U.S. v. Kennings

• Decision Date: 31 October 1988
• Docket Number: No. 87-3488,87-3488
• Parties: UNITED STATES of America, Appellant, v. Arnaldo KENNINGS, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 381

861 F.2d 381

UNITED STATES of America, Appellant, v. Arnaldo KENNINGS, Appellee.

No. 87-3488.

United States Court of Appeals Third Circuit.

Argued April 19, 1988.

Decided Oct. 31, 1988.

John F. De Pue (argued), U.S. Dept. of Justice, Washington, D.C., Terry M. Halpern, U.S. Atty., Hugh P. Mabe, Asst. U.S. Atty., U.S. Dept. of Justice, Charlotte Amalie, St. Thomas, Virgin Islands, for appellant.

Mario R. Bryan (argued), Charlotte Amalie, St. Thomas, Virgin Islands, for appellee.

Before SEITZ, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

The Government of the Virgin Islands appeals from the dismissal of a criminal information by the District Court of the Virgin Islands, sua sponte, but with the express consent of defense counsel, grounded upon the court's belief that the government had proceeded under a jurisdictionally inappropriate statute. Because the dismissal occurred after the attachment of jeopardy, the threshold question before us is whether the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes our consideration of the appeal. Under the circumstances of the case, we hold that the double jeopardy clause is not offended by our consideration of the case.

In view of this determination, we must reach the merits and decide whether 18 U.S.C. Sec. 201(c)(3) (Supp.IV 1986), which prohibits the solicitation of bribes by witnesses in exchange for either their testimony or their failure to testify, applies to witnesses appearing in criminal proceedings in the District Court of the Virgin Islands in which a defendant is charged with violating the Virgin Islands Code. For the reasons that follow, we hold that 18 U.S.C. Sec. 201(c)(3) applies to that offense with which appellee has been charged. We will therefore reverse, and remand for trial.

I. PROCEDURAL HISTORY

On January 27, 1987, the Government of the Virgin Islands charged Doonath Sookram in a criminal information with grand larceny of various items of jewelry valued at approximately $400, in violation of V.I.Code Ann. tit. 14, Sec. 1083 (1964). Appellee Kennings, a Virgin Islands corrections officer, was the victim of the alleged larceny.

On or about January 8, 1987, Kennings visited Sookram's parents and offered to "settle" the larceny case for a fee of $5,000. Mrs. Sookram stated that the money was not available, and reported the incident to the police. In February of 1987, Kennings told Mrs. Sookram that he would have the charges against Sookram dropped in exchange for a payment of $4,000. On March 11, 1987, Kennings further reduced his demand to $2,000. On March 15, 1987, in a conversation which was recorded and overheard by a Special Agent of the FBI, Kennings stated that he should receive $5,000 to settle the larceny case, but that in exchange for $2,000 in cash he would absent himself from any criminal proceedings against Sookram and the charges against him would be dismissed. ¹

The trial in the larceny case was set for March 16, 1987. Kennings, however, failed to appear on that date. He then telephoned Mrs. Sookram, and inquired as to when he would receive his $2,000 payment. The two agreed that the money would be placed in the trunk of Mrs. Sookram's automobile, from which Kennings would retrieve it. On March 23, 1987, another F.B.I. agent placed a recorder and transmitter on Mrs. Sookram's person, and a bag of bait money in the trunk of her car. The agent then overheard and recorded a conversation in which Mrs. Sookram advised Kennings that the $2,000 payment was located inside a bank bag in the trunk of her car, which was parked in front of her residence. Kennings then approached Mrs. Sookram's automobile, opened the trunk, and removed the bag of bait money, at which time he was arrested.

On March 31, 1987, Kennings was charged in a criminal information with violating 18 U.S.C. Sec. 201(c)(3). A trial by jury followed, in which the government completed the presentation of most of its case-in-chief on June 9, 1987. Shortly before the court recessed on that date, the judge evinced doubt as to whether 18 U.S.C. Sec. 201(c)(3), which prohibits solicitation of bribes by a witness, was applicable to the case. He explained that, as he read the statute, "it applies only in courts of the United States ... and has absolutely no application in this case where a witness was to testify in a case brought in the name of the Government of the Virgin Islands." J.A. at 8-9.

The court reconvened the following day to hear oral argument on the question whether Sec. 201(c)(3) applied to witnesses in territorial courts, which are Article I courts and not "courts of the United States." See United States v. George, 625 F.2d 1081, 1089 (3d Cir.1980). ² The prosecutor argued that the statute applied to the Virgin Islands prosecution, while Kennings' attorney contended that it did not. The district court agreed with Kennings, but expressed uncertainty and a desire to have the question resolved on appeal.

Discussion then turned to the issue of the permissibility, under the double jeopardy clause, of a government appeal should the district court dismiss the case because it found the statute inapplicable. The government voiced concern that since jeopardy had attached by reason of the empaneling of the jury, the dismissal of the case before the return of a verdict by the jury would jeopardize its ability to appeal. The government urged the court to postpone dismissal until the jury had rendered a verdict, reasoning that, were the jury to return a verdict of guilty that was subsequently set aside by the district court, the government's right to appeal would be preserved. Conversely, counsel for Kennings argued that, in light of the stress to which Kennings had already been subjected, and in light of the court's intention ultimately to dismiss the case, the court should not protract the proceedings to protect the government's right to appeal.

The district court concluded that it could not in good conscience prolong the case and charge the jury under a statute that the court believed did not apply. It therefore dismissed the information. The government's appeal followed.

II.

We must first decide whether we have appellate jurisdiction. The Criminal Appeals Act, provides in pertinent part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

18 U.S.C. Sec. 3731 (1982). The Supreme Court has interpreted this section as removing all statutory bars to government appeals from orders of a district court dismissing counts of an indictment or information, and permitting all such appeals not barred by the Constitution. United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975). Therefore, we have jurisdiction to hear the instant appeal unless the double jeopardy clause precludes us from doing so.

The double jeopardy clause of the Fifth Amendment provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. ³ The reason for this protection is that the power of the state should not be utilized "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, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). The attachment of jeopardy will not always bar retrial, however. "[A] defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The jurisprudence teaches us that each time the double jeopardy clause is invoked, we must strike the proper balance between these competing interests.

If the district court's dismissal of the information was truly an "acquittal," we may not hear this appeal. "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.' " United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977) (quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896)); see also Smalis v. Pennsylvania, 476 U.S. 140, 144-46, 106 S.Ct. 1745, 1748-49, 90 L.Ed.2d 116 (1986) (state trial judge's ruling on defendant's demurrer holding evidence insufficient to establish factual guilt constitutes an acquittal, and double jeopardy clause bars retrial). ⁴ We therefore must determine whether the district court's dismissal of the information in the instant case constituted an "acquittal" barring an appeal. ⁵

In United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed. 65 (1978), defendant moved before trial and twice during trial for dismissal of two counts of his indictment on the grounds that his defense had been prejudiced by preindictment delay. At the close of all the evidence, the trial court granted the defendant's motion. The government appealed pursuant to 18 U.S.C. Sec. 3731. The court,...