US v. Davis

• Decision Date: 12 October 1988
• Docket Number: No. CR-2-86-063.,CR-2-86-063.
• Citation: 714 F. Supp. 853
• Parties: UNITED STATES of America, Plaintiff, v. S. Robert DAVIS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

714 F. Supp. 853

UNITED STATES of America, Plaintiff, v. S. Robert DAVIS, Defendant.

No. CR-2-86-063.

United States District Court, S.D. Ohio, E.D.

October 12, 1988.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dale E. Williams, Jr., Asst. U.S. Atty., Columbus, Ohio, for plaintiff.

John J. Chester, Chester, Hoffman & Willcox, Columbus, Ohio, Arthur F. Mathews, Stephen W. Preston, W. Hardy Callcott, Christopher J. Melcher, Wilmer, Cutler & Pickering, Washington, D.C., for defendant.

OPINION AND ORDER

KINNEARY, District Judge.

This matter comes before the Court to consider the various motions of the defendant, S. Robert Davis, and the government's responses thereto.

On October 6, 1986, a jury convicted S. Robert Davis for mail fraud, 18 U.S.C. § 1341 (1982), in connection with an alleged scheme with the city manager of Upper Arlington, Harold Hyrne, to inflate the cost of a waterline installed in the Squirrel Bend subdivision. According to the Indictment, Hyrne then passed on the inflated charges to property owners who wished to "tap-in" to the waterline.

The first indictment charged Davis with "mail fraud": he allegedly defrauded the citizens of Upper Arlington "of their rights to honest and faithful services from their public officials." Indictment, at 1. After a jury convicted Davis for charges in the Indictment, however, the Supreme Court rejected this "intangible rights" theory of mail fraud. McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). According to McNally, the statute only concerns the deprivation of "money or property."

In following McNally, the Court of Appeals reversed Davis' conviction. United States v. Davis, 841 F.2d 1127 (6th Cir. 1988). The government then reindicted Davis under the proper theory of mail fraud, stating that he had devised a "scheme or artifice to defraud, and to obtain money by means of false and fraudulent pretenses and representations." Superseding Indictment, at 1.

Before going to trial on the charges in the Superseding Indictment, the defendant filed various pretrial motions. The Court will address each in turn.

I.

First, the defendant moves for leave to file reply memoranda before the Court considers two of the defendant's motions now before the Court. This Court's pretrial order stated clearly, "Reply briefs will not be filed." United States v. Davis, No. CR-2-86-063, at 2 (S.D.Ohio July 15, 1988) (pretrial order).

The defendant correctly notes that he does raise "complex and novel questions" in his motions. Motion for Leave to File Reply Memoranda. Despite these complexities, however, the Court finds that the defendant had an adequate opportunity to address the issues he raised and finds that rebuttals are not necessary. Accordingly, the defendant's Motion for Leave to File Reply Memoranda is DENIED.

II.

Second, the defendant moves the Court for a hearing on some of the motions considered herein. Although these motions "implicate fundamental constitutional rights," the Court finds that the written memoranda adequately apprise it of the issues involved and that oral argument on these motions would be unnecessary for a "just resolution of this case." Motion for a Hearing on Certain Motions, at 2. Thus, the defendant's motion is DENIED.

III.

Third, the defendant moves for dismissal of the Superseding Indictment because this action violates the Double Jeopardy Clause. The first indictment charges Davis with defrauding the citizens of Upper Arlington "of their rights to honest and faithful services from their public officials." Indictment, at 1. After the Court of Appeals reversed the defendant's conviction, however, the government reindicted Davis, charging him with devising a fraudulent scheme to obtain money. Davis claims that this second action violated the defendant's rights under the Double Jeopardy Clause.

The Double Jeopardy Clause provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The purpose of the Double Jeopardy Clause is to preclude the state from making "repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he will be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

The defendant argues that when the government presents an invalid theory of liability to the jury, a failing for which the government is responsible, any conviction would not constitute a verdict on the relevant, viable theory of liability. That is, the first trial ends without a verdict on the proper theory. A retrial on the charge under the proper theory, the defendant argues, would be a violation of the Double Jeopardy Clause. See Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988).

Here, the defendant claims that since the government presented the jury with the "intangible rights" theory and not the "money or property" theory, the jury's conviction was not under the correct theory. As far as the "money or property" theory is concerned, then, the jury neither acquitted nor convicted Davis. The defendant argues that the government could have pursued both theories, but chose to pursue this action under the "intangible rights" theory. Davis concludes that the government is responsible for the "aborted outcome," id. at 1407, and therefore it effectively terminated Davis' liability, see id. at 1408. Having chosen to present the wrong theory, the argument goes, the government is not entitled to a second chance to convict. See id. at 1409.

The government counters by claiming that the Sixth Circuit has already held that the government may retry, under the "money or property" theory of mail fraud, a defendant whom the government originally indicted under the "intangible rights" theory. See United States v. Stack, 853 F.2d 436, 438 (6th Cir.1988). Like the case at bar, Stack reversed a defendant's mail fraud convictions because the government relied on the invalid "intangible rights" theory. The court noted, though, "that since the conviction is not reversed due to insufficient evidence the government is not precluded from indicting defendant on a permissible theory of mail fraud." Id. (citing Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 1826-27, 95 L.Ed.2d 354 (1987)).

On the face of it, Stack addresses the very issue now before the Court: whether the government may retry a defendant, convicted under the "intangible rights" theory of mail fraud, under a "money or property" theory. Thus, the procedural posture of Stack more closely resembles the case at bar than Saylor and thus is highly persuasive.¹ This language, however, is dicta. The parties had not placed the double jeopardy issue before the court and the decision merely reversed the convictions under the "intangible rights" theory. Thus, the Stack language is not controlling. The Court must therefore "go back to the basic principles of double jeopardy law to attempt a resolution." Saylor, 845 F.2d at 1405.

A. Traditional Analysis of Double Jeopardy Law

Under traditional double jeopardy doctrine, the courts have noted the potential unconstitutionality of trying a defendant after an appellate court has reversed a conviction. They established a dichotomy between retrials after the appellate court reversed for an insufficiency of the evidence on one hand and for other kinds of reversals.² Reversals in the first category, insufficiency of the evidence, are the equivalent of an acquittal, and the Double Jeopardy Clause bars a second trial.

A reversal of a conviction for any other reason besides insufficiency, however, does not bar a retrial of the defendant.³ Significantly, the courts place this second category of reversals under the general rubric of "trial error." See Burks v. United States, 437 U.S. 1, 14 & n. 8, 98 S.Ct. 2141, 2148 & n. 8, 57 L.Ed.2d 1 (1978).

The Burks Court lists examples of "trial error." The Court noted that in Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887), trial error justifying reversal consisted of "improper instruction, ... absence of the accused during a portion of the trial, improper hearsay testimony received, . . . and inadequate record due to failure to record jury instructions." Id. 437 U.S. at 14 n. 8, 98 S.Ct. at 2148 & n. 8.

Also, the Court noted that the reversal in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) was for trial error. The Court had reversed the convictions of two alleged murderers on the grounds of fatal errors in the indictment. To wit, the trial error committed was a "failure to dismiss a faulty indictment." Burks, 437 U.S. at 14, 98 S.Ct. at 2148.

Applying the traditional double jeopardy analysis, the government would prevail. The double jeopardy bar applies only if the reversal is for insufficiency of the evidence. Here, the reversal was not for evidentiary insufficiency. The Court of Appeals did not reach the sufficiency question. See United States v. Davis, 841 F.2d 1127 (6th Cir.1988).⁴ Rather, this Court's failure to dismiss the indictment would be a "trial error." Therefore, it follows that the Double Jeopardy Clause does not bar reprosecution.

An analogous case is United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed. 2d 627 (1966), where a district court dismissed a defective indictment after the defendants had pleaded guilty. The court of appeals previously had ruled, in an unrelated case, that indictments under the relevant law, which prohibited the sale of narcotics without the proper form,⁵ should include the name of the purchaser, which the first indictment did not.

The government filed a second indictment under the same law and, in addition, alleged violations of a law prohibiting sales of narcotics without the original...