(dissenting).
I think it is clear that the sentence imposed upon the conviction on Count IV cannot stand because of a fatal error in the instructions of the trial court thereon. The substantive offense with which Count IV deals is found in 18 U.S. C. § 641, as follows:
“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted — ■
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
The evidence showed that the principal property stolen from the Wilton post office which the defendant was charged *922with having received was postal money orders in blank. There was also some evidence that certain other property had been stolen, but the jury was instructed that it was not required to believe that the defendant was the recipient of these additional articles. The judge’s charge to the jury permitted it to find Kramer guilty if he received the blank money orders alone. He told the jury as a matter of law that these blank money orders had a value in excess of $100.
Such valuation was based upon the fact, according to the evidence, that at a later date Kramer exercised his skill as a forger in filling in the blank money orders to the value of $100 each. This forgery of course was a separate offense under 18 U.S.C. § 500. It was in evidence that the defendant Kramer cashed or passed on the forged money orders for the amount of $100 each. But it seems obvious to me, from a reading of 18 U.S.C. § 641, that the stolen property which has to be “received” must have a particular face value at the time it is taken, in order to make out a felony under the second paragraph of that section; and although this paragraph also defines the crime of retaining the same, with intent to convert it to the accused’s own use, I take it “the same” must refer to the property of the stated value at the time it was stolen. The trial judge referred to uncontroverted testimony to the effect that:
“[Sjeveral of those money orders were cashed. Now, to my mind that means that the element of value contemplated by the statute was imported into those blanks, and then the blanks were put into circulation, and you will recall, as to one of them, and I have forgotten which one it was now — you can see how much value it had to that young woman who was, I think, in the ticket office of one of the airplane companies, when there was deducted from her pay the sum of $100 that was advanced in the belief that that money order was an authentic thing.
“It seems to me that within the law the testimony in this case indicates that a potential value which those blanks possessed became a practical value in the hands of whoever issued those and put those into circulation.”
A single blank money order may well be worth more than the mere piece of paper on which it is written; but as a matter of law how can it be said to have a value of whatever amount was later forged into it? At the very least the trial judge should have left to the jury to determine whether the value of the property received by the defendant was in excess of $100. In the absence of such a determination, the prison sentence of eight and one-half years on Count IV is not authorized by law for the particular violation of 18 U.S.C. § 641.
There was also a valuation problem in Count III, which charged the defendant with conspiracy to convert to his own use money, vouchers and other things of value knowing them to have been stolen. The second paragraph of 18 U.S.C. § 371 provides that if the offense, “the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” The inaccuracy of the charge with reference to the valuation of the blank money orders does not constitute prejudicial error, because there was abundant undisputed evidence that other articles of a value in excess of $100 had been stolen from the two post offices.
With regard to the convictions on the first three counts, charging conspiracy merely, appellant raised in many adequate ways the defenses of double jeopardy and of res judicata,. There is somewhat of an affinity between these two defenses; but the defense of double jeopardy involves a constitutional right under the Fifth Amendment of the Constitution, and the defense of res judicata is solely a judge-made concoction.
I entirely agree with the court that the defense of double jeopardy has not been *923established, for the reasons that the court gives.
Concerning the defense of res judicata, I part company with my brethren. The Third Circuit stated, in United States v. De Angelo, 1943, 138 F.2d 466, 468, that an accused person was constitutionally entitled to a jury trial de novo on the facts alleged in support of each offense charged against him. If that is so, it is evident that, as applied to criminal cases, the judge-made doctrines of collateral estoppel cannot be a two-way street. I have found no Supreme Court case giving us any light or leading as to the extent to which civil law doctrines of res judicata are to be applied to criminal cases because of this lack of mutuality. Considering that the defense of collateral estoppel is purely a judge-made creation, the courts can mold these doctrines as they please in criminal cases. We cannot say that the doctrines of collateral estoppel have no application at all to criminal proceedings, having in mind Hoag v. State of New Jersey, 1958, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913; Yates v. United States, 1957, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. But how far those doctrines of collateral estoppel are to be applied is the question in this ease.
The opinion of the court points out that the American Law Institute has said that its Restatement of Judgments relates to civil cases, not criminal cases. Therefore § 68, Comment p, as revised in 1948, can have no direct relevance to the case at bar. Nor can our decision in The Evergreens v. Nunan, 2 Cir., 1944, 141 F.2d 927, 152 A.L.R. 1187, have a direct bearing, for that was certainly a civil case. But in view of the lack of mutuality in these cases, it seems to me entirely reasonable to hold that the doctrines of collateral estoppel in criminal cases should be at least no broader than such doctrines in civil cases, and therefore that the distinction between the determination of an ultimate fact and of an evidentiary or mediate fact should be controlling in a criminal case. This must be what the Supreme Court had in mind in Yates v. United States, supra, 354 U.S. at page 338, 77 S.Ct. at page 1087, a criminal case, when it stated: “The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or ‘mediate’ facts are concerned, the doctrine of collateral estoppel is inoperative. The Evergreens v. Nunan, 2 Cir., 141 F. 2d 927, 152 A.L.R. 1187; Restatement, Judgments § 68, Comment p.”
I do not think that the other points raised by appellant are well taken or deserving of enumeration or discussion.
Since it is the primary function of the trial judge to impose an appropriate sentence, I think we should set aside the whole judgment below and remand the case to the District Court for resentencing in accordance with law. See Gonzalez v. United States, 1 Cir., 1957, 247 F.2d 489, certiorari denied 1958, 356 U.S. 913, 78 S.Ct. 672, 2 L.Ed.2d 586.