U.S. v. Westoff

• Citation: 653 F.2d 1047
• Decision Date: 21 August 1981
• Docket Number: No. 80-3429,80-3429
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Francis WESTOFF, Defendant-Appellant. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1047

653 F.2d 1047

UNITED STATES of America, Plaintiff-Appellee, v. David Francis WESTOFF, Defendant-Appellant.

No. 80-3429.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 21, 1981.

Hal Gerber, Memphis, Tenn., Martin S. Gerber, Chicago, Ill., W. Miguel Swanwick, Alexandria, La., for defendant-appellant.

J. Ransdell Keene, U.S. Atty., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before MARKEY ^*, Chief Judge, and GEE and POLITZ, Circuit Judges.

MARKEY, Chief Judge:

Westoff appeals from denial of his motion to dismiss based on the Double Jeopardy Clause of the Fifth Amendment. We affirm.

Background

A first indictment, returned August 24, 1979, did not name Westoff. A first superseding indictment, returned September 21, 1979, named Westoff and others. Count I alleged that between March 1, 1978 and August 10, 1979, the coconspirators conspired to commit the offenses of unlawfully importing cocaine in violation of 21 U.S.C. § 952(a), possessing cocaine with intent to distribute it, and distributing cocaine in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. Though fifteen pre-trial motions were filed, no defendant filed a motion alleging that Count I was duplicitous.

A second superseding indictment was returned December 5, 1979. It named Westoff and others. Its Count I was identical with that of September 1979, except for the names of other defendants and a different time of conspiracy (September 1, 1978 to September 11, 1979). Again, none of the thirteen pre-trial motions filed by defendants challenged Count I as duplicitous.

A third superseding indictment was filed January 9, 1980, naming Westoff and one other. Count I alleged that between September 1, 1978 and September 11, 1979, the defendants conspired to import cocaine in violation of 21 U.S.C. § 952(a), and to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. §§ 846 and 963. Neither defendant filed a motion challenging Count I as duplicitous, or alleging vindictive prosecution, though among thirteen pre-trial motions filed February 4, 1980, was one seeking dismissal of Counts II-VII for duplicity, and another seeking dismissal of Counts XII and XIII for duplicity, and though defendants moved on March 17, 1980 for dismissal of Counts VIII through XI for duplicity.

On March 17, 1980, Judge Nauman S. Scott ordered all indictments, other than that of January 9, 1980, dismissed as to Westoff and his codefendant. Trial on the January 9, 1980 indictment occurred from March 24 to March 31, 1980. The Government presented its evidence. The defense rested its case without presenting any evidence. Judge Scott called a jury instruction chambers conference, at the outset of which defense counsel asked for dismissal of the indictment in view of Count I, because: "... there is a definite duplicity in the allegation of two separate and distinct conspiracies. And I refer to the charge here, the conspiracy in Count One was in violation of Sections 846 and 963 of Title 21...."

The ensuing discussion in chambers centered around this court's decision in United States v. Rodriguez, 612 F.2d 906, which issued on February 27, 1980, and on whether defendants were prejudiced by having been tried for violation of two statutory sections, 21 U.S.C. § 846 and 21 U.S.C. § 963, under the single Count I. The prosecutor suggested use of a special verdict form by which the jury could vote separately on the two sections as to each defendant. Judge Scott denied the motion to dismiss the indictment as untimely; found Rodriguez unhelpful because it dealt with sentencing; found all counsel to have acted in good faith and indicated that defendants might move for mistrial if they felt the presence of prejudice as a result of Count I. That motion was made and granted and the case was reset for trial.

On April 24, 1980, an indictment was returned charging Westoff and his codefendant in Count I with conspiracy to import cocaine in violation of 21 U.S.C. § 963, and in Count II with conspiring to possess cocaine with intent to distribute it in violation of 21 U.S.C. § 846. On April 28, 1980, the government moved to dismiss the January 9, 1980 indictment on which trial had been held. That motion was granted on April 29, 1980.

Westoff filed twenty-one pretrial motions, including one for dismissal on grounds of double jeopardy and prosecutorial vindictiveness. Judge Scott denied that motion on May 23, 1980, entering a finding that it was not frivolous. Denial of that motion is before us on this appeal.

ISSUE

Whether Judge Scott erred in denying Westoff's motion to dismiss on double jeopardy grounds.

OPINION

It has been held that jeopardy attaches when the defendant is put to trial before jury or judge. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949). As recognized from the earliest days of our jurisprudence, however, a mechanical rule precluding retrial after a mistrial, even a mistrial without defendant's consent, would place at risk values paralleling those inherent in the Double Jeopardy Clause. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). The interplay of values involved in application of the Clause was discussed in Jorn, Downum, Green, and Hunter, supra.

As the Supreme Court has made clear in the cases cited, a plea of former jeopardy does not render a mistrial the automatic equivalent of an acquittal. A mistrial normally reflects not that a person has been once tried, but that the person has not yet in the eyes of the law been tried. Hence the sequence mistrial-retrial is not in itself and always a violation of the Fifth Amendment's injunction that no person be "twice put in jeopardy of life or limb". Nor is there such a violation inherent in the sequence trial-reversal-new trial, or in the sequence trial-grant of new trial on motion.

The conceptual contours of the former jeopardy defense may not be crystaline. Within those contours, however, reprosecution is permissible after a conviction has been reversed on an appeal in light of errors committed in the trial. United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). Also within those contours, reprosecution is precluded where the defendant has been acquitted, even by implication, of the offense sought to be reprosecuted. Green, 355 U.S. at 189-91, 78 S.Ct. at 224-25. In determining the constitutionality of a retrial after a mistrial, the test is whether all the circumstances of the case, not abstract formulae, warrant mistrial and retrial. Hunter, 336 U.S. at 691, 69 S.Ct. at 838.

Thus the Supreme Court, in considering application of the Double Jeopardy Clause to mistrial situations, requires a focus on the presence or absence of oppressive prosecutorial practices, the Clause not having been intended to preclude reprosecution, and thus to create an insuperable obstacle to administration of justice, when events make continuation of a trial impossible (e. g., a hung jury) or simply unfair (e. g., a biased juror). Barriers to reprosecution are also normally removed when defendant requests a mistrial and thereby exercises his discretion. Jorn, 400 U.S. at 485, 91 S.Ct. at 557; United States v. Dinitz, 424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976). It is when the defendant is deprived of choice by the gross negligence or intentional misconduct of the government, that the possibility of a bar to reprosecution arises. We therefore look to the challenged conduct of the prosecutor in the present case.

In United States v. Fine, 644 F.2d 1018 (1981), this court outlined competing interests involved in application of the Double Jeopardy Clause when a defendant moves to dismiss on that ground after requesting and obtaining a mistrial. We will not repeat that discussion here. It is enough to indicate that appellant rests his argument on society's interest in fair and honest conduct by its prosecutors, alleging as a basis for barring reprosecution that the prosecutor here was guilty of gross negligence, intentional misconduct, and vindictiveness. The prosecutorial action under attack is that of proceeding to trial on a duplicitous count, ¹ and the return of superseding indictments.

Appellant relies heavily on this court's indication in United States v. Kessler, 530 F.2d 1246, 1256 (1976), that when a prosecutor's "gross negligence or intentional misconduct" causes such prejudice as to force a defendant to move for mistrial, dismissal of the indictment under the Double Jeopardy Clause is warranted. In Kessler, however, the prosecutor introduced hearsay of a person known to be unavailable and a known false exhibit, a rifle.

We find nothing even suggestive of gross negligence on the part of the prosecutor here. A belief that Count I in the indictment of January 9, 1980 rested on one agreement and thus properly charged a single conspiracy did not evidence negligence. Similarly, a failure to replace that indictment before trial with one charging violations of sections 846 and 963 in separate counts, if negligent at all, was not such "gross negligence" as would bar reprosecution. Westoff says the prosecutor's reference to Rodriguez, supra, at the chambers conference proves he knew Count I was incurably duplicitous all along. We disagree. Rodriguez as Judge Scott indicated, dealt with sentencing and the need of an appellate court to know the basis for the jury's decision. At the post-trial instructions conference, when confronted for the first time by defendant's motion, ...