517 F.2d 1212 (D.C. Cir. 1975), 74-1471, United States v. Wiley

Docket Nº:74-1471, 74-2119.
Citation:517 F.2d 1212
Party Name:UNITED STATES of America v. David A. WILEY, Appellant (two cases).
Case Date:August 22, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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517 F.2d 1212 (D.C. Cir. 1975)



David A. WILEY, Appellant (two cases).

Nos. 74-1471, 74-2119.

United States Court of Appeals, District of Columbia Circuit

August 22, 1975

Argued Feb. 20, 1975.

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Appeals from the United States District Court for the District of Columbia (D.C. Criminal 994-71).

Lois J. Schiffer, Washington, D. C., with whom Joseph N. Onek, Washington, D. C. (both appointed by this Court), was on the brief for appellant.

Gerard F. Treanor, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin, Peter C. Schaumber and Garey G. Stark, Asst. U. S. Attys., were on the brief for appellee.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

Dissenting statement filed by Circuit Judge TAMM.

LEVENTHAL, Circuit Judge:

This appeal from a carnal knowledge conviction presents the question whether a retrial should be permitted when a previous conviction was reversed for error in denying a motion for judgment of acquittal.

An alleged assault on twelve-year-old Maxine Lewis resulted in a trial of appellant David A. Wiley and conviction on the count charging carnal knowledge, in violation of 22 D.C.Code § 2801 (1973). 1 On appeal, this court held that there was insufficient corroboration of the corpus delicti. 2 This court reversed the conviction, without either directing the District Court to dismiss the indictment or authorizing it to retry Wiley. In an effort to avoid retrial, appellant both petitioned this court to clarify its mandate and filed a motion to dismiss the indictment in the District Court. 3 Both of these motions were denied and Wiley was retried and again convicted of carnal knowledge. 4

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With several important exceptions noted in the margin, the evidence introduced at the second trial closely paralleled that described in Judge Wisdom's opinion reversing appellant's first conviction. 5 We shall refer to those matters pertinent to present issues at appropriate points in this opinion.

Appellant's primary contention is that he should not have been subjected to a second trial. He also claims violation of his constitutional rights to a speedy trial, to effective assistance of counsel. Finally, he protests the failure to instruct the jury on the issue of identification.

We hold that only in a narrow set of circumstances are retrials permitted in the interest of justice following reversals based on the insufficiency of the evidence to withstand the defendant's motion for judgment of acquittal. After a careful review of the record, we find that appellant's conviction must be reversed and remanded for entry of a judgment of acquittal because the insufficiency of the evidence at the first trial was attributable to the prosecution and the case does not present a justification for a second trial, such as may be found in situations of manifest necessity.

I. Prior Panel Opinion

This court's prior decision is not determinative of the retrial question posed by this appeal. The previous panel's conclusion that it "need not consider" appellant's speedy trial claim in view of its reversal for insufficient corroboration 6 might suggest that no retrial was contemplated. But its denial of appellant's motion to clarify the mandate so as to preclude retrial leaves its intention open to speculation. The court may have regarded the speedy trial question as difficult and perhaps unnecessary to decide, since the Government might not have sought a retrial.

II. General Rule Against Retrials Following Reversals for Insufficiency of the Evidence

A fundamental principle of American jurisprudence assures an accused that he will not be subject to a second trial on a criminal charge. The rule is subject to exceptions. We shall sketch the contours of the doctrine, including the exceptions, before considering how they apply to the case at bar.


The doctrine against retrials is the core of the Double Jeopardy Clause of the Constitution. 7 This guarantee was as recently as forty years ago believed to be applicable only to the Federal Government, and in Justice Cardozo's words to be outside the requirements of "ordered liberty" fully applicable to the

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states. 8 But the last four decades have witnessed a reappraisal of that view. Today it is not only clear that the Double Jeopardy Clause is fully applicable to the states, 9 but it is also apparent that there has been a strong judicial commitment to fundamental protection against multiple trials guaranteed by the Clause. 10

The courts have made it clear that the prosecution must proceed not only reasonably but with diligence. A prosecutor who announces ready for trial and has a jury sworn cannot gain another jury and a second trial because of the absence of a material witness, no matter how reasonable his belief that the witness was available and at hand. 11 The balance is struck to give dominant weight to the interest of the accused in having his trial before the duly selected jury without being subject to overhanging burdens of delay and doubt. 12 In the words of Justice Black:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 13


We turn to an examination of the exceptions to the constitutional prohibition against multiple prosecutions mindful of the Supreme Court's recent declaration that the policy is "so important that exceptions to the principle have been only grudgingly allowed." 14

The most significant of these grudging exceptions permits the prosecution to retry a defendant who has obtained a reversal of his conviction, even though the ground of reversal is the error of the trial judge or the misconduct of the prosecutor. The theory underlying this exception has been the subject of judicial and academic discussion. At one time Justice Holmes advanced the theory of "continuing jeopardy" that the trial, appeal, and retrial eventuating in a final acquittal or conviction were all part of one jeopardy. 15 That doctrine, more a conclusion than an analysis, was expressed in a dissent and has "never been adopted by a majority" of the Supreme Court. 16 A second approach, embraced in early Supreme Court decisions, posited that the accused "waived" his double jeopardy rights by

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taking an appeal. 17 A similar waiver argument was dismissed as "wholly fictional" by the Court in its double jeopardy decision of Green v. United States. 18 A defendant's attempt to obtain from an appellate court the acquittal which should have been entered by the trial judge cannot fairly or logically be deemed a relinquishment of double jeopardy protection or a consent to retrial. 19

In United States v. Tateo, the Court receded from the continuing jeopardy and waiver conceptualizations and adopted a theory rooted in a fair accommodation of the interests of the Government and the defendant. 20 That fairness approach, formulated by Justice Harlan, has recently been identified by the Court as "the practical justification for the exception" to the Double Jeopardy Clause in cases involving appellate reversals of criminal convictions. 21

However the applicability of the Tateo approach to appellate reversals for insufficient evidence is in some doubt by reason of the Supreme Court rulings prior to Tateo which seem to have focused on a waiver-type approach, indicating that the Double Jeopardy Clause prevents retrials in insufficiency cases in general, but permits such retrial where the accused has waived the constitutional guarantee by moving for a new trial. 22

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Two circuits have read the admittedly confusing state of the law created by the Court's decisions to make the permissibility of retrial depend on whether defendant moved for a new trial. 23 As a matter of jurisprudence, neither the fairness rationale nor the new trial waiver approach appear to provide a sound basis for subjecting defendants, who were wrongfully denied a judgment of acquittal by the District Court, to a new trial. 24 However, in the absence of clear indications that this prior precedent has been undermined and that a change is foreshadowed

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25 and in view of Wiley's motion in the alternative for a new trial, we can and shall proceed in this case by assuming that his second trial did not violate the constitutional prohibition against double jeopardy. We reverse, as will be seen, on our authority under 28 U.S.C. § 2106.


In addition to constitutional commands, the federal appellate courts are governed in their decisionmaking by the statutory directive of 28 U.S.C. § 2106 that they shall dispose of appeals in the interest of justice. This permits and indeed counsels protection of sound and substantial interests of the accused even when they do not rise to the level of constitutional protections. 26

In this circuit, that statutory directive has led us to a number of rulings protecting the accused's interest in an acquittal when the prosecution has failed to present sufficient evidence to go to the jury. 27 The interest is one for the trial judge to vindicate in the first instance under the command of Rule 29, Fed.R.Crim.P. 28 But if the trial judge fails in this assignment, the appellate court will exercise its discretionary authority under § 2106 to provide that protection even if...

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