U.S. v. Davis

• Decision Date: 16 June 1989
• Docket Number: No. 88-3944,88-3944
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. S. Robert DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 900

873 F.2d 900

UNITED STATES of America, Plaintiff-Appellee, v. S. Robert DAVIS, Defendant-Appellant.

No. 88-3944.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 23, 1989.

Decided April 25, 1989.

Rehearing and Rehearing En Banc Denied June 16, 1989.

Dale E. Williams, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Columbus, Ohio, for the U.S., plaintiff-appellee.

Arthur F. Mathews (argued), Stephen W. Preston, Wilmer, Cutler & Pickering, Washington, D.C., Laura D. Byrne, Amlin, Ohio, and John J. Chester, Chester, Hoffman, Willcox & Saxbe, Columbus, Ohio, for S. Robert Davis, defendant-appellant.

Before NELSON and NORRIS, Circuit Judges, and FRIEDMAN, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

Appellant S. Robert Davis was convicted of violating the federal mail fraud statute, 18 U.S.C. Sec. 1341. This court overturned the conviction on the ground that the indictment, which was based on the "intangible rights" theory disavowed by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), was legally deficient. A superseding indictment was then returned, and Mr. Davis filed two motions to dismiss--one alleging a violation of the Double Jeopardy Clause and the other based on the statute of limitations. Both motions were denied by the district court, and Mr. Davis has taken an interlocutory appeal.

We conclude that we lack jurisdiction to entertain a pretrial appeal from the district court's ruling on the statute of limitations question. With respect to the double jeopardy issue--as to which the government concedes we have jurisdiction under the collateral order exception to the final judgment rule, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)--we shall affirm the order of the district court.

I

Appellant Davis owned a house and a tract of undeveloped land in the Squirrel Bend section of Upper Arlington, Ohio. He planned to subdivide his vacant land, and the city planned to construct a public waterline in the area at an estimated cost of $80,000. Mr. Davis agreed to provide water and sewer improvements to people who purchased lots from him, and he was expected to pay $60,000 of the city's cost.

After discussions with Harold Hyrne, the city manager of Upper Arlington, Mr. Davis undertook to construct the Squirrel Bend waterline at his own expense. He had the line installed by Wright Brothers Excavating Company at a contract price of $36,296.54.

Under Sec. 903.12 of the Upper Arlington City Code, abutting property owners may "tap in" to a privately built waterline without the builder's consent if they pay the builder a charge set by the city manager on the basis of the builder's certification of "the entire cost of such improvement to the builder." One of Mr. Davis's neighbors, Richard Schultz, paid Davis a tap-in fee set by City Manager Hyrne on the basis of a $71,472 cost figure allegedly certified by Davis. The United States asserts that the $71,472 figure (which Mr. Davis denies having "certified") was substantially above the actual cost of the improvement to Davis.

A federal grand jury indicted Mr. Davis for mail fraud on June 12, 1986. The theory of the indictment was that Davis had devised "a scheme or artifice to defraud the citizens of the City of Upper Arlington Ohio, of their rights to honest and faithful services from their public officials," in furtherance of which scheme he had used or caused the use of the United States mails on four occasions between June 18, 1981, and August 13, 1981. It was alleged that City Manager Hyrne--the public official of whose honest and faithful services the townspeople supposedly were deprived--had (1) agreed not to question any waterline construction cost certified by Davis as long as the amount certified was approximately the same as the cost estimated by the city, (2) approved a tap-in charge based on an inflated cost certification, and (3) failed to collect city inspection fees for the waterline. In return, Davis was alleged to have arranged for Hyrne to receive a discount on a purchase of certain common stock.

A pretrial motion to dismiss for failure to allege a legally cognizable scheme to defraud was denied, and the case went to trial before a jury. After seven days of trial and three days of deliberation, the jury returned a verdict of guilty on all four counts. Mr. Davis appealed. While his appeal was pending, the United States Supreme Court decided McNally v. United States, supra, 483 U.S. 350, 107 S.Ct. 2875, holding that the federal mail fraud statute is limited in scope to the protection of tangible property rights and does not make it a crime to deprive citizens of their intangible right to honest performance of duty by public officials. (Congress has now amended the mail fraud statute to incorporate the intangible rights theory, Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, Sec. 7603, 102 Stat. 4181, 4508 (to be codified at 18 U.S.C. Sec. 1346), but the amendment has no retroactive application, of course.) In an unpublished per curiam opinion filed on March 8, 1988, we reversed Mr. Davis's conviction on the ground that the indictment was defective under McNally:

"The indictment in the case at bar does not properly allege a violation of the mail fraud statute. In its initial paragraph the indictment defines the scheme to defraud as one directed at the rights [of the citizens of Upper Arlington] to honest and faithful services from their public officials.... Although in later paragraphs the indictment avers facts that may have involved a deprivation of property or money, nowhere is there an averment that the purpose or result of the scheme was to obtain property or money for the defendant.... We shall not strain to construe this defective indictment as implicitly charging that the purpose of the scheme was to deprive someone of money, as opposed to depriving the citizens of Upper Arlington of their 'rights to honest and faithful services from their public officials....' "

United States v. Davis, No. 86-4076, slip op. at 3 (6th Cir.1988) [841 F.2d 1127 (Table) ].

On remand, the district court dismissed the indictment. Ten days later a "superseding indictment" was returned against Davis, charging him with four counts of mail fraud based on the same jurisdictional mailings alleged in the original indictment.

The original indictment and its successor are much the same in wording, except for the introductory paragraph of Count I. Instead of alleging that Davis had devised a scheme to defraud his fellow citizens of their right to good government, the new introductory paragraph (which is incorporated by reference in Counts 2, 3, and 4) alleges that Davis devised "a scheme or artifice to defraud, and to obtain money by means of false and fraudulent pretenses and representations...." Like the original indictment, the superseding indictment charges that Davis prevailed upon Hyrne to accept a falsely inflated cost figure for the construction of the waterline, to approve an inflated tap-in charge based on that figure, and to refrain from collecting inspection fees, all in return for Davis's arranging for Hyrne to buy stock at a discount. Minor changes tracking the language of the new introductory paragraph specify that the tap-in charges were in the form of "money," and that the inspection fees Hyrne refrained from collecting were likewise monetary in nature.

After entering a plea of not guilty, Davis moved to dismiss the superseding indictment for violation of the Double Jeopardy Clause and for failure to bring the indictment within the five-year period prescribed by the applicable statute of limitations. The district court (Joseph P. Kinneary, J.) denied both motions. This interlocutory appeal followed.

II

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. In the leading case of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court held that a defendant who succeeded in having his murder conviction set aside because of a legal defect in the indictment was not "twice put in jeopardy," in violation of the Constitution, when retried on a new and legally sufficient indictment. The Court provided no very extensive rationale for this holding, possibly considering it self-evident that the Double Jeopardy Clause was not designed to guarantee the defendant "the right of being hung, to protect him from the danger of a second trial." United States v. Keen, 26 F.Cas. 686, 690 (C.C.D.Ind.1839) (No. 15,510), as quoted in United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978). The modern interpretation of Ball is that "it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970). Cf. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984).

The second Mr. Justice Harlan offered these observations on the "Ball principle," as he called it:

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate...