Summary
affirming refusal to dismiss indictment after reversal of convictions for Napue violation
Summary of this case from United States v. GadsdenOpinion
No. 79-3785.
December 19, 1979.
E. E. Edwards, III, Nashville, Tenn., for defendant-appellant.
Michael V. Rasmussen, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before COLEMAN, Chief Judge, HILL and GARZA, Circuit Judges.
In 1977, the Supreme Court handed down its decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Abney made it clear that the denial of a motion to dismiss an indictment based upon double jeopardy is directly appealable to the circuit court of appeals. It further appears that, during consideration of the case, the Court addressed the government's contention that, if such denials were held to be immediately appealable, defendants would be encouraged to withhold the filing of motions asserting double jeopardy until trial was about to commence. The denial of the eleventh hour motion would be followed by a notice of appeal, the district court would lose jurisdiction to proceed with the trial, witnesses assembled for the trial would be sent back to their homes, the district judge's trial calendar would be disrupted, and pleas might be bargained by district attorneys unwilling to devote more tax funds to such frustrated trial preparation. The Court's answer to these problems may be found in Footnote 8 of the opinion. It reads:
Admittedly, our holding may encourage some defendants to engage in dilatory appeals as the Solicitor General fears. However, we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.
431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8.
In keeping with the maxim that "anything that can happen will happen," this case appears as an emergency matter. Briefly stated, it developed in the following fashion:
(1) Appellant Barham was indicted on charges of aiding and abetting the counterfeiting of Federal Reserve Notes and conspiracy to make, possess, and distribute counterfeit Federal Reserve Notes.
(2) His first trial resulted in a mis-trial when the jury was unable to agree on a verdict.
(3) His second trial resulted in a conviction.
(4) On appeal from that conviction, this Court reversed and remanded the case for a new trial. United States v. Barham, 595 F.2d 231 (5th Cir. 1979).
(5) In late October, 1979, appellant filed his written motion for dismissal of the indictment, asserting that a retrial would constitute double jeopardy.
(6) On November 13, 1979, the district judge denied the motion to dismiss, accompanying his order with an extensive memorandum opinion.
(7) The case was then, and is now, scheduled for jury trial in the Northern District of Alabama Commencing Monday, November 26, 1979.
(8) On November 16, 1979, appellant filed his notice of appeal to this Court from the order of November 13th denying the motion to dismiss.
(9) Appellant has requested a stay of further proceedings in the district court pending resolution of this appeal.
(10) Appellant is informed that the district judge has declined to stay the proceedings or to postpone the trial.
(11) Appellant now requests that this Court grant an order staying the proceedings in the district court.
The last mentioned motion has been referred to this panel as an emergency matter. Since the pendency of this appeal appears to divest the district court of jurisdiction, United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979) (en banc), if it is not dealt with prior to the date set for the trial in the district court, that trial cannot proceed. Therefore, as suggested in Abney, it is appropriate for this Court to consider the merits of the appeal on an expedited basis. While the appeal has not been briefed, the Court has been furnished with memoranda and affidavits from counsel in support of and in opposition to the motion to dismiss the case as filed in the district court, and the initiating judge on this panel has conferred at length with counsel for appellant and for the government in a conference telephone call.
Appellant's contentions as to double jeopardy stem from the asserted misconduct of the prosecution at the second trial, extensively reviewed in this Court's prior opinion, 595 F.2d at 238-43, together with assertions that such misconduct also occurred at appellant's first trial. Taking appellant's assertions to be true, they are, cryptically stated, as follows: The principal witnesses against appellant were alleged coconspirators. Prior to their testifying, the government had entered into agreements with them promising more favorable treatment than otherwise might be expected if they testified truthfully in this case. At both the first and the second trials, these witnesses denied that they had received any promises from the government in exchange for their testimony. The government attorneys failed to bring to the Court's attention the fact that this testimony was false and knowingly permitted such false testimony to be given at the trial. The falsity of the testimony was not discovered by appellant's counsel until after the second trial, although it does appear that the government furnished counsel with information from which the truth could have been ascertained.
It is asserted on behalf of appellant that, under an extension of the rule laid down in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) and United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the misconduct of the government in the two trials requires a holding that a further trial would amount to double jeopardy.
In Lee and Dinitz, the Supreme Court announced that government misconduct during a trial which so prejudices the rights of a defendant that the defendant has no choice but to move for a mistrial is the equivalent of the government's having moved for a mistrial. In contrast to the general rule, where the defendant has been, in effect, forced to move for a mistrial, he is not deemed to have elected to terminate the trial and obtain a later one. Thus, a retrial constitutes double jeopardy.
Obviously, this sequence of events did not occur in the case here under consideration. Appellant's argument is that, had the truth been known at the time of the asserted misconduct in the first or second trials, he would have been placed in a position where a defense motion for mistrial would have been the sort of "forced" motion contemplated by Lee and Dinitz. Although he did not move for a mistrial on either occasion, appellant urges that he should now be permitted to claim the same constitutional insulation that he might have then accomplished.
In our view, the double jeopardy contentions of appellant are not supported either by Lee or Dinitz. Those cases address the double jeopardy implications of a retrial after a mistrial had been ordered on the motion of the defendant. It was held that the mere fact that the defendant had made the motion for mistrial, under compulsion of government misconduct, did not result in an agreement by the defendant that he might be retried. Those cases do not hold that whenever a trial has been tainted by government misconduct, any further trial would amount to double jeopardy. In the final analysis, the latter proposition is the assertion of appellant on this appeal.
Appellant also asserts that "the actions of the government against this defendant, taken as a whole, have so violated his right to fundamental fairness and due process of law in violation of the Fifth Amendment as to require dismissal of this case." Such arguments are not reviewable in a direct appeal taken before final judgment. Abney v. United States, 431 U.S. at 662-63, 97 S.Ct. 2034.
Accordingly, we find that the appeal taken from the order denying the motion for dismissal on double jeopardy grounds to be frivolous. The appeal, therefore, is dismissed. The Clerk is instructed to issue the mandate instanter.
The final order dismissing the appeal was entered on November 21, 1979.
There being no appeal pending before this Court, and jurisdiction being restored to the district court, the motion to stay the proceedings in the district court is denied.
The memorandum opinion of the Honorable C. W. Allgood, Senior U.S. District Judge, of November 11, 1979, denying the motion to dismiss, is attached hereto as an Appendix and made a part of this opinion.
It is so ordered.