546 F.2d 1336 (9th Cir. 1976), 76-1572, Bretz v. Crist

Docket Nº:76-1572 and 76-1169.
Citation:546 F.2d 1336
Party Name:L. R. BRETZ, Petitioner-Appellant, v. Roger CRIST, etc., et al., Respondents-Appellees. Merrel CLINE, Petitioner-Appellant, v. The STATE OF MONTANA, etc., et al., Respondents-Appellees.
Case Date:November 18, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1336

546 F.2d 1336 (9th Cir. 1976)

L. R. BRETZ, Petitioner-Appellant,


Roger CRIST, etc., et al., Respondents-Appellees.

Merrel CLINE, Petitioner-Appellant,


The STATE OF MONTANA, etc., et al., Respondents-Appellees.

Nos. 76-1572 and 76-1169.

United States Court of Appeals, Ninth Circuit

November 18, 1976

Page 1337

W. William Leaphart (argued), Helena, Mont., for petitioners-appellants.

Albert W. Meloling, Sp. Asst. Atty. Gen. (argued), Helena, Mont., for respondents-appellees.

Before CHAMBERS, Chief Judge, and TUTTLE [*] and KILKENNY, Circuit Judges.

TUTTLE, Circuit Judge:

The tension between federalism and the doctrine of selective incorporation of Bill of Rights guarantees via the Fourteenth Amendment inevitably generates appeals such as this. Appellants contend that a second prosecution brought against them by the State of Montana violated the double jeopardy clause of the Fifth Amendment as applied to the states through the due process clause of the Fourteenth Amendment. In denying their petition for habeas corpus, following conviction at the second trial, the United States District Court for the District of Montana agreed with the state that state, not federal, law determines when jeopardy attaches and therefore under the controlling Montana statute appellants had not been put in jeopardy by the first prosecution; and, in the alternative, that federal standards for reprosecution following a declaration of mistrial had been met. Cunningham v. District Court, 406 F.Supp. 430, 432-434 (D.Mont.1975) (consolidated case).

Page 1338


The evidence at the trial would justify finding that appellants Bretz and Cline concocted a scheme to fraudulently obtain workmen's compensation payments as beneficiaries of one Wampole, deceased. The plan's particulars were not illuminated on appeal, but it appears that appellants filed a claim with the Montana Workmen's Compensation Division, alleging that Wampole was an employee of Courtesy Mobile Home Transporting, Inc.; that he suffered a fatal injury in the course of his employment; and that they were entitled to benefits on his behalf. Appellants prepared and submitted three different documents to the Workmen's Compensation Division: a "Claim for Compensation;" an "Employer's First Report of Occupational Injury or Disease;" and a "Petition for Compromise Settlement." Based on these documents, the Division paid a settlement of $5400 to the appellants.

  1. The Charges

    Claiming that Wampole had never been employed by Courtesy, and had not been fatally injured in the course of his alleged employment, the state filed a nine-count information on October 3, 1974. The state leveled the following charges against the appellants:

    (1) Count I contended that the entire scheme constituted grand larceny in violation of REV. CODE OF MONTANA § 94-2701(1)(1948), and specified that the offending conduct occurred between January 13, 1973 and February 19, 1974.

    (2) Count II also applied to the entire scheme, and maintained that appellants committed the crime of obtaining money and property by false pretenses in violation of REV. CODE OF MONTANA § 94-1805 (1947). Due to a typographical error, however, the information specified that the offending conduct occurred between January 13, 1974 and February 19, 1974.

    (3) Counts III through VIII fragmented 1 appellants' conduct into three instances of preparing false evidence in violation of REV. CODE OF MONTANA § 94-1703 (1947) and three instances of offering false evidence in violation of REV. CODE OF MONTANA § 94-1701 (1947). Each of the three documents submitted by appellants to the Division anchored a pair of offenses. Thus, the "Claim for Compensation" was the basis for charges of preparing false evidence and offering false evidence between the dates of February 5, 1973 and February 13, 1973 (Counts III and IV); the "Employer's First Report" was the basis for similar charges of criminal conduct during the period March 19, 1973 to March 22, 1973 (Counts V and VI); and the "Petition for Compromise Settlement" was the basis for similar charges of criminal conduct during the period January 30, 1974 to February 1, 1974 (Counts VII and VIII);

    (4) Count IX returned to the entire scheme and alleged that the appellants' conduct amounted to presenting false proofs upon a policy of insurance in violation of REV. CODE OF MONTANA § 94-2202 (1947), the offending activity supposedly having occurred between January 13, 1973 and February 19, 1974.

  2. The First Prosecution

    The following facts are conclusively established by the record. On March 10, 1975, counsel for the state and for appellants answered ready in the state trial court. On March 12, 1975, before voir dire had been completed, the trial court granted the state's motion to dismiss Count IX of the information (presenting false proofs upon a policy of insurance). On March 13, 1975, a

    Page 1339

    jury was impaneled and sworn. Before opening statements and before any evidence had been offered, the jury was excused as defense counsel presented several motions to the court. The most important of these motions sought to restrict the state's evidence to the allegations of the information. This tactical stroke was aimed at Count II (obtaining money and property by false pretenses): the information mistakenly charged that the conduct constituting this offense had occurred between January 13, 1974 and February 19, 1974, but the relevant statutory provision, Rev. Code of Montana § 94-1805 (1947), had been repealed effective January 1, 1974.

    The state resisted this attempt to excise Count II from its case, and on March 21, 1975, moved to amend Count II to correct the typographical error. On March 24, 1974, the trial court denied this motion and sua sponte dismissed Count II for failing to state an offense. 2 After the Montana Supreme Court declined to grant the state's petition for a writ of supervisory control, the state returned to the trial court and moved to dismiss the remaining counts in order to "file a new and different information." The trial court granted the motion for this "limited purpose" and discharged the jury on April 4, 1975.

  3. The Second Prosecution

    On the same day that the trial court dismissed the first information, the state filed a second, two-count information. Count I accused the appellants of grand larceny, and tracked the language of Count I of the original information. Count II charged them with obtaining money and property by false pretenses, and corrected the typographical error that had flawed the original information. A new jury was impaneled, appellants' motion to dismiss on grounds that the prosecution placed them twice in jeopardy was denied, and appellants were found guilty of obtaining money and property by false pretenses. After exhausting available state postconviction remedies, appellants sought and were denied habeas corpus relief by the district court.


    Before 1969, the Supreme Court employed different criteria to test the constitutional permissibility of reprosecutions by state and federal authorities. Even though double state trials might run afoul of Fifth Amendment barriers to federal reprosecutions, the Fourteenth Amendment was thought to pose no constitutional obstacle to state retrials unless the proceedings exposed the accused to "that kind of double jeopardy (which creates) a hardship so acute and shocking that our polity will not endure it." Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288 (1937). 3 In Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969), however, the Supreme Court eschewed Palko's "approach to basic constitutional rights," and found "that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment." The question in Benton was whether an accused who successfully appeals a conviction may be reprosecuted not only for the offense of which he was convicted, e. g., North Carolina v. Pearce, 395 U.S. 711, 719-20, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (no Fifth

    Page 1340

    Amendment bar to state retrial on same charge when defendant appeals and wins reversal), but also for an offense of which he was acquitted at the first trial. Relying on federal precedents, the Benton court held that the acquittal could not be reopened, and based its derivative holding on the proposition that "(o)nce it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' . . . the same constitutional standards apply against both the State and Federal Governments." 395 U.S. at 795, 89 S.Ct. at 2063.

  4. A Question of Lawmaking Competence

    An arithmetical as well as constitutional precondition to being " subject for the same offense to be twice put in jeopardy of life or limb," U.S.Const. Amend. V, is to be once put in jeopardy. Hence the theory of attachment of jeopardy, admittedly an attempt at ratification, but nevertheless serving to signify that point in the state's efforts to secure a conviction when the interests protected by the double jeopardy clause are sufficiently implicated to warrant barring a second prosecution absent special countervailing considerations. If the state rule that jeopardy does not attach until "after the first witness is sworn," Rev. Code of Montana, § 95-1711(3)(d) (1947) is controlling, then petitioners were never put in jeopardy by the first prosecution and their second trial a fortiori could not have contravened the constitutional command. See Alexander v. Fogliani, 375 F.2d 733, 734 (9th Cir. 1967) (no double jeopardy violation where, because jury had not been impaneled, jeopardy could not have...

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