United States v. Coke

Decision Date27 November 1968
Docket NumberDocket 32241.,No. 529,529
Citation404 F.2d 836
PartiesUNITED STATES of America, Appellee, v. Simeon Jessamy COKE, Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Robert D. Kamenshine, Nashville, Tenn. (Anthony F. Marra, Legal Aid Society, New York City), for appellant.

Abraham D. Sofaer, Asst. U. S. Atty., (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, John E. Sprizzo and Pierre N. Leval, Asst. U. S. Attys., of counsel), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

Ordered to be considered in banc, October 17, 1968.

FRIENDLY, Circuit Judge:

Simeon Jessamy Coke was indicted in the District Court for the Southern District of New York in April 1963 for three sales of narcotics in violation of 21 U.S.C. §§ 173-174. A trial before Judge MacMahon and a jury in May 1963 resulted in a disagreement. On a second trial before the late Judge Dawson and a jury in June 1963, Coke was convicted on all three counts. On the same day, without awaiting a presentence report, Judge Dawson sentenced him to concurrent terms of six years. We reversed the conviction because of comments by the judge which could have been taken as reflecting on the defendant. United States v. Coke, 339 F.2d 183 (2 Cir. 1964). A third trial before Judge Cooper and a jury in January 1965 again resulted in conviction on all three counts. With the benefit of a full pre-sentence investigation and report, which in his view showed the six year sentence to have been too lenient, Judge Cooper imposed five year sentences on Counts 1 and 2, to be served consecutively, and a five year sentence on Count 3 to be served concurrently, with credit for time already served. Coke appealed his conviction but made no complaint as to the higher sentence. We affirmed, United States v. Coke, 364 F.2d 484 (2 Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 877, 17 L.Ed.2d 789 (1967). In March 1967, he filed a petition under 28 U.S.C. § 2255 challenging the increased sentence. Judge Cooper denied the application, and this appeal followed. It was heard initially by a panel consisting of Circuit Judges Moore and Friendly and District Judge Bryan, who had joined in an opinion substantially as here written; subsequently, by vote of all active judges, it was determined that the appeal be considered in banc upon the briefs already filed. Since then the Supreme Court has granted certiorari in two cases presenting the constitutional issue here considered. North Carolina v. Pearce, 393 U.S. 922, 89 S.Ct. 258, 21 L.Ed.2d 258 (Oct. 29, 1968); Simpson v. Rice, 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268 (Nov. 12, 1968).

I.

Coke first attacks the increased sentence under the Double Jeopardy Clause of the Fifth Amendment. This instructs that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," a protection long since expanded to include other criminal sanctions. As well said by Judge Sobeloff in Patton v. North Carolina, 381 F.2d 636, 643-644 (4 Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968), the Clause embraces three separate rules "prohibiting (1) reprosecution for the same offense following acquittal, (2) reprosecution for the same offense following conviction, and (3) multiple punishment for the same offense." We can speedily dismiss the second "rule," since it has long been held in this country that the Double Jeopardy Clause does not forbid a retrial following the setting aside of a conviction. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). It is unnecessary to predicate this principle either on the fiction of a "waiver" or on the more nearly satisfactory basis of "continuing jeopardy," see Mayers and Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 5-8 (1960); it suffices that freedom would be a disproportionate reward for a trial error. See Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A.L.Rev. 81, 83-84 (1967).

The fountainhead of the "multiple punishment" rule is Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). Under a statute permitting imprisonment for not more than a year or a fine of not more than $200, Lange had been sentenced to the maximum of both. He paid the fine and began serving his sentence, but immediately sued out a writ of habeas corpus. The judge sentenced him to a year's imprisonment and dismissed the writ — the fine apparently to be repaid. On a second writ this was held to violate the Double Jeopardy Clause. Mr. Justice Miller's reasoning was straightforward. A second prosecution for the same offense is prohibited in order to protect not simply against the annoyance of trial but against a second punishment. The government stands no better when it achieves the second punishment without a second trial. However, the opinion was at pains to recognize that "there is a class of cases in which a second trial is had without violating this principle. As when the jury fail to agree and no verdict has been rendered, or the verdict set aside on motion of the accused, or on writ of error prosecuted by him, or the indictment was found to describe no offense known to the law." 85 U.S. (18 Wall.) at 173-174, 21 L.Ed. 872. While nothing was there said, or had to be, as to whether the sentence on the second trial might exceed that on the first, the Court crossed that bridge in Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 641, 44 L.Ed. 711 (1900),1 where it said that when a prisoner had successfully claimed he should not have been sentenced under an act not in effect at the date of his crime but under antecedent statutes, the second sentence "might turn out to be for a longer period of imprisonment."

That issue was even more sharply presented in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), where after successful attack upon a verdict finding Stroud guilty of first degree murder "without capital punishment," a new trial resulted in a verdict not containing that recommendation and sentence of death was imposed. A unanimous Court held this was not forbidden by the Double Jeopardy Clause. Citation of Ex parte Lange, 251 U.S. at 18, 40 S.Ct. 50, sufficiently indicates the Court's rejection of any idea that the "multiple punishment" rule forbade a higher sentence on a new trial obtained as a result of the accused's appeal.

The Stroud opinion also reflects a rejection of the argument against increased punishment for the same offense that has been constructed on the remaining element of double jeopardy, namely, that prohibiting reprosecution for the same offense following acquittal. While much of Stroud's brief was devoted to the claim that, despite United States v. Ball, supra, the literal wording of the Double Jeopardy Clause forbade any retrial of a capital case, the brief also argued that the former verdict was an "acquittal of the species of charge warranting capital punishment," p. 89.2 Although the argument was not put in the precise terms of autrefois acquit, it is incredible that a Court including Justices Holmes and Brandeis would not have been aware of the contention's double jeopardy implications. The opinion overruled the "implied acquittal" argument briefly but sufficiently: "The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for first degree murder." 251 U.S. at 18, 40 S.Ct. at 51.

We find nothing in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), to indicate that the Court has altered the views as to double jeopardy followed in Stroud. The holding there was that when a defendant was tried for felony murder and was convicted for second degree murder, the double jeopardy clause prevented retrial for felony murder after reversal of the second degree murder conviction because of lack of evidence of intent to kill. In answer to the Government's argument that Stroud had upheld a higher punishment on a retrial, Mr. Justice Black characterized that case as "clearly distinguishable" since there "a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense." 355 U.S. at 194-195 n. 15, 78 S.Ct. at 227.3 Green's case was different since the Government was retrying him for an offense of which the jury had not convicted, a result of which he naturally had not complained. While Green may have been more difficult on its facts than the majority of the Court assumed, see Mayers and Yarbrough, supra, 74 Harv.L.Rev. 22-27, successive prosecution for the same offense where not resulting from the defendant's own complaint is indubitably one of the evils against which the Double Jeopardy Clause aimed to protect.

Despite our enormous respect for the author of the opinion in People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 86, 386 P.2d 677, 686 (1963), we thus cannot agree with Justice Traynor that Green "vitiated" the rationale of Stroud. Moreover, Cichos v. Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966), supports the view that Stroud survives Green. In Cichos, defendant had been tried on a two-count affidavit charging him with involuntary manslaughter and reckless homicide, and the jury returned a verdict reciting only that he was guilty of reckless homicide. Following appeal and reversal, defendant was again tried on both counts, and the second jury returned the same verdict as the first. After the Supreme Court of Indiana affirmed this conviction, certiorari was granted to determine whether the rule in Green should be applied to reverse this state conviction on the ground that the...

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