United States v. Stapleton
| Citation | 494 F.2d 1269 |
| Decision Date | 11 July 1974 |
| Docket Number | No. 73-2304.,73-2304. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles D. STAPLETON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ralph C. Larsen, Gardena, Cal., for defendant-appellant.
William D. Keller, U. S. Atty., Eric A. Nobles, Jerry L. Newton, Asst. U. S. Attys., for plaintiff-appellee.
Before DUNIWAY, CARTER and WRIGHT, Circuit Judges.
This case presents an unusual question under the double jeopardy clause of the Fifth Amendment. In 1969, Stapleton was convicted under six counts of an indictment charging violations of 18 U. S.C. §§ 371, 472 and 473. He appealed, and we remanded the case. Our order read as follows:
When he appeared before the district court, however, Stapleton did not move for a new trial. The following colloquy occurred:
This appeal is from a conviction at the new trial that had thus been ordered by the trial judge.
We are forced to agree that our order is "rather strange." It does not reverse or vacate the judgment. It might be construed to mean that the district court need not have granted a new trial if the defendant did not move for a new trial. In that case, Stapleton would have still stood convicted under the first judgment. That, however, is not the result that he was after when he appealed. We are confident that, when he refused to move for a new trial, he was not seeking to preserve the original judgment. He was simply making a record to preserve a double jeopardy claim when the court granted the new trial. We think that the proper construction of our order is that we wanted a new trial granted, and, instead of ordering one ourselves, instructed the trial court to do so.
There is no doubt that jeopardy attached when Stapleton was first tried. However, a defendant who appeals and is found entitled to a new trial has waived his right to claim double jeopardy at the second trial. See, e. g., United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300; United States v. Jorn, 1971, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543. It does not matter that the decision is based on the government's confession of error, rather than on independent finding of error by the appellate court. Stroud v. United States, 1919, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103. There, a conviction was reversed on appeal, on the basis of a confession of error. The Court said:
The conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding, thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the Constitution. Id. at 18, 40 S.Ct. at 51.
Our order was made in response to Stapleton's appeal from his first conviction. In spite of the form of our order, the only way to eliminate the error confessed by the government was to grant a new trial. That is the gist of what we said, although we did not order a new trial. The principle of Stroud is equally...
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U.S. v. Alvarez–moreno
...“There is no doubt,” in that situation, “that jeopardy attached when [the defendant] was first tried.” United States v. Stapleton, 494 F.2d 1269, 1270 (9th Cir.1974). But “a defendant who appeals and is found entitled to a new trial has waived his right to claim double jeopardy at the secon......
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U.S. v. Stevens, 76-2564
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