548 F.2d 822 (9th Cir. 1976), 75-2149, United States v. Finch

Docket Nº:75-2149.
Citation:548 F.2d 822
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. James Junior FINCH, Defendant-Appellee.
Case Date:December 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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548 F.2d 822 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellant,


James Junior FINCH, Defendant-Appellee.

No. 75-2149.

United States Court of Appeals, Ninth Circuit

December 22, 1976

Rehearing En Banc Denied March 3, 1977.

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Keith L. Burrowes, Asst. U. S. Atty. (argued), Billings, Mont., for plaintiff-appellant.

Robert W. Holmstrom (argued), of Longan & Holmstrom, Billings, Mont., for defendant-appellee.

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Before CHAMBERS and KENNEDY, Circuit Judges, and WONG, [*] District judge.

KENNEDY, Circuit Judge:

This case began when James Junior Finch stood on a bank of the Big Horn River and cast a fishing lure into the waters. He was charged by information with trespassing on Indian lands, a violation of 18 U.S.C. § 1165. The bank and the bed of the Big Horn River at the point where Finch stood lie within the exterior boundaries of the Crow Indian Reservation. All concede that the State of Montana owns the bank at that spot, having acquired the property by purchase. The state's chain of title can be traced to a Crow Indian who acquired the land by allotment.

Finch held a fishing license issued by the Montana State Fish and Game Commission. However, he was not a member of the Crow Tribe, and he was well aware of an ordinance promulgated by the tribe that forbade all persons who were not tribal members from entering Crow lands for fishing. The district court found that no entry had been made on Indian land and dismissed the information. 395 F.Supp. 205 (D.Mont.1975). The Government appeals. 1

The court below originally denied a motion by the defendant to dismiss the information. The Government and the defendant stipulated to an "Agreed Statement of Facts" and submitted the case for the court's determination. The trial court thereupon reconsidered its earlier ruling and entered an order dismissing the information. Finch asserts that submitting the stipulation of facts to the court put him once in jeopardy, and that we do not have jurisdiction over the Government's appeal because a reversal would place him in jeopardy a second time. We address this jurisdictional issue before reaching the merits.


Our jurisdiction of the appeal by the Government is controlled by18 U.S.C. § 3731. That statute authorizes appeals by the Government from all district court orders dismissing an indictment or information, except where the appeal would be barred by the double jeopardy clause of the Constitution. The Supreme Court recently gave careful consideration to this statute and concluded that its enactment expresses a congressional intent to "avoid creating nonconstitutional bars to the Government's right to appeal." United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975). Our jurisdictional inquiry, therefore, must focus on whether the appeal is barred by the constitutional rule against double jeopardy. United States v. Patrick, 532 F.2d 142 (9th Cir. 1976).

The threshold question is whether the defendant was once placed in jeopardy by the proceedings below. There are no mechanical rules for deciding whether jeopardy has attached. As the Supreme Court has declared, the phrase is used to mark that "point in (the) criminal proceedings at which the constitutional purpose and policies" of the double jeopardy clause become implicated. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), citing United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). In this case, we believe that jeopardy attached in the proceedings below.

Appellee's initial motion to dismiss was denied. The parties then filed an "Agreed Statement of Facts." 2 The stipulation was a submission of the case to the

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district court for plenary determination and decision. This stipulation constituted a waiver of a jury trial; after it was filed, the district court undoubtedly had the power to determine the guilt or innocence of the defendant. The agreed statement of facts, moreover, was relevant to the district court's ultimate decision to dismiss the information. In the trial court's opinion announcing that it had reconsidered the earlier motion to dismiss, the court expressly stated: "After a thorough review of the file, I am compelled to reconsider my order . . . ." 395 F.Supp. at 207.

In at least two essential respects, this case differs from Serfass v. United States, supra, in which the Supreme Court held that jeopardy had not attached. In Serfass, the petitioner had not waived his right to trial by jury (in fact, he had requested a jury trial), and the district court had no power to determine the petitioner's guilt or innocence. By contrast, the defendant here waived his right to a jury trial, and after the initial denial of his motion to dismiss, was subject to the risk of a determination of guilt.

This case is also distinguishable from United States v. Choate, 527 F.2d 748 (9th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). In that case, defendant waived a trial by jury, and the trial court received two stipulations of fact. Thereafter, the lower court granted the defendant's pretrial motion to dismiss on the ground that government agents had acted improperly. The Government appealed the dismissal, and the defendant argued that the waiver of the jury trial, coupled with receipt of the stipulations of fact, had placed him in jeopardy. We held that jeopardy had not attached. We reasoned that the factual stipulations received by the district court were not considered in its ruling on defendant's pretrial motion and that the parties clearly understood that the lodging of the stipulations had not put appellee in jeopardy. 527 F.2d at 751. In essence, the district court in Choate had no power to find the defendant guilty until it first ruled on the pretrial motion, and thus the defendant was not subject to the risk of a determination of guilt. Choate thus differs from this case in at least two respects: the parties in Choate had no expectation that the stipulations of fact would place the defendant in jeopardy and the trial court's ruling on the motion to dismiss in Choate was entirely unrelated to the factual stipulations. In light of the foregoing discussion, we conclude that in this case jeopardy attached at the time the case was submitted to the district court for decision. 3 Cf. United States v. Patrick, supra.

This finding, however, does not necessarily preclude appellate jurisdiction, for "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Sommerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973), quoted in Serfass v. United States, 420 U.S. at 390, 95 S.Ct. 1055; United States v. Patrick, 532 F.2d at 146; see, e. g., United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Kehoe, 516 F.2d 78 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 313 (1976). Accordingly, the next step is to determine the effect of the procedures that would take place on remand were the reviewing court to decide the merits of the appeal adversely to the defendant. Where these procedures are such that an individual who has once been placed in jeopardy will be put in jeopardy again, appellate jurisdiction is absent.

We are guided in our analysis by two recent decisions of the Supreme Court, United States v. Wilson, supra, and United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). In Wilson the trial court granted the defendant's motion to dismiss the indictment after the jury found him guilty. The Government appealed, and the defendant claimed that the

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Court lacked jurisdiction because reversal would result in double jeopardy. The Supreme Court held that further jeopardy would not result from a reversal, and thus established its jurisdiction to reach the substantive issues on appeal. The Court noted that the policies of the double jeopardy clause prevent the Government from getting a second chance to present its case to the trier of fact, perhaps using the experience gained during the first proceeding to obtain a conviction. 420 U.S. at 352, 95 S.Ct. 1013. It followed that such policy considerations were not present where determination of the disputed legal issue would not result in a retrial, but would merely reinstate the jury verdict. Id. at 353, 95 S.Ct. 1013.

In Jenkins the Court considered a somewhat similar issue, presented, however, in the context of a trial to the court without a jury. At the close of the case, the district court filed findings of fact and conclusions of law, and ordered the indictment dismissed and the defendant discharged. The Supreme Court noted that in considering the double jeopardy problem, a bench trial differs from a jury trial in certain respects:

In a case tried to a jury, the distinction between the jury's verdict of guilty and the court's ruling on questions of law is easily perceived. In a bench trial, both functions are combined in the judge, and a general finding of "not guilty" may rest either on the determination of facts in favor of a defendant or on the resolution of a legal question favorably to him. If the court prepares special findings of fact . . . it may be possible upon sifting those findings to determine that the court's finding of "not guilty" is attributable to an erroneous conception of the law whereas the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard.

420 U.S. at 366-67, 95 S.Ct. at 1011. The Court pointed out, however, that this could not be done in the case before it:

(It is not) clear to...

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