United States v. Whitted, 71-1200.
Decision Date | 24 January 1972 |
Docket Number | No. 71-1200.,71-1200. |
Citation | 454 F.2d 642 |
Parties | UNITED STATES of America, Appellant, v. Richard D. WHITTED, Jr., Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
William K. Schaphorst, Asst. U. S. Atty., Richard A. Dier, U. S. Atty., for appellant.
Richard J. Bruckner, Schrempp & Bruckner, Omaha, Neb., for appellee.
Before LAY, HEANEY and STEPHENSON, Circuit Judges.
This case raises the question of a District Court's power to dismiss an indictment following a jury's return of guilty verdicts on all counts of the indictment, and the further question of the appropriate action to be taken by the District Court upon our determination that his dismissal of the indictment was improper.
The defendant is the Sheriff of Sarpy County, Nebraska. In March of 1970, Whitted appeared before a federal grand jury investigating possible violations of federal laws governing interstate gambling activities. Among other things, Whitted was questioned with regard to trips he had taken to Las Vegas, Nevada, who had financed one of those trips, and whether or not he had ever received gifts or gratuities from bookies in Sarpy County. Whitted answered all of the questions put to him.
On April 15, 1970, a United States Commissioner's complaint for perjury was issued against Whitted charging that he lied with respect to the number of trips he had taken to Las Vegas and with respect to the financing of one trip. This complaint was subsequently dismissed. On June 9, 1970, the grand jury before which Whitted had testified returned a perjury indictment in three counts, setting forth the two counts which had been in the Commissioner's complaint and adding a third count to cover his testimony respecting gifts and gratuities from bookies.
The defendant made various pretrial motions. Among them was a motion to dismiss the indictment on the grounds that it had been returned by a grand jury which had been biased and prejudiced against Whitted by the testimony presented before it and by the conduct of the United States Attorney. The District Court overruled this motion on September 18, 1970, after hearing argument.1
On September 23, 1970, the case proceeded to trial. The jury found Whitted guilty of perjury on all three counts. He made timely motions for arrest of judgment, for judgment of acquittal, and for a new trial. He also renewed his motion for dismissal of the indictment.
The trial court, 325 F.Supp. 520, dismissed the indictment on March 23, 1971, stating:
The government has brought this appeal to challenge the District Court's power to dismiss the indictment following the return of the verdict. We agree with the government that the District Court has no such power and we accordingly reverse.
The Federal Rules of Criminal Procedure set forth the procedures to be followed by the District Court in conducting criminal trials. They have the force and effect of law and are binding upon the lower federal courts. United States v. Igoe, 331 F.2d 766 (7th Cir. 1964), cert. denied, 380 U.S. 942, 85 S. Ct. 1020, 13 L.Ed.2d 961 (1965).
Rule 12(b) alone purports to govern the procedure to be followed on a motion to dismiss the indictment for defects in the indictment. It states:
While the rule does not specifically answer the question of whether or not the trial court has power to reverse its prior ruling on a motion to dismiss, after a guilty verdict has been returned, we believe it does express a strong policy against such post-verdict reversals. The rule requires the District Court to determine the motion before trial unless special circumstances exist. Such special circumstances were not present here.
The parties have not cited to us, nor have we discovered, any cases precisely on point. But the Second Circuit has considered a similar case, United States v. Dooling, 406 F.2d 192 (2nd Cir.), cert. denied sub nom, Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969), and we find that Court's reasoning persuasive here.
In Dooling, the defendants had been indicted in 1960. For reasons not germane to this case, there had been four previous trials. Before the fifth trial, the defendants made a motion to dismiss the indictment. The motion was denied by Judge Weinstein and the case was set for trial before Judge Dooling. The defendants again made motions to dismiss before Judge Dooling prior to trial, at the close of the government's case, and at the conclusion of the trial. Judge Dooling was apprised throughout of all respects in which the defendants claimed to have been prejudiced. Nevertheless, he denied the motion to dismiss the indictment on all three occasions. The case was submitted to the jury and guilty verdicts were rendered. The defendants moved for dismissal of the indictment, for judgment of acquittal, and for new trial. Judge Dooling submitted a proposed memorandum and order dismissing the indictment.
In his memorandum, Judge Dooling considered trial errors alleged by the defendants, but concluded that the trial had been fair and that none of the errors, if there were any, justified a retrial. He then went on, however, to consider the arguments which Judge Weinstein had rejected prior to trial without leave to renew. On the exact same facts considered by Judge Weinstein and known to himself on the three prior occasions when he refused to dismiss the indictment, Judge Dooling concluded that entry of judgments of conviction would deny the defendants due process. Judge Dooling stated his intention to dismiss the indictment.
Judge Dooling supplied copies of this proposed memorandum to the parties to permit them to suggest modifications. Instead, the government sought a writ of mandamus from the Court of Appeals for the Second Circuit ordering Judge Dooling to enter judgments of conviction against the defendants.
The Second Circuit held that Judge Dooling lacked power to dismiss the indictment. It reasoned that the only basis for his proposed action was the District Court's inherent power to do justice. The Circuit Court, noting that Judge Dooling's action was not supported by any findings, but was rather based upon his sense of uneasiness about the fairness of the trial, said:
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