

and 24) was in the verbatim words of Mazzone and that

statement was admissible at the very minimum to im-

peach Mazzone who was called as a Court’s witness. The

statement was admissible at the minimum as Mazzone’s

own present recollection, as recorded, at Mazzone’s in-

terview with Vaccarello. The statement, in fact, impeached

Mazzone. The statement reported that Vaccarello could

not surely identify co-defendant Basan or anyone else,

Mazzone prejured himself on the witness stand by testi-

fying that Vaccarello made positive identifications and

that perjury was erroneously precluded from the record

of the trial and from the jury by the Court’s error in re-

fusing to admit the statements into evidence, (Tr. 1965).

Although petitioner attempted to raise this issue on

direct appeal, which prompted the government to argue in

support of its motion to dismiss that petitioner was at-

tempting to relitigate this issue, the question was never

properly decided on direct appeal. The Seventh Circuit

was apparently led by the government to believe that it

=

was ruling on the question of whether the statements of

these witnesses were producible pursuant to Section 3500.

The issue, however, was not whether they were produci-

ble, but whether they were admissible in evidence to im-

peach the testimony of the witnesses Vaccarello and

Mazzone.

By raising this issue in his Section 2255 petition, peti-

tioner is not attempting to “relitigate” this question, but

is rather attempting to obtain a ruling on a question which

the court avoided in its previous decision. After persuad-

ing the Court to rule as it did, the government should not

now be permitted to take advantage of the court’s failure

properly to rule on the issue presented.

Failure of the trial court to permit introduction of the

prior statements of the witnesses infringed upon pe-

titioner’s constitutional “right to a fair opportunity to

defendant against the [government’s] accusations.” Cham-

bers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d at 308

(1973).

IV.

PETITIONER WAS DEPRIVED OF HIS SIXTH

AMENDMENT RIGHT TO CONFRONT THE WIT-

NESSES AGAINST HIM WHEN THE COURT ADMIT.

TED CERTAIN EXHIBITS PREPARED BY PERSONS

WHO DID NOT TESTIFY AND COULD NOT BE

CROSS-EXAMINED.

Petitioner respectfully submits that he was denied his

Sixth Amendment right to confront the witnesses against

him when various documents prepared by persons who

did not testify were admitted in evidence against him at

trial. It is, of course, fundamental that under the Sixth

Amendment, “The right of cross-examination is included

in the right of an accused in a ¢eriminal case to confront

=

the witness against him.” Smith v. Illinois, 390 U.S. 129

(1968); Powter v. Texas, 380 U.S. 400, 414 (1965).

Petitioner was denied his right to cross-examine the

witnesses against him by the introduction of several ex-

hibits at trial. Government’s Exhibit #91 was a sworn

interrogatory, part of a set of interrogatories (of which

there were two sets) in a civil suit in the United States

District Court in Indianapolis, which had no relationship

to any of the matters before the court. Although co-defen-

dant Robert J. Sacks, who was the plaintiff in that case,

attested to the said interrogatory and petitioner Hutul

only notarized Sacks’ signature, Sacks never testified at

the trial and could not be cross-examined about the docu-

ment.

One of the questions in the said interrogatories related

to the employees of White Vending Company, Inc. Sacks

answered all these questions under the guidance and direec-

tion of attorney Sherwood Blue, of Indianapolis, who was

the plaintiff’s counsel in that action. Question 39 related

to the number of employees at White Vending Co., Inc.,

and Sacks answered, on the advice of attorney Blue, that

there were four, since the corporation had only four people

from whose checks deductions were taken, as per the

definition of the word “employee” by the United States

Department of Labor, The independent contractors render-

ing partial services for the firm were not listed in the

Sacks answer. The employees named were persons who

had knowledge of the transactions between Sacks and the

defendant in the said Indianapolis suit.

This document was admitted into evidence in violation

of petitioner’s rights under the Confrontation Clause. Also,

the document was read to the jury by the prosecutor,

Sacks’ own words were used against him although Sacks

_—

did not take the witness stand (Tr. 1777, 1781). This

document could have only been rebutted and explained by

Sacks’ own testimony, contrary to his obligation or

desire to testify in a case where he was a defendant on

trial. The use of this Exhibit 91 was proper only for pur-

poses of impeachment of Sacks, but not for any other

purpose.

Petitioner was also denied his guaranteed right to con-

front the witnesses against him by admission into evidence

of Exhibits 26, 7B and 7C, the Secretary of State Cer-

tifications, all the Police Reports, Bank Statements, An-

swering Service Records, and the like. Petitioner had

absolutely nothing to do with the preparation of any of

these documents and of course the documents themselves

could not be cross-examined,

The only possible means of rebutting these exhibits was

for the co-defendants to take the stand and testify sub-

ject to cross-examination by petitioner. Petitioaer’s rights

under the Confrontation Clause were therefore pre-

judicially and erroneously violated by the trial court’s

admission of the aforesaid exhibits into evidence.

=

CONCLUSION

For the reason urged herein, petitioner respectfully

prays that a Writ of Certiorari be issued to review the

judgment of the United States Court of Appeals for the

Seventh Circuit, and upon review, that this Court adjudge

that the order of the district court dismissing the petition

for failure to state a claim upon which relief can be

granted be reversed with directions to hold a hearing on

the petition.

Respectfully submitted,

Wituiam J. Harte

111 West Washington Street

Chicago, Illinois 60602

Tel. No. (312) 726-5015

Attorney for Plaintiff-Petitioner,

Harry P. Hutu

— 1g —

APPENDIX A

IN THE

Unitep States Court Or APPEALS

For The Seventh Circuit

Nos. 78-1015 and 76-1197

HARRY P. HUTUL,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75 C 1179—Wituiam J. Lyneou, Judge.

Argued January 12, 1977 in No. 76-1197 and

Resubmitted in No. 78-1015 on February 8, 1978.

Decided August 28, 1978

Before Sprecuer and Tone, Circuit Judges, and East,®

Senior District Judge.

Per Curiam:

The Appeal:

Petitioner-appellant Harry P. Hutul (Hutul) appeals

the order of the District Court granting the Govern-

ment’s motion to dismiss Hutul’s petition and cause for

relief under 28 U.S.C. § 2255 without a hearing. The Dis-

trict Court’s order was entered on January 19, 1976 “for

* Honorable William G. East, Senior United States Dis-

trict Judge for the District of Oregon, sitting by designa-

tion.

a ee

failure to state a claim upon which relief can be granted,”

without further explanation.**

We note jurisdiction under 28 U.S.C. § 1291, and af-

firm.

The Facts:

Hutul is a former member of the Illinois Bar who dur-

ing 1959 represented several individuals in claims for

personal injury and lost wages filed as the result of six

automobile accidents. Later it was alleged in state and

federal prosecutions that these claims were part of a

scheme to defraud various insurance companies. Hutul

was first charged by the Cook County, Illinois, grand

jury with the crimes of obtaining money under false pre-

tenses, operating a confidence game and conspiracy to

defraud, in violation of Illinois law. He was acquitted

by a jury on July 3, 1962. Subsequently, Hutul and several

other individuals were charged by a federal grand jury

in the Northern District of Illinois with conspiracy to de-

fraud insurance companies, 18 U.S.C. § 371, and with 16

substantive offenses of mail fraud as part of a scheme

to defraud the same insurance companies, 18 U.S.C. § 1341.

A jury found Hutul guilty of the conspiracy and nine of

the substantive counts.

The evidence and testimony were essentially the same

in both the state and federal trials, although additional

witnesses were called in the federal trial to offer evidence

on essential elements of the alleged federal crimes.’

** On August 25, 1977, we dismissed the appeal for want

of a final judgment. Thereafter the District Court entered

a final judgment and TTlutul filed a new notice of appeal

and that appeal was redocketed in this Court as No. 78-

1015, On February 8, 1978, we ordered the matter sub-

mitted for disposition upon the record made in No. 76-

1197 and the new appeal No. 78-1015.

* We do not burden this opinion with a detailed account

of the evidence which was thoroughly discussed by this

Court in United States v. Hutul, 416 F.2d 607 (7th Cir.

1969), cert. denied, 396 U.S. 1012 (1970).

—

Hutul’s judgment of conviction and sentence to custody

for five years was affirmed by this Court in United States

v. Hutul, 416 F.2d 607 (7th Cir. 1969), cert. denied, 396

U.S. 1012 (1970).?

Hutul was in custody until his parole on June 14, 1972,

and was discharged on April 15, 1975. The instant § 2255

petition was filed while Hutul was in custody, and the

District Court retained jurisdiction following Hutul’s

release. Melian v. United States, 515 F.2d 73, 76 (7th

Cir. 1975).

Issues on Review:

1. Whether the issue of double jeopardy is properly

raised in Hutul’s § 2255 petition.

2. Whether Hutul was twice placed in jeopardy for

the same offense in violation of the Fifth Amendment

when he was prosecuted in federal court after a prior

acquittal in state court.

*Hutul urged on appeal that because he had been ac-

quitted after the prior state prosecution, principles of res

judicata and collateral estoppel barred the subsequent

federal prosecution on the same facts. This Court rejected

the argument stating, inter alia, that because the Federal

government was neither a party to the prior prosecution

nor in privity with the State of Illinois, the principles

of res judicata and collateral estoppel “do not provide a

substitute for the defense of double jeopardy.” (416 F.2d

at 626). Although Hutul had asserted his reliance in the

double jeopardy clause in his reply brief, this Court noted:

“Defendant Hutul does not claim thet his Fifth

Amendment right against double jeopardy was

abridged. Indeed, it is well established that a federal

government is not barred by the double jeopardy

clause from prosecuting a person for the same acts

for which he was previously acquitted in a state court.

Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.

Ed.2d 684 (1959); Abbate v. United States, 359 U.S.

187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).” 416 F.2d

at 626 n.35.

— "a

3. Whether the trial court’s mid-trial instruction to

the jury that all of the evidence was admitted against

each of the defendants was tantamount to a directed ver-

dict of guilty and deprived Hutul of his Sixth Amendment

right to trial by jury.

4. Whether the trial court erroneously prohibited in-

troduction of statements impeaching two government wit-

nesses and thereby deprived Hutul of his constitutional

right to present a defense.

5. Whether Hutul was denied his Sixth Amendment

right to confront the witnesses against him when the

Court admitted certain exhibits prepared by persons who

did not testify and could not be cross-examined.

Discussion:

Issue 1:

Davis v. United States, 417 U.S. 333, 342-47 (1974),

teaches that not only claims of constitutional violations

but also claims of violations of the “laws of the United

States” are cognizable in § 2255 proceedings when the

claimed errors were fundamental defects which inherently

result in a complete miscarriage of justice.’

We cannot say with certainty that this Court in Hutul

definitively adjudicated Hutul’s claim of double jeopardy

as distinguished from the issue of res judicata and col-

lateral estoppel. Further, we cannot say from the record

that Hutul deliberately bypassed the route of appeal on

the double jeopardy issue. Finally, due to the tenor of

the “istrict Court’s order granting the Government’s

motion to dismiss, we cannot say that the District Court

adjudicated the double jeopardy claim as opposed to the

non-cognizability of that issue in a 4 2255 proceeding.

*The Court of Appeals in Houser v. Umted States,

508 F.2d 509 (8th Cir. 1974), contains a full discussion

of what is and what is not cognizable in a § 2255 proceed-

ing in light of Davis. Also see Justice (Cirenit” Judge)

Stevens’ concurring opinion in Bachner v. United States,

517 F.2d 589, 597-99 (7th Cir. 1975).

— 5a —

Therefore, in order to definitively adjudicate the dou-

ble jeopardy claim, we assume, without deciding, that the

double jeopardy claim is cognizable under the instant

§ 2255 petition.

Issue 2:

Hutul candidly acknowledges that his claim of double

jeopardy arising from the federal prosecution is fore-

closed under the rationale of Bartkus v. Illinois, 359

U.S. 121 (1959), and Abbate v. United States, 359 U.S.

187 (1959). However, he attacks the present validity of

the holdings in those cases with two thrusts. First, he

argues that as the result of more recent decisions, ‘‘the

rule of Bartkus [and Abbate] is so enfeebled as to lack all

binding force.’’ State v. Fletcher, 22 Ohio App. 2d 83, 259

N.E.2d 146, 152 (1970). Secondly, he argues these cases

are distinguishable in that Abbate involved a prior state

court conviction followed by a federal prosecution for

the same offense, and Bartkus involved a prior federal

acquittal followed by a state conviction, but neither, as

in the instant case, involved a state court acquittal fol-

lowed by a federal prosecution and conviction.

We conclude this second premise to be untenable. The

fact that neither Bartkus nor Abbate involved a state

court acquittal followed by a federal prosecution and

conviction, as in Hutul’s situation, is a difference with-

out legal significance. United States v. Johnson, 516 F.

2d 209, 212 (8th Cir. 1976), cert. denied, 423 U.S. 859

(1975).

In support of his first premise, Hutul also cites: Ben-

ton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson,

397 U.S. 436 (1970); Waller v. Florida, 397 U.S. 387

(1970); Murphy v. Waterfront Commission, 378 U.S. 52

(1964); and Elkins v. United States, 364 U.S. 206 (1960).

The same premise based upon the same authorities was

laid to and rejected by the Courts of Appeal for the Sixth

and Eighth Circuits in Martin v. Rose, 481 F.2d 658

6th Cir. 1973), cert. denied, 414 U.S. 876 (1973); and

Johnson, respectively.

=

After the District Court considered the cause, Hutul’s

first premise received the fatal blow from United States

v. Wheeler, 98 S.Ct. 1079 (1978). Wheeler discusses

Bartkus and Abbate at length, clearly regarding them as

still correctly stating the law, and unequivocally reaf-

firms the dual sovereignty doctrine which prevents the

imposition of the double jeopardy bar.

We conclude that under the teachings of Wheeler,

Hutul’s contention of double jeopardy must be rejected,

Issue 3:

We have perused the record and conclude that the ad-

mission of the evidence as to all defendants, as well as

the District Court’s challenged jury instructions, was

free from error. United States v. Allegretti, 340 F.2d 254,

256 i. Cir. 1964), cert. denied, 381 U.S, 911 (1965); and

Hutul.

Issues 4 and 5:

We conclude each of these claims to be without merit.

See Hutul, 416 F.2d at 623-24; United States v. Neff, 525

F.2d 361, 364 (8th Cir. 1975); Houser v. United States,

508 F.2d 509, 515 and n.38; Hutul, 416 F.2d at 620 n.30;

and United States v. Isaacs, 493 F.2d 1124, 1161 (7th

Cir. 1974), cert. denied, 417 U.S. 976 (1974).

The District Court’s order granting the Government’s

motion to dismiss Hutul’s 4 2255 petition and cause is af-

firmed.

AFFIRMED.

A true Copy:

Teste:

bbb hh hh hhh hhh hahaa aah eee eee eee e ee Lees Tee eee eee eee tt tt tee

Clerk of the United States Court of

Appeals for the Seventh Circuit

a

i

SS Sa os

== 79 ==

APPENDIX B

In Tue

UNITED STATES DISTRICT COURT

For The Northern District Of [linois

Eastern Division

No, 75 C 1179

HARRY P. HUTUL,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

ORDER

This matter, having come before the Court on Peti-

tioner’s “Motion for the Entry of an Appropriate Dis-

missal Order or Other Relief”, and the Court having

found that:

1. It has jurisdiction over this matter pursuant to the

Order of the United States Court of Appeals for the

Seventh Circuit in Appeal No. 76-1179, dated August 25,

1977, a copy of which is attached hereto as Exhibit “A”.

2. This is an action brought by Petitioner pursuant

to 28 U.S.C, §2255 to set aside a judgment of conviction

and sentence entered by the United States District Court

for the Northern District of Illinois in cause No. 64 CR

408 ;

3. The late Honorable William J. Lynch, having con-

sidered memoranda filed by the parties, entered a minute

order (attached hereto as Exhibit “B”) on January 19,

1976 granting the Government’s Motion to Dismiss on the

ground that the Petition failed to state a claim upon

which relief could be granted;

4. No separate document was executed granting final

judgment in the Government’s favor against Petitioner;

an oe

5, Petitioner subsequently caused a properly perfected

appeal to be filed in the United States Court of Appeals

for the Seventh Cireuit (Appeal No. 76-1197), subsequent

to which briefs were filed, oral argument was given and

the case taken under advisement by the Court of Appeals;

6. On August 25, 1977, the United States Court of

Appeals for the Seventh Cireuit entered an order dis-

missing the appeal for the reason that the minute order

of District Court, from which the appeal was taken, was

not a final judgment entered on a separate document as

required by Fed. R. Civ. P. 58 and 79(a);

7. A per curium order was entered by the Seventh

Cireuit (Exhibit A) specifically providing that either party

may request the District Court enter an appropriate final

judgment on a separate document, and if a timely appeal

is taken from any such order, there need be no further

briefing or oral argument on appeal; and

8. Petitioner having requested that this Court enter

an appropriate final judgment adjudicating this cause;

NOW THEREFORE IT IS HEREBY ORDERED that:

(1) The Motion of the United States of America to

dismiss the herein Petition for failure to state a claim

upon which relief can be granted shall be, and the same

is hereby granted.

(2) This order shall constitute a final order of judg-

ment, set forth on a separate document, as required by

Rule 58 of the Fed. R. Civ. P. 58,

(3) Pursuant to Fed. R. Civ. P. 79(a), the Clerk of

the District Court is directed to enter in the Civil Docket

maintained with respect to this action, the appropriate

notation reflecting the herein order, including the date

that this order has been entered.

Judge

WituuM J. Harre

111 West Washington Street

Chicago, Illinois 60602

726-5015

ete ene eee.