U.S. v. Miller

• Citation: 797 F.2d 336
• Decision Date: 01 August 1986
• Docket Number: No. 85-6036,85-6036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Franklin MILLER, Sr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 336

797 F.2d 336

UNITED STATES of America, Plaintiff-Appellee, v. John Franklin MILLER, Sr., Defendant-Appellant.

No. 85-6036.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1986.

Decided Aug. 1, 1986.

Thomas A. Yoder argued, Toledo, Ohio, for defendant-appellant.

John W. Gill, U.S. Atty., John C. Cook argued, Chattanooga, Tenn., for plaintiff-appellee.

Before ENGEL and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge. ^*

CONTIE, Senior Circuit Judge.

This is a criminal case involving an appeal from the district court's order refusing to grant defendant John Miller's motion to dismiss on double jeopardy grounds. ¹ The defendant-appellant argues that a district court's determination not to revoke an individual's probation based on alleged criminal activities bars the government from prosecuting that individual based on the same activities. We disagree, and for the reasons which follow, we affirm the district court's denial of the appellant's motion to dismiss.

I.

The defendant-appellant John Miller was placed on probation by the District Court for the Northern District of Illinois in 1980. In 1984, the government sought to revoke Miller's probation based on Miller's alleged illegal involvement with operating M-80 explosive factories. A hearing was conducted on December 18, 1984 by the same district judge which placed Miller on probation in 1980. The district court did not revoke Miller's probation based on the government's allegations and proof.

Subsequently, on August 27, 1985, the government filed an indictment in the District Court for the Eastern District of Tennessee against Miller and nineteen other individuals concerning illegal activities relating to explosives. ² Miller filed a motion to dismiss the indictment arguing that the Double Jeopardy Clause of the Fifth Amendment and the doctrine of collateral estoppel prevented the government from bringing these charges since the government had failed in its attempt to revoke his probation based on these charges. The district court denied Miller's motion to dismiss, concluding that a probation revocation hearing is not a stage in a criminal prosecution to which the Double Jeopardy Clause attaches, and reasoned that such hearings are administrative in nature and are not conducted to determine the defendant's guilt or innocence. The court further held that the doctrine of collateral estoppel was not applicable since probation revocation hearings do not result in final judgments. This appeal followed.

II.

The Double Jeopardy Clause states 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. This clause requires a determination of two separate questions: What constitutes the "same offense;" and, when is an individual "put in jeopardy?" The defendant-appellant asserts that the charges in the indictment are identical, or the "same offense," as those raised in the probation revocation hearing; the government, on the other hand, asserts that the testimony at the probation revocation hearing focused on criminal activity which occurred in a different state than the activity charged in the indictment. Due to our conclusion that Miller was not twice "put in jeopardy," resolving this dispute is not necessary. ³

It is well settled that the Double Jeopardy Clause protects defendants "in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense." United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1078, 47 L.Ed.2d 267 (1976). See also United States v. Sinito, 723 F.2d 1250, 1255 (6th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984); United States v. Lansdown, 460 F.2d 164, 171 (4th Cir.1972) ("[t]he double jeopardy 'prohibition is not against being twice punished, but against being twice put in jeopardy.' ") (quoting United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896)). The following oft-quoted portion of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) highlights one of the major concerns against which the Double Jeopardy Clause was designed to protect:

The underlying idea, one that is deeply ingrained 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.

Id. at 187-88, 78 S.Ct. at 223 (emphasis supplied).

The appellant asserts that his probation was not revoked because the district court in his revocation hearing held that there was no probable cause to believe he had committed the offenses. ⁴ Since the government allegedly failed to establish that there was probable cause to believe Miller was involved in the alleged activities, the defendant asserts that the government should be barred from prosecuting him, particularly in another jurisdiction and before another tribunal; that he should not be required to undergo the "embarrassment, expense and ordeal" of defending against these charges a second time while the government utilizes its resources and power to improve its trial strategy against him.

One cannot focus solely on the number of proceedings, however, without focusing on the nature, purpose and effect of the proceedings. It is settled, for instance, that a defendant is not placed twice in jeopardy when he is required to defend himself in a second prosecution after he successfully overturned a previous conviction because of trial error, or after a mistrial was properly declared. See, e.g., Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978) ("[R]eversal for trial error ... does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant.") One exception to this rule is when the conviction is overturned for insufficient evidence; in such a case, the reversal on appeal is deemed to be equivalent to an acquittal. See, e.g., Bullington v. Missouri, 451 U.S. 430, 437, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 870 (1981); Deloney v. Estelle, 713 F.2d 1080, 1087 (5th Cir.1983). ⁵ Cf. Smalis v. Pennsylvania, --- U.S. ----, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) (sustaining a demurrer on grounds of insufficient evidence was the equivalent of an acquittal, barring appeal by prosecution). When an individual is acquitted of a crime, the Double Jeopardy Clause bars future prosecution based on the same offense; when an individual is convicted, he cannot be twice convicted and punished for the same crime. The Double Jeopardy Clause promotes finality, therefore, whether the defendant was initially acquitted or convicted. See Breed v. Jones, 421 U.S. 519, 533, 95 S.Ct. 1779, 1787, 44 L.Ed.2d 346 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); United States v. Garner, 529 F.2d 962, 971 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 154 (1976).

Several circuits have indicated that the Double Jeopardy Clause simply does not apply to parole or probation revocation proceedings. See, e.g., Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir.1986); Thompson v. Reivitz, 746 F.2d 397, 399 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2332, 85 L.Ed.2d 849 (1985); United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981); Dunn v. California Department of Corrections, 401 F.2d 340, 342 (9th Cir.1968). Where probation is revoked and the original sentence or harsher sentence is imposed, revocation does not constitute punishment, nor does the revocation qualify as a repeat prosecution. See, e.g., Whitney, 649 F.2d at 298 ("parole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law"). Further, the Supreme Court has held that a probation revocation hearing is not a stage in the criminal prosecution of an individual. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973). As a result, a probationer is not constitutionally entitled to the "full panoply of rights" afforded defendants in a criminal trial. Morrissey, 408 U.S. at 480, 92 S.Ct. at 2599; Scarpelli, 411 U.S. at 781-82, 93 S.Ct. at 1759. ⁶ See also United States v. Farmer, 512 F.2d 160, 162 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975) (under Morrissey, "it is clear that at [probation revocation] hearings the defendant is not endowed with all of the rights which he possessed prior to conviction.").

Although the appellant concedes that probation revocation hearings are often characterized as "administrative" in nature, he asserts that a probation revocation hearing conducted by a federal district judge should be characterized as "judicial" and therefore afforded different weight. He relies on Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), where the Court ruled that the Double Jeopardy Clause was applicable to juvenile delinquency proceedings, barring future prosecution in adult courts for the same offense. In Breed, the Court reasoned that although proceedings in juvenile court were considered "civil" in nature, double jeopardy protection nonetheless attached; the juvenile was "twice put to the task of marshaling his resources against those of the State, twice subjected to the 'heavy personal strain' which such an experience represents." Id. at 533, 95 S.Ct. at 1787.

We are unpersuaded by the defendant's argument. In Breed, the Court also noted that

[j]eopardy denotes risk. In the constitutional sense,...