895 F.2d 1348 (11th Cir. 1990), 88-6115, Mars v. Mounts

Docket Nº:88-6115.
Citation:895 F.2d 1348
Party Name:Frank MARS, Petitioner-Appellee, v. The Honorable Marvin U. MOUNTS, et al., Respondents-Appellants.
Case Date:March 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1348

895 F.2d 1348 (11th Cir. 1990)

Frank MARS, Petitioner-Appellee,


The Honorable Marvin U. MOUNTS, et al., Respondents-Appellants.

No. 88-6115.

United States Court of Appeals, Eleventh Circuit

March 8, 1990

Page 1349

Consiglia A. Terenzio, Sylvia H. Alonso, West Palm Beach, Fla., for respondents-appellants.

Margaret Good, Public Defender, Steven Malone, West Palm Beach, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HATCHETT, Circuit Judge:

The state of Florida, the appellant, appeals the district court's grant of the writ of habeas corpus holding that double jeopardy bars the state from putting the appellee on trial for second-degree murder after his acquittal for first-degree murder of the same victim, where the only difference in the charges is the hour the crime allegedly occurred. We affirm.


On March 15, 1983, a grand jury indicted Frank Mars, the appellee, for the first-degree murder of Willie Berry. The indictment alleged that the murder occurred "on or about" January 30, 1983. Although Mars did not demand a bill of particulars from the state, the state filed a document entitled "Statement of Particulars, Answer to Demand for Discovery, Demand for Reciprocal Discovery, Demand for Notice Alibi."

Page 1350

1 The bill of particulars alleged that Mars committed the crime between "5 o'clock P.M. January 29, 1983 and 12:59 A.M. January 30, 1983." At trial, however, the evidence tended to show that the murder was committed after 12:59 a.m., January 30, 1983. Although neither party requested a jury instruction including the language in the bill of particulars, the trial court, apparently as a routine matter, instructed the jury that the state had to prove the facts specified in the bill of particulars. In addition, the court gave instructions on the lesser included offense of second-degree murder.

After the jury began its deliberations, the foreman asked the judge to repeat the instructions concerning the time constraints imposed by the bill of particulars. After the judge repeated the instruction, the state moved to amend its bill of particulars to conform to the evidence. Mars objected to the amendment, and the trial court denied the motion. After continued requests for clarification or assistance, the jury foreman addressed the court as follows:

I would like to make a statement to you on behalf of the whole jury. Your Honor, we do not have grave doubts about the facts of this trial, but we do have grave doubts about the time constraints within the statement of particulars.

We have requested before and request this time your assistance in dealing with these constraints properly. If you are unable to assist us with this question, we must, we will have to give this question strict interpretation, as we see it.

The trial court again instructed the jury that the state must prove the facts alleged in the bill of particulars. The jury returned with a verdict of not guilty.


On July 7, 1983, a grand jury returned an indictment against Mars for the murder of Willie Berry, this time under a count of second-degree murder. This indictment alleged that the murder occurred on January 30, 1983. 2 The state also filed a new bill of particulars alleging that Mars committed the crime between "1 A.M. January 30, 1983 and 1 A.M. January 31, 1983." Mars moved to dismiss the indictment, contending that this successive prosecution violated the Constitution's prohibition against double jeopardy. The trial court granted the motion and dismissed the indictment.

On appeal, the state district court of appeals initially held that Mars was collaterally estopped from asserting former jeopardy because he had requested the jury instruction restricting the state to proof within the specified time period and because he had opposed the state's motion to amend the bill of particulars to conform to the evidence. On petition for rehearing, the appellate court affirmed dismissal of the indictment noting that in its prior ruling it had erroneously concluded that Mars had requested the jury instruction restricting the state to the specified time period. The appellate court also certified the following question of "great public importance" to the Florida Supreme Court:

Does the rule of State v. Beamon [298 So.2d 376 (Fla.1974) ] permitting the filing of subsequent charges apply in a case where the defendant was acquitted by general verdict in the initial proceedings and the defendant did not seek a directed verdict of acquittal or request an instruction to the jury as to the binding nature of a bill of particulars in those proceedings?

State v. Mars, 473 So.2d 719, 720 (Fla. 4th D.C.A. 1985).

Page 1351

The Florida Supreme Court found the certified question moot and quashed the district court of appeal's decision. State v. Mars, 498 So.2d 402 (Fla.1986), cert. denied, 482 U.S. 929, 107 S.Ct. 3215, 96 L.Ed.2d 701 (1987). The court held that no "jeopardy" existed from which Mars could assert double jeopardy because under Florida's variance theory the second indictment charged Mars with a different crime. The court framed the issue as whether the facts in the second indictment, as limited by its bill of particulars, would support a conviction on the first indictment, as limited by the original bill of particulars. Under Florida law, the court held that the second indictment, alleging the murder of Willie Berry between the hours of 1 a.m. January 30 and 1 a.m. January 31, constituted a separate offense from the original indictment alleging the murder of Willie Berry between the hours of 5 p.m. January 29 and 12:59 a.m. January 30.

Mars remained in prison and subsequently filed a petition for writ of habeas corpus in federal district court. 3 A magistrate heard oral argument on March 9, 1988. On April 29, 1989, the magistrate recommended that the district court grant the writ of habeas corpus and deny the request for an injunction as moot, finding that further prosecution of Mars for the murder of Willie Berry violated double jeopardy. The state submitted written objections to the report and recommendation, to which Mars replied. On June 16, 1988, the district court conducted a hearing by means of a telephone conference call, and on October 26, 1988, adopted the magistrate's report and recommendation. The state appeals.


The state contends that the district court lacked jurisdiction over the petition for writ of habeas corpus because Mars failed to challenge the constitutionality of Florida's rule of variance pleading in his petition. The state also contends that the district court erroneously characterized the indictment for second-degree murder as a lesser included offense of the first indictment. Mars contends that the district court ruled properly both in finding jurisdiction and in granting the writ on double jeopardy grounds.


The issues presented in this case are: (1) whether the district court had jurisdiction; and (2) whether the double jeopardy clause of the United States Constitution bars a second prosecution for murder when the two indictments charge greater and lesser offenses for the same act, but where the bill of particulars limiting each indictment vary as to the specific hours for commission of the crime.


Whether this court has jurisdiction over a particular case is a question of law subject to plenary review. Burns v. United States ex rel. IRS, 887 F.2d 1541, 1543 (11th Cir.1989). Whether a successive prosecution is constitutionally barred by the double jeopardy clause is also a question of law subject to plenary review. E.g., United States v. Aguilar, 849 F.2d 92, 95 (3d Cir.1988); Baker v. Metcalfe, 633 F.2d 1198, 1201 (5th Cir. Unit A 1981), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981).

A. Jurisdiction

The state contends that this court lacks jurisdiction because the Florida Supreme Court found no double jeopardy bar on independent and adequate state grounds.

Page 1352

The only case cited by the state in support of this position is Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972). After hearing oral argument in Duncan, the Court decided that it had improvidently granted certiorari. The brief explanation offered by the Court for its finding that the grant of certiorari was unwarranted, however, has no precedential value. 4 See Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 1063, 103 L.Ed.2d 334 (1989) ("opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits"); Barefoot v. Estelle, 463 U.S. 880, 908, 103 S.Ct. 3383, 3402, 77 L.Ed.2d 1090 (1983) ("Denials of certiorari never have precedential value....").

Mars claims that the double jeopardy clause bars his prosecution under the second indictment. The state counters that because Mars has not challenged the constitutionality of Florida's variance theory, this court has no jurisdiction. We disagree. We recognize that "[f]ederal courts should not be quick to conclude that simply because a state procedure does not conform to the corresponding federal statute or rule, it does not serve a legitimate state policy." Illinois v. Somerville, 410 U.S. 458, 468, 93 S.Ct. 1066, 1072, 1072, 35 L.Ed.2d 425 (1973). Mars is not required, however, to challenge Florida's variance theory by name in order to invoke our jurisdiction to determine whether his federal constitutional rights will be violated by prosecution under the second indictment. For the purpose of habeas corpus, he adequately alleges that he is held in custody in violation of the...

To continue reading