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In Re Hutul

OPINION FILED MARCH 20, 1973.

IN RE HARRY PORCYNALEK HUTUL, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 1, 1973.

This is a disciplinary proceeding against the respondent under Supreme Court Rule 751 (Ill. Rev. Stat. 1967, ch. 110A, par. 751), wherein the sole meritorious issue is the measure of discipline to be imposed.

The cause comes before us on the report of the Grievance Committee of the Chicago Bar Association, which recommended that the respondent be disbarred, and the respondent's objections thereto. After a hearing on this report, the Board of Managers of the Chicago Bar Association, sitting as Commissioners, overruled the objections, approved the report and recommendation, and made its report to this court.

The recommendation was a consequence of the respondent's conviction in the United States District Court for the Northern District of Illinois, after a jury trial, on 9 of 15 counts charging him with specific acts of defrauding various insurance companies through use of the mails, and upon one count of conspiracy, in violation of sections 1341 and 371 of Title 18 of the United States Code.

The respondent was sentenced to concurrent prison terms of five years on each count on which he was convicted. The judgments of conviction were affirmed by the United States Court of Appeals for the 7th Circuit (United States v. Hutul, 416 F.2d 607), and petition for certiorari was denied (396 U.S. 1012, 24 L.Ed.2d 504, 90 S.Ct. 573). Prior to his conviction in the United States District Court, he previously had been indicted and prosecuted by the State of Illinois, in the circuit court of Cook County, on substantially the same charges, and had been found not guilty.

The complaint of the Committee on Inquiry of the Chicago Bar Association against him recited his conviction in the United States District Court on the mail-fraud and conspiracy charges. After several hearings, Division IV of the Grievance Committee filed its report finding that the respondent had brought the legal profession into disrepute and recommended his disbarrment. He filed objections to this report and filed a motion in this court to strike his name from the roll of attorneys. The clerk of this court, upon our suggestion, advised the Chicago Bar Association of the filing of this motion and requested its response. The Association advised us that a final hearing was scheduled before the full Grievance Committee and asked that the respondent's motion be continued so that proper consideration could be given to his request. The full Grievance Committee, sitting as Commissioners of this court, met on the scheduled date and without the respondent's appearance approved the report and the recommendation of disbarrment.

Thereupon, the Chicago Bar Association filed with the clerk of this court certain "Suggestions to the Court" which described what had happened and suggested that the respondent's motion be held in abeyance pending receipt of the final report of the Board of Managers of the Association, which report was subsequently received.

Thereafter, amicus curiae filed a motion with the court to approve and confirm the report of the Commissioners recommending the respondent's disbarrment. While incarcerated in the Federal Correctional Institution at Sandstone, Minnesota, the respondent wrote to the court and requested that his letter be considered as his objections to the Commissioners' report, and that the matter be stayed until his release from Federal custody. We allowed his request and continued the motion by amicus curiae to approve and confirm the Commissioners' report.

Upon the respondent's release on parole from Federal custody, his matter was reactivated. In addition to his letter of objections, the respondent later filed, on his own behalf, the common-law record of the circuit court of Cook County in the criminal case wherein he was found not guilty of the fraud and conspiracy charges; a copy of his letter to the Hon. William J. Lynch, Judge of the United States District Court, who presided in the proceeding wherein he was found guilty of mail fraud and conspiracy; and a copy of his petition for a writ of certiorari to the United States Supreme Court, which has now been denied.

The respondent has two basic objections to the report. First, he claims that he was placed in double jeopardy by the Federal prosecution which occurred after he had been found not guilty in a State prosecution for similar charges, and contends that this constitutes a violation of his rights under the fifth amendment to the United States constitution. He additionally urges that if the second prosecution was not barred by double jeopardy, it was barred by the principles of collateral estoppel or res judicata, and by the seventh amendment.

This identical argument was made by the respondent in his appeal to the United States Court of Appeals for the 7th Circuit (United States v. Hutul, 416 F.2d 607). In answering this contention, we adopt that part of the decision of that court which, at page 626, states:

"First, the principles of res judicata and collateral estoppel act as a bar to subsequent proceedings only when the parties to each action are the same, and the Federal Government is neither the same as nor in privity with that of the State of Illinois. See United States v. Wapnick, 198 F. Supp. 359 (D.C.E.D.N.Y. 1961), aff'd. per curiam, 315 F.2d 96, cert. den. 374 U.S. 829, 83 S.Ct. 1868, 10 L.Ed.2d 1052; Rios v. United States, 256 F.2d 173 (9th Cir. 1958). Therefore, the principles of res judicata and collateral estoppel do not apply to the case at bar, and do not provide a substitute for a defense of double jeopardy.

Second, the Seventh Amendment is inapplicable to the instant case since it applies only to ...


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