Petition — Moeller v. Connecticut

Suaiame Court We hb

FILED :

SEP 14 1979

SPORE WORE, JR, SLERK

79-426

we

IN THE

Supreme Court of the United States

Octoser Trerm, 1979

CuHarLes D. MoELLEr,

Petitioner,

VS.

State oF CoNNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF CONNECTICUT

, Tuomas L. Napgavu, Esquire

Koskorr, Koskxorr & Breper, P.C.

55 Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

Attorney for Petitioner

TABLE OF CONTEXTS

PAGE

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UII, GE PURER oo scan asninnccvncscscscnevncccnceneenses 2

I en alas scstntnndisendcmnscsecntone 2

Constitutional Provisions Involved ..........0....2........:--00 2

I isos ee snenesnomnansnnsdiveneoues 3

Reasons For Granting the Writ 2000... eee eects 4

I. Bartkus v. Illinois and Its Dual Sovereignty Doc-

trine Have Been So Eroded as to Be Without

a __cereunaishuivnniionsanneins 5

Il. The Permission Bartkus Is Deemed to Extend Is

Taken Beyond That Which Is Necessary to Effect

as a nincoecvndnncinnionvabense 10

III. The Doctrine of Collateral Estoppel Should Also

Be Held to Bar This Prosecution ............................ 14

a alec paless al kidsainlsdlubeiods DudeUvedsenterssonnictesevesentesass 16

sa acstvnensannenece snscseceteensshesecs 17

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TaBLe or CITATIONS

Cases: PAGE

Abbate v. United States, 359 U.S. 187 ( ne 4,12

Abney v. United States, 431 U.S. 651 (1977) .................. 5

Ashe v. Swenson, 397 U.S. 436 RE eine 9,14, 15

Bartkus v. Illinois, 359 U.S. 121 (1959) passim

Benton v. Maryland, 395 U.S. 784 (1969) ............ 6, 9, 10n, 14

Commonwealth v. Cepulonis, 373 N.B.2d 1136 (1978) .... 12n

Commonwealth v. Mills, 477 Pa. 163, 286 A.2d 638

gS inane UREA nS BESTEL ORES REN EEE 12n

Elkins v. United States, 364 U.S. 206 (1960) ...... 7, 8, 10, 11n

Feldman v. United States, 322 U.S. 487 SEY cosas 8

Green v. United States, 355 U.S. 184 jae 6

Knapp v. Schweitzer, 357 U.S. 371 (1958) 0.0... 8

Lustig v. United States, 338 U.S. 74 ( SOTO 7

Malloy v. Hogan, 378 U.S. 1 (1964) oo... 9, 10n

Mapp v. Ohio, 367 U.S. 643 (1961) oo... eccecccceccoeecee-ce. 7

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) .... 16

Murphy v. Waterfront Commission, 378 U.S. 52

ERED \sisiasvincleninbcidsiehace aiisedtcamean Ae 8, 9,10, 11n

Palko v. Connecticut, 302 U.S. 319 L: SPR ee 5, 6n

People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976) 12n

Petite v. United States, 361 U.S. 529 (1960) ............. 4

Rinaldi v. United States, 434 U.S. 22 (1977 DB seetea ocae 13

Screws v. United States, 325 U.S. 91 (1945)

ili

PAGE

Smith v. United States, 423 U.S. 1303 (1975) 0.0.0.0... 10

Stevens v. Marks, 383 U.S. 234 (1966) 0000000 9

United States v. Murdock, 284 U.S. 141 (1931) ..0.0.00........ 8

United States v. Oppenheimer, 242 U.S. 85 (1916) ........ 14

Umited States v. Scott, 437 U.S. 82 (1978) 0.0.0... 7n

United States v. Wheeler, US. , 05 L.Ed 303

RONNIE? vinci ener hs Cele Lee 4

Waller v. Florida, 397 U.S. 387 (1970) 0.00.2... 10, 11n

Other Authority:

Restatement, Judgments (1942) § 83 0000 15

IN THE

Supreme Court of the United States

OctrosBEr TreRM, 1979

CuHartes D. MOELLER,

Petitioner,

vs.

State oF CoNNEOTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF CONNECTICUT

Petitioner Charles D. Moeller respectfully prays that a

writ of certiorari issue to review the judgment of the

Supreme Court of Connecticut. That judgment affirmed

the trial court’s denial of petitioner’s pre-trial motion to

dismiss the information on the grounds of Double Jeop-

ardy, Due Process and collateral estoppel.

Opinions Below

The judgment and opinion of the Supreme Court of

Connecticut, one Justice dissenting, entered in this pro-

ceeding on June 19, 1979, is reported in 40 Connecticut

Law Journal No. 51 at page 20, and is reproduced as

Appendix “A,” infra. The unreported opinion of the trial

court, denying petitioner’s motion to dismiss and dated

December 21, 1977, is reproduced as Appendix “B,” infra.

Statement cf Jurisdiction

The decision of the Supreme Court of Connecticut was

rendered on June 19, 1979. The jurisdiction of this Court

is invoked under 28 United States Code, Section 1257(3).

Questions Presented

1. Does the Double Jeopardy clause or the Fourteenth

Amendment Due Process clause permit a State to try peti-

tioner under an information, charging conspiracy to com-

mit arson, brought 15 months after his acquittal in a fed-

eral trial over 3 months in length in which he was charged

with the same conspriacy to commit the same arson?

2. Can Bartkus v. Illimois, 359 U.S. 121 (1959), despite

severe erosion of the so-called “dual sovereignty” doctrine,

continue to provide blanket constitutional permission for a

State to try a person acquitted federally for the same

offense of conspiracy based on the same conduct, when

there, is nothing to suggest that the lengthy federal trial

resulting in his acquittal did not fully vindicate any proper

prosecutorial interest of the State?

3. Does the doctrine of collateral estoppel bar criminal

relitigation by a State of facts necessarily adjudicated

earlier against the federal government regarding the same

crime and conduct, when identical prosecutorial interests

of the two “sovereignties” existed and were protected by

the first litigation?

Constitutional Provisions Involved

U.S. Const., Amend. V:

“No person shall... be subject for the same offense

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

eee, eewe ene

U.S. Const., Amend. XIV:

“...No state shall... deprive any person of life,

liberty, or property, without due process of law... .”

Statement of Facts

On May 3, 1977, petitioner was charged by the State with

conspiracy to commit arson regarding an industrial fire

on March 1, 1975.

More than 15 months prior to this State information, on

January 22, 1976, petitioner had been acquitted py a jury

in United States District Court of all of the 4 federal

charges lodged involving the same fire. (Appendix “C”

contains the federal indictment and Judgment of Acquit-

tal). Among the charges upon which petitioner was fed-

erally acquitted was an arson conspiracy count under 18

U.S.C. §371. There is no dispute that the State charges

now allege the same conspiracy to commit the same act

of arson.

The federal trial lasted in excess of 3 months. Had peti-

tioner not been acquitted, he faced a maximum term of

30 years imprisonment on the federal charges; if tried

and convicted by the State, a possible maximum of 20 years

could result.

The March, 1975 fire was investigated by both federal

and State authorities and ten men, including petitioner,

were federally indicted in April, 1975. Nine of those were

charged later that month by the State. Only petitioner was

not then charged by the State, his arrest, as noted, coming

more than 15 months after his federal acquittal.

Petitioner’s pre-trial motion to dismiss the State prose-

cution was denied by a judge of the Superior Court. An

ee ee

4

appeal to the Supreme Court of Connecticut left said result

unchanged, occasioning this petition.

Reasons for Granting the Petition

One pleading a bar to the second of successive federal-

state prosecutions for the same offense faces Bartkus v.

Illinois, 359 U.S. 121 (1959). When decided, the Double

Jeopardy clause, indeed the Fifth Amendment, did not

apply against the States. This fact no longer obtains and

the “dual sovereignty” doctrine, secondarily employed in

Bartkus, has withered to where it currently exists only i>

this context.

The prosecutorial permission Bartkus is too often still

deemed to grant is overly broad for the “sovereign” pur-

poses it sought to effect, permitting various fundamentally

egregious abuses in its name.

The Double Jeopardy clause and Due Process should bar

a State trial of one thoroughly tried and acquitted by a

federal jury where nothing suggests any “sovereign” inter-

est in the second prosecution not vindicated in the first and

where the sentences either forum could impose are not sig-

nificantly disparate.

The only recent decision arguably of the dual sovereignty-

successive prosecution stripe, suggested, in dicta that Bart-

kus retained validity. United States v. Wheeler, —— U.S.

——, 55 L.Ed.2d 303 (1978). However, the result reached

did not require employment of Bartkus, for petitioner had

not challenged it, claiming only that the same sovereign

improperly prosecuted second.

Federal prosecution generally declines the permission to

prosecute successively under Abbate v. United States, 359

U.S. 187 (1959), the twin of Bartkus; Petite v. United

ew a mae a we

5

States, 361 U.S. 529 (1960). Almost half the States, legis-

latively or judicially, decline that of Bartkus itself. Logic

and the fact that the protections here invoked were fash-

ioned to protect persons, not “sovereignties,” compel con-

sideration of narrowing the abuses available under Bartkus.

it is submitted that these issues raise important ques-

tions of federal law and criminal justice, deserving defini-

tive resolution, especially since pre-trial appeals regarding

Double Jeopardy are available (from District Courts)

under Abney v. United States, 431 U.S. 651 (1977) (and, by

analogy are likely from State rulings, as here).

I.

Bartkus vy. Illinois and Its Dual Sovereignty Doctrine

Have Been So Eroded as to Be Without Valid Force.

Bartkus v. Illinois, 359 U.S. 121 (1959), in a 5-4 decision,

held that an acquittal on a prior federal charge of bank

robbery was not a bar to a successive Illinois State prose-

cution for the same act. The opinion of the bare majority

had dual bases, one of which has been specifically and

totally destroyed, while the other has been so eroded as to

deserve the same fate.

In the majority opinion, Justice Frankfurter rejected the

defense of the Double Jeopardy clause first because of the

Fifth Amendment itself was not binding, through lack of

incorporation into the Fourteenth Amendment’s Due Proc-

ess clause, against the States. The foundation for said

rejection was Palko v. Connecticut, 302 U.S. 319 (1937),

holding that a State prosecution was not prohibited by the

Fourteenth Amendment’s Due Process clause unless it was

6

“repugnant to the conscience of mankind.” ' The second

basis for the Bartkus holding was the concept of “dual sov-

ereignty” under which two policy justifications were offered.

First, if State prosecutions were barred by prior federal

trials, State law enforcement would be hampered. Second,

it was stated that the refusal to declare a constitutional bar

would permit the states to develop their own “rational and

just body of criminal law in the prosecution of its citizens.”

Bartkus, 359 U.S. at 137-38.

The first rationale of Bartkus, the inapplicability of the

Double Jeopardy clause of the Fifth Amendment, fell with

Benton v. Maryland, 395 U.S. 784 (1969). The Court ex-

pressly overruled Palko, the strong lynchpin of Bartkus:

“... [W]e today find that the double jeopardy pro-

hibition of the Fifth Amendment represents a funda-

mental ideal in our constitutional heritage, and that

it should apply to the States through the Fourteenth

Amendment. Insofar as it is inconsistent with this

holding, Palko v. Connecticut is overruled.”

Benton, 395 U.S. at 794.

Of that “fundamental ideal,” Benton, quoting from Green

v. United States, 355 U.S. 184 (1957) said:

“[T]he underlying idea, one that is deeply ingrained

in at least the Anglo-American system of jurispru-

dence, is that the State with all its resources and power

should not be allowed to make repeated attempts to

convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal

and compelling him to live in a continuing state of

anxiety and insecurity as well as enhancin; the possi-

' Palko, 302 U.S. at 323, quoted in Bartkus, 359 U.S. at 127.

7

bility that even though innocent he may be found

guilty.” *

The iack of viable content remaining in Bartkus can be

seen by scrutinizing the other basis for its holding, the

“dual sovereignty” doctrine. There had been life to dual

sovereignty in areas other than the power to successively

prosecute and in those areas the rights of the individual

have since been held to prevail over what were clearly no-

tions of dual sovereignty, and the abuses formerly per-

mitted in its name.

Prior to 1960, the federal government was free to use

evidence illegally seized by State officials, so long as federal

authorities did not participate in the illegal activity. Lustig

v. United States, 338 U.S. 74 (1949). The dual sovereignty

doctrine inherent in this “silver patter” concept was effec-

tively abolished * Elkins v. United States, 364 U.S. 206

(1960), where u + Court prohibited the introduction of

illegally seized State evidence in federal courts. “... To

the victim it matters not whether his constitutional right

has been invaded by a federal agent or by a state officer.”

Id. at 215. Additional damage was done to the principle

when Mapp v. Ohio, 367 U.S. 643 (1961) covered the reverse

order of events. Evidence seized illegally by federal officials

was ruled inadmissible in state prosecutions.

Similarly, notions of dual sovereignty once held sway

under the Fifth Amendment’s self-incrimination clause. A

State court was free to use testimony obtained by the fed-

27d. at 796. Justice Brennan has recently elaborated on the

prospect of a second trial enhancing the risk of vonvieting the inno-

cent, pointing to prosecutorial opportunity to assess weaknesses in

the first trial and the frequent occurrence that “prosecution wit-

nesses change their testimony, not always subtly, at second trials.”

United States v. Scott, 437 U.S. 82, 105 (1978) (dissenting opinion,

n. 4).

8

eral government under a grant of federal immunity. United

States v. Murdock, 284 U.S. 141 (1931). The federal gov-

ernment was likewise free to introduce evidence obtained

from testimony given before a State grand jury under a

grant of State immunity. Feldman v. United States, 322

U.S. 487 (1944).

However, in Murphy v. Waterfront Commission, 378 U.S.

52 (1964), the Court, noting the rejection in Elkins, supra,

of the dual sovereignty doctrine as a reason to allow ille-

gally State-seized evidence in federal courts, ended any

prospect for the doctrine of dual sovereignty to justify

incrimination in one jurisdiction through immunized com-

pelled testimony in the other. The Murphy Court noted that

the constitutional policies involved, written to protect the

individual, “are defeated when a witness ‘can be whipsawed

into incriminating himself under both state and federal law

even though’ the constitutional privilege against self-

incrimination is applicable to each.” Murphy, supra, at 55,

quoting Justice Black’s dissent in Knapp v. Schweitzer, 357

U.S. 371, 385 (1958). The same, discredited “whipsaw” re-

mains running smoothly if Bartkus continues to permit a

second trial by another jurisdiction when each would be

prohibited by the Double Jeopardy clause from so acting

alone.

The parallels between that which Elkins and Murphy

barred and what petitioner here seeks to enjoin are com-

pelling. Those cases rather clearly destroy the doctrinal

foundation of Bartkus, by allowing defendants in one juris-

diction to assert their constitutional rights in decrying ac-

tions by authority in the other jurisdiction, without having

those rights overridden by the abstract concept of dual

sovereignty, Both Elkins and Murphy, unlike Bartkus, em-

phasized the effect upon the individual as did Justice

Black’s dissent in Bartkus. Further, there was expressed

9

a recognition that the two jurisdictions are hardly separate

and independent “in our age of ‘cooperative federalism,’

where the Federal and State Governments are waging a

united front against many types of criminal activity.” Mur-

phy, 378 U.S. at 56.

The Murphy Court held that its decision in Malloy v.

Hogan, 378 U.S. 1 (1964), applying the privilege against

self-incrimination to the States, compelled reconsideration

of the “established rule” that the constitutional privilege

did not protect a witness in one jurisdiction against the

compulsion to give testimony that could be used to convict

him in another jurisdiction. Murphy, 378 U.S. at 57. The

same consideration obtains here, The Court’s decision in

Benton, supra, enforcing the Double Jeopardy guaranty

against the States, necessitates a similar review of the

established rule that a federal trial resulting in conviction

or acquittal raises no bar to subsequent State trial for

the same offense or conduct. As the Court recognized in

Ashe v. Swenson, 397 U.S. 436 (1970), “... Benton... puts

the [Double Jeopardy issue] ... in a perspective quite

different from that in which the issues were perceived”

when only considerations of Fourteenth Amendment due

process were thought pertinent. Jd. at 442.

By 1966, Justices Harlan and Stewart, part of the

Bartkus majority, were of the opinion that Murphy had

destroyed the notion of dual sovereignty: “In addition,

this Court has recently extended the Fifth Amendment to

the states, (citing Malloy), and abolished the ‘two sov-

ereignties’ rule (citing Murphy) ... .” Stevens v. Marks,

383 U.S. 234, 250 (1966) (Justice Harlan, whom Justice

Stewart joined, concurring in part and dissenting in part).

Similarly, regarding the effect of Benton on the doctrine,

Justice Douglas commented as a Circuit Justice, in 1975

that: “Benton may cast doubt upon the continuing vitality

a ii a a i Hi 8 a maa

10

of Bartkus v. Illinois, ... .” Smith v. United States, 423

U.S. 1308, 1307 (1975).

Also, Waller v. Florida, 397 U.S. 387 (1970), saw the

Court unanimously reject the State’s Bartkus-based claim

that it was permitted to successively prosecute after a

municipal conviction for the same conduct, despite that

Florida’s argument was constitutional doctrine in at least

21 states. Id. at 391, n. 3.

It seems the Court has, since Bartkus, remedied those

intra-trial abuses brought to it regarding evidence (Elkins)

and testimony (Murphy) whereby two sovereigns might

have been able to accomplish in concert what neither could

do alone. Now the Court is asked to close the circle in

response to a constitutional right that addresses the im-

propriety of the trial itself. Here, as in the post-Bartkus

cases, the abstraction of federalism and its rather short-

lived progeny, dual sovereignty, should not be permitted

to totally override a constitutional protection fashioned

for the individual.

Il.

The Permission Bartkus Is Deemed to Extend Is

Taken Beyond That Which Is Necessary to Effect the

Stated Purpose.

Of the rationale behind Bartkus, only what Justice

Frankfurter called “a practical justification” (359 U.S. at

136) has not directly suffered either total reversal or de-

billitating erosion.*

* As noted, Malloy and Benton reversed holdings that the Fifth

Amendment and its Double Jeopardy clause, respectively, did not

apply to the States. Then the Bartkus majority turned to the

Fourteenth Amendment Due Process clause and its “repugnant to

the conscience of mankind” standard and the federalism-based doc-

11

It is petitioner’s contention that the blanket permission

Bartkus extends to the States goes, or has been deemed

to go far beyond that which is necessary to meet the con-

cern the Court voiced in its “practical justification” refer-

ence which addressed Screws v. United States, 325 U.S.

91 (1945) as follows:

“(Defendants were tried and convicted in a federal

court under federal statutes with maximum sentences

of a year and two years respectively. But the state

crime there involved was a capital offense. Were the

federal prosecution of a comparatively minor offense

to prevent state prosecution of so grave an infraction

of state law, the result would be a shocking and

untoward deprivation of the historic right and obliga-

tion of the States to maintain peace and order within

their confines. It would be in derogation of our fed-

eral system to displace the reserved power of States

over state offenses by reason of prosecution of minor

federal offenses by federal authorities beyond the

control of the States.”

Bartkus, 359 U.S. at 137.

The “untoward deprivation” a State would suffer if

barred from prosecuting a “grave . . . infraction” after

federal action on a “comparatively minor offense” is

simply not “a practical justification” for a prosecution

where, as here, petitioner faced a 30 year maximum aggre-

gate sentence federally and would face if tried by the

State, a 20 year maximum. The federal trial here, in excess

trine of dual sovereignty then prevailed over the claimed individual

rights. The erosion marked by Elkins, Murphy and Waller has

been noted. It seems fair to ask today the constitutional question

whether dual sovereignty should continue to prevail in a balancing

exercise when the more permissive Fourteenth Amendment stand-

ard is no longer the only principle against which it is to be weighed.

12

of three months, was not the kind of nominal, regulatory

action which the Court in Bartkus feared could bar pursuit

of valid State interests.

Nor has it been suggested that the federal prosecution

herein sought to vindicate governmental interests of a

different nature than that of the State. Indeed, such a

suggestion, if belatedly made, would be weakened by the

identity of offense charged.

The dual factors of significant sentence disparity and a

State showing that it seeks to vindicate a different sover-

eign interest are the only necessary ingredients to a test

that would fairly accommodate the interest of the indi-

vidual whom the provisions involved are to protect and

the residue of Bartkus, concerned with State law enforce-

ment.‘

While not of onstitutional effect on this proceeding, it

is significant to note that the federal prosecutorial power

almost immediately responded in the negative to the per-

mission of Abbate v. United States, supra, the twin of

Bartkus, dealing with the reverse order of successive

prosecutions. The Attorney General, in a policy announce-

ment of April 6, 1959, acknowledged the rule’s potential

for causing “considerable hardship” and the need for “self-

restraint.” The directive disallowed federal prosecutions

after State prosecutions for offenses arising out of the

same transaction unless the reasons therefor were “most

compelling” and then only after special permission had

*Two of the State supreme courts who declined the ostensible

carte blanche of Bartkus, fashioned a Due Process rule embracing

the two elements requisite to the accommodation suggested in the

text. Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971);

People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). See, also,

Commonwealth v. Cepulonis, 373 N.E.2d 1136 (1978), wherein the

Supreme Judicial Court of Massachusetts adopted a rule involving

sentence disparity and the “same evidence” test.

13

been given by an Assistant Attorney General. Department

of Justice Press Release, April 6, 1959; Rinaldi v. United

States, 434 U.S. 22 (1977). This Court has also been un-

equivocally informed by the Solicitor General that the

government has strictly adhered to this policy since 1959.

Rinaldi, supra, at 30, n. 16.

The policy refuses prosecution except when “necessary

to advance compelling interests of federal law enforce-

ment.” Id, at 28. It seems logical, indeed beyond dispute,

that the same kinds of considerations petitioner here has

suggested ought be weighed as a constitutional matter

(interest of the sovereign subsequently proceeding and

sentence disparity) are behind the government’s voluntary

policy, and one cannot dispute the fundamental fairness

therein. “The overriding purpose of the . . . policy is to

protect the individual from any unfairness associated with

needless multiple prosecutions.” Jd. at 31.

Of constitutional moment here, regarding petitioner’s

Due Process claim, is that the Court has, as recently as

1977, in Rinaldi, acknowledged needless multiple prosecu-

tions as unfair, and the “need” which would justify them

can only be based upon factors here absent—federally

nominal sentence exposure or a different State govern-

mental interest.

14

Il.

The Doctrine of Collateral Estoppel Should Also Be

Held to Bar This Prosecution.

In Ashe v. Swenson, 397 U.S. 436 (1970), the Court held

that the doctrine of collateral estoppel was embodied in

the Fifth Amendment’s guaranty against Double Jeopardy

and that under Benton was applicable against the states.

The doctrine was thusly described: “It means simply

that when an issue of ultimate fact has once been deter-

mined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future

lawsuit.” Ashe, 397 U.S. at 443.

The doctrine, being first developed civilly, had been

clearly applicable to federal criminal situations, since

United States v. Oppenheimer, 242 U.S. 85 (1916), in which

Justice Holmes said: “It cannot be that the safeguards

of the person, so often and so rightly mentioned with sol-

emn reverence, are less than those that protect from a lia-

bility in debt.” Jd. at 87, quoted in Ashe at 443.

It was also made clear in Ashe 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.” Ashe,

supra, at 444.

The case at bar would be directly governed by Ashe if

it were not for the fact that there are ostensibly different

parties on the prosecutorial side. However, the parties to

the lawsuit need not be identical in order that the doctrine

be applied with “realism and rationality.” For example,

in Ashe, Chief Justice Burger noted that the doctrine

“ordinarily applies to parties on each side of the litigation

15

who have the same interest as or who are identical with

the parties in the initial litigation.” Ashe, 397 U.S. at 464

(dissenting opinion) (emphasis added).

The notion of identity of parties is also called “privity”

of parties in much of the civil discourse on collateral estop-

pel and res judicata and the Restatement, Judgments

(1942), in §83, after noting the obvious truth that one in

privity is bound, notes in the comment: “The word “privy”

includes those . . . whose interests are represented by a

party to the action... .”

Once it is noted that the doctrine (a) constitutionally

bars relitigation of the same ultimate fact and (b) is prop-

erly to be invoked against parties with the same interest

in the litigation of that fact or facts, its meaning for this

case is clear. The State’s interest was identical to and was

protected by the federal government in a trial over three

months long in which the issue of defendant’s conspiring

as to this fire was resolved against it.

The claim is brought full circle when one accepts, as

he must, that the Double Jeopardy protection is intended

as a fundamental protection for the individual rather than

a prosecution seeking an historically abhorred second bite

at the same apple.

16

CONCLUSION

Petitioner respectfully submits that the important ques-

tion of federal law, to wit, whether the Bartkus doctrine,

despite reversal and/or erosion of its various rationale,

remains intact and permits this State prosecution for

the same offense despite prior federal acquittal, should be

resolved.

As Mr. Justice Frankfurter had occasion to say:

“When it appears that a challenged doctrine has been

uncritically accepted as a matter of course by the

inertia of repetition—has just ‘grow’d’ like Topsy—

The Court owes it to the demands of reason, on which

judicial law-making power ultimately rests for its au-

thority, to examine its foundations and validity in

order appropriately to assess claims for its extension.”

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 551

(dissenting opinion).

For the foregoing reasons, petitioner prays that his

petition for a writ of certiorari be granted.

Respectfully submitted,

Tuomas L. Napgau

Attorney for Petitioner

17

Certificate of Service

This is to certify that three (3) copies of the foregoing

Petition For Writ of Certiorari were mailed, postage pre-

paid, on this 17th day of September, 1979, to Counsel for

Respondent, State of Connecticut: Donald A. Browne,

Esquire, State’s Attorney, 1061 Main Street, Bridgeport,

Connecticut.

ee eee

Tuomas L. NapgEau

patie tad

}

Appendices

\

r

}

APPENDIX “A”

Opinion of Supreme Court

of Connecticut

SUPREME COURT

Marcu Trrm, 1979

State oF Connecticut v. CHARLES MOELLER

Corter, C. J., Lotseute Boepansk1, Lonco and Peters, Js.

Argued March 14—4decision released June 19, 1979

Information charging the defendant with the crimes of

conspiracy to commit arson in the first degree and con-

spiracy to commit arson in the second degree, brought to

the Superior Court in Fairfield County where the court,

I, Levine, J., denied the defendant’s motion to dismiss the

information, from which the defendant appealed to this

court. No error.

Thomas L, Nadeau, with whom, on the brief, was Theo-

dore I. Koskoff, for the appellant (defendant).

Donald A. Browne, state’s attorney, for the appellee

(state),

Loneo, J. The single issue presented by this appeal is

whether the trial court erred in denying the defendant’s

motion to dismiss,thus overruling the defendant’s claim that

a state prosecution, following a federal court jury acquittal

regarding essentially the same alleged criminal conduct,

would violate certain of the defendant’s rights secured by

the state and federal constitutions.

We briefly recite those facts necessary to a resolution

of this issue: On the evening of March 1, 1975, a fire

totally destroyed a large manufacturing facility in Shel-

la

2a

Appendix “A”

ton, Connecticut, known as Plant No. 4 of the Sponge Rub.

ber Products Company, This incident resulted in an ex-

tensive investigative effort by both federal and state au-

thorities which led to a federal indictment and the arrest

of ten individuals, including the defendant Moeller. Sub-

sequently, a lengthy federal trial resulted in the conviction

of various of the federal defendants,’ On January 22, 1976,

the defendant Moeller was acquitted by the federal jury

of all of the four charges lodged against him, and on Jan-

uary 27, 1976, a formal judgment of acquittal was rendered

by the United States District Court ( Newman, J.) as to

the defendant, Among the charges upon which the defen-

dant was acquitted was an arson conspiracy count under

1I8 U.S.C. §§ 371, 1952 and 2,

Thereafter, on May 3, 1977, the defendant was charged

in the Superior Court, in a two-count information, with

conspiracy to commit arson in the first and second degrees,

in violation of §§ 58a-48, 53a-111 and 538a-112 of the Gen-

eral Statutes, for his alleged participation in the Shelton

Sponge Rubber Products Company fire. The state’s appli-

cation for a bench warrant, the supporting affidavit, and

the subsequently filed information make clear that the same

conspiracy as charged in the federal indictment is in-

volved in the pending state prosecution. The defendant

pleaded not guilty to the information. On May 25, 1977,

the defendant filed a motion to dismiss the information

based upon the “double jeopardy” provision of the fifth

amendment to the United States constitution,? the due

process and equal protection clauses of the fourteenth

"See United States v. Bubar, 567 F.2d 192. 196 (2 Cir. 1977),

: “(Nor shall any person be subject for the same offense to be

twice put in jeopardy of life or limb...” U.S. Const., amend. V,

oa

Appendia “A”

amendment to the constitution, and the due process clause

of article first, §8, of the Connecticut constitution. On

December 21, 1977, the trial court denied the defendant's

motion, The defendant has appealed to this court from

the denial of his motion to dismiss,

Both the defendant and the state have assisted the

court in focusing sharply upon the issue to be resolved;

the parties have candidly argued and thorougly researched

the legal principles that must, of necessity, illuminate and

guide our decision. The defendant mounts an attack from

both constitutional and statutory quarters, arguing that

the trial court erred in denying his motion to dismiss,

principally because the cases upon which the court relied,

Bartkus vy. Illinois, 359 U.S. 121, 79'S. Ct. 676, 3 L. Bd. 2d

684 (1959), and Abbate v. United States, 359 U.S. 187, 79

S. Ct. 666, 3 L. Ed. 2d 729 (1959), and their numerous

progeny, establishing an exception to the rule against

double jeopardy commonly referred to as the “doctrine

of dual sovereignty,” have been so enfeebled and eroded

as to lack any binding force. Additionally, it is argued

that, consistent with the intention of various legislative

enactments and court decisions of other states emphasizing

the “individual protection” which the double jeopardy

clause was meant to foster, a successive state prosecution

following a federal court acquittal is barred. The defen-

dant finally argues that the doctrine of collateral estoppel,

as constitutionally embodied in the double jeopardy clause,

bars the relitigation by the state of the same operative

facts upon which the defendant had previously been ac-

quitted by a federal jury. The state responds that the

established law on the issue presented is unequivocal and

clear in holding that the same act may constitute a viola-

4a

Appendia “A”

tion of both federal and state laws, and neither a convic-

tion nor an acquittal in federal or state court bars a subse-

quent prosecution in the other court system arising from

the same transaction or event. We agree.

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

Kd. 2d 684 (1959), and Abbate v. United States, 359 U.S.

187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), the United States

Supreme Court reaffirmed the well-established principle

that a federal prosecution does not bar a subsequent state

prosecution of the same person for the same acts, and a

state prosecution does not bar a federal one.’ The basis

for the court’s decision, establishing what has been termed

the “dual sovereignty” concept; see United States v.

Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303

(1978); was that prosecutions under the laws of separate

sovereigns do not, in the language of the fifth amendment,

“subject [the defendant] for the same offense to be twice

put in jeopardy”: “An offence, in its legal signification,

means the transgression of a law. ... Every citizen of the

United States is also a citizen of a State or territory. He

* Although the problems arising from concurrent federal and

state criminal jurisdiction had been noted earlier; see Houston vy.

Moore, 18 U.S. (5 Wheat.), 1, 5 L. Ed. 19 (1820) ; the court did

not clearly address the issue until Foz v. Ohio, 46 U.S. (5 How.)

410, 12 L. Ed. 213 (1847); United States v. Marigold, 50 U.S.

(9 How.) 560, 13 L. Ed. 257 (1850) ; and Moore v. Illinois, 55 U.S.

(14 How.), 13, 14 L. Ed. 306 (1852), in the mid-nineteenth century.

Those cases upheld the power of states and the federal government

to make the same act criminal; in each case the possibility of con-

secutive state and federal prosecutions was raised as an objection

to concurrent jurisdiction, and was rejected by the court on the

ground that such multiple prosecutions, if they occurred, would not

constitute double jeopardy. The first case in which actual multiple

prosecutions were upheld was United States v. Lanza, 260 U.S. 377,

43 S. Ct. 141, 67 L. Ed. 314 (1922), involving a prosecution for

violation of the Volstead Act, c. 85, 41 Stat. 305, after a conviction

for criminal violation of liquor laws of the state of Washington.

oa

Appendix “A”

may be said to owe allegiance to two sovereigns, and may

be liable to punishment for an infraction of the laws of

either. The same act may be an offence or transgression

of the laws of both. ... That either or both may (if they

see fit) punish such an offender, cannot be doubted. Yet

it cannot be truly averred that the offender has been twice

punished for the same offence; but only that by one act

he has committed two offenses, for each of which he is

justly punishable.” Moore v. Illinois, 55 U.S. (14 How.)

13, 19-20, 14 L. Ed. 306 (1852).

The court in Abbate found further support for the

“dual sovereignty” concept by noting the “undesirable

consequences” that woud inhere in imposing a double

jeopardy bar upon state-federal or federal-state prosecu-

tions. Prosecution by one sovereign for a minor offense

might bar prosecution by the other for a much graver

one, and the court clearly took the position that a federal

prosecutor has no authority to bargain away a state’s

power to enforce its criminal laws. See also United States

v. Wheeler, supra, 318.

Finally, Bartkus and Abbate, although not weathering

the years without criticism,‘ rest on the basic structure of

our federal system, in which the states and the national

government are separate political communities. State and

federal governments “[derive] power from different

sources,” each from the organic law that established it.

United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141,

67 L. Ed. 314 (1922). Each has the power, inherent in any

‘See, eg., Brant, “Overruling Bartkus and Abbate: A New

Standard for Double Jeopardy,’ 11 Washburn L.J. 188 (1972) ;

Recent Developments, 18 Vill. L. Rev. 491 (1973); Recent Deci-

sions, 12 Dug. I. Rev. 365 (1973) ; Comment, “Successive Prosecn-

tions by Two Sovereigns After Benton v. Maryland,” 66 Nw. UL.

Rev. 248 (1971) ; Recent Cases, 39 Cinn. L. Rev. 799 (1970).

‘

6a

Appendix “A”

sovereign, independently to determine what shall be an

offense against its authority and to punish such offenses,

and in doing so each “is exercising its own sovereignty,

not that of the other.” Ibid. “And while the States, as

well as the Federal Government, are subject to the over-

riding requirements of the Federal Constitution, and the

Supremacy Clause gives Congress within its sphere the

power to enact laws superseding conflicting laws of the

States, this degree of federal control »ver the exercise of

state governmental power does not detract from the fact

that it is a State’s own sovereignty which is the origin

of its power.” United States v. Wheeler, supra, 320.

II

The defendant must acknowledge that his claim of double

jeopardy, arising from the pending state prosecution, is,

as a matter of federal constitutional law, foreclosed under

the rationale of Bartkus and Abbate. It is not correct to

claim, however, as does the defendant, that these cases no

longer represent the United States Supreme Court’s view

of the concept of “dual sovereignty” or that these cases

have lost their viability concerning successive prosecutions

under the double jeopardy clause. The continued validity

and propriety of the “dual sovereignty” concept was recog-

nized and affirmed by the unanimous decision of the Su-

preme Court in United States v. Wheeler, supra, and has

been continuously reaffirmed by the decisions of the United

States Courts of Appeals. Wheeler, holding that the double

jeopardy clause did not bar the prosecution of an Indian

in a federal court when he had previously been convicted

in a tribal court of a lesser included offense arising out of

the same incident, discusses Bartkus and Abbate at length,

clearly regarding them as still correctly stating the law,

and unequivocally reaffirms the dual sovereignty doctrine

nami

7a

Appendia “A”

which prevents the imposition of the double jeopardy bar.

Moreover, almost every federal circuit has rejected claims

identical to those raised by the defendant Moeller, thereby

permitting successive state-federal or federal-state prosecu-

tions. See United States v. Martin, 574 F.2d 1359 (5th Cir.

1978) ; United States v. Frumento, 563 F.2d 1083 (3d Cir.

1977) ; United States v. Cordova, 537 F.2d 1073 (9th Cir.

1976); United States v. James, 532 F.2d 1161 (7th Cir.;

1976) United States v. Villano, 529 F.2d 1046 (10th Cir.

1976) ; United States v. Johnson, 516 F.2d 209 (8th Cir.

1975) ; Martin v. Rose, 481 F.2d 658 (6th Cir. 1973) ; United

States v. Barone, 467 F.2d 247 (2d Cir. 1972) ; United States

v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v.

Regan, 273 F. 727 (1st Cir. 1921).°

Notwithstanding this univerally accepted principle of fed-

eral law, the defendant argues that the principle allowing

successive prosecutions has been eroded by three subsequent

decisions of the United States Supreme Court, which, it is

claimed, suggest that the attitude of the court may have

changed since Bartkus and Abbate. Those decisions are

Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.

2d 707 (1969); Waller v. Florida, 397 U.S. 387, 90 S. Ct.

1184, 25 L. Ed. 2d 435 (1970); and Ashe v. Swenson, 397

U.S. 436, 90'S. Ct. 1189, 25 L. Ed. 2d 469 (1970). We cannot

agree with the defendant’s interpretation of those cases.

° The substantial majority of state courts also adhere to this view.

See, e.g., People v. Hines, 572 P.2d 467 (Colo. 1977); State v.

Rogers, 90 N.M. 604, 566 P.2d 1142 (1977) ; State v. Forbes, 348

So. 2d 983 (La. 1977) ; Crane v,. State, 555 P.2d 845 (Nev. 1976) :

Stathes v. State, 29 Md. App. 474, 349 A.2d 254 (1975) ; State v.

Turley, 518 S.W.2d 207 (Mo. App. 1974); Klein vy. Murtagh, 44

App. Div, 2d 465, 355 N.Y.S.2d 622 (1974) ; People v. Belcher, 11

Cal. 3d 91, 520 P.2d 385 (1974) ; State v. Cooper, 54 N.J. 330, 255

A.2d 232 (1969) ; State v. Castonguay, 240 A.2d 747 (Me. 1968).

i ll

Sa

Appendia “A”

In Benton the Supreme Court’s firmly established that the

application of the fifth amendment guarantee against

double jeopardy is enforceable against the states through

the fourteenth amendment, but the case has no further

application to the case at bar. In Waller the court held that

a single sovereign, there the state, could not maintain two

separate prosecutions for an offense and an included of-

fense. Here, we have independent sovereigns prosecuting

for different offenses, each offense being peculiar to the

separate sovereign. In Ashe, upon a theory of collateral

estoppel, it was held that a single sovereign cannot prose-

cute for separate offenses occurring in a single event where

the result of the first prosecution collaterally and undeni-

ably established the innocence of the accused on the second

charge. This again, is not our case.®

*The defendant argues that the state, pursuant to Ashe vy,

Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970),

is collaterally estopped from “relitigating” the facts upon which he

was acquitted in federal court. We disagree. Collateral estoppel

“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 law suit.”

(Emphasis added.) Ashe v. Swenson, supra, 443; see Slattery vy.

Maykut, Conn. (40 Conn. L.J., No. 12, pp. 4, 7) (1978). The

application of collateral estoppel thus requires an identity of

parties in the prior and subsequent litigation. In this case, the

federa! government is neither the same as nor in privity with the

state of Connecticut. In such circumstances, the state is not col-

laterally estopped from maintaining a prosecution against the

defendant. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977) ;

United States v. Johnsen, 516 F.2d 209, 211 (8th Cir. 1975) ; Martin

v. Rose, 481 F.2d 658, 660 (6th Cir.), cert. denied, 414 U.S. 876.

94S. Ct. 86, 38 I. Ed. 2d 121 (1973); Ferina v. United States.

340 F.2d 837, 839 (8th Cir.), cert. denied, 381 U.S. 902, 85 S. Ct.

1446, 14 L. Ed. 2d 284 (1965) ; United States v. Wapnick, 315 F.2d

96 (2d Cir. 1963) ; Rios v. United States, 256 F.2d 173 (9th Cir.

1958) ; State v Smith, 359 So. 2d 160, 163 (a, 1978): State vy.

West, 260 N.W.2d 215, 219 (S.D. 1977) ; State v. Rogers, 90 N.M.

604, 607, 566 P.2d 1142 (1977) ; Commonwealth v. Studebaker, 362

A.2d 336 (Pa. Super. 1976); Klein v. Murtagh, 44 App. Div. 2d

465, 469, 355 N.Y.S.2d 622 (1974).

9a

Appendia “A”

We thus decline the defendant’s invitation to construe

Benton, Waller and Ashe as cases anticipatory of a rule

prohibiting all but a single prosecution regardless of con-

siderations concerning different laws and the rights of

separate sovereigns, The courts that have considered the

precise claim made by the defendant concerning the effect

of these cases on Bartkus and Abbate have specifically re-

jected the argument, Hutul v. United States, 582 F.2d

1155, 1157 (7th Cir. 1978); United States v. Wallace, 578

F.2d 735 (8th Cir. 1978); United States v. Johnson, 516

F.2d 209 (8th Cir. 1975); Martin v. Rose, 481 F.2d 658

(6th Cir. 1973) ; United States v. Crosson, 462 F.2d 96 (9th

Cir, 1972); United States v. Synnes, 438 F.2d 764 (8th

Cir. 1971); State v. Fletcher, 26 Ohio St. 2d 221, 224, 271

N.E.2d 567 (1971); Breedlove v. State, 470 S.W.2d 880, 882

(Tex. Crim. App. 1971); Bankston v. State, 236 So. 2d

757, 760 (Miss. 1970); State ex rel. Cullen v. Ceci, 45 Wis.

2d 432, 457, 173 N.W.2d 175 (1970). A compilation of

additional cases in accord with those cited may be found

in annot., 18 A.L.R. Fed. 393.

Furthermore, the defendant’s argument that the United

States Supreme Court may have “changed its mind” con-

cerning Bartkus and Abbate is, at the least, not aided hy

the fact that that court has consistently denied review,

most recently on February 20, 1979, without a single dis-

sent, in appeals involving precisely the same multifaceted

attack made by the present defendant challenging the con-

tinuing authority of Bartkus and Abbate. See Hutul v.

United States, 582 F.2d 1155 (7th Cir.), cert. denied,

U.S. ——, 98 S. Ct. 1222, —— L. Ed. 2d (1979) (leav-

ing intact ruling that no double jeopardy violation inheres

in successive prosecutions) ; MacDonald y, United States,

585 F.2d 1211 (4th Cir. 1978), cert. denied, —— U.S. :

10a

Appendix “A”

99 S, Ct. 1504, L. Ed. 24 —— (1979) (leaving intact rul-

ing that collateral estoppel no bar to successive prosecu-

tion); Parker v. United States, 582 F.2d 953 (5th Cir.

1978), cert. denied, —— U.S, » 99 S. Ct. 1424, ——

lL. Ed. 24 —— (1979) (leaving intact ruling that collateral

estoppel no bar to successive prosecution).’

Ill

The defendant finally assigns significant emphasis to the

decisions of some state courts,* and a number of legislative

enactments, that have, pursuant to particular state consti-

tutions or by statute, limited or rejected the dual sover-

eignty concept.’ We are not persuaded to joint those states

in rejecting the clear language of the United States Su-

preme Court in Bartkus and Abbate, and the almost uni-

*See also Millhouse v. United States, 563 F.2d 3 (i ‘ir

1977), cert. denied, 434 U.S. 1072, 98 S, Ct. 1256, 55 L Ra 2 715

(1978) ; Suls v. United States, 563 F.2d 1083 (3d Cir, 1977), cert

denied, 434 U.S. 1072, 98 S. Ct. 1258, 55 L. Ed. 2d 776 (1978) :

United States v. Kerrigan, 514 F.2d 35 (9th Cir. 1975), cert. de.

nied, 423 U.S. 924, 96'S. Ct. 266, 46 L. Ed. 24 249 (1975) ; United

States Vv. Worth, 505 F.2d 1206 (10th Cir. 1974), cert. denied, 420

U.S. 964, 95 S. Ct. 1358, 43 L. Ed. 2d 443 (1975); United States

v. Burke, 495 F.2d 1226 (5th Cir. 1974), cert. denied, 419 U.S.

Lag pia yg Gis igre) Ed. 2d 673 (1974); Martin v. Rose, 481

2d 65 1 Cir, , cert. denied, S. 948. C

38 L. Ed. 24 121 (197s) 414 U.S. 876, 94 S. Ct. 86,

* State v. Hogg, —— N.H., ——, 385 A.2d 844 (1978) ; Peopl

J e *y y BOr a . ; / Vv.

Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976) ; Duntvonaniaillt

v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) ; ef. Commonwealth vy.

Cepulonis, Mass. ——, 373 N.E.2d 1136 (1978).

* Alaska, Arizona, Arkansas, California, Delaware, Georgia

Hawaii, Illinois, Indiana, Kansas, Minnesota, Montana, New York.

North Dakota, Oklahoma, Pennsylvania, Utah, Virginia, and Wash-

ington have such legislation. See citations collected at American

Law Institute Double Jeopardy, 126-27 (1935), and Model Penal

Code § 1.11, pp. 60-61, comment (Tent. Draft No. 5, 1956).

RE On 9

lla

Appendix “A”

versal acceptance of those authorities in the cases we have

cited in this opinion. Our constitution, first, has no double

jeopardy clause, and although we have indicated that the

prohibition against double jeopardy is implicit in our com-

mon law; State v. Woodruff, 2 Day 504, 507 (1807); we

have never held that, under the circumstances of this case,

a state prosecution is barred. We refrain from doing so

in the present case, A contrary rule could result in an

unseemly race between the federal and state authorities

to obtain early jurisdiction, thereby eventuating in a frus-

tration of either the national or state policy concerning

law enforcement. To agree with the defendant could cre-

ate an “undesirable result”; Abbate v. United States, supra,

195; “the result would be a shocking and untoward depri-

vation of the historic right and obligation of the states to

maintain peace and order within their confines.” Bartkus

v. Illinois, supra, 137.

The dual sovereignty concept of Bartkus and Abbate is

based upon the practical necessity of permitting the state

and federal governments to enforce laws which they enact

in their respective fields of operation. Those decisions,

giving sensible recognition to the practicalities of our con-

stitutional form of government, reject the premise that

successive prosecutions are merely a judicial] nuance, and

compellingly find that the necessities of the governments

in enforcing their laws for the benefit of all citizens are

of greater importance than the undesirability of an occa-

sional imposition of two trials on an individual. We agree.

There is no error.

In this opinion Correr, C. J., LotseLte and Bocpansxt,

Js., concurred,

12a

Appendix “A”

Peters, J. (dissenting). While I agree with my colleagues

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

2d 684 (1959), and Abbate v. United States, 359 U.S. 187,

79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), establish a rule of dual

sovereignty that has continued to have vitality, I disagree

about the implications of dual sovereignty for this court.

Dual sovereignty is one example of the recognition of

the principle of federalism. Bartkus and Abbate hold no

more than that the fourteenth and the fifth amendments to

the United States constitution do not forbid one sovereign

the right to reprosecute a criminal defendant because of his

prior involvement with the other sovereign. Nothing in

those cases compels, or even legitimates, automatic re-

prosecution as a matter of state law. That the rule of dual

sovereignty is permissive rather than mandatory is clear

from Bartkus, the case more directly relevant because it too

involved state reprosecution after federal acquitatal. Bart-

kus stated (pp. 138-39): “[T]hese problems are ones with

which the States are obviously more competent to deal than

is this Court. Furthermore, the rules resulting will inti-

mately affect the efforts of a State to develop a rational

and just body of criminal law in the protection of its cit-

izens. We ought not to utilize the Fourteenth Amendment

to interfere with this development.”

It is furthermore clear that the formal absence of a pro-

vision in our constitution expressly forbidding double

jeopardy is not a barrier to consideration of the claim

raised by the defendant. The prohibition against double

jeopardy is, as my colleagues acknowledge, implicit in the

common law, and our cases have so held. State v. Langley,

156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied,

393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969) ; Kohl-

fuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert.

13a

Appendix “A”

denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

This case comes to us as a matter of first impression as to

which there are no binding precedents until today.

The facts of the case before us present a compelling

argument for invocation of the prohibition against double

jeopardy. The defendant is charged in this state with the

same conspiracy for which he was indicted and acquitted

in federal court. The incident that gave rise to both pros-

ecutions was, from the outset, investigated jointly by fed-

eral and state authorities. There is no discernible prosecu-

torial interest that was not fully vindicated in the original

federal trial. Thé¢ state has made no affirmative showing

why this defendant should twice be forced to run the gaunt-

let of criminal prosecution.

I believe this court should adopt the view of the Model

Penal Code §1.10 (Proposed Official Draft, 1962) barring

reprosecution after acquittal in another jurisdiction unless

“the offense of which the defendant was formerly .. . ac-

quitted and the offense for which he is subsequently pros-

ecuted each requires proof of a fact not required by the

other and the law defining each of such offenses is intended

to prevent a substantially differetnt harm or evil... .”

This position has recently been accepted by a number of

state courts; Commonwealth v. Cepulonis, Mass, ‘

373 N.E.2d 1136, 1141-42 (1978); People v. Cooper, 398

Mich, 450, 460-61, 247 N.W.2d 866 (1976); State v. Hogg,

N.H. , 385 A.2d 844, 846-47 (1978) ; Commonwealth

v. Mills, 447 Pa. 163, 169-72, 286 A.2d 638 (1971).' It is

'The Final Report of the National Commission on Reform of

Federal Criminal Laws (“The Brown Commission’’) in 1971 recom-

mended the enactment of federal legislation to modify Bartkus and

Abbate. See Report on Proposed Federal Criminal Code, 34 Busi-

ness Lawyer 725, 730 and 753 (January 1979). The American Bar

Association’s Study Committee urges amendment of S. 1437, the

proposed Criminal Code Reform Act of 1978, to incorporate the

proposals of the Brown Commission. Id., 754.

14x

Appendix “A”

unarguable that the instant reprosecution cannot meet the

test proposed by the Model Penal Code.

My colleagues fear that a limitation on state authority

to reprosecute could result in an unseemly race between the

federal and the state authorities to obtain early jurisdic-

tion. It seems to me at least as likely that the state and

federal authorities will, as in the case before us, cooperate

to assure two functionally identical opportunities to try

a defendant more than once for one and the same offense.

Unless there is a substantial independent state interest to

be vindicated, scarce state prosecutorial resources might

better be allocated to trying new crimes rather than to re-

trying old ones.

I would, therefore, find error on the part of the trial

court.

15a

APPENDIX “B”

Opinion of Trial Court

SUPERIOR COURT

County oF FArIrFiELp

No. 25,131

December 21, 1977

State or CoNNECTICUT

vs.

CuarLes D. MorELLER

MEMORANDUM on DeEFENDANT’s Motion to Dismiss

INFORMATION Basep ON DovuBLE JEOPARDY

The defendant has moved to dismiss the information

pursuant to the double jeopardy clause of the Fifth Amend-

ment and the due process and equal protection clauses of

the Fourteenth Amendment to the Constitution of the

United States and Article First, Section 8, of the Con-

necticut Constitution. His motion alleges that the defen-

dant was indicted and tried in the United States District

Court in New Haven, Connecticut, and that the federal

crimes alleged and tried arose out of the same transaction

and occurrence as provides the basis for this action. He

further alleges that the jury returned a verdict of not guilty

on the charges submitted to it after other charges had been

dismissed by the court or withdrawn by the government.

He further alleges that the crimes charged by the federal

and state governments do not reflect that the interests of

the federal and state governments are substantially dif-

ferent nor the penalties widely disparate, nor the statutes

l6a

Appendia “B”

substantively different, and that there is no “reason to

believe that the federal government could not have been

trusted to fully vindicate the interest of the State govern-

ment.”

The landmark cases in the area of double jeopardy, i.e.,

successive prosecutions by the federal and state govern-

ments, are Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676,

3 L.Ed.2d 684, and Abbate v. United States, 359 U.S. 187,

79 S.Ct. 666, 3 L.Ed.2d 729, which held that the due process

clause of the Fourteenth Amendment does not prohibit

prosecutions by both sovereignties for federal and state

crimes arising out of the same transaction or occurrence

and that they exercise concurrent jurisdiction over the same

offense. This doctrine has been followed in many cited

decisions. Goode v. McCune, 543 F.2d 751, 753 (1976) ;

United States v. Cordova, 537 F.2d 1073, 1075 (1976) ;

United States v. James, 532 F.2d 1161, 1165 (1976) ; United

States v. Villano, 529 F.2d 1046, 1061 (1976) ; United States

v. Jones, 527 F.2d 817, 822 (1975); Sappington v. United

States, 523 F.2d 858, 860 (1975); Speed v. United States,

518 F.2d 75, 76 (1975) ; United States v. Johnson, 516 F.2d

209, 212 (1975) ; United States v. Kerrigan, 514 F.2d 35, 37

(1975), cert. den. 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d

249; United States v. Worth, 505 F.2d 1206, 1210 (1974),

cert. den. 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443;

United States v. Watts, 505 F.2d 951, 953 (1974) ; United

States v. Ackerson, 502 F.2d 300, 302 ( 1974) ; United States

v. Delay, 500 F.2d 1361, 1362 (1974); Brinlee v. United

States, 496 F.2d 351, 353 (1974); United States v. Burke,

495 F.2d 1226, 1235 (1974), cert. den. 419 U.S. 1079, 95 S.Ct.

667, 42 L.Ed.2d 673; United States v. Hayles, 492 F.2d125,

126 (1974); United States v. Vaughan, Jr., 491 F.2d 1096,

1097 (1974); People v. Belcher, 113 Cal.Rep. 1, 520 P.2d

17a

Appendia “B”

385, 389 (1974) ; United States v. Smaldone, 485 F.2d 1333,

1343 (1973) ; Martin v. Rose, 481 F.2d658, 659 (1973), cert.

den. 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121; United States

v. Addington, 471 F.2d560, 566 (1973); United States v.

Jackson, 470 F.2d 684, 689 (1972) cert. den. 412 U.S. 951,

93 S.Ct. 3019, 37 L.Ed.2d 1004; United States v. Barone,

467 F.2d 247, 250 (1972) ; United States v. Crosson, 462 F.2d

96, 103 (1972) ; United States ex rel. Hill v. United States,

452 F.2d 664, 665 (1971); Birch v. United States, 451 F.2d

165, 167 (1971) ; United States v. Smith, 446 F.2d 200, 202

(1971) ; United States v. Synnes, 438 F.2d 764, 773 (1971);

United States v. Hutul, 416 F.2d 607, 626 (1970), cert. den.

396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504; DeMaria v.

Jones, 416 F.Supp. 291, 301 (1976) ; Turley v. Wyrick, 415

F.Supp. 87, 88 (1976) ; Lovell v. Arnold, 391 F.Supp. 1047,

1048 (1975); Crane v. State (Nev.), 555 P.2d 845, 846

(1976) ; State v. Turley, (Mo.) 518 S.W.2d 207, 209 (1975);

Sathes v. State, 29 Md.App. 474, 349 A.2d 254 (1975) ; Office

of Disciplinary Counsel v. Campbell, (Penn.) 345 A.2d 616,

620 (1975); Klein v. Murtagh, 355 N.Y.S.2d 622, 626, 44

A.D.2d 465 (1974) ; Bell v. State, 22 Md.App. 496, 323 A.2d

677 (1974), cert. den. 421 U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.

2d 671; State v. Glover (Mo.), 500 S.W.2d 271 (1973) ; State

v. Krell, 125 N.J.Super. 457, 311 A.2d 399, 401 (1973) ; State

v. Pope, 186 Neb. 489, 184 N.W.2d 395, 396 (1971) ; Nance v.

State, 123 Ga.App. 410, 181 S.H.2d 295, 296 (1971) ; Breed-

love v. State, (Tex. Cr.App.), 470 S.W.2d 880, 882 (1971),

cert. den. 405 U.S. 1074, 92 S.Ct. 1512, 31 L.Ed.2d 808; State

v. Fletcher, 26 Ohio St. 2d 551, 271 N.E.2d 567, 569 (1971),

cert. den. 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675; State

ex rel. Cullen v. Ceci, 45 Wis.2d 432, 173 N.W.2d 175, 187

(1970); Coffman v. State (Tenn.), 466 S.W.2d 241, 243

(1970), cert. den. 404 U.S. 1019, 92 S.Ct. 689, 30 L.Ed.2d

18a

Appendia “B”’

668; Bankston v. State (Miss.), 236 So.2d 757, 760 (1970) ;

State v. Cooper, 54 N.J. 330, 255 A.2d 232, 236 (1969) ; State

v. Castonguay (Me.), 240 A.2d 747, 750 (1968); Lem v.

Commonwealth (Ky.), 419 S.W.2d 759, 761 (1967).

The defendant’s argument is based on the law stated in

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d

707; and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

L.Ed.2d 469. Essentially his argument is that these deci-

sions, as well as many other cases cited by him, have weak-

ened Bartkus to the point where it should no longer be

followed. He points to no case which overrules Bartkus.

Sustaining the viability of Bartkus in cases making the

same claims as the defendant makes here are the following:

United States v. Villano, 529 F.2d 1046, 1061 (1976) ; United

States v. Johnson, 516 F.2d 209, 212 (1975) ; United States

v. Hayles, 492 F.2d 125, 126 (1974); United States v.

Vaughan, Jr., 491 F.2d 1096, 1097 (1974); United States v.

Smaldone, 485 F.2d 1333, 1343 (1973) ; Martin v. Rose, 481

F.2d 658, 659 (1973), cert. den. 414 U.S. 876, 94 S.Ct. 86, 38

L.Ed.2d 121; United States v. Crosson, 462 F.2d 96, 103

(1972); Birch v. United States, 451 F.2d 165, 167 (1971);

United States v. Synnes, 438 F.2d 764, 773 (1971); Turley

v. Wyrick, 415 F.Supp. 87, 88 (1976); Klein v. Murtagh,

355 N.Y.S.2d 622, 626, 44 A.D.2d 465 (1974); State v.

Fletcher, 26 Ohio St.2d 551, 271 N.E.2d 567, 569 (1971),

cert. den. 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675;

Breedlove v. State (Tex. Cr. App.), 470 S.W.2d 880, 882

(1971), cert. den. 405 U.S. 1074, 92 S.Ct. 1512, 31 L.Ed.2d

808 ; State ex rel. Cullen v. Ceci, 485 Wis.2d 432, 173 N.W.2d

175, 187 (1970) ; Bankston v. State (Miss.), 236 So.2d 757,

760 (1970).

Reference is made to the decision of Saden, J., in State

v. Tiche, 33 Conn. Sup. 51, 360 A.2d 135. In that case, in

19a

Appendia “B”

which the issue of double jeopardy was raised, is the same

situation existing here; transaction and events were the

same as those in the instant case and there having been a

previous conviction in the federal court.

“Nevertheless, the law in the area of successive federal-

state prosecutions for the same kind of offense is clear.

The doctrine of dual sovereignty allows successive federal-

state prosecutions for the same offense. Abbate v. United

States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729; Bartkus

v. Illinois, supra; and United States v. Lanza, 260 U.S. 377,

43 S.Ct. 141, 67 L.Ed. 314. The court in Lanza stated (p.

382, 43 S.Ct. p. 142): ‘We have here two sovereignties, de-

riving power from different sources, capable of dealing

with the same subject-matter within the same territory... .

Each government in determining what shall be an offense

against its peace and dignity is exercising its own sover-

eignty, not that of the other.” In Bartkus, the petitioner

was acquitted of robbery charges in a federal court and re-

tried and convicted on that same robbery charge and the

same evidence by a state court. The court, citing a large

body of impressive precedent which showed that courts had

for years refused to bar a second trial for the same offense,

even when there had been a prior trial by another govern-

ment, reaffirmed the dual sovereignty doctrine and pro-

claimed reprosecution by a state government after trial by

the federal government not to be in violation of the double

jeopardy provisions of the United States constitution.

“Cases such as Ashe v. Swenson, supra, n.1; Waller v.

Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435; and

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d

707, which followed Bartkus, were thought by some to have

impugned the doctrine of dual sovereignty, but all of them

involved successive state court prosecutions in the same

EN Ne ee Te am

20a

Appendia “B”

state, and subsequent cases do not view them as rejecting

the concept of dual sovereignty. Both the federal courts

(United States v. Ackerson, 502 F.2d 300, 302 [8th Cir.];

United States v. Delay, 500 F.2d 1360, 1262 [8th Cir.];

United States v. Hayles, 492 F.2d 125, 126 [5th Cir.];

United States v. Smaldone, 485 F.2d 1333 [10th Cir.];

Martin v. Rose, 481 F.2d 658, 659 [6th Cir.], cert. denied,

414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121; United States v.

Jackson, 470 F.2d 684, 689 [5th Cir.]; United States v.

Barone, 467 F.2d 247, 250 [2d Cir.]; United States v. Cros-

son, 462 F.2d 96, 103 [9th Cir.] ; and the state courts (Bell

v. State, 22 Md. App. 496, 510, 323 A.2d 677, cert. denied, 421

U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.2d 672; State v. Turley,

518 S.W.2d 207, 210 [Mo. App.], cert. denied, 421 U.S. 966,

95 S.Ct. 1956, 44 L.Ed.2d 454; State v. Fletcher, 26 Ohio St.

2d 221, 271 N.E.2d 567, cert. denied, 404 U.S, 1024, 92 S.Ct.

699, 30 L.Kd.2d 675; Commonwealth v. Mills, 447 Pa, 163,

286 A.2d 638) have made this manifest. In addition, the

United States Supreme Court has denied certiorari in all

of the subsequent cases which have sought to reverse the

dual sovereignty concept, e.g., Martin v, Rose, supra.

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

684, is still the law and successive prosecutions by the

federal and state governments for the same offense do not

constitute double jeopardy. Commonwealth v. Mills, supra.

Thus, even if we are dealing here with the same offense, the

State of Connecticut is not barred from pursuing its rights

to try the defendant.” State v. Tiche, ante, at 136-7,

The defendant’s motion to dismiss is denied.

Irving Levine, J.

Filed December 21, 1977.

2la

APPENDIX “CC”

Federal Indictment and Judgment of Acquittal

IN THE

UNITED STATES DISTRICT COURT

FOR THE District or CONNECTICUT

Criminal No. N-75-59

Unitrep States or AMERICA,

v.

CuarLtes D, Moreuier, Davip N. Dusar, aka Noble David

Bubar, Perer Brrres, Ronaup D. Berres, Ausert R.

Corrry, AntHony A. Just, Dennis C, Ticur, MicHar.

J. Ticuzr, Jonn W. SHaw and Donatp L. Connors.

The Grand Jury Charges:

Count ONE

That commencing on or about the month of December,

1974, the precise date being to the Grand Jury unknown,

and continuously thereafter up to and including the date

of the filing of this indictment, in the District of Connecti-

cut and elsewhere, Cuartes D. Mortier, Davin N. Busan,

Peter Betres, Ronatp D. Berres, AtBert R. Corrry, An-

tHony A. Just, Dennis C. Ticur, Micuart J, Ticur, Joun

W. Suaw, and Donatp L, Connors, defndants herein, wil-

fully and knowingly did combine, conspire, confederate, and

agree together and with each other and with diverse other

persons to the Grand Jury unknown, to commit the follow-

ing offense against the United States of America:

22a

Appendia “C”

To travel in interstate commerce between Butler, Pitts-

burgh, and Boyers, all in the Commonwealth of Pennsyl-

vania; and New York in the State of New York; and Shel-

ton, Derby, Danbury and New Haven in the State of

Connecticut, with the intent to promote, manage, carry on

and facilitate the promotion, management and carrying on

of an unlawful activity, to wit: the commission of arson

in violation of Section 53(a)—113, Connecticut General

Statutes (Rev. 1958 as Amended), and did perform acts to

promote, manage, carry on and facilitate the promotion,

management and carrying on of such unlawful activity in

violation of Title 18, United States Code, Section 1952

and 2.

Overt Acts

In furtherance of the conspiracy, and to effect the objects

thereof, the defendants did commit, among others, the fol-

lowing overt acts:

a. In late December, 1974, or early J anuary, 1975, Davip

N. Busar and Peter Berres traveled from New York, New

York, to Shelton, Connecticut.

b. On or about February 17, 1975, Dennis OC. Ticue trav-

eled from Boyers, Pennsylvania, to Shelton, Connecticut,

and AntHony A. Just traveled from New Kensington,

Pennsylvania, to Shelton, Connecticut.

ec. On or about February 20, 1975, Dennis ©. Trcue and

Joun W. Suaw arranged to purchase and did purchase and

acquire drums for the purpose of transporting explosives

and an accelerant from Boyers, Pennsylvania to Shelton,

Connecticut.

d. On or about February 20 and February 27, 1975, Den-

nis C. Tice and Joun W. Suaw purchased or obtained

gasoline to be used as an accelerant.

23a

Appendia “C”

e. On or before February 27, 1975, Dennis C. Tice pur-

chased and obtained dynamite, detonating or primer cord

and blasting caps for use in igniting the accelerant.

f. On or about February 27, 1975, Dennis C. Ticur and

others arranged to rent and obtained the use of an Avis

Rental truck.

g. On or about February 27, 1975, Dennis C, TIcHE,

Micuag J. Ticne and Joun W. Suaw prepared and loaded

the explosives and accelerant aboard the Avis truck for

transportation from Boyers, Pennsylvania, to Shelton,

Connecticut.

h. On or about February 27, 1975, Peter Berres arranged

to have Donatp L. Connors drive the Avis truck loaded with

the explosives and accelerant from Boyers, Pennsylvania,

to Shelton, Connecticut.

i. On or about February 28, 1975, Donatp L. Connors

drove the Avis truck from Boyers, Pennsylvania, to Shel-

ton, Connecticut.

j. On or about February 28, 1975, Donatp L. Connors

made a telephone call from the State of New York to the

State of Connecticut, in the course of which he received

instructions as to the precise destination and the route he

was to follow thereto.

k, On or about February 28, 1975, Peter Berres traveled

from Butler, Pennsylvania, to Shelton, Connecticut, and

from Shelton, Connecticut, to New York, New York.

1, On or about February 28, 1975, Dennis C. Ticue, Mr-

CHAEL J, TicHE, and Joun W. Suaw traveled from Pitts-

burgh, Pennsylvania, to New York, New York and then to

New Haven, Connecticut, and thence to Shelton, Con-

necticut.

eee

24a

Appendia “C”

m. On or about February 28, 1975, AnrHony A. Just, AL-

BERT R. Correy and Ronap D. Berres traveled from Penn-

sylvania to Danbury, Connecticut, and thence to Shelton,

Connecticut.

n. On or about March 1, 1975, Donaup L. Connors de-

livered approximately twenty-four (24) drums of gasoline

and two (2) drums of explosives to Plant 4 of Sponge Rub-

ber Products Company, Shelton, Connecticut.

o. On or about March 1, 1975, Davin N. Buspar arranged

and facilitated the delivery of gasoline and explosives into

Plant 4, Sponge Rubber Products Company, Shelton, Con-

necticut, and the entry thereinto of Dennis C. Tice, Mi1-

CHAEL J. TicHE and Joun W. Suaw.

p. On or about March 1, 1975, Davi N. Buszar, Dennis

C. Ticux, Micuarn J. Ticuz, Joun W. Suaw, Antuony A.

Just, Ronatp D. Berres and Ausert R. Correy were in

Plant 4, Sponge Rubber Products Company, Shelton, Con-

~ necticut.

q. On or about March 1, 1975, Ronaup D. Betres, ALBERT

R. Correy and AntHony A. Just abducted and removed

from Plant 4, Sponge Rubber Products Company, Shelton,

Connecticut, three persons employed thereat, to wit: Roy

Ranno, Aurrep C. Hanzey and Rosert V. Dz Joy.

r. On or about February 10, 1975, February 28, 1975 and

March 19, 1975, Cuartes D. Moetier directed and author-

ized the payment of the sums of Twenty Thousand ($20,000)

Dollars and Fifteen Thousand ($15,000) Dollars, and Fif-

teen Thousand ($15,000) Dollars, moneys of Ohio Decora-

tive Products, Inc., Grand Sheet Metal Company and/or

25a

A ppendia “ey”

Sponge Rubber Products Company, to Southern Supply

Company, delivery of which was made to Davm N. Busar.

s. On or about February 11, 1975, Davin N. Busar paid

and delivered to Peter Berres a sum of money.

t. On or about February 28, 1975, Perer Berres de-

livered a sum of money to Dennis C. Ticue.

u. On or about March 1, 1975, Dennis C. Ticue delivered

a sum of money to MicuarL J. Ticue and Joun W. Suaw.

All in violation of Title 18, United States Code, Section

371.

Count Two

On or about February 28, 1975, in the District of Connecti-

cut and elsewhere, Davin N. Busar, Peter Betres, Dennis

C. Ticue, Micuargt J. Ticnzt, Jonn W. Suaw, Ronatp D.

Betres, Atpert R. Correy, ANTHoNy A. Just, Donatp L.

Connors and CHarites D. Mogeuuer did travel and cause

travel in interstate commerce between Butler, Boyers, and

Pittsburgh, all in the Commonwealth of Pennsylvania, and

New York in the Stateof New York, and Shelton, Derby,

Danbury and New Haven, in the State of Connecticut, with

the. intent to promote, manage, carry on and facilitate the

promotion, management and carrying on of an unlawful

activity, to wit: the commission of arson in violation of

Section 53-(a)-113, Connecticut General Statutes (Rev.

1958, as Amended), and did perform acts to promote, man-

age, carry on and facilitate the promotion, management and

carrying on of such unlawful activity,

In violation of Title 18, United States (ode, Section 1952

and 2.

26a

Appendia “C”

Count THREE

On or about the 28th day of February, 1975, in the Dis-

trict of Connecticut and elsewhere, Davin N. Buspar, Peter

Berres, Dennis C. Ticue, Micuari J. Ticuz, Joun W.

Suaw, Auspert R. Corrzy, AnrHony A. Just, Donaxp L.

Connors and Cuartes D. Moetzer did transport in inter-

state commerce, from Boyers in the Commonwealth of

Pennsylvania to Shelton in the State of Connecticut, explo-

sives, that is, dynamite, detonating or primer cord and

blasting caps, knowing and intending that the said explo-

sives would be used unlawfully to damage and destroy a

building on Canal Street, in Shelton, Connecticut, known as

Plant No. 4, Sponge Rubber Products Company,

In violation of Title 18, United States Code, Section

844(d) and 2.

Count Four

On or about March 1, 1975, in the District of Connecticut

and elsewhere, Cuartes D. Mortier, Davin N. Busan, Peter

Berres, Ronaup D. Berres, Atpert R. Correy, ANTHONY A.

Just, Dennis C. Ticue, Micnarn J. Ticue, Joun W. Sxaw

and Donatp L. Connors, did wilfully and knowingly re-

ceive and possess a firearm, as defined in Title 26, United

States Code, Section 5845(a)(8), and Title 26, United

States Code, Section 5845(f) (1)(A), to wit: a destructive

device consisting of dynamite, detonating or primer load,

blasting caps and gasoline, which firearm was not regis-

tered to any of them in the National Firearms Registration

and Transfer Record, as required by Chapter 53, Title 26,

United States Code,

27a

Appendia “C”

In violation of Title 26, United States Code, Section

5861(d) and 5871, and Title 18, United States Code, Sec-

tion 2.

/3/ Guy P. Nocera

ForEMAN

/s/ Peter C. Dorsey

Peter C. Dorsey

Unitep States ATTORNEY

/s/ Peter A. Clark

Peter A. CLarkK

AssIsTANtT Unirep States ATTORNEY

/s/ William F. Dow III

Wuumm F. Dow, III

Assistant Unitep States ATTORNEY

28a

Appendia “C”

UNITED STATES DISTRICT COURT

District or Connecticut

CriminaL N-75-59

Untrep States or AMERICA

vs.

Cuarutes D. Moriuer

JUDGMENT or AcQuITTAL

A twelve-count Indictment having been returned by the

Grand Jury on May 8, 1975 and Counts 1, 2, 3, 4, 5, 8, 9, 10,

11 and 12 having been against the above-named defendant,

and the said defendant having entered a plea of not guilty

as to above counts charging him with violation of Title 18

United States Code, Sections 371, 1952.2, 844(d), 2 844(i),

2, 844(h), 2, 1962(c), 2 and Title 26 United States Code,

Sections 5861(f), 5871, 2, 9861(i), 5871, 2, 5861(c), 5871,

2, 5861(d), 5871 and 2, and thereafter said defendant hav-

ing been brought on for trial before the undersigned and a

jury, and the Court having dismissed Counts 4, 5, 8, 9, 10

and 11, and a retyped four-count indictment, containing

Counts 1, 2, 3 and 12, renumbered as Counts 1, 2, 3 and 4,

charging him with violation of Title 18 United States Code,

Sections 371, 1952, 2, 844(d), 2 and Title 26 United States

Code, Sections 5861(d) and 5871, 2, having been filed, and

the jury having returned verdicts of not guilty on each of

the four counts on J anuary 22, 1976, to said defendant,

29a

A ppe ndia “C”

Ir Is Heresy Ornperep, ApsupGED, AND Decreep that the

defendant, Cuartzes D. Moetuer, stand acquitted of the

charges contained in the four-count Criminal Indictment.

Dated at New Haven, Connecticut this 26th day of Jan-

uary, 1976.

United States District Judge