U.S. v. Means

• Decision Date: 16 April 1975
• Docket Number: Nos. 74-1784,s. 74-1784
• Parties: UNITED STATES of America, Appellant, v. Russell MEANS, Appellee. UNITED STATES of America, Appellant, v. Dennis BANKS, Appellee. to 74-1787.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1329

513 F.2d 1329

UNITED STATES of America, Appellant, v. Russell MEANS, Appellee.

UNITED STATES of America, Appellant, v. Dennis BANKS, Appellee.

Nos. 74-1784 to 74-1787.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1975.

Decided April 16, 1975.

Shirley Baccus-Lobel, Washington, D. C., for appellant.

Kenneth E. Tilsen, St. Paul, Minn., for appellees.

Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, ^* and LAY, Circuit Judge.

GIBSON, Chief Judge.

Following a break in jury deliberations because of the illness of a juror, the court dismissed all remaining charges against the defendants, Russell Means and Dennis Banks, on the basis of alleged prosecutorial misconduct. Thus, a protracted 81/2 month jury trial on charges arising from the American Indian Movement occupation of Wounded Knee, South Dakota, came to an aborted end.

The defendants view the dismissal as a verdict of acquittal, or at the minimum, contend that the dismissal is unappealable in light of the Double Jeopardy Clause of the Fifth Amendment. The United States contends, on the other hand, that the dismissal can be viewed as nothing more than a declaration of a mistrial by operation of law and that the action of the District Court in dismissing the charges is subject to review under 18 U.S.C. § 3731 (1970). Further, the Government vehemently protests that the specifications of governmental misconduct were not warranted by the record and that dismissal of the charges upon the defendants' motion was a harsh and inappropriate remedy that deprived the public of its right to prosecute wrongdoers.

The 71-day occupation of Wounded Knee ended May 8, 1973. During that occupation the town and its facilities were appropriated in complete disregard of the legal and constitutional rights of the rightful occupants. Stealing and appropriation of food, goods, chattels and money was commonplace. A state of siege existed, and during the confrontation with its attendant gunfire, an FBI agent was critically wounded and the United States marshal for the District of Nebraska was permanently paralyzed. The alleged leaders of the occupation, defendants Russell Means and Dennis Banks, were indicted for 11 violations of federal law, one conspiracy count and 10 substantive counts. ¹

After a change of venue, the trial commenced at St. Paul, Minnesota, on January 8, 1974. The Government's case-in-chief ended July 24, 1974. The defendants presented their defense August 13-16. The Government's rebuttal took another seven days, after which surrebuttal by both sides was presented until both sides rested on September 5. Closing arguments were made to the jury on September 10 and 11, and the jury retired to deliberate on September 12.

On Friday, September 13, deliberations did not resume because one of the jurors became ill. On the 16th the Government informed the court at 2:00 p. m. that it refused to consent to have the case proceed to a conclusion with the remaining 11 jurors, as permitted by Fed.R.Crim.P. 23(b) with the consent of all parties and the court. The defendants had previously consented, and the court understandably was ready to give its consent to the 11 member jury. The court then at 3:00 p. m. the same day, treating a previously filed defense motion for judgment of acquittal as one for dismissal of the indictments, orally dismissed the remaining counts of the indictments against the defendants and discharged the jury. ²

In its oral ruling the court specified the following incidents of governmental misconduct as meriting dismissal of the charges: (1) the refusal of the Department of Justice to accept the verdict of the eleven remaining jurors; (2) the Government's failure to furnish the defense with a prior and "completely contradictory" statement of Government witness Alexander David Richards; (3) deception of the court with regard to an alleged rape incident involving Government witness Louis Moves Camp as well as general dissatisfaction with the Government's handling of this witness; and (4) unlawful military involvement with federal civilian law enforcement at Wounded Knee. The court supplemented its oral ruling with a written decision on October 9, 1974, finding governmental misconduct due to:

(1) The prosecutor's deliberate or at least negligent conduct in offering and failing to correct the "obviously false" testimony of Government witness Louis Moves Camp;

(2) The prosecutor's "intentional deception" of the court with respect to an alleged rape incident involving the witness Louis Moves Camp;

(3) The prosecutor's "grossly negligent conduct," if not "deliberate deception," in offering the testimony of Government witness Alexander David Richards when that testimony was directly contradicted in a previously transcribed interview;

(4) The prosecutor's having been "either deliberately or negligently dilatory" in searching for information detailing the extent of military involvement at Wounded Knee and Government "cover up" of the extent of that involvement;

(5) The prosecutor's reason, as discerned from media accounts of his statements, for refusing to stipulate to accept a jury comprised of the eleven remaining jurors.

The court predicated the dismissal upon the exercise of its supervisory power and found "it unnecessary to reach the constitutional question of whether the prosecutor's conduct (had) prejudiced the trial to the point that due process was offended," and concluded that "the totality of the prosecutor's conduct was sufficiently offensive to our traditional notions of justice to demand exercise of the supervisory power." ³ The court did not specify whether the dismissal was with prejudice, but it did not declare a mistrial. ⁴ The United States appeals. We conclude that we are without jurisdiction to entertain the appeal.

The Criminal Appeals Act, 18 U.S.C. § 3731 (1970), 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.

The provisions of this section shall be liberally construed to effectuate its purposes.

Our jurisdiction to hear this appeal depends upon whether the Government's appeal is barred by the Double Jeopardy Clause. ⁵

As noted in United States v. Wilson, --- U.S. ---, ---, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975), statutory restrictions on government appeals prior to the amendment of the Criminal Appeals Act in 1971 usually made it unnecessary to determine the constitutional limitations on the Government's right of appeal. The few earlier cases contain little discussion of the applicability of the Double Jeopardy Clause to government appeals. However, section 3731, as amended in 1971, was intended to allow government appeals whenever the Constitution would permit, Serfass v. United States, --- U.S. ---, ---, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975), and has recently been interpreted in a trilogy of cases in the Supreme Court. Serfass v. United States, supra ; United States v. Wilson, supra, and United States v. Jenkins, --- U.S. ---, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).

These cases make clear that the determination of whether the Government's appeal in this case is barred upon double jeopardy grounds requires a consideration of the policies underlying the Double Jeopardy Clause that would be implicated by an appeal in the present case. That the principal policy is one disfavoring multiple trials is clear.

The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. * * * The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence, 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, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), quoted in Serfass v. United States, supra at ---, 95 S.Ct. 1055. Accord, United States v. Wilson, supra at ---, 95 S.Ct. 1013.

However, this policy, although compelling, does not necessarily control the decision in any particular case. It is clear that in certain instances the interests of justice may outweigh the policy of only one trial. As noted in Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949):

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. * * * (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.

Thus, the Government argues that in spite of defendants' objections to our jurisdiction to hear this appeal, we should accept jurisdiction due to the public interest in fair trials designed to end in just judgments, contending that it did not receive a fair trial.

While it is a fact that the Government was on trial for alleged misconduct during the greater part of this trial and rather vehemently contends it did not receive a fair trial, certainly neither § 3731 nor the Constitution would allow retrials whenever it could be shown that prejudicial or erroneous rulings were made against the Government. We must approach the question of appealability from the...