United States v. Tyler

KERN, Associate Judge,

dissenting:

The pertinent facts as summarized by the majority (at 801) are:

*808 At the close of the testimony defense counsel moved for a directed verdict of not guilty by reason of insanity. Recognizing that he could not rule on the issue absent a finding or admission of guilt, the trial judge asked Tyler if he were inclined to plead guilty “for purposes of the motion” only. Tyler said that he was and the trial judge, over the government’s vigorous protest, accepted what he termed as a “partial” plea and granted the defense motion for a directed verdict of not guilty by reason of insanity. It is from this order that the government appeals.

The majority concludes (at 806) that:

[I]t was error for the trial judge to take the issue of Tyler’s sanity from the jury for in so doing, the court in effect allowed the experts to decide the issue of sanity and this it cannot do.

The majority then remands the case to the trial court “for submission of the sanity issue to a jury” (at 807).

I agree with the majority that the court erred under the facts here in taking the case from the jury after all the evidence was adduced and directing a verdict of not guilty by reason of insanity. However, as the Supreme Court teaches us in Fong Foo v. United States, 369 U.S. 141, 143 , 82 S.Ct. 671, 672 , 7 L.Ed.2d 629 (1962), even when a trial court enters a “final judgment of acquittal . . . upon an egregiously erroneous foundation” (emphasis added), the Double Jeopardy Clause of the Constitution bars a retrial. In sum, neither the fact that the trial court erred, nor the degree of that error, affects the protection afforded against double jeopardy.

The majority seeks to avoid the Fifth Amendment command that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb” by reasoning that

[t]he issue of insanity will be resubmitted to a jury, but no new trial will be required on the issue of guilt or innocence for the plea stands. Consequently the double jeopardy clause is no bar to this appeal, [at 804.]

In my view, however, the majority’s explanation why the government’s appeal is not barred by the Double Jeopardy Clause is wholly at odds with the rationale of that Clause which the Supreme Court recently restated in United States v. Martin Linen Supply Co., 430 U.S. 564 , 97 S.Ct. 1349, 1353 , 51 L.Ed.2d 642 (1977):

“The development of the Double Jeopardy Clause from its common-law origins . suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial.” [United States v. Wilson, 420 U.S. 332, 342 , 95 S.Ct. 1013 , 43 L.Ed.2d 232 (1975).] Thus Wilson held that the “controlling constitutional principle” focuses on prohibitions against multiple trials. Id., at 346 , 95 S.Ct. 1013 . At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm government with a potent instrument of oppression. The Clause, therefore, guarantees that the State shall not be permitted to make repeated attempts to convict the accused, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-188 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957); see also Downum v. United States, 372 U.S. 734, 736 , 83 S.Ct. 1033, 1034 , 10 L.Ed.2d 100 (1963). [Emphasis added.]

Here, the trial court, after all the evidence was presented directed a verdict of not guilty by reason of insanity — a verdict the majority acknowledges (at 802) “means that despite the fact that an accused committed a crime, he is not criminally responsible for its commission. . And the consequence of such a verdict is confinement to a mental institution in lieu of a criminal penalty.” (Emphasis added.) Now the majority reverses and remands for *809 further proceedings in which the government will again attempt to convict appellee of grand larceny and unauthorized use of an auto. Thus, the government’s success on this appeal would subject appellee for the second time to the risk of criminal conviction for the same offenses. This fact, I believe, precludes our entertaining this appeal by the government.

Furthermore, essential to the majority’s holding that the Double Jeopardy Clause does not bar the government’s appeal here is its conclusion that appellee’s “partial plea” resolved once and for all the issue of his guilt or innocence. As the majority admits, however, the record clearly reflects that appellee’s concession was made and accepted by the trial court for the purpose of his directed verdict motion only. To construe such a concession as a guilty plea binding upon appellee for all purposes embraces a position the government did not take on appeal and ignores the government’s concern that a verdict based on ap-pellee’s concession will be subject to collateral attack:

[I]t is not clear beyond all argument that appellee’s subsequent commitment without the benefit of a jury adjudication of his actual culpability — or an explicit jury waiver — could not be challenged collaterally. Certainly, the implications arising from appellee’s actions were not explained to him before he made the motion for a directed verdict [and entered his “partial plea”] as the courts have required in other similar situations, as when a defendant simply waives his right to a jury trial. . . . [Appellant’s Brief at 17.]

In my view the majority errs in finding a guilty plea here which would obviate, the need for a full retrial.

In any event, however, it is clear that the majority permits the government to present its witnesses all over again to a new jury in an effort to convict appellee and impose a penal sanction upon him. Whatever label the majority may attach to this proceeding, and however limited may be the issues to be resolved, it is in fact a retrial and hence barred by the Double Jeopardy Clause.

For these reasons I would dismiss the government’s appeal in Appeal No. 10113. 1

. I agree with the court’s affirmance in Appeal No. 10289.