# United States v. James M. Millen, M.D.

> Court of Appeals for the Sixth Circuit · April 4, 1979 · 594 F.2d 1085

URL: https://www.frixlaw.com/law-library/cases/9465609

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. James M. MILLEN, M.D., Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 4, 1979
- **Citations:** 594 F.2d 1085
- **Precedential status:** Published
- **Opinion:** Concurring in part by Peck
- **Judges:** Edwards, Weick, Peck
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465609

## Opinion text

PECK, Senior Circuit Judge,
concurring in part, dissenting in part.
I concur in the affirmance of defendant-appellant’s conviction under the twenty counts for violation of 21 U.S.C. § 841 (1976), and in the vacation of the conviction as to the involuntary manslaughter charge, and dissent only from the majority’s remand for retrial. As is clearly demonstrated in the majority opinion, the United States attorney was guilty of questionable action in requesting and obtaining an indictment for murder “with malice aforethought,” and of censorable conduct in eliciting the gay relationship testimony which forms the basis for the vacation of the manslaughter conviction and which we unanimously “believe to have been done intentionally.” The Government thereafter argued that this testimony was admissible, but neither by a preliminary showing nor by a subsequent proffer of proof did it present any evidentiary basis for that contention. The remand would presumably open the door for the Government to do that which it declined an opportunity to do at trial. I do not feel that it is entitled to another bite at the apple.
Given the fact that defendant was sentenced to twenty valid concurrent 5-year prison terms, we should exercise our discretion to simply vacate a twenty-first invalid concurrent 3-year term, and not permit the United States attorney to subject the defendant to another trial,, necessary only because of the Government’s misconduct at the first trial. United States v. Brown, 529 F.2d 962, 970 (1976).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465609. Public record. Not legal advice.