U.S. v. Moore, 78-1594

• Decision Date: 02 January 1980
• Docket Number: No. 78-1594,78-1594
• Parties: UNITED STATES of America, Appellant, v. David H. MOORE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1029

613 F.2d 1029

198 U.S.App.D.C. 296

UNITED STATES of America, Appellant, v. David H. MOORE.

No. 78-1594.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 3, 1978.

Decided Nov. 21, 1979.

Rehearing Denied Jan. 2, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 78-118).

Constantine J. Gekas, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry and Theodore A. Shmanda, Asst. U. S. Attys., Washington, D.C., were on brief, for appellant.

Edwin C. Brown, Washington, D.C., for appellee.

Before ROBINSON and WILKEY, Circuit Judges, and HAROLD H. GREENE, ^* United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge, SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

In the case before us, the Government appeals from the District Court's dismissal of a four-count indictment charging David H. Moore with making false declarations before a grand jury. ¹ The dismissal followed the Government's refusal to allow Moore to reappear before the grand jury to retract the allegedly fabricated testimony, and thereby to invoke a dispensation from prosecution statutorily accorded recanting perjurers in specified circumstances. ²

At the outset, we were concerned that jurisdiction to entertain this appeal might be foreclosed by the Double Jeopardy Clause, ³ and accordingly we requested supplemental briefs addressing the question. With that assistance and our own intensive study of the problem, we now conclude that the Double Jeopardy Clause poses no barrier to resolution of the issues tendered. ⁴ On the merits, we reverse the District Court's order of dismissal and remand the case for further proceedings. ⁵

I

This case had its genesis in a grand jury probe into possible corruption and bribery within the Metropolitan Police Department of the District of Columbia. In the early spring of 1977, prior to the grand jury proceeding, the Department's Internal Affairs Division placed Bosco's Carryout an establishment in Northwest Washington under observation in an effort to ascertain whether criminal activities were being conducted therein, and, if so, whether any police officers were implicated in them. ⁶ Physical and photographic surveillance of the carryout was conducted until an officer working undercover in connection with the investigation learned that the vigil had been detected by the carryout's proprietor. ⁷ Reacting to this discovery, the Internal Affairs Division attempted to mask the real purpose of the operation by circulating selectively a false cover story concerning its objective.

Moore, a police officer, heard the cover story from Walter Whited, a fellow officer. Moore was told that the investigation was aimed at apprehending a suspected narcotics dealer. ⁸ Moore came under suspicion as a possible conduit of information when shortly thereafter the undercover officer found out that the owner of the carryout had the story as it had been related to Moore by Whited. ⁹ A month later, at Moore's request, Whited met him at a service station; there, equipped with a concealed recorder, Whited taped their conversation, including Moore's detailed questions concerning the surveillance, the cover story, and the involvement of another police officer in the investigation. ¹⁰

After passage of another month, the investigation was terminated, and a grand jury was convened. ¹¹ Early in the proceeding, the grand jury inquired whether Moore and other suspected officers had endeavored to secure information on the carryout surveillance from within the Department, and whether any such information had been passed on to the carryout's proprietor in exchange for remuneration. ¹² Moore went before the grand jury and was quizzed on his two conversations with Whited. Moore denied any recollection at all of the first session or the date of the second, though he admittedly did remember a meeting with Whited at a service station. ¹³ Moore, however, avowed that the latter colloquy was unrelated to police business; he stated that he had never called anyone, including Whited, to ask about the investigation of the carryout. ¹⁴ This testimony formed the basis of the subsequent indictment against Moore for making false statements before the grand jury. ¹⁵

Toward the end of 1977, Moore and his counsel met with representatives of the Internal Affairs Division and an assistant United States attorney in the latter's office. After additional questioning on his rendezvous with Whited at the service station, Moore was informed of the tape recording of their conversation. ¹⁶ The tape was played, and counsel informed Moore that by statute he might escape criminal liability for perjurious statements by reappearing before the grand jury and admitting the falsity of his prior testimony. ¹⁷ Moore conferred with his attorney and stated that he would do so; he agreed to a tape-recorded rehearsal of the testimony he proposed to give. In that rendition, Moore acknowledged the occurrence of the first conversation with Whited and provided a facially innocent explanation for the second. A few minutes later, however, Government counsel stopped Moore from continuing with his new version, stating that he did not deem it credible. ¹⁸ In 1978, Moore was indicted.

On the day appointed for Moore's trial, the District Court made known its desire to begin the session with a ruling on the materiality of Moore's statements to the grand jury. ¹⁹ There was a delay, however, occasioned by the absence of the Government's primary witness on materiality, and the court stated that during this interval it would commence selection of a jury. At this juncture, Moore's counsel revealed that his client's sole defense would be strictly legal predicated entirely upon an asserted lack of materiality ²⁰ thus eliminating any factual dispute for submission to a jury. The court then advised Moore of his constitutional right to a trial by a jury, and informed him that "your waiver of that means that this would be a matter that is submitted to the Court." ²¹ After consultation with his attorney and an explanation of the consequences by the court, Moore expressly waived his right to a jury trial. ²²

An evidentiary-type proceeding was then conducted. The only witness was the deputy foreman of the grand jury, whose testimony went exclusively to the issue of materiality. This phase completed, Moore's counsel raised an additional defense. Counsel contended that Moore's statements in the prosecutor's office brought the case within the purview of the statutory provision barring prosecution of recanting witnesses. ²³ The court heard argument on the point and, after a two-hour recess, ruled that the prosecution was barred.

In response to the Government's petition for reconsideration, the court convened a hearing at which it inquired whether the Government would allow Moore to reappear before the grand jury for the purpose of testifying anew. The Government advised that it was not willing to do so, whereupon the court denied the petition. ²⁴ Subsequently, the court filed an opinion and an order formally dismissing the indictment. ²⁵ This appeal followed.

II

Our jurisdiction to hear this case depends upon a statute providing that the Government may appeal from the dismissal of indictments in criminal cases, "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." ²⁶ Before undertaking a decision on the merits, therefore, we must determine whether the Double Jeopardy Clause countenances resumed proceedings on the indictment against Moore, and thus clears the way for present appellate review of the District Court's action.

The proscription against double jeopardy occupies a prominent place in Anglo-American jurisprudence. ²⁷ Because the state is capable of drawing on resources far greater than those at the disposal of an individual, the Double Jeopardy Clause of the Fifth Amendment is a necessary bulwark insuring that an accused will not be forced to suffer the undue anxiety and expense occasioned by multiple prosecutions. ²⁸ The clause also serves to safeguard society against the enhanced risk of conviction of innocent persons that could result from the repeated marshalling of the state's vast resources to mount successive prosecutions against an individual. ²⁹ As the Supreme Court has stated, however, the "historical purposes (of the Double Jeopardy Clause) are necessarily general in nature, and their application has come to abound in often subtle distinctions." ³⁰ that are not always self-evident.

Many of the difficulties in applying the clause arise out of attempts to define its relationship to other protections that have developed through progressive judicial interpretation of the Bill of Rights. ³¹ Although the interdiction on double jeopardy was originally intended "to protect the integrity of a final judgment," ³² in modern cases courts are often called upon to apply the clause in cases terminated prior to the rendering of a verdict of guilt or innocence by the trier of fact. Such a situation arises in the case at hand. In the District Court, the proceeding against Moore was terminated by the judge's favorable ruling in response to a suggestion by defense counsel that the prosecution was barred by the recantation provision of Section 1623(d). ³³

In ruling on the double jeopardy problem, we begin by addressing the question whether jeopardy attached ³⁴ in the course of the District Court proceeding, for the prohibition is by definition inapplicable if Moore has not yet been placed in jeopardy for the first time. It is well settled "that jeopardy does not attach until a defendant is put to trial before the trier of facts;" ³⁵ in a bench trial, that point is reached as soon as the judge...