United States v. Tateo

• Decision Date: 08 June 1964
• Docket Number: No. 328,328
• Parties: UNITED STATES, Appellant, v. Rocco TATEO
• Court: U.S. Supreme Court

377 U.S. 463

84 S.Ct. 1587

12 L.Ed.2d 448

UNITED STATES, Appellant,

v Rocco TATEO.

No. 328.

Argued April 20, 1964.

Decided June 8, 1964.

Miss Beatrice Rosenberg, Washington, D.C., for appellant.

Robert Kasanof, New York City, for appellee.

Mr. Justice HARLAN delivered the opinion of the Court.

This case presents the question whether a federal criminal defendant who has had his conviction overturned in collateral proceedings on the ground that a guilty plea entered by him during trial was not voluntary but induced in part by comments of the trial judge, may be tried again for the same crimes or is protected against such prosecution by the Double Jeopardy Clause of the Fifth Amendment. We hold that under these circumstances retrial does not infringe the constitutional protection against double jeopardy.

On May 15, 1956, the appellee, Tateo, and another were brought to trial before a jury on a five-count indictment charging bank robbery (18 U.S.C. § 2113(a)); kidnaping in connection with the robbery (18 U.S.C. § 2113(e)); taking and carrying away bank money (18 U.S.C. § 2113(b)); receiving and possessing stolen bank money (18 U.S.C. § 2113(c)); and conspiracy (18 U.S.C. § 371) to commit some of these substantive offenses. On the fourth day of trial, the judge informed Tateo's counsel that if Tateo were found guilty by the jury he would impose a life sentence on the kidnaping charge and consecutive sentences on the other charges. Upon being told of the judge's position and advised by his counsel that the likelihood of conviction was great, Tateo pleaded guilty, as did his codefendant. Thereupon the jury was discharged; the kidnaping count was dismissed with the prosecution's consent; and Tateo was sentenced to a total of 22 years and 6 months imprisonment on the other counts.

In a later proceeding under 28 U.S.C. § 2255, another district judge (Judge Weinfeld) granted Tateo's motion to set aside the judgment of conviction and for a new trial, determining that the cumulative impact of the trial testimony, the trial judge's expressed views on punishment, and the strong advice given by his counsel rendered it doubtful that Tateo possessed the freedom of will necessary for a voluntary plea of guilty. D.C., 214 F.Supp. 560.

After being reindicted on the kidnaping charge, Tateo was brought before a third district judge (Judge Tyler) for trial on that charge and the four bank robbery charges to which he had earlier pleaded guilty. Upon motions by the defense, Judge Tyler dismissed both the kidnaping count, now abandoned by the Government, and the other four counts. He reasoned that, since neither genuine consent nor an 'exceptional circumstance' underlay the termination of the first trial and no 'waiver' of the double jeopardy claim had been made by Tateo, the Government was precluded from retrying him. 216 F.Supp. 850. The Government appealed, in accord with 18 U.S.C. § 3731, which permits direct appeal to this Court from a decision of a District Court sustaining a motion in bar before the defendant has been put in jeopardy. We noted probable jurisdiction, 375 U.S. 877, 84 S.Ct. 148, 11 L.Ed.2d 109. For reasons given below, we reverse the judgment of the District Court.

The Fifth Amendment provides that no 'person (shall) be subject for the same offence to be twice put in jeopardy of life or limb * * *.' The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. In this respect we differ from the practice obtaining in England. The rule in this country was explicitly stated in United States v. Ball, 163 U.S. 662, 671—672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, a case in which defendants were reindicted after this Court had found the original indictment to be defective. It has been followed in a variety of circumstances; see, e.g., Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, (after conviction reversed because of confession of error); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (after conviction reversed because of insufficient evidence); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (after original conviction reversed for error in instructions to the jury).¹ That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 144 F.2d 392, 396, 397, aff'd on another ground, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944. Courts are empowered to grant new trials under 28 U.S.C. § 2255, and it would be incongruous to compel greater relief for one who proceeds collaterally than for one whose rights are vindicated on direct review.

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of Justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he was obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, 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 retrial serves defendants' rights as well as society's interest. The underlying purpose of permitting retrial is as much furthered by application of the rule to this case as it has been in cases previously decided.

Tateo contends that his situation must be distinguished from one in which an accused has been found guilty by a jury, since his involuntary plea of guilty deprived him of the opportunity to obtain a jury verdict of acquittal. We find this argument unconvincing. If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial.² Appellee's argument is considerably less strong than a similar one rejected in Bryan v. United States, supra. In that case the Court held that despite the Court of Appeals' determination that defendant had been entitled—because of insufficiency in the evidence—to a directed verdict of acquittal, reversal of the conviction with a direction of a new trial was a permissible disposition.

Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, is in no way inconsistent with permitting a retrial here. There the Court held that when a jury is discharged because the prosecution is not ready to go forward with its case, the accused may not then be tried before another jury. The opinion recognized, however, that there are circumstances in which a mistrial does not preclude a second trial, see, e.g., United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (jury unable to agree); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (likelihood that a juror subject to bias). In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523; 6 L.Ed.2d 901, we sustained a second conviction after the original trial judge declared a mistrial on the ground of possible prejudice to the defendant, although the judge acted without defendant's consent and the wisdom of granting a mistrial was doubtful. If Tateo had requested a mistrial on the basis of the judge's comments, there would be no doub that if he had been successful, the Government would not have been barred from retrying him. See Gori v. United States, 367 U.S., at 368, 81 S.Ct. at 1526; see also 367 U.S. at 370, 81 S.Ct. at 1527 (dissenting opinion of DOUGLAS, J.).³ Although there may be good reasons why Tateo and his counsel chose not to make such a motion before the trial judge, it would be strange were Tateo to benefit because of his delay in challenging the judge's conduct.⁴

We conclude that this case falls squarely within the reasoning of Ball and subsequent cases allowing the Government to retry persons whose convictions have been overturned. The judgment below is therefore reversed and the case remanded to the District Court with instructions to reinstate the four bank robbery counts.

It is so ordered.

Judgment reversed and case remanded to the District Court with instructions.

Mr. Justice GOLDBERG, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

I would affirm the District Court's holding, 216 F.Supp. 850, that under our decision last term in Downum v United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, the Double Jeopardy Clause of the Fifth Amendment protects Tateo against reprosecution. The Court today departs from Downum and in so doing substantially weakens the constitutional guarantee. Downum was correctly decided and deserves a life longer than that accorded it by the decision today. Rather than making any real effort to distinguish Downum, the Court limits it to its particular facts and reaffirms, indeed extends, the doubtful holding of the narrow majority in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901¹—a holding which, in my view, departs from Downum's more hospitable attitude toward the 'policy of the Bill of Rights * * * to make rare indeed the...