400 U.S. 470 (1971), 19, United States v. Jorn

Docket Nº:No.19
Citation:400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543
Party Name:United States v. Jorn
Case Date:January 25, 1971
Court:United States Supreme Court
 
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Page 470

400 U.S. 470 (1971)

91 S.Ct. 547, 27 L.Ed.2d 543

United States

v.

Jorn

No.19

United States Supreme Court

Jan. 25, 1971

Argued January 12, 1970

Reargued October 22, 1970

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

Syllabus

Appellee was tried in Federal District Court on an information charging him with willfully assisting in the preparation of fraudulent income tax returns. Following the impaneling of the jury, the prosecutor called to the stand a taxpayer whom appellee allegedly had aided in preparing his return. At defense counsel's suggestion, the judge warned the witness of his constitutional rights. The witness expressed his willingness to testify, stating that he had been warned of his rights when first contacted by the Internal Revenue Service (IRS). The judge refused to permit him to testify until he had consulted an attorney, indicating that he did not believe the witness had been warned by the IRS. Although the prosecutor advised the judge that the remaining witnesses had been warned of their rights by the IRS upon initial contact, the judge stated that the warnings were probably inadequate. Thereupon he discharged the jury and aborted the trial so that the witnesses could consult with attorneys. The case was set for retrial before another jury, but on appellee's pretrial motion, the judge dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court.

Held: The judgment is affirmed. Pp. 473-488.

Affirmed.

MR. JUSTICE HARLAN, joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL, concluded that:

l. The sustainment of a motion in bar based on a plea of former jeopardy is appealable by the Government, as long as the motion was sustained, as here, prior to the impaneling of the jury in the subsequent proceeding at which the motion was made. Cf. United States v. Sisson, 399 U.S. 267. Pp. 473-478.

2. The Fifth Amendment's Double Jeopardy Clause represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. Pp. 479-486.

(a) Although it is recognized that a defendant can be reprosecuted after a successful appeal, double jeopardy policies are not

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confined to the prevention of prosecutorial or judicial overreaching. Pp. 483-484.

(b) The defendant has the option to have his case considered by the first jury, and where the judge, acting without defendant's consent, aborts the trial, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal." P. 484.

(c) In the absence of defendant's motion for a mistrial, the doctrine of "manifest necessity," United States v. Perez, 9 Wheat. 579, 580, commands trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion warrants the conclusion that justice would not be served by a continuation of the trial. Pp. 485-486.

(d) A judge must temper the decision whether or not to abort the trial by considering the importance to the defendant of being able finally to conclude his confrontation with society through the verdict of a tribunal that he might believe is favorable to him. P. 486.

3. The trial judge here abused his discretion, and accordingly appellee's reprosecution would violate the Double Jeopardy Clause. Pp. 486-487.

MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concluded that the Court lacks jurisdiction of the appeal under 18 U.S.C. § 3731 because the trial judge's action amounted to an acquittal, but they join the Court's judgment in view of the decision of a majority of the Court to reach the merits. Pp. 487-488.

STEWART, J., joined by WHITE and BLACKMUN, JJ., agree only that the Court has jurisdiction of the appeal, as concluded by HARLAN, J. See point 1 of syllabus, supra.

HARLAN, J., announced the judgment of the Court in an opinion in which BURGER, C.J., and DOUGLAS and MARSHALL, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 487. BLACK and BRENNAN, JJ., filed a statement concurring in the judgment, post, p. 488. STEWART, J., filed a dissenting opinion in which WHITE and BLACKMUN, JJ., joined, post, p. 488.

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HARLAN, J., lead opinion

MR. JUSTICE HARLAN announced the judgment of the Court in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL.

The Government directly appeals the order of the United States District Court for the District of Utah dismissing, on the ground of former jeopardy, an information charging the defendant appellee with willfully assisting in the preparation of fraudulent income tax returns, in violation of 26 U.S.C. § 7206(2).

Appellee was originally charged in February 1968 with 25 counts of violating § 7206(2). He was brought to trial before Chief Judge Ritter on August 27, 1968. After the jury was chosen and sworn, 14 of the counts were dismissed on the Government's motion. The trial then commenced, the Government calling as its first witness an Internal Revenue Service agent in order to put in evidence the remaining 11 allegedly fraudulent income tax returns the defendant was charged with helping to prepare. At the trial judge's suggestion, these exhibits were stipulated to and introduced in evidence without objection. The Government's five remaining witnesses were [91 S.Ct. 551] taxpayers whom the defendant allegedly had aided in preparation of these returns.

After the first of these witnesses was called, but prior to the commencement of direct examination, defense counsel suggested that these witnesses be warned of their constitutional rights. The trial court agreed, and proceeded, in careful detail, to spell out the witness' right

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not to say anything that might be used in a subsequent criminal prosecution against him and his right, in the event of such a prosecution, to be represented by an attorney. The first witness expressed a willingness to testify, and stated that he had been warned of his constitutional rights when the Internal Revenue Service first contacted him. The trial judge indicated, however, that he did not believe the witness had been given any warning at the time he was first contacted by the IRS, and refused to permit him to testify until he had consulted an attorney.

The trial judge then asked the prosecuting attorney if his remaining four witnesses were similarly situated. The prosecutor responded that they had been warned of their rights by the IRS upon initial contact. The judge, expressing the view that any warnings that might have been given were probably inadequate, proceeded to discharge the jury; he then called all the taxpayers into court, and informed them of their constitutional rights and of the considerable dangers of unwittingly making damaging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys.

The case was set for retrial before another jury, but on pretrial motion by the defendant, Judge Ritter dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court, and we noted probable jurisdiction. 396 U.S. 810 (1969). The case was argued at the 1969 Term, and thereafter set for reargument at the present Term. 397 U.S. 1060 (1970).

I

Appellee contends, at the threshold, that our decision in United States v. Sisson, 399 U.S. 267, 302-307 (1970), which followed our noting of probable jurisdiction in this case, forecloses appeal by the Government under

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the motion-in-bar provisions of 18 U.S.C. § 3731 prior to its recent amendment.1 The question was fully briefed and argued on reargument.

The statute provided, in relevant part, for an appeal by the Government direct to the Supreme Court "[f]rom the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy." Appellee concedes, as indeed he must under the prior rulings of this Court, that his plea of former jeopardy constituted a "motion in bar" within the meaning of the statute.2 The issue is whether appellee had [91 S.Ct. 552] been "put in jeopardy" by virtue of the impaneling of the jury in the first proceeding before the declaration of mistrial. In Sisson, supra, the opinion of the Court3 -- in discussing the applicability of the motion-in-bar provision to the Government's direct appeal of the trial judge's actions there -- concluded, inter alia, that the "put in jeopardy" language applied whenever the jury had

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been impaneled, even if the defendant might constitutionally have been retried under the double jeopardy provisions of the Fifth Amendment. 399 U.S. at 302-307.4

Here, the jury in the first proceeding had been impaneled before the mistrial ruling, but appellee's motion to dismiss on grounds of former jeopardy was made prior to the impaneling of the second jury. The Government contends that the impaneling of the jury must be understood to apply to the jury in the proceeding to which the plea of former jeopardy is offered as a bar, rather than the jury whose impaneling was, in the first instance, essential to sustain the plea on the merits. Appellee contends that the construction put on the statute in the Sisson opinion requires the conclusion that the Government may not appeal when a jury in the prior proceeding for the offense in question has been impaneled.

We think the Government has the better of the argument.5 The Court's opinion in Sisson dealt with the problem presented by the trial judge's order purporting to arrest the entry of judgment on the guilty verdict

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returned by the very jury whose impaneling was claimed to constitute "jeopardy" within the meaning of...

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