U.S. v. Hall

• Decision Date: 26 August 1977
• Docket Number: No. 76-1080,76-1080
• Citation: 559 F.2d 1160
• Parties: UNITED STATES of America, Appellant, v. Arthur E. HALL, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1160

559 F.2d 1160

UNITED STATES of America, Appellant, v. Arthur E. HALL, Appellee.

No. 76-1080.

United States Court of Appeals, Ninth Circuit.

Aug. 26, 1977.

Robert H. Westinghouse, Asst. U. S. Atty., Seattle, Wash., argued, for appellant.

Evan L. Schwab, Seattle, Wash., James C. Gaither, San Francisco, Cal., argued, for appellee.

Appeal from the United States District Court Western District of Washington.

Before DUNIWAY and KILKENNY, Circuit Judges, and LUCAS, District Judge. ^*

KILKENNY, Circuit Judge:

The government appeals from an order dismissing an indictment charging appellee

with a violation of 18 U.S.C. § 545 (smuggling into the United States merchandise which should have been invoiced).

BACKGROUND

In 1974, the appellee was charged with having smuggled two diamond rings into the United States in violation of the above statute. Having waived a jury, he was tried by the court and found guilty. Subsequently, he was sentenced to one year's probation on condition that he "consent" to the entry of a civil decree of forfeiture of the rings pursuant to the provisions of 19 U.S.C. § 1497. He consented to the condition, the rings were forfeited to the government, and his probationary period expired on September 15, 1975.

Later, the appellee appealed to this court; he claimed that the indictment failed to state that the rings would be forfeited to the government, as required by Rule 7(c)(2), F.R.Crim.P., and that, consequently, the indictment was insufficient to charge him with a crime. We held that the indictment was fatally defective and in June, 1975, vacated the conviction and ordered a dismissal of the indictment. United States v. Hall, 521 F.2d 406 (CA9 1975). There was no appeal from the civil decree forfeiting the rings.

Upon remand to the district court, a second indictment was returned against appellee charging him with the identical offense mentioned in the first indictment. This time, however, the instrument included the language necessary to comply with the requirements of our decision on the first appeal. To this indictment, the appellee entered a plea of not guilty and immediately moved to dismiss upon several grounds, including double jeopardy, abuse of prosecutorial discretion, inapplicability of 18 U.S.C. § 545, and indictment insufficiency. In December, 1975, the district court rejected the appellee's contentions, but dismissed the indictment on the ground that it would be "unconscionable" to retry the appellee. ¹

We find it necessary to reverse.

THE DOUBLE JEOPARDY CLAIM

Although rejected by the district court, the appellee again urges his claim of double jeopardy.

In a long line of cases commencing with Ball v. United States, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court has held that the constitutional guarantee against double jeopardy imposes no limitation whatever upon the power of the court to retry a defendant who has succeeded in getting his first conviction set aside. The Supreme Court has firmly adhered to this doctrine in the more recent cases of North Carolina v. Pearce, 395 U.S. 711, 719-726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950), and Stroud v. United States, 251 U.S. 15, 18, 40 S.Ct. 50, 64 L.Ed. 103 (1919). We reject the appellee's contrary contention on the basis of these cases.

The appellee's principal argument on this issue is that if the case is retried, he would be subject to multiple punishment for the same offense. We are fully aware of the prohibition against multiple punishment and concede that in the absence of special Appellee's attempt to bring into play the doctrine taught in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) is unavailing. There, the trial court imposed a fine and imprisonment where the statute prescribed only a fine or imprisonment. The Supreme Court correctly held that once the fine was paid, the government could not return in an attempt to modify the judgment to include imprisonment. This is inapposite here because the Supreme Court has held, contrary to the argument of the appellee, that the forfeiture procedures of 19 U.S.C. § 1497 are civil, One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), and the double jeopardy clause is not implicated in the absence of multiple criminal punishments. Id. at 235-6, 93 S.Ct. 489. We need not definitively decide this issue, however, because the appellee may be acquitted upon retrial. For the same reason, we decline to comment upon the present validity of the original forfeiture judgment.

circumstances, the trial court would be restricted to the sentence it imposed upon the previous conviction in which case the appellee will have no additional time to serve. This precise question, however, was faced in Pearce where the Court held that neither the double jeopardy clause nor the equal protection clause imposes an absolute bar to a more severe sentence upon reconviction. Pearce, 395 U.S. at 723, 89 S.Ct. 2072. The Court there held that a trial judge is not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's "life, health, habits, conduct, and mental and moral propensities." The Court noted that such information might come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, if any, or, possibly from other sources. Pearce at 723, 89 S.Ct. 2072. On a new trial, the district court (in passing sentence if appellant is found guilty) could even pass on his candor while a witness. United States v. Lustig, 555 F.2d 737 at 750-751 (CA9, June 15, 1977); United States v. Cluchette, 465 F.2d 749, 754 (CA9 1972). Beyond that, "(t)he freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle . . . that a state may adopt the 'prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.' " Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949), quoted in Pearce, 395 U.S. at 723, 89 S.Ct. 2072, 2079. We agree with this reasoning and accordingly find no impediment to retrial of the appellee. His position is neither better nor worse than that of any other defendant faced with a retrial after successfully attacking his original conviction.

In short, we hold that the appellee may be retried without offending the double jeopardy clause even though he has completed a probationary period. If a greater sentence is imposed upon retrial, the requirements of Pearce, supra, and its progeny shall be followed.

PROPRIETY OF THE PROSECUTOR'S ACTION

The appellee argues that retrial would constitute an abuse of prosecutorial discretion and that, therefore, the district court's dismissal of the indictment was a proper exercise of its inherent power to do justice. We disagree on both grounds.

In seeking the indictment after remand, the prosecutor was doing nothing more than exercising his discretion under 28 U.S.C. § 547 under which he has a duty to ". . . prosecute for all offenses against the United States; . . ." The power vested under this section gives the United States Attorney a broad discretion in determining which cases to file. United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Alessio, 528 F.2d 1079, 1081 (CA9 1976), cert. denied 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976); United States v. Cox In arguing that the district judge's action was a proper exercise of his inherent power to do justice, the appellee mistakenly relies upon United States v. Apex Distributing Co., 270 F.2d 747 (CA9 1959); United States v. Heath, 260 F.2d 623 (CA9 1958), and other similar cases. None involved the dismissal of an indictment under circumstances which even resemble those here; both of the cited cases were properly dismissed for unnecessary delay in bringing the accused to trial. We find other Ninth Circuit authority to be controlling. In United States v. Real, 446 F.2d 40 (CA9 1971), where an indictment was dismissed by the district court "in the interest of justice," we said that:

342 F.2d 167 (CA5 1965), cert. denied 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). We acknowledge the fact that there are limits upon this discretion, but hold that none of them are here applicable.

". . . The district court's merciful inclinations appear entirely appropriate in view of the nature of the offense, of Eck's youth, his lack of any prior criminal record, and his good conduct during the rehabilitative year. However, we are unable to find any authority permitting judicial discretion to be substituted for prosecutorial discretion in dismissing the indictment." (Emphasis supplied).

See also United States v. Hudson, 545 F.2d 724 (CA10 1976) (illness of the accused does not afford a legal basis justifying dismissal of an indictment by the court on its own motion); United States v. De Diego, 167 U.S.App.D.C. 252, 511 F.2d 818, 824 (1975) ("A trial judge has no discretion to end prosecutions unless there are legal grounds for the exercise of discretion."). Our most recent consideration of this separation of powers issue is United States v. Chanen, 549 F.2d 1306, 1313 (CA9 1977), which also supports our holding. ² Additionally, we find nothing in the Federal Rules of Criminal Procedure which would authorize the district court to dismiss the indictment for the reason given. Cf. United States v. Bryant, 153 U.S.App.D.C....