The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
After a hearing on December 11, 1990, this Court denied defendant's Motion to Dismiss on Counts I, III, IV, and V of the indictment. For the reasons stated in open court on December 11, 1990, and for the reasons stated below, the Court shall deny defendant's motion to dismiss. This memorandum opinion supports the Court's order issued from the bench on December 11, 1990.
On or about March 19, 1990, the defendant was indicted in Criminal No. 90-129 (hereinafter, "White I"). The two-count indictment charged the defendant and a co-defendant, Harold Linden, with knowingly possessing a birth certificate in the name of William Smith Baldwin with the intent that such document be used to defraud the United States in violation of 18 U.S.C. §§ 1028(a)(4) and 2 (Count I), and with the making of false statements in an application for a passport for use by Harold Linden in violation of 18 U.S.C. § 1542 (Count II).
As to Count I (the "birth certificate charge"), the Court charged the jury that to convict the defendant, the government had to prove beyond a reasonable doubt that the defendant possessed an identification document other than one issued lawfully for use by him, that the defendant intended to use the document to defraud the United States, and that the defendant acted willfully.
As to Count II (the "passport charge"), the jury was instructed that the government had to prove beyond a reasonable doubt that the defendant made a false statement in a passport application, that the defendant intended to secure the issuance of a passport, and that the defendant acted willfully and knowingly.
The defendant was acquitted on Count I and there was a hung jury on Count II. The court subsequently granted a mistrial and, on July 25, 1990, dismissed Count II without prejudice.
On or about October 9, 1990, the defendant was charged in a five-count indictment in this case (hereinafter, "White II").
In Count I, the indictment charged that the defendant conspired with defendant Weyforth, Harold Linden and others (1) to furnish Linden with a false British Passport in the name of Norman Harold Moore for use to enter the U.S., (2) to obtain by fraud, for use by Linden, an I.N.S. Service Form I-94 in the name of Norman Moore, (3) to make false statements in an application for a U.S. passport for Linden, an alien, in the name of William Smith Baldwin, and (4) to conceal, harbor, and shield from detection Linden, an alien who had come to, entered, and remained in the U.S. in violation of law, in violation of 18 U.S.C. § 1543, 18 U.S.C. § 1546, 18 U.S.C. § 1542, 8 U.S.C. § 1324(a)(1)(C) and 18 U.S.C. § 371.
In Count III, the indictment charged the defendant and his co-defendant, Thomas G. Weyforth, with knowingly and in reckless disregard of the fact that Linden, an alien, had come to, entered, and remained in the U.S. in violation of the law, concealing, harboring and shielding Linden from detection, in violation of 8 U.S.C. § 1324(a)(1)(C) and 18 U.S.C. § 2.
In Count IV, the indictment charged the defendant with willfully and knowingly making false statements in a passport application with the intent to secure the issuance of a U.S. passport for the use of Linden by stating in the said application that he had known the applicant for five years and that he had reason to believe the applicant was a U.S. citizen or national, when in truth and in fact, and as the defendant then and there well knew, he had not known the applicant for five years and that the applicant was not a citizen or national of the U.S., in violation of 18 U.S.C. § 1542.
The defendant now moves to dismiss Counts I, III, IV and V based on the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and on the incorporated principal of collateral estoppel. In the alternative, he seeks to order preventing the government ...