The opinion of the court was delivered by: SAROKIN
Although it is not necessary to develop a per se rule for the purpose of deciding this matter, it is difficult to envision any circumstances which would permit a defendant to utilize such strategy in order to avoid a retrial. If a defendant possesses the grounds to dismiss an indictment before actual trial, it would seem inappropriate to have jeopardy attach merely because defendant strategically determines to make such motion after trial commences. Under such circumstances, the defendant knowingly and unilaterally places himself in jeopardy and should not be permitted to benefit from such maneuvering. Counsel is not to be faulted for his efforts on his client's behalf, but the client should not be able to avoid criminal prosecution through such tactics.
The protection afforded by the double jeopardy clause is of great significance, but it should be afforded to a defendant when something is done to him during the course of a trial, rather than by him. The public has the right to expect that crimes will be prosecuted consistent with constitutional protections, but not so as to permit those protections to be utilized to manipulate the judicial system.
On October 13, 1982, defendant Louis Markus was indicted on twenty counts of interstate transportation of stolen checks, in violation of 18 U.S.C. § 2314.
Each count of the indictment represented a single check for an amount less than $5,000, though the totality of the checks exceeded $24,000. See Defendant's App. at 46-4u. After the jury was impanelled, defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. See Defendant's Supp. App., 1/3/83 Transcript at 11. See also Id. 1/4/83 Transcript at 102, 110; 1/5/83 Transcript at 2, 14, 21; Brief in Support of Motion for Judgment of Acquittal. The court reserved on such motion, and on January 5, 1983, the jury found defendant guilty on all counts. However, on January 28, 1983, the court dismissed the indictment for failure to meet the jurisdictional requirement of the statute. United States v. Markus, 555 F. Supp. 375 (D.N.J. 1983). In its Opinion, the court described defendant's motion as one to dismiss the indictment, 555 F. Supp. at 376; additionally, the court described its actions as having dismissed the indictment. Id. at 378. However, the court also signed an Order which, after its recitational section, stated
1) a judgment of acquittal be entered with respect to all counts; and
2) the indictment be, and hereby is dismissed.
Defendant's Brief at 5a. Such Order had been drafted by defendant; the government, while moving for reconsideration, see id. at 7a, did not, apparently, object to the form of such Order.
The decision of the court was affirmed by the United States Court of Appeals for the Third Circuit on November 16, 1983. United States v. Markus, 721 F.2d 442 (3d Cir. 1983). The Circuit Court, however, described the issue before it in terms of the court's Order, and concluded that "the district court correctly dismissed the indictment in the present case and properly ordered the defendant acquitted on all counts." 721 F.2d at 444.