569 F.2d 343 (5th Cir. 1978), 76-2377, United States v. Pitts

Docket Nº:76-2377.
Citation:569 F.2d 343
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank PITTS, Defendant-Appellant.
Case Date:March 13, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 343

569 F.2d 343 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Frank PITTS, Defendant-Appellant.

No. 76-2377.

United States Court of Appeals, Fifth Circuit

March 13, 1978

Page 344

[Copyrighted Material Omitted]

Page 345

P. Bruce Kirwan, Federal Public Defender, Ralph Washington, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., Dorothy Y. Kirkley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, COLEMAN and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Frank Pitts appeals from his conviction for interstate transportation of a stolen vehicle in violation of 18 U.S.C.A. § 2312 (Dyer Act). Because we reject the contentions that (i) the trial of Pitts in the Northern District of Georgia violated the Double Jeopardy Clause of the Fifth Amendment and the Speedy Trial Clause of the Sixth Amendment, (ii) prejudicial error arose from failure to allow nonexpert testimony as to handwriting comparison, and (iii) error exists because a F.R.Crim.P. 17(b) subpoena was quashed, we affirm the conviction.

A Cadillac To Eldorado

Sometime prior to July 19, 1973, Pitts took a 1965 cadillac belonging to Mr. and Mrs. Bernard Wenke of Decatur, Georgia, on a test drive. The following day, Pitts returned with a mechanic to inspect the engine for possible valve difficulties. Part of the inspection was another drive which metamorphosed into an extended trip. Realizing that their car had not been and was not likely to be returned, the Wenkes reported its theft to the Decatur police on July 19, 1973. While in this car on August 4, 1973, Pitts was arrested on unrelated charges in Eldorado, Illinois by the Eldorado Police Chief.

Trial Run

The Government initiated the prosecution process in the Eastern District of Illinois. In quick succession, Pitts was indicted in August 1973, pleaded not guilty on September 10, 1973, and was set for trial on November 5, 1973. On the day that this trial was to commence, both sides stated that they were ready to proceed. 1 The trial judge then called the case for trial, and the defendant executed a waiver of jury trial, which was consented to by the Government and approved by the Court. At this point, prior to the presentation of any evidence,

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the Government prosecutor requested a continuance because an essential witness, Mrs. Wenke, was not present. 2

The District Judge denied this motion and instructed the Government to present evidence. Prior to making any opening statement or calling any witnesses, the Government moved for a dismissal of the indictment under F.R.Crim.P. 48(a). The trial judge dismissed the indictment 3 and returned Pitts, pursuant to a detainer, to Illinois custody pending state prosecution on unrelated charges. When Illinois failed to prosecute, Pitts successfully petitioned for a habeas corpus writ and was released from state custody.

To Be Or Not To Be

On November 7, 1973, two days after the dismissal of the Government's first attempt to try Pitts, a complaint was filed and a bench warrant issued in the Northern District of Georgia to initiate the prosecution process again. For some unexplained reason, the Eastern District of Illinois Judge prevented execution of the warrant issued for Pitts. Continuing its attempt to bring Pitts to trial, the Government obtained another indictment and another bench warrant on January 22, 1974. This warrant was forwarded to the Eastern District of Illinois where the District Judge again took possession of the warrant and prevented its execution.

Not until January 14, 1975, when Pitts was arrested on unrelated charges in South Dakota, did the Government learn that Pitts was no longer within the jurisdiction of the Eastern District of Illinois. On learning of Pitts's altered geographical status, the Government had the original Northern District of Georgia indictment dismissed. On January 16, 1975, a new complaint was filed and a bench warrant sent to South Dakota. The second Georgia indictment, the third in this sequence, was returned on June 3, 1975. The question of whether Pitts would be tried was finally resolved by the commencement of trial on April 6, 1976, which resulted in his conviction.

Evidence Of Jeopardy

Based on the initial dismissal in the Eastern District of Illinois at the Government's request and the subsequent trial in the Northern District of Georgia for the same offense, Pitts contends that he was placed in jeopardy in violation of the Fifth Amendment's guarantee against double jeopardy. Although until recently double jeopardy jurisprudence was a "morass" in some areas, 4 the determinative factor for Pitts's contention has remained unaltered. Before any double jeopardy considerations arise, one must have been placed in jeopardy. For a jury trial, jeopardy attaches when that body is empaneled and sworn. For a bench trial, jeopardy attaches when the judge begins to receive evidence. United States v...

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