UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
July 25, 1978
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA, APPELLANT 1978.CDC.124 DATE DECIDED: JULY 25, 1978
Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
As Amended September 29, 1978.
Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-1246).
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
In this action, a petition for habeas corpus brought against the Superior Court of the District of Columbia, the District Court granted the petition and the government took a timely appeal. *fn1 The issuance of the writ was grounded on the Double Jeopardy Clause of the Constitution. *fn2 The order precludes the trial of petitioner-appellee for various crimes burglary, robbery, assault with intent to rape, assault with a dangerous weapon, and assault with intent to kill arising out of a break-in in the Dupont Circle area in 1972.
We were troubled by the issue of jurisdiction and called for memoranda on that point. We conclude that the District Court had jurisdiction to entertain the petition for habeas corpus since petitioner is not a person who has been convicted in the Superior Court. *fn3 However, we disagree with the District Court's judgment and accordingly reverse.
Petitioner was originally brought to trial in the Superior Court before Judge William Stewart. In the course of the trial, a Brady question arose which the judge felt cast a shadow on the proceedings. During the government's case in chief, Officer Edward L. Allen, while relating the circumstances surrounding petitioner's controverted confession, testified that during his investigation of the break-in he had received information that one "Duvall" had been overheard in two local bars claiming he committed the offenses. Officer Allen stated that he did not regard the tip as reliable, but nevertheless recorded the interview on a police department form PD-252. He also visited the two bars but could obtain no corroborating information. A check of the police department's nickname file revealed some 30 "Duvalls", and the matter was not pursued after petitioner's arrest and alleged confession.
The trial court examined the PD-252 and concluded that it should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The court Sua sponte granted a mistrial. If the defendant had asked for a mistrial, the court's ruling would not raise a double jeopardy issue. *fn4 Instead, defense counsel pressed the court for dismissal of the indictment. The defendant now contends that since he did not move for a mistrial notwithstanding the judge's indication that such a motion would be granted, and since he did not explicitly state that he acquiesced in the mistrial, he must be determined to have objected to the granting of the mistrial, thus entitling him to raise the double jeopardy issue.
We need not concern ourselves here with the issue that might arise where a judge acts sua sponte to grant a mistrial, in the absence of any motion by the defendant; this would raise the question whether the silence of the defendant falls short of acquiescence, and bars a new trial unless the mistrial was a matter of "manifest necessity." *fn5 The government stresses that in any event where, as here, the defendant has put a motion to the trial judge asking for relief (E. g., dismissal), he has an obligation to make his ultimate position clear. That is, if the defendant seeks only a dismissal, and does not want the judge to consider the possibility of granting the lesser relief of a mistrial even if the dismissal is denied, he must state that position explicitly.
In substance this was the position taken in this case by the District of Columbia Court of Appeals. One month after declaring a mistrial, the trial court heard testimony on both the defense and prosecution's unsuccessful attempts to follow up the "Duvall" lead. The trial court concluded that the conduct of the prosecution and the passage of time had deprived the defendant of the benefit of the purported Brady material. It therefore dismissed the indictment. The District of Columbia Court of Appeals reversed, holding that the government had not violated Brady and that a new trial was not barred by the Double Jeopardy Clause. United States v. Sedgwick, 345 A.2d 465 (D.C.App.1975), Cert. denied, 425 U.S. 966, 96 S. Ct. 1751, 48 L. Ed. 2d 210 (1976). It found the undisclosed information mere "street rumor" and not properly Brady material.
The Double Jeopardy Clause gives the defendant a "valued right to have his trial completed by a particular tribunal." *fn6 The defendant's right to receive a verdict is such that "(e)ven when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal.' " *fn7 Here the defendant did not express an interest in obtaining a verdict from the first jury. In fact defense counsel pressed for dismissal, arguing that the defendant's "right to a fair trial ha(d) been seriously undermined" by the Government's failure to disclose the purported Brady material. *fn8
We are instructed not to apply the Double Jeopardy Clause mechanically, but to look beyond the labels of trial motions and rulings to discern the actual intentions of the parties and trial court. *fn9 Such an approach in this case impels the conclusion that the defendant was not interested in obtaining a verdict from the first jury. Therefore we do not believe that permitting a retrial in this case does violence to the values underlying the Double Jeopardy Clause. *fn10
The defendant also relies on Judge Stewart's order subsequent to the declaration of mistrial in which he granted defendant's request for a dismissal of the indictment on the ground that the passage of time and other circumstances made the Brady violation incurable and precluded a fair trial. Judge Stewart indicated that if his dismissal on Brady grounds were reversed on appeal, the defendant would be subject to trial. *fn11 Nevertheless, the defendant argues that Judge Stewart's order of dismissal operates, as a matter of law, to bar retrial. Upon reviewing the Supreme Court's recent pronouncements in this area, we disagree.
In Lee v. United States, 432 U.S. 23, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977), the Supreme Court, in an opinion by Justice Powell, held that a retrial was not barred by the Double Jeopardy Clause in a case where the trial court had dismissed the information during the first trial for failure to allege the requisite intent. Defense counsel had made his objection to the information after the prosecutor's opening statement, a time when the trial court could not readily furnish full consideration. The court therefore tentatively denied the motion, noting that he would reconsider it at his first opportunity to research the point. That opportunity came after the government presented its case, and the court dismissed the information.
The Supreme Court distinguished its earlier opinion in United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975), where it had found a dismissal did bar retrial.
The distinction drawn by Jenkins does not turn on whether the District Court labels its action a "dismissal" or a "declaration of mistrial." The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U.S. 470, 476(, 91 S. Ct. 547, 27 L. Ed. 2d 543) (1971) (plurality opinion), while a dismissal may or may not do so. Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause.
432 U.S. at 30, 97 S. Ct. at 2146.
Jenkins was a case involving refusal to submit to induction into the Armed Services. Under the law of the Second Circuit existing at the time of the offense, the induction order was improper and the defendant could not be convicted. Between the time of the offense and the date of trial, the Supreme Court reversed the Second Circuit: induction orders such as the one at issue in Jenkins were now proper. The District Court concluded that retroactive application of the Supreme Court's decision would be unfair, "eroding fundamental and basic equitable principles of law," and dismissed the indictment. United States v. Jenkins, 349 F. Supp. 1068, 1073 (E.D.N.Y.1972). The Supreme Court ruled that a government appeal from that dismissal would violate the Double Jeopardy Clause. *fn12 The Lee opinion characterized the Jenkins dismissal as one that "contemplate(d) an end to all prosecution of the defendant for the offense charged," and was granted on the ground "that the defendant simply cannot be convicted of (that) offense."
The Supreme Court in Lee found no such impediment to retrial. They observed that the dismissal was not predicated on a judgment that Lee could never be prosecuted or convicted.
To the contrary, the District Court stressed that the only obstacle to a conviction was the fact that the information had been drawn improperly. The error, like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided absent any double jeopardy bar by beginning anew the prosecution of the defendant. And there can be little doubt that the court granted the motion to dismiss in this case in contemplation of just such a second prosecution.
432 U.S. at 30-31, 97 S. Ct. at 2146.
But there was some confusing language in Jenkins, heavily relied on by appellee in this case, that appeal was barred if "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand." 420 U.S. at 370, 95 S. Ct. at 1013. This language suggested that a dismissal that did not follow some ruling on the sufficiency of the evidence would bar a government appeal and retrial, since a remand would require further factfinding by the court or jury. This aspect of Jenkins was not discussed in Lee. Nor was it clear what was meant by the Lee gloss on Jenkins : that a dismissal be based on the ground "that the defendant simply cannot be convicted of the offense charged." The analytical uncertainty in the case law was resolved when the Supreme Court overruled Jenkins in United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). As acknowledged in Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699, 2708, 57 L. Ed. 2d 705 (1978), "any language in Jenkins must now be read in light of (the) subsequent decision in United States v. Scott . . . ."
Scott involved a midtrial dismissal predicated on prejudicial preindictment delay. The Court emphasized that such a determination was not based on any finding of guilt or innocence. It concluded:
We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . . Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.
437 U.S. 82, 98 S. Ct. 2187 at 2197-98, 57 L. Ed. 2d 65. Scott reemphasized language in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977), that the central task in double jeopardy cases was to "determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct, or not, of some or all of the factual elements of the offense charged." *fn13 It explicated the requirement in Lee by indicating that only acquittals based on some finding that the evidence is insufficient to convict will bar retrial. *fn14
In sum, in recent years the Supreme Court has given considerable attention to the Double Jeopardy Clause, *fn15 and the lines of the Supreme Court's analysis are now sufficiently clear to be determinative in the instant case. A dismissal on Brady grounds is not a holding that "the Government ha(s) not produced sufficient evidence to establish the guilt of the defendant." United States v. Scott, 98 S. Ct. at 2195. The central teaching of Scott is that a dismissal does not bar government appeal and retrial unless it is premised on some Factual determination of the insufficiency of evidence of defendant's guilt. *fn16 While access to Brady material might establish innocence, or more accurately might raise a reasonable doubt as to defendant's guilt, a dismissal pursuant to Brady does not itself negative criminal responsibility. In this critical aspect, it is similar to the dismissal for prejudicial preindictment delay in Scott. A dismissal or mistrial ruling predicated on Brady and granted on defendant's motion *fn17 is, therefore, answerable to appellate review and does not bar retrial if the appellate court finds no Brady violation. *fn18
We conclude defendant is subject to trial.