Duffy, Senior Circuit Judge, and Cummings and Kerner, Circuit Judges.
DUFFY, Senior Circuit Judge.
In May 1967, defendant and one Richard Malone were indicted on the charge of theft from an interstate shipment in violation of 18 U.S.C. § 659. The one count indictment charged that on February 23, 1967, Malone and Fusco stole 470 gallons of gasoline from a motor truck operated by Mobil Oil Corporation.
Malone entered a plea of guilty and testified for the Government. Fusco pled not guilty and was tried before a jury and found guilty. He was sentenced for three years and fined $1,500 and costs.
On appeal, this Court reversed the judgment without remand on the basis of insufficient evidence to sustain the charge of theft. United States v. Fusco, 398 F.2d 32 (7 Cir., 1968). The defendant was released from custody.
On August 15, 1968, Fusco was indicted on the charge of possession of goods stolen from an interstate shipment of freight in violation of 18 U.S.C. § 659. This indictment charged that on February 23, 1967, Fusco was unlawfully in possession of the same 470 gallons of gasoline which had been taken from a motor truck operated by Mobil Oil.
Defendant filed a motion to dismiss the indictment on the ground that if a second trial were had, defendant would be placed in double jeopardy in violation of the Fifth Amendment. This motion was denied. Fusco was tried on his plea of not guilty. At the close of all of the evidence, motions for judgment of acquittal were made and denied. The jury returned a verdict of guilty, and defendant was committed to the custody of the Attorney General for imprisonment for a period of three years. Bond pending appeal was denied.
After a Notice of Appeal was filed, defendant made a motion for bond before this Court. That motion was denied. However, in January 1969, defendant filed a motion for an appeal bond before the Supreme Court of the United States, and that Court, with no objection from the Solicitor General, ordered a release on a $1,000 recognizance bond.
The latest expression of views held by the United States Supreme Court on the subject of double jeopardy appears in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The opinion in that case was handed down one day prior to the date of the oral arguments before us in the case at bar.
In Ashe, Justice Stewart wrote the opinion for the Court. Justices Black and Harlan each wrote a separate concurring opinion. Justices Brennan, Douglas and Marshall joined in a concurring opinion and the Chief Justice wrote a dissenting opinion.
The facts in the Ashe case were that six men were engaged in a poker game when four masked men robbed each of the players of money and other personal property. The robbers fled in an automobile belonging to one of the victims of the robbery. The four were later charged with seven separate offenses, namely, armed robbery of each of the six poker players and for the theft of the automobile.
In May 1960, Ashe went to trial on the charge of robbing Knight, one of the poker players. The jury found petitioner Ashe "not guilty due to insufficient evidence."
Six weeks later, Ashe was again brought to trial, this time for the robbery of Roberts who was another of the poker players. The jury found Ashe guilty. The Supreme Court of Missouri affirmed the conviction holding "the plea of double jeopardy must be denied."
Ashe then filed a petition for habeas corpus. The District Court, relying on Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), denied the writ. The Court of Appeals, also on the authority of Hoag v. New ...