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United States District Court, Northern District of Illinois, E.D

January 28, 1972


The opinion of the court was delivered by: Marovitz, District Judge.


Pre-Trial Motions

PHILIP ADRIAN DREVETZKI, is charged in the indictment in this case of violating 18 U.S.C. § 1621, the crime of perjury.

The present case arises out of Defendant's testimony at a previous trial, United States of America v. Philip Adrian Drevetzki, 70 CR 377 where Defendant was charged with unlawfully stealing from an interstate shipment in freight five cartons of work clothing valued in excess of $100.00, in violation of 18 U.S.C. § 659. During the trial the question arose whether the Defendant had made a statement to Special Agent John Chadwick admitting participation in the offense. On January 6, 1971, Defendant testifying under oath admitted that he had had a conversation with Agent Chadwick but denied that he had made any statement admitting involvement in or knowledge of the crime of stealing clothing from the interstate shipment. The agent was called to testify as to the conversation and contradicted Drevetzki's testimony. Drevetzki was subsequently acquitted by the jury of the interstate theft charges.

The Government now comes and claims that Drevetzki's testimony as to the statement to Agent Chadwick was false and now charges him in the present case with perjury.

The Defendant presents a multitude of pre-trial motions.

  1) General Motion of Defendant to Dismiss the

  2) Motion of Defendant to Dismiss the Indictment on
     Grounds of Double Jeopardy and For Hearing in
     Connection with said Motion;

3) Motion for Additional Discovery and Inspection;

  4) Motion for a List of Persons Who Have Knowledge of
     the Facts Alleged in the Indictment; Motion for
     the Names and Addresses of Potential Witnesses;

5) Motion for Production of Grand Jury Testimony;

  6) Motion to Produce Evidence Favorable to the

7) Motion to Preserve Evidence; and

  8) Motion Requesting the Court to Order a Pre-Trial


In view of the fact that we find merit to Defendant's second contention that he is being placed in double jeopardy by this indictment, we will comment only briefly on the other motions. Suffice it to say that the law is contrary to granting any of the motions of Defendant save the second and we therefore deny them. (As to motion number 8 requesting the Court to order a pre-trial conference, the United States Attorney has indicated that he has no objection to such a conference. This point is, however, moot given the dismissal of the indictment.) The first motion regarding the vagueness of the indictment is without merit since the charges sufficiently apprise Defendant of the charges against him and is as specific as is possible. The third motion regarding additional discovery and inspection is denied, the current law indicating that the Government need not supply the information requested. The fourth motion regarding the list of persons and potential witnesses requested, is denied since these are not items that the Government must supply. See Hemphill v. United States, 392 F.2d 45, 48 (8th Cir. 1968). The fifth motion requesting the production of Grand Jury testimony is denied given Defendant's failure to indicate with particularity the materiality of said testimony. Furthermore, such testimony is available only after the witness has testified at trial. Defendant's request for all evidence favorable to him, his sixth motion, is denied since it exceeds the limits of pre-trial discovery and, furthermore, the Government recognizes and indicates that it will comply with its obligations to supply that evidence which is statutorily available to Defendant.


We now turn to Defendant's motion to dismiss the indictment on the grounds of double jeopardy.

The terms double jeopardy, res judicata and collateral estoppel are sometimes used interchangeably though they each have their own individual, precise meaning. Double jeopardy is a uniquely constitutional concept derived from the Fifth Amendment which states that ". . . nor shall any person be subject for the same offense to be twice put in jeopardy . . ." and res judicata and collateral estoppel both originally civil terms are but two sub-categories or manifestations of that concept. Res judicata refers to the preclusion of a claim or cause of action where that claim has been fully litigated and decided in a prior suit while collateral estoppel involves the preclusion of a claim where the material issue was litigated and decided in a prior suit though that prior suit may have involved a totally different cause of action. Judge Will in Palora v. Powers, 295 F. Supp. 924 (N.D.Ill. 1969) at 933 clearly defined the scope of collateral estoppel:

    "The concept of issue preclusion developed largely
  in the context of civil litigation. It is designed,
  essentially, to prevent repetitious litigation of the
  same issue by the same parties. As it relates to
  civil actions, the concept of issue preclusion is in
  substance that any fact, question or matter in issue
  and directly adjudicated or necessarily involved in a
  determination of an action before a court of
  competent jurisdiction in which a judgment or decree
  is rendered on the merits, is conclusively settled by
  the judgment therein and cannot be relitigated in any
  future action between the parties or privies, either
  in the same court or a court of concurrent
  jurisdiction, while the judgment remains unreversed
  or unvacated by proper authority, regardless of
  whether the claim or cause of action, purpose or
  subject matter of the two suits is the same."

As will become evident it is the collateral estoppel branch of double jeopardy that we are concerned with in our cause.

It is clearly established that this concept applies with equal validity to criminal as well as civil cases and that the retrial of issues adjudicated in a previous trial is as prohibited by the Fifth Amendment as retrial for the same offense. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916); Laughlin v. United States, 344 F.2d 187 (U.S.App.D.C. 1965); United States v. Kramer, 289 F.2d 909 (2nd Cir. 1961).

In Ashe v. Swenson, supra, the Supreme Court's most recent consideration of collateral estoppel in criminal cases the Court said:

    "Collateral estoppel" is an awkward phrase, but it
  stands for an extremely important principle in our

  system of justice. It means simply that when an issue
  of ultimate fact has once been determined by a valid
  and final judgment, that issue cannot again be
  litigated between the same parties in any future
  lawsuit. Although first developed in civil
  litigation, collateral estoppel has been an
  established rule of federal criminal law at least
  since this Court's decision more than 50 years ago in
  United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct.
  68, 61 L.Ed. 161. Mr. Justice Holmes put the matter
  in that case, `It cannot be that the safeguards of
  the person, so often and so rightly mentioned with
  solemn reverence, are less than those that protect
  from a liability in debt.' 242 U.S., at 87, 37 S.Ct.
  68. As a rule of federal law, therefore, `[i]t is
  much too late to suggest that this principle is not
  fully applicable to former judgment in a criminal
  case, either because of lack of "mutuality" or
  because the judgment may reflect only a belief that
  the Government had not met the higher burden of proof
  exacted in such cases for the Government's evidence
  as a whole although not necessarily as to every link
  in the chain.'" United States v. Kramer,
  289 F.2d 909, 913.

Thus, questions of Fifth Amendment double jeopardy may appear in various shapes and forms in criminal cases. The purest and simplest instance of double jeopardy occurs where the individual is tried for the same offense a second time. Another instance involves retrial for an offense that arises out of a common operational fact previously litigated and decided. Such was the case in Ashe v. Swenson, supra, where three or four men robbed six poker players. The defendant was charged with having robbed one of the players and upon being acquitted of this charge was subsequently retried for robbing another of the poker players. The Supreme Court held that the prior acquittal determined the issue as to whether defendant had been present as one of the robbers and he therefore could not be tried again for robbing another of the poker players since both offenses arose out of one factual, previously determined issue.

Other types of double jeopardy cases involve retrial for lesser included offenses and trial on a conspiracy charge where the individual had been acquitted of the substantive offense.

The common denominator among all of these cases is that the subsequent charges revolve around and originate from a common set of facts or series of actions. Thus, a conspiracy charge emanates from the plan to commit a certain act and though a separate offense, is nevertheless inseparably intertwined with the substantive act. Likewise a lesser included offense partakes of the greater offense. The identifying characteristic of these cases is that the subsequently charged offense arises out of an act that was allegedly committed shortly before, at the same time or shortly after the previously charged offense.

A subsequent charge of perjury in regard to testimony relating to a prior offense, however, creates problems not present in the former type of case. The alleged offense occurs at trial, some time after the commission of the substantive act, and relates to rather than arises from that act. It therefore proves more difficult to discover whether indeed the acquittal of a defendant at a trial at which the perjured testimony was given fully determined and decided the issue of whether the defendant's testimony was indeed perjured since the charged offense rather than the issue of his credibility was directly in issue. Furthermore, an additional policy consideration is injected. As the court stated in Adams v. United States, 287 F.2d 701 (5th Cir. 1961) at 703:

    "Two opposing policy considerations have weighed
  heavily in prior determinations of this problem. On
  the one hand the concern exists that allowing an
  acquittal to afford any sort of insulation for
  perjury will be giving defendants an uncontrollable
  license to testify falsely. The resulting detriment
  to the reliability of evidence and

  more so, to the stability of the judicial process,
  would only be enhanced by the obvious fact that the
  more persuasively flagrant the defendant's
  fabrication, the greater his chances of total
  exoneration. This completes a vicious circle since
  the successful acquittal on the substantive offense
  would immunize him as to the very falsehoods which
  brought it about. On the other hand some apprehension
  exists that allowing prosecution for perjury will
  actually give the state a second shot at the
  defendant for the same wrong. The mere fact, this
  argument continues, that one charge relates to the
  doing of an act and the other to a denial of having
  done it, or to affirmative proof that it was not so
  done, is not sufficient basis on which to make a
  distinction. This is particularly true where the same
  or substantially the same evidence is presented in
  both cases."

The test in determining whether retrial is collaterally estopped by the determination of the same issue in a previous trial was enunciated in Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194:

    "The federal decisions have made clear 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. Where a previous judgment of
  acquittal was based upon a general verdict, as is
  usually the case, this approach requires a court to
  `examine the record of a prior proceeding, taking
  into account the pleadings, evidence, charge, and
  other relevant matter, and conclude whether a
  rational jury could have grounded its verdict upon an
  issue other than that which defendant seeks to
  foreclose from consideration.' The inquiry `must be
  set in a practical frame and viewed with an eye to
  all the circumstances of the proceedings.' Sealfon v.
  United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240,
  92 L.Ed. 180. Any test more technically restrictive
  would, of course, simply amount to a rejection of the
  rule of collateral estoppel in criminal proceedings,
  at least in every case where the first judgment was
  based upon a general verdict of acquittal."

Applying this test to our case we find that the indictment for perjury is barred by the doctrine of collateral estoppel because the truth of the Defendant's testimony regarding his statement to the agent was fully litigated and decided if not explicitly and directly then surely implicitly and indirectly and that further a verdict of guilty of perjury would be inconsistent with the verdict of not guilty for theft.

Admittedly the issue directly decided in the earlier case was not whether Defendant told the truth about his statement to the agent but rather whether he stole the boxes of clothes. This Court also recognizes that this case is once-removed from the conventional post-acquittal perjury case such as in U.S. v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747 (1951). The typical case of a subsequent perjury prosecution relates to false testimony regarding the actions for which the defendant was originally tried. In our case the government is not contending that the Defendant lied about his involvement in the theft, the basis of the original prosecution, but rather that he lied about the peripheral matter of his statement of admission to the agent. Granted that there is a distinction but it is a tenuous and anemic one at best.

Thus in view of the criteria set out above we believe that the finding of not guilty in the trial for theft is so inseparably intertwined with the issue of Defendant's veracity regarding his statement to the agent as to render any perjury charge regarding his testimony at trial about that statement in violation of the prohibition against double jeopardy. A subsequent prosecution to constitute double jeopardy need not be for the same offense as long as the determinative issue is the same in both cases. We must therefore isolate the determinative issue in our case in order to decide whether the adjudication of that issue precludes the perjury charge.

The issue determined in the first trial was that Drevetzki did not steal the goods in question. Taking into consideration, as Ashe v. Swenson, supra prescribes, ". . . the record of [the] prior proceeding, . . . the pleadings, evidence, charge, and other relevant matter and . . . whether a rational jury could have grounded its verdict upon an issue other than that which defendant seeks to foreclose from consideration. . . ." we believe that a rational jury could not have found Defendant not guilty had they believed the agent's testimony rather than the Defendant's. The testimony of an F.B.I. agent regarding a statement of admission made by a Defendant is bound to have a profound effect on the minds of a jury. The fact that a jury found the Defendant not guilty in spite of that testimony indicates that they considered both statements and chose to believe Defendant's statement over that of the agent. A jury could not have reached its conclusion without considering that issue. The finding of not guilty is therefore the same as determining that the statement of admission was not made to the agent and that issue cannot be again litigated. Thus the perjury indictment fails the Ashe v. Swenson test. The indictment itself, in fact, concedes the criticality and centrality to the case of the alleged statement to the agent. On page 1 of the indictment it is stated:

  "3. During the course of the trial it became material
  for the court and jury to learn whether the defendant
  had made a statement to Special Agent John Chadwick
  and whether in that statement he had admitted
  participation in the offense."

Thus the government concedes that the issue was a determinative one and having been determined we cannot allow it to be litigated once more.

In a similar, though admittedly not identical case, the Fifth Circuit found that a subsequent trial for perjury that merely relied on previously litigated issues was in violation of the double jeopardy prohibition. The Defendant in United States v. Nash, 447 F.2d 1382 (1971) had been charged with stealing money from the mails and had claimed that she obtained the marked money from a coin machine and not from the mails. She was acquitted of that charge but the government subsequently prosecuted her for perjury contending that her testimony as to the source of the money was false since she could not conceivably have obtained the money from the coin machine. She was found guilty of perjury and she appealed.

The Court of Appeals reversed stating:

    "Nevertheless, in our judgment the appellant in the
  perjury trial was `subject for the same offense to be
  twice put in jeopardy', as interdicted by the Fifth

    "This conclusion is derived from formulae
  authoritatively prescribed for ascertaining whether
  the verdict at the second trial depends upon
  resolution of any matter previously tested and found
  in favor of the defendant when acquitted at the first
  trial. Double jeopardy is a constitutional bar not
  only to retrial for the same offense, but also to
  relitigation of adjudicated issues whether they
  emerge in trials for the same or distinct offenses.
  Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25
  L.Ed.2d 469.

    "Of course, the Government did not have to prove
  that she had not obtained the coins as she explained,
  but it did have the burden of establishing that she
  had taken the letter containing the coins from the
  mail. The change machine explanation was part of her
  defense and had to be weighed by the jury.
  Consequently, it cannot have been simply a collateral
  issue. While she was under no obligation to prove
  that the coins had not come from the mail box, still
  when her story was adduced, it created a conflict
  with the Government's proof. There were but

  two conflicting explanations of her possession to be
  considered. Thus, the jury `necessarily' had to pass
  upon the truthfulness of her account. The issue was
  `crucial' and once adjudicated, its redetermination
  in a trial for another offense is estopped."

Though in our case the perjury charged relates to an incident peripheral and tangential to the prior charged offense whereas in Nash the testimony related to a critical part of the offense itself the same formula nevertheless applies. Applied to this case the result derived is that the issue of whether the Defendant made an admission to the agent was "necessarily" adjudicated and a perjury prosecution cannot therefore be mounted.

Our decision, then, distilled and summarized is that collateral estoppel applies to a perjury prosecution for testimony in a prior trial not only where the testimony relates to an issue that was an essential element of the crime itself but also where the testimony relates to any peripheral matters that must have been adjudicated and considered in order to reach the verdict; if a rational jury could not have found a defendant not guilty without having considered a crucial issue then that issue is to be considered determined for the purposes of collateral estoppel.

While "if at first you don't succeed try, try again" may be a lofty and worthy ideal for the general public it has no place in the area of criminal prosecution where that first attempt at success has fully and completely adjudicated the issues and where the second prosecution merely rehashes old evidence. To try again in a situation such as this would allow for the self-perpetuation and self-generation of endless litigation and would do violence to the concepts of res judicata and collateral estoppel. U.S. Deputy Attorney General Richard G. Kleindienst recently stated a similar view when he said:

    "In the search for speedy justice, we must look
  beyond additional manpower and resources. We must ask
  ourselves whether all the cases now processed in
  Federal courts should continue to be
  entertained . . . Are there cases that are simply a
  rehash of cases already tried." Toward Speedy
  Justice, Trial Mag.; Nov.-Dec. 1971, p. 12.

This does not in any way imply that valid attempts at reprosecution for a separate offense or for non-adjudicated issues should not be mounted in the interest of justice and the pursuit of criminal elements. It simply means that the Court must be convinced that the indictment is composed of new unlitigated issues of offenses. Our case not being of such a nature the indictment is hereby dismissed.


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