U.S. v. Cooper
| Decision Date | 15 February 1996 |
| Docket Number | No. 94-5310,94-5310 |
| Citation | 77 F.3d 471 |
| Parties | -1087 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Derrick R. COOPER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Vincent Bernard Orange, Sr., Washington, D.C.; Mark Edward Hall, Columbia, South Carolina, for Appellant. Albert Peter Shahid, Jr., Assistant United States Attorney, Charleston, South Carolina, for Appellee. ON BRIEF: J. Preston Strom, Jr., United States Attorney, Charleston, South Carolina, for Appellee.
Before HALL, MICHAEL, and MOTZ, Circuit Judges.
Derrick R. Cooper was re-indicted for tax evasion in violation of 28 U.S.C. § 7201 after the district court had dismissed earlier charges against him for violating the same statute in the same tax year. Cooper claims the later indictment was barred by the Double Jeopardy Clause of the Fifth Amendment. The district court refused to dismiss the new indictment and Cooper noted an interlocutory appeal. See Abney v. United States, 431 U.S. 651, 659 (1977). Because jeopardy did not attach in the initial proceeding and the doctrines of res judicata and collateral estoppel do not bar the subsequent indictment, we affirm.
On July 14, 1993, a federal grand jury returned a superseding indictment against Cooper, charging him with two counts of willfully attempting to evade and defeat income taxes in violation of 26 U.S.C. § 7201. Count One alleged that Cooper attempted to evade payment of income taxes for calendar year 1986 "by failing to make an income tax return on or about October 15, 1987, as required by law." Count Two alleged that Cooper attempted to evade payment of income taxes for calendar year 1987 "by failing to make an income tax return on or about October 17, 1988, as required by law." Following his arraignment, Cooper moved to dismiss or quash the indictments pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. The district court held a lengthy hearing on the motion at which the government conceded that the Internal Revenue Service had granted Cooper an extension permitting him to file his 1987 income tax return after October 17, 1988. In view of this concession, the court granted Cooper's motion as to Count Two and dismissed the charges as to the 1987 tax year. The court explained, "I would grant the defendant's motion as to count 2 of the superseding indictment because I am of the opinion that the count would fail because the charge of failing to make an income tax return on or about October 17, 1988, as required by law, was not required by law, because in fact the testimony before the Court from both the government and the Defendant ... indicated that the defendant had been granted an extension in which to file the tax return...."
The government obtained a second superseding indictment against Cooper again charging him with two counts of violating 26 U.S.C. § 7201. Count One alleged that Cooper attempted to evade payment of income taxes for the calendar year 1986 by preparing and signing a false income tax return; Count Two made the same allegations with regard to calendar year 1987. Cooper moved to dismiss Count Two, arguing that in light of the court's dismissal of Count Two in the first superseding indictment, which alleged a violation of the same statute for the same tax year, prosecution of Count Two in the second superseding indictment violated his rights under the Double Jeopardy Clause. At the hearing on that motion, the district judge, although agreeing that he had dismissed Count Two of the first superseding indictment "with prejudice," denied the motion. He explained, "it's altogether a different charge than that contained ... in the original indictment ... and I think you agree ... it could have been brought as a separate count in the original indictment...."
The principal issue presented in this appeal is whether double jeopardy bars the government from charging Cooper with attempting to evade and defeat income tax payments in violation of § 7201 after the district court dismissed an earlier indictment charging him with violating the same statute for the same tax year. Accordingly, we begin our inquiry with the Double Jeopardy Clause of the Fifth Amendment.
The Double Jeopardy Clause assures that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The underlying idea animating this bedrock prohibition "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88 (1957). Intrinsic to the protection against double jeopardy is the fact that a defendant has been put in jeopardy once. See Serfass v. United States, 420 U.S. 377, 393 (1975) ().
In cases involving the Double Jeopardy Clause, courts have used the concept of "attachment of jeopardy" to "define a point in the criminal proceedings at which the constitutional purposes and policies are implicated." Id. at 388. See also United States v. Jorn, 400 U.S. 470, 480 (1971). The Supreme Court has repeatedly stated that "jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " Serfass, 420 U.S. at 388 (citations omitted). In a jury trial, jeopardy attaches only after the jury has been empaneled and sworn; in a nonjury trial, jeopardy attaches when the court begins to hear evidence. Id. (citations omitted). 1
In the present case, shortly before his scheduled jury trial, Cooper moved to dismiss the entire indictment on various grounds. The district court held a hearing on this and other pretrial motions and ultimately decided to grant the motion to dismiss Count Two of the indictment. At the time of this hearing, no jury had been empaneled or sworn, nor had Cooper waived his right to a jury trial. Thus, no jeopardy could or did "attach" at this hearing. The Seventh Circuit considered a similar double jeopardy claim in United States v. Igoe, 331 F.2d 766 (7th Cir.1964), cert. denied, 380 U.S. 942 (1965), where the defendant, like Cooper, was charged with evading taxes in violation of § 7201. Because no jury had been empaneled and the defendant had not effectively waived his right to a jury when the court dismissed the charges, the Igoe court held that there was no double jeopardy violation. Id. at 768.
Nevertheless, Cooper argues that when the district court dismissed Count Two of the first superseding indictment, that dismissal was "tantamount" to an "acquittal on the merits" because it was "with prejudice." The Supreme Court considered a very similar argument in Serfass v. United States, 420 U.S. 377 (1975). There, as here, the district court dismissed an indictment during a pre-trial hearing. The defendant in Serfass acknowledged that " 'formal or technical jeopardy had not attached' at the time the District Court ruled on his motion to dismiss the indictment." 420 U.S. at 389-90. Even so, Serfass argued that since the trial court's ruling was based on evidentiary facts that would constitute a defense on the merits at trial, it was the " 'functional equivalent of an acquittal on the merits' and 'constructively jeopardy had attached.' " Id. at 390.
The Supreme Court unequivocally rejected this argument. It noted that Serfass, like Cooper, "had not waived his right to a jury trial" and that this right could not be waived without the consent of the government and the district court. Id. at 389. In such circumstances, the Court held "the District Court [is] without power to make any determination regarding petitioner's guilt or innocence." Id. at 389. Chief Justice Burger, for a nearly unanimous Court, explained:
Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier 'having jurisdiction to try the question of the guilt or innocence of the accused.' Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.
420 U.S. at 391-92 (citations omitted).
Directly addressing the claim that the granting of a motion to dismiss is the "functional equivalent of an acquittal on the merits," the Court noted that although "a verdict of acquittal ... is a bar to a subsequent prosecution for the same offence ... an'acquittal' cannot be divorced from the procedural context in which the action so characterized was taken." Id. at 392. (citations omitted). Thus, the word "acquittal" has no "talismanic quality for purposes of the Double Jeopardy Clause." Id. In fact, it "has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction." Id. "With prejudice" similarly has no "talismanic quality"; the Double Jeopardy Clause does not bar reprosecution of charges dismissed "with prejudice" if jeopardy has not attached.
Thus, Serfass teaches that a trial court's pretrial dismissal of an indictment does not implicate double jeopardy concerns, even when the dismissal is based on the court's evaluation of facts not included in the indictment because, absent a defendant's waiver of his or her right to a jury trial, the trial...
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...omitted and citations adjusted to match format of this Recommendation); see also United States v. Cooper, No. 94-5310, 77 F.3d 471 (table), 1996 WL 67171, at *2-5 (4th Cir. Feb. 15, 1996) (unpublished) (rejecting argument that jeopardy attached when one count of indictment dismissed with pr......