Respondents Brief — Lee v. United States

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*withip Coart, UL &

FUL ED

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| APR A I9T7

No. 76-5187 j MICHAEL RODAK, Je ciepy

i! ee

Su the Supreme Gourt of the Cited States

OcrToRBER ‘TERM, 1976

Poinnipe JEROME LEE, PETITIONER

De

Uxrrep STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES CO’ RT

IPPRALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.,

Nolicitor General,

BENJAMIN R. CIVILETTI,

ixsixsfant Aflorney General,

ANDREW L. FREY,

Deputy Solicitor General,

FRANK H. EASTERBROOK,

tssisfant to the Nolicilor ¢

JEROME M. FEIT,

WILLIAM G. OTIS,

gene ral,

ittorneys,

Department of Justice.

Washingt: s. £f “al0

¥e

INDEX

Opinion below..........--..-22220202222-22-----------

FRR, cccnnnsniindhnceudeninedadeguecceses Daienenaiiet

Grrastiet® BONING. <cnadcnecesascccutcnssuscccencoce<

Jonstitutional provision involved__..---.---------------

BieteeNs ncccnceccccecveseconecacccccccccccccny nite

Summary of argument..............-~22-222---2---- =

Argument:

Petitioner’s second trial did not violate the Double

Feoperty Chan00..nnn nc cemoenegcaseccsococtentne

Oe ae ee

B. Petitioner’s motion to dismiss the information

removed any bar to a second tria!l_.....-~-

1. In the absence of judicial or prosecutorial

overreaching, a motion for a mistrial re-

moves aliy double jeopardy objection to

@ sseend t0ibe<cupacnanaewaseccannan

2. The same principles that apply to requests

by the aceused for mistrials also permit

retrials after the accused has requested

any other form of mid-trial termination.

a. Function, net form, determines

whether a second trial is per-

GRE cnenanucenagetenasee

b. The interests of the accused in

avoiding a second trial are the

same whether the first trial ends

in a mistrial or in an order dis-

missing the information.....--

c. A rule that distinguished among

the reasons for the mid-trial ter-

mination would be inconsistent

with the rule allowing a second

trial after a verdict of guilty has

ye ee

(1)

231-811—-77——-1

~ ——

14

14

17

17

18

Argument—Continued

Petitioner's second, ete—Continued

B. Petitioner’s motion, ete—Continued

2. The same principles, ete—Continued

d. A defendant may safeguard his

legitimate interests by going to

verdict and saving his objections

for post-verdict resolution____--- 24

C. It is not dispositive that the district court heard

evidence at the first trial before dismiss-

ing the information...................... 27

a ne Pr ee 37

CITATIONS

Cases:

Allee v. Medrano, 416 U.S. 802...................... 36

Ashe v. Swenson, 397 U.S. 436................_.-__- 15

Breed v. Jones, 421 U.S. 519.......-.-..-----_--__- 10, 18

Brock v. North Carolina, 344 U.S. 424....-------__- 10

Bryan v. United States, 338 U.S. 552_....-...-----_- 13

Conner v. Deramus, 374 F. Supp. 504_.--....---...-- 16

Davis v. United States, 411 U.S. 233.......-_______. 33

Downum v. United States, 372 U.S. 734..--.---- 29, 30

Estelle v. Williams, 425 U.S. §01.............-.-__.. RR

Fong Foo v. United States, 369 U.S. 141_..-...____- 1]

Forman v. United States, 361 U.S. 416_....-_____- 11, 12-13

Francis v. Henderson, 425 U.S. 536_..._... 32

Galloway v. Beto, 421 F. 2d 284, certiorari denied, 400

Wllh TURD ncncsicmenemestinicsesueenemeieennet ties 16

Gori v. United States, 367 U.S. 3@4.....-.-._-_._____ 10

Green v. United States, 355 U.S. 184.---_---__ 10

(@reene v. Massey, 546 F. 2d 51__.....-_.-.--_--- 13

Himmelfarb v. United States, 175 F. 2d 924, certiorari

ee hk en yl 16

Lllinois y. Somerville, 410 U.S. 458... 11, 29, 30

Kepner v. United States, 195 U.S. 100_-.--_________ 11

Linnemeier v. State, 330 N.E. 2d 373__..._.- 21

Ludwig v. Massachusetts, 427 U.S. 618__._---_______ 35

Martin v. State, 300 N.E. 2d 128__..---..... 21

Cases—Continued

Monroe v. State, 339 N.E. 2d 102.....--------------- 21

Montgomery Ward & Co. v. Duncan, 311 U.S, 243.--- 36

North Carolina v. Pearce, 395 U.S. 711.------------- 9

Roberts v. United States, 477 F. 2d 544.------------ 16

Scott v. United States, 202 F, 2d 354, certiorari denied,

TT ES Se Sa 16

Serfass v. United States, 420 U.S. 3877-------- 10, 18, 30, 31

Singer v. United States, 380 U.S. 24----------------- 15

United States v. Ball, 163 U.S. 662....--..---------- 12

United States v. Burroughs, 537 ¥. 2d 1156_-.------- vw

United States v. Cravero, 530 F, 2d 666__...--------- 25

United States v. Debrow, 346 U.S. 874.------------- v1

United States vy. DeGracea, 518 F, 2d 1156..--...----- vb

United States v. Dinitz, 424 U.S, 600_..._--- 7, 13, 14, 15, 19

United States v. DiSilvio, 520 F. 2d 247, certiorari de-

nied, 468 U.S. 116..2...........---------~------- 22

United States \ Donahue, 539 . 98 1391...........- 5)

United Stites v. Finch, C.A. 9, No. 75-2149, decided

EE SS 25

United States v. Gentile, 525 ¥. 2d 262, certiorari de-

ee 29

United States v. Goldstein, 479 F.2d 1081___--_- 16

United States v. Grame, C.A, 2, No. 76-1284, decided

EE ecnctanduncmgumccnamnpiimoanadnes= 16

United States v. Howard, 432 F. 2d 1188.-...-.---- _ 13

United States v.. Jenkina, 420 U.S. 358.......-.-.-- 11, 15, 26

United States v. Jorn, 400 U.S. 470...-----.----- 10, 12, 14

United States v. Kehoe, 516 F. 2d 78, certiorari de-

nee yo

United States v. Lucido, 517 F. 2d 1---..-.....----- 23

United States v. Means, 513 PB. 2d 1329_.....--..---- 23

United States v. Pappas, 445 F. 2d 1194_-..--.--.--- 16

United States v. Perez, 9 Wheat. 579_.....----------- 13

United Statea v. Robbina, 510 F. 24 301, certiorari de-

EEE ae 23

United States v. Sanabria, 548 F. 2d 1, petition for a

writ of certiorari pending, No, 76-1040_____..-~-- 22, 27

United States v. Scott, 544 F. 2d 903.........--.--.- 23

United States v. Sedgwick, 345 A. 2d 465, certiorari de-

ctinnandiangnmiananencenasqum 23

IV

Cases—Continued

United States v. Sharpnack, 355 U.S. 286........---- 21

United States v. Sisson, 399 U.S. 267......-... 16-17, 18, 30

United States v. Tateo, 877 US. 468.-....-..-- o- 12, 17,23

United States v. Wiley, 517 F. 2d 1212_-..-..--. ..... 13

United States v. Wilaon, 490 US. 332......--....---.. 11,18

Wade v. Hunter, 386 U.S. 684__... —— 9, 11, 13, 31, 36

Constitution and statutes.

United States Constitution, Fifth Amendment_.___- 2

Double Jeopardy Clause.._..........--..-..-- passim

SD I -.- passim

Assimilative Crimes Act, 18 U.S.C. 18.....---.---- 2

SP DG, Ht aihagennesecosbonsstssbebeecosssann 13

Indiana Code 35-17-5-3, Burns Ind. Stat. Am. 10-

ENE Pet Les OR 21

Miscellaneous :

Federal Rules of Criminal Procedure :

BD Veli ecensquicicintbenesooestoceegesésoens 34

Hh. Miitrietuntuegueeceennnesesisseheosios 7, 16, 25

Friedland, Double Jeopardy (1969) _.......-------- 20, 26

Mayers and Yarbrough, Bis Vewari; New T'rials and

Successive Prosecutions, 75 Harv. L. Rev. 1 (1960). 20

Note, Government Appeals of “Dismissals” in Crimi-

nal Cases, 87 Harv. L. Rev, 1822 (1974) _......__.- 20

Note, Z7'wice in Jeopardy, 75 Yale L.J. 262 (1965)... 20

Sigler, Double Jeopardy (1969) _....---.-...-.-___- 20

Yu the Supreme Gourt of the Wnited States

OcroBer TERM, 1976

No. 76-5187

PuHittir JEROME LEE, PETITIONER

v.

Unrrep States or AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPRALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (A. 17-20) is

reported at 539 F.2d 612.

JURISDICTION

The judgment of the court of appeals was entered

on July 21, 1976. The petition for a writ of certiorari

was filed on August 9, 1976, and was granted on Jan-

uary 10, 1977. The jurisdiction of this Court rests

upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a defendant may be retried after the

court, at the defendant’s request, dismissed the infor-

mation during trial on the ground that it was defee-

tive on its face.

(1)

2

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Consti-

tution provides in relevant part:

* * * [Nor shall any person be subject for

the same offence to be twice put in jeopardy of

life or limb * * *,

STATEMENT

In an information filed on February 6, 1974, peti-

tioner was charged with theft, in violation of the

Assimilative Crimes Act (18 U.S.C. 13) and an Indi-

ana state statute (A. 4). On May 24, 1974, the district

court appointed Donald Swanson as petitioner’s coun-

sel and set July 16, 1974 (approximately two months

later) as the trial date (A. 2)." Petitioner waived his

right to be tried by a jury (A. 3), and a bench trial

commenced as previously scheduled (A. 7).

The prosecutor made his opening remarks outlin-

ing the government’s evidence (A. 7), and the district

judge then invited defense counsel to make an open-

ing statement. Mr. Swanson orally moved to dismiss

the information on the ground that it failed to allege

that petitioner committed the theft knowingly and in-

tending permanently to deprive the victim of his

property (A. 8-9). The district court remarked that

counsel could have made this motion before the trial

commenced, stating (A. 8):

Well, I will consider it, but you certainly were

in the case before this morning. It is difficult to

* Swanson replaced another attorney, who was permitted to

withdraw (A. 2).

3

deal with a motion to dismiss if you raise any

technical questions, and you don’t give me the

opportunity in advance of trial to research

them. So I will hear you, but you have that

problem.

The court observed that because it had “no oppor-

tunity to study this at all” it would deny the motion

“at this time, but at my first opportunity I will check

[the state case cited in support of the motion] and

give [it such] consideration as appears to be war-

ranted’? (A. 9).

The court asked defense counsel whether he had

“anything further by way of opening statement”

(A. 9). Mr. Swanson made a brief opening state-

ment. He did not object to proceeding with the trial

(tbid.).

The prosecution then presented its case. Petitioner

stipulated that the theft occurred, if at all, in the

United States Post Office in Fort Wayne, Indiana,

which was under the exclusive jurisdiction of the fed-

eral government (A. 10). The prosecution presented

the testimony of two witnesses: Vance Travis, a secu-

rity guard at the Post Office, and Charles Bilskie, the

victim of the crime. Their testimony (Tr. 17-62)

showed that Bilskie, who was 63 years old and blind,

operated a news stand and candy concession in the

Post Office lobby. On December 21, 1973, after Bil-

skie had placed his two wallets on a counter behind

his stand, Travis saw petitioner go behind the counter

and take the wallets. Travis shouted at petitioner,

who tried to escape but was apprehended.

4

After a short recess petitioner moved for a judg-

ment of acquittal, arguing that the prosecution had

failed to prove criminal intent or that petitioner had

possession of the wallets (A. 11-12). The court de-

nied this motion on the understanding that its deci-

sion did not apply to petitioner’s earlier motion con-

cerning the adequacy of the charge, upon which the

court had reserved decision (ibid.).

Petitioner rested without presenting any evidence

(A. 13). The court then returned to the defense mo-

tions. As to the sufficiency of the evidence, the court

told Mr. Swanson (ibid.): “Your motion addressed

to the Government’s proof borders on being frivolous.

Your client has been proven beyond any reasonable

doubt in the world, there is no question about his

guilt; none whatsoever.”’’

The court did not, however, render a formal ver-

dict of guilty. It instead took up the motion to dis-

miss the information for failere to state all of the

elements of the offense. The court granted this mo-

tion, holding that the information was improperly

drawn because it did not charge that petitioner took

the wallets knowingly and with the intent perma-

nently to deprive the owner of his property (A. 13-

14).

On September 25, 1974, petitioner was indicted for

the theft of the wallets. The indictment alleged that

petitioner committed the theft knowingly, with the

intent to deprive Bilskie of his property. At a bench

trial on June 23, 1975, the prosecution introduced the

same evidence that had been produced in the first

5

trial. The defense again presented no evidence. The

court rendered a verdict of guilty (Tr. 89-90).

The court of appeals rejected petitioner’s argu-

ment that the second trial was barred by the Double

Jeopardy Clause (A. 17-20). After concluding that

the Clause should not be applied in a mechanical

fashion (A. 19), the court went on (A, 20):

In the case at bar, the motion of dismissal

was made by the defendant on the day of trial.

The dismissal was granted after the evidence

was heard, but before any finding was made of

guilt or innocence. It was not based on evi-

dence adduced at trial, but rather on the fail-

ure of the information to state an essential ele-

ment of the offense—in short, because of a

jurisdictional defect. Significantly, the defend-

ant knowing that the court had taken his mo-

tion to dismiss under advisement did not ob-

ject to going forward with the trial. Under

these circumstances, we conclude that the dou-

ble jeopardy clause did not bar his retrial.

SUMMARY OF ARGUMENT

1. The Double Jeopardy Clause does not require so-

ciety to marshal its resources to guarantee every de-

fendant a single error-free proceeding, on pain of in-

ability, when error arises, to complete the prosecution

of those accused of crime. It is settled, for instance,

that when an accused has had an opportunity to re-

ceive a verdict, has been convicted, and the convic-

tion has been reversed on appeal because of error in

the indictment, a second trial does not violate the

231-811—-77——-2

6

Double Jeopardy Clause. Also, when during the course

of a trial an accused willingly surrenders his right to

receive the verdict of the factfinder by asking for a

mistrial, this election removes any barrier to a second

trial. And even when an ongoing trial is terminated

over the defendant’s objection, a new trial still may

be held if there was manifest necessity te override

the defendant's preference for the first tribunal. Kach

of these strands of double jeopardy law supports the

propricty of petitioner’s second trial.

The only factor that differentiates cases in which

a conviction is reversed on appeal (and in which a

second trial is indisputably allowed by double jeop-

ardy principles) from eases in which an ongoing trial

is aborted is that a mid-trial termination may deprive

the defendant of his valued right to receive the ver-

dict of the factfinder then sitting. All of the other

considerations—the continuing state of anxiety, the

expense of a second trial,.and so on—are the same

whether the second trial follows a reversal on appeal

or a mid-trial termination. It follows logieally tha

the rules governing retrial after a mid-trial termina-

tion should not differ from those allowing retrial

after reversal of a conviction, except to the extent

necessary to vindicate this single additional interest

of protecting the defendant’s right to receive a ver-

dict at the first trial.

But when the defendant seeks the pre-verdict termi-

nation of his trial, the granting of his request does

not ‘‘deprive” him of the right to receive the fact-

7

finder’s verdict; to the contrary, the mid-trial termi-

nation gives to the accused an outcome he apparently

values more highly than receiving the factfinder’s ver-

dict. After all, a defendant who desires to receive the

factfinder’s verdict could do so by submitting his case

to the factfinder and preserving his legal issues for a

ruling after trial.’ Accordingly, logic and policy dic-

tate that a request by the accused to terminate an

ongoing trial should ordinarily remove any double

jeopardy bar to a second prosecution, United States v.

Dinitz, 424 U.S. 600.

It would be strange if the only way for a trial judge

to safeguard the public’s interest in fair trials de-

signed to end in just judgments were to deny seeming-

ly meritorious requests to terminate ongoing trials.

Yet if the district court (erroneously) had denied

petitioner’s motion to dismiss the information, the

trial would have gone to verdict, the conviction would

have been set aside (either by the district court or on

appeal), and a second trial could have been held free

of any serious contention that the Double Jeopardy

Clause had been violated. Why should petitioner ac-

quire immunity from prosecution because the district

court, following a procedure that was agreeable to

petitioner, correctly granted his motion, thereby spar-

ing him the trauma of a pronouncement of guilt and

2In the present case, for instance, petitioner could have asked

that a verdict be returned and then moved for an arrest of judg-

ment pursuant to Fed. R. Crim. P. 34. Such a procedure would

have protected fully his right not to be convicted upon a defective

information.

8

the expense and delay that might have been necessary

to have that verdict set aside?

2. Although petitioner agrees with much of this

analysis (Br. 22 n. 35), he argues that this case should

be assessed by different standards because the termi-

nation of the trial did not occur until after all the

evidence was taken. But any hardship petitioner may

have experienced during the taking of evidence in the

first trial was caused, in substantial measure, by his

counsel’s delay in making the motion to dismiss the

information. Despite the fact that counsel had almost

two months in which to prepare and file written mo-

tions before trial, counsel’s first objection to the suffi-

cicney of the information came in an oral motion

made after trial had commenced and the prosecutor

had made his opening statement. Although this mid-

trial motion was made before the technical “attach-

ment” of jeopardy, it came too late to allow either the

judge or the prosecutor any opportunity to research

hefore trial the state cases upon which petitioner

relied.

The district court therefore acted reasonably in

proceeding with the trial until a convenient recess

provided time to inquire further. If petitioner were

dissatisfied with the court’s decision to begin taking

evidence before ruling on the motion to dismiss, he

could have objected or asked for a continuance. He

did neither, and his failure to do so must be taken as

an acquiescence in the hearing of evidence, at least

until the first regular recess during the trial. Simi-

larly, when the judge was ready to rule on the motion

i

9

to dismiss, petitioner did not ask that the ruling be

reserved until after verdict (doubtless because the

judge had prefaced his ruling by stating (A. 13) that

petitioner was guilty “beyond any reasonable doubt

in the world’’). Under the circumstances, any hard-

ship caused by the decision to hear evidence must be

“subordinated to the publie’s interest in fair trials

designed to end in just judgments.” Wade v. Hunter,

336 U.S. 684, 689.

ARGUMENT

PETITIONER'S SECOND TRIAL DID NOT VIOLATE THE DOUBLE

JEOPARDY CLAUSE

A. INTRODUCTION

The Double Jeopardy Clause “protects against a

second prosecution for the same offense after acquit-

tal. It protects against a second prosecution for the

sume offense after conviction. And it protects against

multiple punishment for the same offense.” North

Carolina v. Pearce, 395 U.S. 711, 717. Petitioner’s first

trial was aborted, at his request, before a verdict of

ouilt or innocence was rendered by the factfinder.

This case therefore does not present any question

concerning a second prosecution after a conviction or

an acquittal by the factfinder.* It does, however, pre-

® Other cases now before the Court present questions concern-

ing the holding of second trials following a conviction for a

closely related offense (Jeffers v. United States, No. 75-1805,

argued March 21, 1977) and following a legally erroneous “ac-

quittal” by the judge after the jury was unable to reach a verdict

(United States vy. Martin Linen Supply Co., No. 76-120, argued

10

sent the question whether petitioner’s second trial for

the same crime was proper. ’

The prohibition against multiple trials for the same

offense is based upon the special interests protected

by the Clause.

The underlying idea, one that is deeply in-

grained in at least the Anglo-American system

of jurisprudence, is that the State with all its

resources and power should not be allowed to

make repeated attempts to convict an individ-

ual for an alleged offense, 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 US, 184, 187-188, quoted

in Serfass v. United States, 420 U.S. 377; 387-388. See

also Breed v. Jones, 421 U.S. 519; United States v.

Jorn, 400 U.S. 470, 479 (plurality opinion).

Because of the special rules of finality created by

the Clause, the prosecution may not retry a defendant

who has been acquitted, on the facts, by the finder of

facts, whether or not the instructions or legal prin-

ciples underlying the acquittal were erroneous.‘

February 23, 1977). We have furnished to counsel for petitioner ,

copies of our briefs in Jeffers and Martin Linen.

* A second trial also is barred when the prosecution, secing that

things are going badly, seeks “another, more favorable oppor-

tunity to convict the accused” (Gori v. United States, 367 U.S.

364, 369) or, more generally, when the government seeks to “do

better a second time” with a more favorably disposed factfinder

(Brock vy. North Carolina, 344 U.S. 424, 429 (Frankfurter, J

concurring) ).

~

11

United States v. Wilson, 420 U.S. 332, 347-348 ; United

States v. Jenkins, 420 U.S. 358 (decision on the gen-

eral issue of guilt or innocence by judge acting as

factfinder in bench trial) ; Fong Foo v. United States,

369 U.S. 141 (court instructed the jury to return a

verdict of not guilty in the middle of the prosecution’s

case, and the jury did so); Kepner v. United States,

195 U.S. 100. But only a “verdict of acquittal at the

hands of the jury [or judge in a bench trial]” (For-

man v. United States, 361 U.S. 416, 426) is an absolute

bar to a second trial. In any other event, whether a

second trial may be held depends upon a careful bal-

ancing of the defendant’s interest in avoiding repeti-

tious trials against the publie’s interest in “fair trials

designed to end in just judgments.” Wade v. Hunter,

336 U.S. 684, 689.

With the exception of the principle that a verdict

of acquittal by the factfinder is a complete bar to

reprosecution, the Court has eschewed the application

of any ‘‘mechanical formula” or “rigid rules.” Illinois

vy. Somerville, 410 U.S. 458, 462-463, 467. A rule that

a second trial for the same offense invariably violates

the Double Jeopardy Clause “would create an insu-

perable obstacle to the administration of justice in

many eases in which there is no semblance of the type

of oppressive practices at which the double-jeopardy

prohibition is aimed. * * * [T]he purpose of law to

protect society from those guilty of crimes frequently

would be frustrated by denying courts power to

put the defendant to trial again.” Wade v. Hunter,

supra, 336 U.S. at 688-689. As Mr. Justice Harlan

12

explained in United States v. Jorn, supra, 400 U.S.

at 483-484, ‘‘it is clear beyond question that the Dou-

ble Jeopardy Clause does not guarantee a defendant

that the Government will be prepared, in all cireum-

stances, to vindicate the social interest in law enforce-

ment through the vehicle of a single proceeding for a

given offense. * * * The determination to allow re-

prosecution in [some] circumstances reflects the judg-

ment that the defendant’s double jeopardy interests,

however defined, do not go so far as to compel society

to so mobilize its decisionmaking resources that it will

be prepared to assure the defendant a single proceed-

ing free from harmful governmental or judicial

error.”

The most important value that may be disserved by

a mid-trial termination is the right of the accused “to

conclude his confrontation with society through the

verdict of a tribunal he might believe to be favorably

disposed to his fate.’’ United States v. Jorn, supreu,

400 U.S. at 486. When an accused has had an oppor-

tunity to receive that verdict and has been convicted,

a second trial does not violate the Double J eopardy

Clause even though a legal error may have prevented

the factfinder from acquitting. See Forman v. United

States, supra; United States v. Ball, 163 U.S. 662; -

United States v. Tateo, 377 U.S. 463. This principle

has been carried so far as to permit a second trial

even though the evidence at the first trial was insuffi-

cient to allow the jury to convict. Forman y. United

13

States, supra, 361 U.S. at 424-425; Bryan v. United

States, 338 U.S. 552, 559-560.’

Moreover, when during the course of a trial an

accused willingly surrenders his right to receive the

verdict of the factfinder, this choice removes any bar-

rier to a second trial, unless the election was forced

by judicial or prosecutorial overreaching. United

States v. Dinitz, 424 U.S. 600. Finally, even if an

ongoing trial is terminated over the defendant’s objec-

tion, thereby depriving him of bis “valued right’’ to

receive the factfinder’s verdict (Wade v. Hunter,

supra, 336 U.S. at 689), a new trial still may be held

if there was manifest necessity to override the de-

fendant’s preference for the first tribunal. United

States v. Perez, 9 Wheat. 579; Lilinois v. Somerville,

supra.

Each of these strands of double jeopardy law sup-

ports the propriety of petitioner’s second trial. Peti-

tioner was convicted by the factfinder at the first trial

in all but matters of form; the district judge stated

that petitioner was guilty “beyond any reasonable

doubt in the world” (A. 13). Petitioner willingly sur-

rendered his right to receive a more formal verdict

*Compare United States v. Howard, 432 F. 2d 1188 (C.A. 9),

and Greene v. Massey, 546 F, 2d 51 (C.A. 5), which discuss and

apply this rule, with United States vy. Wiley, 517 F.2d 1212

(C.A.D.C.), which holds, in the exercise of the powers conferred

on appellate courts by 28 U.S.C. 2106, that after a conviction is

reversed because the evidence is insufficient a second trial should

not be held unless the insufficiency is attributable to causes be-

yond the control of the prosecution.

231-811—-77——-3

14

from the factfinder in his first trial. If the trial had

gone to verdict, it would have been necessaary to set

that verdict aside, and a second trial could have been

held. We discuss these considerations below in greater

detail.

B. PETITIONER'S MOTION TO DISMISS THE INFORMATION REMOVED

ANY BAR TO A SECOND TRIAL

1. In the absence of judicial or prosecutorial overreaching, a

motion for a mistrial removes any double jeopardy objection

to a second trial

“TW]here circumstances develop not attributable

to prosecutorial or judicial overreaching, a motion by

the defendant for mistrial is ordinarily assumed to re-

move any barrier to reprosecution, even if the de-

fendant’s motion is necessitated by prosecutorial or

judicial error.” United States v. Jorn, supra, 400 U.S.

at 485. This principle follows from the rule that, if

the trial had gone to completion and a conviction had

been reversed on appeal, a second trial could have

been held. There is no point in requiring a defendant

to endure the remainder of a trial that already (in his

opinion) is so infected with error that a reversal and

a second trial are bound to follow. Yet, unless a second

trial were permitted after a mid-trial termination at

the request of the accused, district courts would tend

“to reject the most meritorious mistrial motion in the

absence of manifest necessity and to require, instead,

that the trial proceed to its conclusion despite a

legitimate claim of seriously prejudicial error.”

United States v Dinitz, supra, 424 U.S. at 610; foot-

note omitted.

15

The “important consideration, for purposes of the

Double Jeopardy Clause, is that the defendant retain

primary control over the course to be followed in the

event of [judicial or prosecutorial] error.’’ Id. at 609

(footnote omitted). If the defendant, for reasons he

deems siicient, asks to terminate the proceedings

without receiving the verdict of the factfinder, the

Double Jeopardy Clause does not prohibit a second

trial.*

Petitioner surrendered his valued right to receive

the verdict of the factfinder. After the trial had begun

and the prosecutor had made his opening statement,

petitioner’s counsel made an oral motion to dismiss

the information; when the trial judge rebuked coun-

sel for making the motion so belatedly, counsel did not

ask for a continuance to allow the judge to do legal

*We use “factfinder” throughout this brief to refer to the

jury in a jury trial and to the judge in a bench trial. The double

jeopardy considerations are similar, since “the Double Jeopardy

Clause of the Fifth Amendment nowhere distinguishes between

bench and jury trials” (United States v. Jenkins, supra, 420 U.S.

at 365). The only difference is that the judge in a bench trial re-

solves questions of both law and fact, whereas in a jury trial only

the jury may resolve factual disputes. Singer v. United States,

380 U.S. 24. Because issues of fact resolved in favor of an ac-

cused may not be reexamined in a second trial (Ashe v. Swenson,

397 U.S. 436), it sometimes may be necessary in bench trial cases

to determine whether the judge has acted in his capacity as

factfinder or only in his capacity as the resolver of legal disputes.

There is no need to make that inquiry here, however, because it is

clear that the judge in petitioner’s first trial did not purport to

- resolve any disputed factual issues in petitioner’s favor, and the

second trial did not call into question any disputed issues that

previously had been resolved against the prosecution.

16

research before beginning to hear evidence; when the

trial judge announced later during the trial that he

was ready to rule on the motion to dismiss the indict-

ment, counsel did not ask the judge to defer ruling

until after a verdict had been rendered.’ Petitioner’s

counsel showed not the slightest interest in receiving

the verdict of the factfinder—which was understand-

able in light of the trial judge’s emphatic and unequiv-

ocal statement that petitioner was guilty ‘‘beyond any

reasonable doubt in the world” (A. 13). Petitioner

was not deprived at the first trial of his interest in

receiving a verdict or of any other interest protected

by the Double Jeopardy Clause.*

* Unless, as in United States v. Jorn, supra, the trial court’s

action is so precipitate that it is impossible to protest, the de-

fendant’s failure to object to a termination of his trial should be

treated as consent, United States v. Goldstein, 479 F. 2d 1061,

1066-1068 (C.A. 2); Roberts v. United States, 477 F. 2d 544, 545-

546 (C.A. 8) ; United States v. Pappas, 445 F. 2d 1194, 1199-1200

(C.A. 3); Scott v. United States, 202 F. 2d 354, 355-356

(C.A.D.C.), certiorari denied, 344 U.S. 879; Conner v. Deramus,

374 F. Supp. 504, 507-509 (M.D. Pa.) ; but see Galloway v. Beto,

421 F. 2d 284, 288 n. 4 (C.A. 5), certiorari denied, 400 U.S. 912;

Himmelfarb v. United States, 175 F. 2d 924, 931 n. 1 (C.A. 9),

certiorari denied, 338 U.S. 860. Compare United States v. Grasso,

C.A. 2, No. 76-1284, decided March 9, 1977, slip op. 2250-2251

(defendant implicitly objected to the declaration of a mistrial),

with id. at 2263-2264 (dissent) (explicit objection is necessary, °

or consent to mistrial will be inferred).

® Indeed, once the district court had announced that petitioner

is guilty beyond a reasonable doubt, its decision to dismiss the

information was functionally the same as a decision to arrest

judgment under Fed. R. Crim. P. 34. An order dismissing an

information after verdict because of facial insufficiency would

have been subject to appellate review under both the old

‘Criminal Appeals Act (United States vy. Sisson, 399 U.S. 267,

. i owe

17

2. The same principles that apply to requests by the accused for

mistrials also permit retrials after the accused has requested

any other form of mid-trial termination

a. Function, not form, determines whether a second trial is

permitted

It might be argued that the principle discussed in

Dinitz does not apply when the first trial is ended by

an order dismissing the indictment rather than by an

order declaring a mistrial. We submit, however, that

it makes no difference, for double jeopardy purposes,

what form of mid-trial termination a defendant seeks.

A “mistrial,” a “dismissal of the indictment,” or an

“acquittal” by a judge in a jury trial all are based

upon a perceived legal error in the institution or con-

tinuation of the proceedings rather than upon the res-

olution by the factfinder of any disputed fact in favor

of the accused. A second trial therefore would not

offer the prosecution the chance to do better with a

second factfinder than it did with the first.

280-290) and the present one (United Siates v. Wilson, supra).

If the order arresting judgment had been erroneous, the court of

appeals could have reversed and remanded with instructions to

enter judgment of conviction on the verdict. If, on the other

hand, judgment had been properly arrested, a second trial could

have been held (just as if the judgment of conviction had been

reversed on appeal). See United States v. Tateo, supra, 377 U.S.

at 465 (the Double Jeopardy Clause “does not preclude the Gov-

ernment’s retrying a defendant whose conviction is set aside be-

cause of an error in the proceedings leading to conviction”).

Only the fact that the district court made its pronouncement of

guilt before allowing closing argument makes this a mid-trial

termination. In almost every other respect, however, it shares

the attributes of a post-verdict arrest of judgment.

18

This Court has held on many occasions that func-

tion, not nomenclature, controls when double jeopardy

interests are at stake. United States v. Sisson, 399

U.S. 267, 270, 279 n. 7; United States v. Wilson,

supra, 420 U.S. at 335-339, 347-351; Serfass v. Umted

States, supra, 420 U.S. at 392; Breed v. Jones, supra,

421 U.S. at 529. For purposes of the various policies

that are to be served in the interpretation and appli-

cation of the Double Jeopardy Clause, it makes no

material difference what the name of or reason for

the mid-trial termination may be. Thus, the permissi-

bility of a retrial following a mid-trial dismissal

should be assessed by the same standards that apply

in the case of a termination by mistrial.

b. The interests of the accused in avoiding a second trial are

the same whether the first trial ends in a mistrial or in an

order dismissing the information

No matter why the first trial has ended, the most

important fact relating to the permissibility of a sec-

ond trial is that the accused has mot received the ver-

dict, on the facts, of the factfinder. When the accused

has actively sought the mid-trial termination, how-

ever, he has—for reasons he persumably deems suffi-

cient—abandoned his valued right to receive the ver-.

dict of the factfinder. This is so whether he seeks a

mistrial or an order dismissing the indictment.’ After —

® We believe that the considerations discussed in this brief

support a rule allowing second trials even when the district court

has “acquitted” the defendant, in a jury trial, for reasons that

go to the general issue of guilt or innocence. This case does not

involve an “acquittal” on the merits, however, but instead con-

cerns only an order dismissing the information as defective on

19

all, the accused’s request to terminate the trial ex-

presses his willingness to forego receipt of a verdict.

And there is no pressure on the accused to seek relief

prior to verdict because—here, as in most such

cases—he has the option to go to verdict and preserve

his objections for post-verdict determination if he is

not acquitted by the factfinder (see pages 24-25,

infra).

As the Court explained in United States v. Dinitz,

supra, 424 U.S. at 608, “when judicial or prosecutorial

error seriously prejudices a defendant, he may have

little interest in completing the trial and obtaining a

verdict from the first jury. The defendant may rea-

sonably conclude that a continuation of the tainted

proceeding would result in a conviction followed by

a lengthy appeal and, if a reversal is secured, by a

second prosecution. In such circumstances, a defend-

ant’s mistrial request has objectives not unlike the in-

terests served by the Double Jeopardy Clause—the

avoidance of the anxiety, expense, and delay occa-

sioned by multiple prosecutions.’’ This is so when the

defendant seeks to dismiss the indictment because of

legal error no less than when he seeks a mistrial be-

cause of legal error. A defendant who concludes that

his interests are best served by taking the case from

the factfinder (and thereby avoiding any risk that he

will be found guilty at that trial) should not later be

its face. The Court therefore need not decide whether an “ac-

quittal” on the merits—a decision that the accused is not

criminally responsible—may be followed by a second trial when

the “acquittal” is not embodied in a verdict by the factfinder.

That issue is presented in the pending petition in New York v.

Brown, No. 76-358.

20

heard to complain when the prosecution makes a sec-

ond effort to hold an error-free trial.

This focus upon the defendant’s abandonment of

his right to go to verdict at the first trial involves no

diminution of the major protection afforded by the

Double Jeopardy Clause—ensuring the interest of the

accused in the finality of verdicts in his favor by the

factfinder. See United States v. Jenkins, supra. An

aborted trial produees no verdict of the factfinder in

which the accused has an interest; it finds no dis-

puted fact in favor of the accused; whatever the rea-

son for a mid-trial termination, accordingly, it does

not implicate the defendant’s interest in the finality

of a favorable verdict.”

c. A rule that distinguished among the reasons for the mid-

trial termination would be inconsistent with the rule allow-

ing a second trial after a verdict of guilty has been set

aside

An important consideration, one stressed in United

States v. Jorn, supra, is the fact that the goverment

*° Many commentators have suggested that the guarantee that

facts found in favor of the accused will not be subject to re-

examination is the central meaning of the Double Jeopardy

Clause, and that second trials therefore should be allowed when

they would not produce a risk of depriving the accused of favor-

able factual findings. See Note, 7'wice in Jeopardy, 75 Yale L.J.

262 (1965); Note, Government Appeals of “Dismissals” in

Criminal Cases, 87 Harv. I. Rev. 1822 (1974); Mayers and

Yarbrough, Bis Vewari: New Trials and Successive Prosecutions,

74 Harv. L. Rev. 1 (1960). Other scholars, although not accord-

ing such a central position to the protection of facts found in

favor of the accused, have concluded that second trials should be

permitted after mid-trial terminations, whatever the reason for

the terminations. See Friedland, Double Jeopardy 69-72 (1969) ;

Sigler, Double Jeopardy (1969).

21

eannot reasonably be required to marshal its resources

to guarantee to every accused a single error-free pro-

ceeding on pain of inability to convict those guilty of

crime. Errors are inevitable in the criminal process.

Not all trials will go smoothly; not all informations

or indictments will be drafted correctly. There is no

reason why a drafting error should confer immunity

from prosecution on all defendants prescient enough

to wait until trial has begun to point out the error.”

It would be a topsy-turvy rule if the constitution-

ality of a second trial could be saved by the congru-

ence of two errors. We agree with petitioner that the

information was improperly drafted.” Yet if the dis-

trict judge in the first trial had erred and rejected

11 Tf the motion is made before trial, the court can pass upon

the sufficiency of the indictment prior to the attachment of

jeopardy. If the indictment is insufficient, the defendant can be

reindicted. If a sufficient indictment is improperly dismissed,

the government may obtain appellate review. Serfass v. United

States, swpra. In either event, only a single trial will be necessary.

The problem presented by the mid-trial dismissal in this case

never would have arisen if petitioner’s counsel had drawn the

defect in the information to the court’s attention before trial.

Tho Assimilative Crimes Act, under which petitioner was

prosecuted, establishes “complete current conformity with the

criminal laws of the respective States in which * * * [federal]

enclaves are situated.” United States v. Sharpnack, 355 U.S, 286,

293. Under Indiana law, the indictment or information charging

a violation of Indiana Code 35-17-5-3, Burns Ind. Stat. Ann.

10-3030 (1975), must state that the defendant knowingly com-

mitted the theft with intent to deprive the victim of his property.

Linnemeier y. State, 330 N.E. 2d 373, 376 (Ind. Ct. of App.) ;

Martin v. State, 300 N.E. 2d 128, 131 (Ind. Ct. of App.) ; Monroe

v. State, 339 N.E. 2d 102 (Ind. Ct. of App.). The information there-

fore should have alleged that petitioner committed the theft know-

ingly and with the intent to deprive Bilskie of his property perma-

nently. United States v. Debrow, 346 U.S, 374, 376.

22

petitioner’s chalienge to the sufficiency of the infor-

mation, petitioner could have been tried a second time

after the error had been corrected on appeal (or by

the district court after verdict). Petitioner’s argument

is that, because the district court ruled correctly and

dismissed the information in his case, he cannot be

retried, but that if the court had erred and denied the

motion to dismiss he could have been retried. To state

the proposition is to demonstrate its fallacy.

A defendant should not be allowed to transmute a

drafting error into immunity from prosecution by

the simple act of delaying, until trial has begun, the

making of a motion to dismiss an indictment. The

Double Jeopardy Clause is not a sword for defeating

altogether the public interest in obtaining a trial of

those accused of criminal misconduct. Accordingly,

an accused who moves in mid-trial to dismiss the

indictment, or to terminate the prosecution for any

other reason, should be subject to a second trial if the

termination is erroneous or if, as here, the error can

be cured.”

18 Several courts of appeals have agreed with this approach

and have allowed second trials after mid-trial terminations at

the request of the accused. These courts have held that it makes

no difference whether the terminations are called mistrials or

orders dismissing the indictments. See United States v. Sanabria,

548 F. 2d 1 (C.A. 1), petition for a writ of certiorari pend-

ing, No. 76-1040; United States v. Kehoe, 516 F. 2d 78 (C.A.

5), certiorari denied, 424 U.S. 909 (emphasizing the argu-

ment that an accused should not be allowed to obtain a tactical

advantage by delaying a motion to dismiss until jeopardy

has attached); United States v. DiSilvio, 520 F. 2d 247

(C.A. 3), certiorari denied, 423 U.S. 115 (holding that as a rule

23

The interests of defendants, no less than the inter-

ests of the public, are best served by a rule allowing

second trials after the first trial has been terminated

at the request of the accused. The Court pointed out

in United States v. Tateo, supra, 377 U.S. at 466, that

“it is at least doubtful that appellate courts would be

as zealous as they now are in protecting against the

effects of improprieties at the trial or pretrial stage

if they knew that reversal of a conviction would put

the accused irrevocably beyond the reach of further

prosecution. In reality, therefore, the practice of re-

trial serves defendants’ rights as well as society’s in-

terest.’’ That consideration is pertinent to mid-trial

& motion in mid-trial to dismiss the indictment precludes any

objection to a second trial). See also United States v. Sedgwick,

345 A. 2d 4@5 (D.C. App.), certiorari denied, 425 U.S. 966.

Other courts, however, have adopted a rule under which mid-

trial terminations called “acquittals” or “dismissals of the indict-

ment” prohibit second trials, but terminations called “mistrials”

do not. See United States v. Scott, 544 F. 2d 903 (C.A. 6) (order

dismissing the indictment because of preaccusation delay) ;

Dnited States v. Lucido, 517 F. 24.1 (C.A. 6) (order terminating

the prosecution in light of mid-trial suppression of critical evi-

dence) ; United States v. Means, 513 F. 2d 1329 (C.A. 8) (order

terminating the prosecution because of alleged prosecutorial mis-

conduct and unwillingness to consent to 11-member jury) ;

United States v. Robbins, 510 F. 2d 301 (C.A. 6), certiorari de-

nied, 423 U.S. 1048 (order dismissing the indictment because the

statute is unconstitutional as applied); cf. United States v.

Grasso, supra (the Double Jeopardy Clause bars a second trial

after judge terminated first trial by declaring a mistrial rather

than by proceeding with the trial or granting defendant’s motion

for acquittal, where the defendant was not entitled to either ac-

quittal or mistrial), For the reasons given in the text, we sub-

mit that these cases were wrongly decided.

24

requests to dismiss the indictment no less than to

requests to an appellate court to reverse a conviction.

It is doubtful that a trial court would look as favor-

ably as it should upon a defendant’s request to termi-

nate his trial if the judge knew that granting such a

request would irrevocably end the prosecution. ‘I'he

judge would, instead, tend to proceed with the trial

and leave the correction of errors to post-verdict pro-

ceedings or to appellate tribunals, after which second

trials could be held. It would be ironic if the only way

to comply with the Double Jeopardy Clause—which

was designed to prevent repetitious litigation—were

for district courts to hold or complete useless trials

that could not end in valid verdicts. A trial judge

should not be put in the quandary of holding what he

and the accused agree is a useless trial in order to

safeguard society’s interest in prosecuting those ac-

cused of crime.

d. A defendant may safeguard his legitimate interests by go-

ing to verdict and saving his objections for post-verdict

resolution

The rule that a defendant who does not object to a

pre-verdict termination of his first trial should not be

able to block a retrial on double jeopardy grounds

does not impair the defendant’s “valued right” to go ,

to verdict at the first trial, and it does not subject his

choice to pressure of any sort. Far from it; a defend-

ant who desires to obtain the jury’s verdict may do so

simply by asking the judge to postpone his legal rul-

ing until after verdict, thereby receiving an acquittal

by the factfinder (if one is forthcoming).

25

This strategy will safeguard all of the defendant’s

interests. If he should be found guilty by the fact-

finder, he would be entitled to a post-verdict ruling

on his claim of legal error—in the instant case, by

means of a motion for arrest of judgment pursuant

to Fed. R. Crim. P. 34. If there is error, the verdict

would be set aside and a new trial would be held. If

the defendant’s assertion of error were incorrect, the

district court (or an appellate court) would reject it,

and the verdict would stand. If the assertion of error

were incorrect, but the district court nevertheless

found error, the court of appeals could rectify the dis-

trict court’s mistake without the need for holding a

second trial. Following Wilson, Jenkins, and Serfass,

many courts have reversed erroneous rulings in favor

of defendants and reinstated verdicts of guilty."

Saving legal issues for post-verdict decision pre-

serves the accused’s right to receive an acquittal by

the factfinder at a single trial; it also minimizes

his exposure to multiple trials by eliminating any

significant chance that a retrial might be required by

erroneous mid-trial terminations. If, disdaining the

opportunity to receive the verdict of the factfinder,

the accused seeks and receives a mid-trial termina-

tion, it is not unfair to hold a second trial.

* See, e.g., United States v. Donahue, 539 ¥, 2d 1131 (C.A. 8) ;

United States v. Burroughs, 537 F. 2d 1156 (C.A. 4); United

States v. Cravero, 530 F.2d 666 (C.A.5); United States vy.

DeGarces, 518 F. 2d 1156 (C.A, 2). Cf. United States y. Finch,

C.A. 9, No. 75-2149, decided December 22, 1976 (reversing an

“acquittal” after trial on stipulated facts).

26

In sum, neither the label of nor the reason for the

order terminating the first trial prior to verdict

should control the permissibility of a second trial un-

der the Double Jeopardy Clause." The expense,

trauma and humiliation of the second trial are the

same no matter why the first trial ended before ver-

dict. The reason why the first trial ended may show

that a second trial should not be held (if, for example,

the statute is unconstitutional or does not apply to

the conduct the accused is alleged to have committed,

or if the judge correctly determines that the evidence

cannot support a conviction), but those reasons are

not based upon the Double Jeopardy Clause.”

18Jn England, the reason why the first trial ended is imma-

terial. Jeopardy does not “attach” until the jury returns a verdict,

and second trials routinely are allowed after mid-trial termina-

tions. See Friedland, Double Jeopardy 21-38 (1969), While serv-

ing other double jeopardy values, the English approach affords a

defendant no protection of his interest in receiving the verdict of—

and possible exoneration by—the factfinder at the first trial.

1° We believe that this is what the Court was discussing in

United States v. Jenkins, supra, 420 U.S. at 365 n. 7, which

observed that it is important whether proceedings in the trial

court terminate in a mistrial or in the defendant’s favor. A “mis-

trial” usually is granted in contemplation of reprosecution. In

Jenkins, on the other hand, the trial ended in a ruling on the

general issue by the factfinder. The Court could not determine

whether the factfinder had resolved certain factual issues against ,

the defendant, and the judgment in that case therefore operated,

in effect, as an absolute acquittal. The factfinder’s judgment may

have absolved the accused from criminal responsibility, and he

had an interest in preserving the finality of that resolution, A

trial that is aborted before verdict, however, does not entail any

factual finding absolving the accused of criminal responsibility.

27

Petitioner’s counsel asked for an order dismissing

the informatica, and he received the relief he sought.

That is enough to demonstrate that a second trial, on

a proper charge, should be permitted. ‘‘Here, as in

the mistrial context, [petitioner] elected to forego his

valuable right to have his trial * * * concluded by

the first tribunal. * * * [Petitioner] has not made,

nor can he make, any suggestion that the government

intentionally manipulated events to gain some advan-

tage at the first trial or to force [petitioner] to forego

his right to proceed before the first tribunal. * * *

Since [petitioner] voluntarily requested termination

of proceedings * * *, and since there can be no sug-

gestion that [petitioner’s] request was attributable to

developments resulting from prosecutorial or judicial

overreaching, * * * there is no double jeopardy bar

to a [second] prosecution on this cause.” United

States v. Sanabria, 548 F. 2d 1, 7-8 (C.A. 1), petition

for a writ of certiorari pending, No. 76-1040.

Cc. IT 18 NOT DISPOSITIVE THAT THE DISTRICT COURT HEARD EVIDENCE

AT THE FIRST TRIAL BEFORE DISMISSING THE INFORMATION

As should be clear from the foregoing discussion,

we believe that the presence or absence of an objec-

tion by the defense to any pre-verdict termination of

a trial is the critical factor in determining whether a

second trial may be held. If the defense, having been

afforded reasonable opportunity to do so, does not ask

to receive the verdict of the tribunal then empaneled,

28

then it cannot reasonably be found that the defendant

was deprived of his “valued right’’ to that verdict, a

deprivation that would be the sole reason in logic or

policy for precluding a second trial.

This approach by and large eliminates any reliance,

in this case, upon the doctrine of “manifest necessity”

that was the foundation for this Court’s decision in

Illinois v. Somerville, supra. The “manifest necessity”’

rule does not come into play unless the trial judge

has overridden the defendant’s preference for the tri-

bunal then sitting; only a decision to terminate a trial

despite the accused’s desire to go to verdict must be

justified by “manifest necessity.’”? But petitioner did

not assert such a desire, and his wishes were not dis-

regarded.

Under the approach we have taken, application of

the “manifest necessity” standard must reflect a sen-

sitive regard for the factors that bear upon the fair-

ness of depriving the defendant of his chance to ter-

minate the contest by an acquittal at the first trial. In

the hung jury cases, for example, manifest necessity

is established because there is no reasonable possi-

bility that the jury, being irrevocably deadlocked,

would aequit the defendant. In other cases, where it

cannot confidently be said that no verdict of acquittal

is forthcoming, the courts must inquire into the avail-

ability of alternative means to purge the taint of

the events precipitating the consideration of a mis-

trial. We think the inquiry also should encompass

such factors as the degree to which actions of

29

the defense have brought about the crisis and the

stage of trial at which the termination is being con-

sidered. See United States v. Gentile, 525 F. 2d 252,

255-258 (C.A. 2), certiorari denied, 425 U.S. 903."

Illinois v. Somerville, supra, ean be analyzed in

these terms. Here, as in Somerville, a trial was termi-

nated before verdict because of a defect on the face

of the charge that made a valid conviction impossible.

The trial in Somerville was terminated before any

evidence had been taken. The termination took place

over the defendant’s objection, but the Court con-

cluded that it was manifestly necessary to abort the

trial because the “tends of publie justice” (410 U.S.

at 463) dictate that the parties to a eriminal

case and the courts need not be burdened by

mounting a full trial that could not end in a

valid judgment of conviction. We believe that it

would make no difference whether the termination be-

fore verdict were called a mistrial (as in Somerville)

* For example, if a mistrial appears to be necessary because the

defense has engaged in questionable conduct that has materially

prejudiced the prosecution’s prospect of obtaining a fair and im-

partial verdict, it obviously would not be improper to terminate

the first trial whether or not the defendant objected to the termi-

nation. And a pre-verdict termination that occurs early in the

trial (as in United States v. Dinitz, supra, and Illinois v. Somer-

ville, supra) would constitute a less grave impairment of tho de-

fendant’s “valued right” than would a termination at the close

of the evidence following a three-month trial. Of course, a mis-

trial declared even at the very beginning of a trial may bar a

second trial when, as in Downum v. United States, 372 US. 734,

it is done to avoid a likely acquittal.

30

or an order dismissing the indictment (as in the pres-

ent case). In either event the trial ended with the

expectation that the defect in the charge would be cor-

rected; a mistrial and an order dismissing the indict-

ment are, in these circumstances, functionally equiv-

alent, and it would be wholly insupportable to reach a

different result because of the label the trial court

placed upon its action. See, e.g., United States v. Sis-

son, supra, 399 U.S. at 270, 279 n. 7; Serfass v. United

States, supra, 420 U.S. at 390-392.

Manifest necessity therefore would have supported

the termination of petitioner’s first tria!—even over

his objection—early in the trial. But once the evidence

has been taken, there is little to weigh against the

interest of a protesting defendant in receiving the

verdict of the factfinder and, perhaps, being acquitted

on the spot. There was manifest necessity in Somer-

ville to avoid holding a useless trial; there would not,

we believe, be manifest necessity to prevent a defend-

ant from receiving a verdict once all of the evidence

has been heard.”

18 Somerville distinguished (410 U.S. at 464-465) Downum

v. United States, 372 U.S. 734, upon which petitioner relies (Br.

17). Downum does not help petitioner. In Downum the prosecu-

tor allowed jeopardy to attach on six counts of an indictment,

knowing that a witness critical to two of the counts would not be °

present, The prosecutor then successfully obtained a mistrial

with respect to all six counts, including the four counts for which

no witness was missing. The Court held that this mistrial was not

justified by manifest necessity. In the present case, however, the

prosecutor did not allow jeopardy to attach although knowing of

a flaw; unlike the case in Downum, there is here no prosecutorial

overreaching. Nor did the prosecutor in the present case seek the

termination of a trial on counts that were not infected with error.

31

It does not follow from this analysis, however, that

petitioner’s second trial violated the Double Jeopardy

Clause because it was terminated after all of the evi-

dence had been received.” Petitioner’s trial was not

terminated over his objection. In our view the com-

plete answer to petitioner’s arguments is that he had

a right at the first trial to insist upon receiving a

verdict after all of the evidence had been heard. He

could have been acquitted, if the tribunal had been so

disposed.” Petitioner’s willingness to forego receiving

the verdict of the factfinder justifies his second trial.

The district court’s action in hearing evidence in

petitioner’s case was entirely reasonable. Petitioner

did not object either to the taking of evidence or to

the termination before formal verdict. The trial was

underway. The prosecutor had made his opening

statement. Although jeopardy technically had not ‘‘at-

tached” because no evidence had been heard,” it would

have been poor judicial administration for the judge

to have stopped the trial in its tracks, sua sponte,

while he researched a belated oral motion by defense

counsel.

* Petitioner apparently agrees with much of the analysis we

have presented above (Br. 22 n. 35).

*° Indeed, it seems likely that the district court, were it disposed

to acquit petitioner, would have terminated the trial—and the

entire controversy—by a verdict of “not guilty” rather than by

dismissing the information. It is plain from the record, however,

ry the court was not the least disposed to acquit petitioner (see

. 13).

** See Serfass v. United States, supra, 420 U.S. at 388; Wade v.

Hunter, supra, 336 U.S. at 688.

32

The delay in ruling upon petitioner’s motion to dis-

miss the information was caused primarily by the de-

lay of petitioner’s counsel in making the motion. It is

one thing to say that a written motion made well in

advance of trial should be passed upon before jeop-

ardy attaches; it is quite another to say that a district

court has an obligation to rule at once upon oral mo-

tions made in the course of trial. Motions to dismiss

the indictment or information sometimes require sub-

stantial research and study; the trial judge in peti-

tioner’s first trial could not have known whether

lengthy study would be needed here until he had halted

the trial and looked at the state case that had been

cited to him.

Petitioner has not offered any reason for his tardi-

ness in making the motion. His counsel had been ap-

pointed approximately two months before trial, yet

he did not make the motion to dismiss until the trial

was under way. Moreover, counsel did not ask for a

continuance of the trial and did not voice any objec-

tion to the taking of evidence. It is now too late for

petitioner to argue that this taking of evidence—to

which counsel did not object—was an error that bars

the holding of a second trial. Petitioner’s objection or

request for a continuance would have offered the dis- .

trict court the opportunity to avert any of the hard-

ship of which petitioner now complains. His failure

to make this simple motion must be taken as acquies-

cence in the hearing of evidence until a convenient

recess would allow the trial judge to do some brief

research. Cf. Francis v. ITenderson, 425 U.S. 536; Es-

33

telle v. Williams, 425 U.S. 501; Davis v. United States,

411 U.S, 233.

Petitioner’s response to these arguments is twofold.

First, he contends, an objection or request for a con-

tinuance would have been futile (Br. 23). Second,

he argues, the district court should have ordered a

recess sua sponte (Br. 20-23 and n. 34).

The argument that an objection or request for a

continuance would have been futile is nothing but

speculation. Cf. Estelle v. Williams, supra. Although

the trial judge had tentatively denied the motion to

dismiss the information, subject to further research

(A. 9), the judge had not indicated unwillingness to

halt the trial and do the research immediately. He was

simply never asked to halt the trial, and therefore he

never had an opportunity to express his views on the

matter.

Petitioner’s argument that the court should have

interrupted the trial sua sponte fares no better. Every

interruption of an ongoing trial subjects witnesses

and the parties to inconvenience and delay. The wit-

nesses in this case were in court waiting to testify,

the prosecutor had made his opening statement, and

for all the trial judge knew research on the motion

would have been complicated and lengthy. Petitioner

contends that this is not so, that it should have been

evident that the information was defective. But if

the information was patently defective, why did peti-

tioner’s counsel wait so long to make the motion to

dismiss? If it must be assumed that the deficiency

could be seen without the need for research, then it

34

also must be assumed that counsel delayed making the

motion to dismiss in the hope that jeopardy would

attach before the trial judge realized that the infor-

mation was defective. And if this ease is treated as

one in which counsel delayed for the purpose of turn-

ing the shield of the Double Jeopardy Clause into a

sword, then petitioner is in no position to argue that

the trial judge made a fatal error by not dismissing

the information at once or interrupting the trial to do

research.”

The district court’s decision to hear the evidence at

petitioner’s first trial cannot be characterized as ju-

dicial overreaching. It did not deprive petitioner of

an opportunity to receive the verdict of the factfinder.

Quite the contrary, evidence was received and, if the

prosecution’s case had been insufficient, the trial would

have ended in an acquittal, on the facts, by the finder

*? Petitioner also argues (Br. 20-21, 23-27) that the failure of

the prosecutor to amend the information after its defect was called

to his attention differentiates this case from Somerville. Petitioner,

however, never asked for an amendment; he sought only outright

dismissal. If petitioner had raised his objection to the information

before trial, amendment would have been a simple matter, But

the fact that the objection was made during the trial deprived the

prosecutor of the opportunity to do research and recognize his

error, just as it deprived the district court of the opportunity to

do research, Although it doubtless would have been better practice |

to have amended the information once the trial judge had con-

cluded that it was defective (see Fed. R. Crim. P. 7(e)), the pro-

secutor’s failure to suggest this course, in the absence of a request

by petitioner, violated neither the Double Jeopardy Clause nor

the Due Process Clause. In light of the trial judge’s belief (A. 13)

that the prosecution had proved guilt beyond a reasonable doubt,

the prosecutor's neglect to amend the information was much more

harmful to the prosecution than it was to petitioner.

39

of facts. There was no unreasonable delay in passing

on the motion; the entire trial took less than two

hours, and the court passed upon petitioner’s motion

promptly after the first recess had given it the oppor-

tunity to do some research.

What happened at petitioner’s first trial was cer-

tainly no worse than if the trial judge had erroneously

adhered to his initial denial of the motion to dismiss

the indictment. If the judge had erred, he would have

entered a verdict, and the conviction would have been

reversed on appeal. There still would have been two

trials—but, in the interim between verdict and rever-

sal, petitioner would have stood as a convicted man. It

is hard to see how petitioner was harmed by the fact

that the trial judge followed the correct course and

dismissed the information.

Petitioner's final argument is that the district court

should not have given the prosecution a full oppor-

tunity to see how the case would go and to improve

upon its performance at a second trial (Br. 10-11).

The prosecution would have had the same oppor-

tunity, however, if the district court erroneously had

denied the motion to dismiss and the case had been

reversed on appeal. Since the first trial could not have

ended in a valid conviction, the district court’s deci-

sion to take evidence effectively offered petitioner two

chances to be acquitted while exposing him to only one

risk of conviction. See Ludwig v. Massachusetts, 427

U.S. 618, 6380-632, which upholds against a double

jeopardy argument the Massachusetts system under

which an accused may obtain a jury trial only by

36

standing trial twice. There, as here, the dual trial of-

fered the accused a full preview of the prosecution’s

ease and two chances to be acquitted.”

Moreover, if this concern were a genuine one in this

case and not an afterthought, petitioner presumably

would have objected to proceeding with a trial he

knew could not result in a vattd conviction. Whatever

hardship petitioner might have experienced in stand-

ing trial twice is directly attributable to his untimeli-

ness in making the motion to dismiss the information.

But any hardship was not sufficiently weighty to per-

suade his counsel to move for a continuance or to ob-

ject to the taking of evidence, and petitioner’s inter-

ests here must accordingly be “subordinated to the

publie’s interest in fair trials designed to end in just

judgments.’’ Wade v. Hunter, supra, 336 U.S. at 689.

The Double Jeopardy Clause did not prohibit peti-

tioner’s second trial.”

*8 The present case would perhaps be more difficult if the trial

judge’s delay in passing upon the motion to dismiss unnecessarily

had afforded the prosecution a preview of petitioner’s evidence.

But petitioner presented no evidence at either trial, and the ob-

jections to a preview by the prosecution (which would be based

largely on the Due Process Clause rather than the Double Jeop-

ardy Clause) therefore are not presented here.

24 Petitioner also contends (Br. 25-27) that his second trial

violated the Due Process Clause. This adds nothing to the double —

jeopardy arguments. Multiple trials are held routinely in civil

litigation (see, e.g., Montgomery Ward & Co. vy. Duncan, 311 U.S.

243), and it has never been thought that multiple trials are them-

selves offensive to anything in the Due Process Clause. Unless

multiple trials are staged for the purpose of harassment, a circum-

stance lacking here, they do not violate the Due Process Clause. Cf.

North Carolina v. Pearce, supra; Allee vy. Medrano, 416 U.S. 802.

mo i tN

37

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Wave H. McCreez, Jr.,

Solicitor General.

BENJAMIN R. Civicertt,

Assistant Attorney General.

ANDREW L. FRey,

Deputy Solicitor General.

FRANK H. Eastersrook,

Assistant to the Solicitor General.

JEROME M. Fetr,

WILLIAM G, Ort!s,

Attorneys.

Aprit. 1977.

U.S. GOVERNMENT PRINTING OFFICE: t977