U.S. v. King, s. 77-1848

• Citation: 581 F.2d 800
• Decision Date: 26 July 1978
• Docket Number: Nos. 77-1848,77-1849,s. 77-1848
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jack KING and Terry Jackson, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 800

581 F.2d 800

UNITED STATES of America, Plaintiff-Appellant, v. Jack KING and Terry Jackson, Defendants-Appellees.

Nos. 77-1848, 77-1849.

United States Court of Appeals, Tenth Circuit.

Submitted May 8, 1978.

Decided July 26, 1978.

Ronald L. Rencher, U. S. Atty., Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah, for plaintiff-appellant.

Harold G. Christensen, Salt Lake City, Utah, for defendants-appellees.

Before HILL, BARRETT and DOYLE, Circuit Judges.

HILL, Circuit Judge.

Appellees King and Jackson were charged by information with the petty offense of construction of a road or trail within the Capitol Reef National Park in April, 1976, without a valid National Park Service construction permit, in violation of 16 U.S.C. § 3 as implemented in 36 C.F.R. §§ 1.3(a) and 5.7 (1976), and 18 U.S.C. § 2. The United States brings this appeal from a pretrial dismissal of the information.

Before commencement of a trial, appellees moved for dismissal of the information, contending in essence that their conduct did not constitute a violation of the statutes charged. ¹ Although no evidence was presented at the hearing on their motion, appellees' counsel explained the factual background of the charges, as follows:

King is a cattle rancher. He has, for some years, obtained permits to trail his cattle between summer and winter pastures across what is known as Old Creek Trail, which traverses the Capitol Reef National Park. In April, 1976, prior to trailing his cattle, he inspected the trail and discovered it was not passable. King contracted with Jackson to bulldoze the obstructed portion of the trail. King forwarded Jackson's bill to the Bureau of Land Management with a request for payment. The Bureau indicated it could not pay the bill and, in turn, forwarded it to the National Park Service, whereupon the petty offense information was filed.

Counsel for appellees stated that the facts were undisputed; the government's counsel stated there was a factual dispute regarding King's permit. He added that the government contended the statute was violated when Jackson drove his Caterpillar approximately one mile across virgin desert to gain access to the obstructed trail. The district court granted appellees' motion.

As this is an appeal by the government in a criminal case, our first inquiry must be the matter of appellate jurisdiction. Section 3731, Title 18 U.S.C., authorizes appeals by the government from final orders in criminal cases whenever subsequent prosecution would not be barred by the double jeopardy clause. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Appellees contend that subsequent prosecution in the present case would violate the double jeopardy clause. The Supreme Court's holding in Serfass v. United States, supra, is dispositive.

The defendant in Serfass was charged with willful failure to report for induction in the armed services. The trial court dismissed the indictment on the defendant's pretrial motion based upon the failure of the local draft board to state adequate reasons for denial of his request for reclassification to conscientious objector status. In ruling on the motion, the district court considered the local board's records and an affidavit setting forth the evidence to be adduced at trial. The defendant argued that, although the matter had not proceeded to trial before the trier of fact, the court's consideration of matters outside the face of the indictment constituted "constructive jeopardy" and rendered the dismissal in essence an acquittal from which no appeal could be taken. The Court held that the double jeopardy clause is not implicated until a proceeding commences before the trier of fact having jurisdiction to try the question of the guilt or innocence of the accused. Until that time, the district court is without power to do more than rule on the motion to dismiss. Because the district court's ruling came before the point at which jeopardy attached, the Court held subsequent prosecution was not barred. "(A)n accused must suffer jeopardy before he can suffer double jeopardy." 420 U.S. at 393, 95 S.Ct. at 1065.

The appealed order in the case at bar disposed of appellee's motion at a stage in the proceedings before the trier of fact commenced to take evidence. Subsequent prosecution is not barred by the double jeopardy clause, and the government's appeal is proper.

Appellant's principal argument is that the district court was without authority to dismiss the information on the grounds asserted. Because the doctrine of separation of powers is implicated by judicial interference with the decision to prosecute, a trial judge has no inherent authority to end a prosecution. He may not do so in the absence of legal grounds for dismissal. United States v. Hudson, 545 F.2d 724 (10th Cir. 1976).

Although the district judge did not articulate his reasons for granting the motion, the inescapable conclusion from examination of the record is that he did so upon the basis that appellees' conduct did not constitute...