Watts v. United States

• Decision Date: 23 June 1975
• Docket Number: No. 74-6118,74-6118
• Citation: 45 L.Ed.2d 688,95 S.Ct. 2648,422 U.S. 1032
• Parties: Douglas WATTS v. UNITED STATES
• Court: U.S. Supreme Court

422 U.S. 1032

95 S.Ct. 2648

45 L.Ed.2d 688

Douglas WATTS

v UNITED STATES.

No. 74-6118.

Supreme Court of the United States

June 23, 1975

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon representation of the Solicitor General set forth in his brief for the United States filed May 2, 1975, the judgment is vacated and the case is remanded to the United States District Court for the Northern District of Georgia to permit the Government to dismiss charges against the petitioner.

Mr. Chief Justice BURGER, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.

Petitioner was acquitted in the Superior Court of Fulton County, Georgia, of aggravated assault with intent to rob and carrying a concealed weapon. Thereafter, petitioner was convicted in federal court of knowingly possessing an unregistered firearm, a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). The federal charge arose out of the same episode, and involved the same weapon, as the state prosecution. The Court of Appeals affirmed the judgment of conviction, rejecting, inter alia, petitioner's contention that the state acquittal barred his federal prosecution under the Double Jeopardy Clause of the Fifth Amendment.

The evidence at petitioner's federal trial established that in connection with a robbery attempt on November 14, 1973, petitioner, accompanied by another, assaulted Robert McGibbon with a 12 gauge, single barreled, sawed-off shotgun. McGibbon managed to break away from his assailants and immediately reported the inci- dent to Officer Ward, an Atlanta policeman who was nearby. Ward located petitioner and a companion a few blocks away and, on the basis of McGibbon's description, took them into custody. As petitioner's companion was entering the patrol car, Ward noticed him bend down 'as if he was putting something under the car.' Subsequent investigation revealed the sawed-off shotgun, which was not registered to petitioner, under the patrol car.

In rejecting petitioner's double jeopardy claim, the Court of Appeals pointed out that, under Ga.Code Ann. §§ 26-9911a, 9913a, possession of a sawed-off shotgun 15 inches or less in length is prohibited, whereas the shotgun involved here had an overall length of 16 1/2 inches. The Court of Appeals held that, in any event, the prior state prosecution and acquittal were not a bar to the subsequent federal prosecution under Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Although he agrees with the latter conclusion, the Solicitor General nevertheless now requests the Court to vacate the judgment of the Court of Appeals and remand the case to the District Court to permit the Government to move for dismissal of the charges against petitioner. The request is based on the Government's belated claim that the prosecution of petitioner under § 5861(d) 'did not conform to the Department of Justice policy of not prosecuting individuals previously tried in a state court for offenses involving the same acts, unless there exist 'most compelling reasons,' and then only after the specific approval of the appropriate Assistant Attorney General has been obtained.'

In support of his position, the Solicitor General states that no approval was sought in this case, and he concludes that it 'does not present circumstances which constitute 'compelling reasons' for the federal prosecution.' He notes that the State did not indict petitioner for possession of a sawed-off shotgun, but for carrying a concealed weapon, as to which the length of the shotgun was irrelevant, and he speculates that, since there was ample evidence of concealment, the state jury likely acquitted petitioner because of insufficient evidence of possession. In light of the fact that possession is an element of the federal offense proscribed by § 5861(d), the Solicitor General reasons that the policies underlying the Department's internal directive 'are directly involved.'

Since this is the third occasion in recent months upon which I have been unable to agree with the Court's acquiescence in a request by the Government for aid in implementing the policy of the Department of Justice, I deem it appropriate to state my views. See also Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975).

I

The policy upon which the Government relies was first promulgated shortly after our decisions in Abbate and Bartkus, supra, in a memorandum from Attorney General Rogers to United States Attorneys. See Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). Noting the duty of federal prosecutors 'to observe not only the ruling[s] of the [C]ourt but the spirit of the rulings as well,' and advocating continuing efforts 'to cooperate with state and local authorities to the end that the trial occur in the jurisdiction, whether it be state or Federal, where the public interest is best served,' the Attorney General concluded that if 'this be determined accurately, and is followed by efficient and intelligent cooperation of state and Federal law-enforcement authorities, then considera- tion of a second prosecution very seldom should arise.' He directed that 'no Federal case should be tried when there has already been a state prosecution for substantially the same act or acts without . . . [the approval of the appropriate Assistant Attorney General after consultation with the Attorney General].' N.Y. Times, April 6, 1959, p. 19, col. 2.

I question whether the action taken by the Court in Hayles and Ackerson, supra, and the action taken today represent 'efficient and intelligent cooperation' among federal law-enforcement authorities, let alone between state and federal authorities. In this case, for instance, we are asked to intervene in order that the Government may move for the dismissal of charges lawfully brought by it in the first instance, tried before a jury in the District Court, and the conviction upon which was affirmed by an opinion of a panel of the Court of Appeals. It requires more than the desire of the Department of Justice to keep its house in order to persuade me that the Court should have a hand in nullifying such a substantial commitment of federal prosecutorial and judicial resources. Indeed, since it appears that the trial and conviction of petitioner were without reversible defect, constitutional or otherwise, and that the putative hardship which the policy was designed to prevent has already been suffered and cannot be remedied, I believe that the Court's action today ill serves the 'interest of justice,' Petite v. United States, 361 U.S., at 531, 80 S.Ct. 450, if that...