United States of America, Appellant,
vs.
Russell Means, Appellee. United
States of America, Appellant,
v.
Dennis Banks, Appellee
Nos. 74-1784 and 74-1785 74-1786 and
74-1787
United States Court Of Appeals For
The Eighth Circuit
513 F.2d 1329, 1975 U.S. App. Decision
April 16, 1975, Decided
Appeals from the United States District
Court for the District of South Dakota
Gibson, Chief Judge, Clark, Associate Justice, Retired,*
and Lay, Circuit Judge.
[F.2d
1329] GIBSON, Chief Judge.
Following a break in jury deliberations
because of the illness of a juror, the court dismissed all remaining charges
against the defendants, Russell Means and Dennis Banks, on the basis of
alleged prosecutorial misconduct. Thus, a protracted 8 1/2 month jury trial
on charges arising from the American Indian Movement occupation of Wounded
Knee, South Dakota, came to an aborted end.
[F.2d 1330] The defendants
view the dismissal as a verdict of acquittal, or at the minimum, contend
that the dismissal is unappealable in light of the Double Jeopardy Clause
of the Fifth Amendment. The United States contends, on the other hand,
that the dismissal can be viewed as nothing more than a declaration of
a mistrial by operation of law and that the action of the District Court
in dismissing the charges is subject to review under 18 U.S.C. § 3731
(1970). Further, the Government vehemently protests that the specifications
of governmental misconduct were not warranted by the record and that dismissal
of the charges upon the defendants' motion was a harsh and inappropriate
remedy that deprived the public of its right to prosecute wrongdoers.
The 71-day occupation of Wounded Knee
ended May 8, 1973. During that occupation the town and its facilities were
appropriated in complete disregard of the legal and constitutional rights
of the rightful occupants. Stealing and appropriation of food, goods, chattels
and money was commonplace. A state of siege existed, and during the confrontation
with its attendant gunfire, an FBI agent was critically wounded and a deputy
United States marshal was permanently paralyzed. The alleged leaders of
the occupation, defendants Russell Means and Dennis Banks, were indicted
for 11 violations of federal law, one conspiracy count and 10 substantive
counts.1
After a change of venue, the trial
commenced at St. Paul, Minnesota, on January 8, 1974. The Government's
case-in-chief ended July 24, 1974. The defendants presented their defense
from August 13-16. The Government's rebuttal took another seven days, after
which surrebuttal by both sides was presented until both sides rested on
September 5. Closing arguments were made to the jury on September 10 and
11, and the jury retired to deliberate on September 12.
On Friday, September 13, deliberations
did not resume because one of the jurors became ill. On the 16th the Government
informed the court at 2:00 p.m. that it refused to consent to have the
case proceed to a conclusion with the remaining 11 jurors, as permitted
by Fed. R. Crim. P. 23(b) with the consent of all parties and the court.
The defendants had previously consented, and the court understandably was
ready to give its consent to the 11 member jury. The court then at 3:00
p.m. the same day, treating a previously filed defense motion for judgment
of acquittal as one for dismissal of the indictments, orally dismissed
the remaining counts of the indictments against the defendants and discharged
the jury.2
In its oral ruling the court specified
the following incidents of governmental misconduct as meriting dismissal
of the charges: (1) the refusal of the Department of Justice to accept
the verdict of the eleven remaining jurors; (2) the Government's failure
to furnish the defense with a prior and "completely contradictory" statement
of Government witness Alexander David Richards; (3) deception of the court
with regard to an alleged rape incident involving Government witness Louis
Moves Camp as well as general dissatisfaction with the Government's handling
of this witness; and (4) unlawful military involvement with federal civilian
law enforcement at Wounded Knee. The court supplemented [F.2d 1331]
its oral ruling with a written decision on October 9, 1974, finding governmental
misconduct due to:
(1) The prosecutor's deliberate or
at least negligent conduct in offering and failing to correct the "obviously
false" testimony of Government witness Louis Moves Camp;
(2) The prosecutor's "intentional deception"
of the court with respect to an alleged rape incident involving the witness
Louis Moves Camp;
(3) The prosecutor's "grossly negligent
conduct," if not "deliberate deception," in offering the testimony of Government
witness Alexander David Richards when that testimony was directly contradicted
in a previously transcribed interview;
(4) The prosecutor's having been "either
deliberately or negligently dilatory" in searching for information detailing
the extent of military involvement at Wounded Knee and Government "cover
up" of the extent of that involvement;
(5) The prosecutor's reason, as discerned
from media accounts of his statements, for refusing to stipulate to accept
a jury comprised of the eleven remaining jurors.
The court predicated the dismissal
upon the exercise of its supervisory power and found "it unnecessary to
reach the constitutional question of whether the prosecutor's conduct [had]
prejudiced the trial to the point that due process was offended," and concluded
that "the totality of the prosecutor's conduct was sufficiently offensive
to our traditional notions of justice to demand exercise of the supervisory
power."3 The
court did not specify whether the dismissal was with prejudice, but it
did not declare a mistrial.4
The United States appeals. We conclude that we are without jurisdiction
to entertain the appeal.
The Criminal Appeals Act, 18 U.S.C.
§ 3731 (1970), provides in pertinent part:
In a criminal case an appeal by the
United States shall lie to a court of appeals from a decision, judgment,
or order of a district court dismissing an indictment or information as
to any one or more counts, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits further prosecution.
* * *
The provisions of this section shall
be liberally construed to effectuate its purposes.
Our jurisdiction to hear this appeal
depends upon whether the Government's appeal is barred by the Double Jeopardy
Clause.5
As noted in United States v. Wilson,
420 U.S. 33, 95 S. Ct. 1013, 43 L. Ed. 2d 232, 43 U.S.L.W. 4301, 4303 (1975),
statutory restrictions on government appeals prior to the amendment of
the Criminal Appeals Act in 1971 usually made it unnecessary to determine
the constitutional limitations on the Government's right of appeal. The
few earlier cases contain little discussion of the applicability of the
Double Jeopardy Clause to government [F.2d 1332] appeals. However,
section 3731, as amended in 1971, was intended to allow government appeals
whenever the Constitution would permit, Serfass v. United States, 420 U.S.
377, 95 S. Ct. 1055, 43 L. Ed. 2d 265, 43 U.S.L.W. 4315, 4318-9 (1975),
and has recently been interpreted in a trilogy of cases in the Supreme
Court. Serfass v. United States, supra ; United States v. Wilson,
supra
; and United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed.
2d 250, 43 U.S.L.W. 4309 (1975).
These cases make clear that the determination
of whether the Government's appeal in this case is barred upon double jeopardy
grounds requires a consideration of the policies underlying the Double
Jeopardy Clause that would be implicated by an appeal in the present case.
That the principal policy is one disfavoring multiple trials is clear.
The constitutional prohibition against
"double jeopardy" was designed to protect an individual from being subjected
to the hazards of trial and possible conviction more than once for an alleged
offense. * * * The underlying idea, one that is deeply engrained in at
least the Anglo-American system of jurisprudence, is that the State with
all its resources and power should not be allowed to make 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 may be found guilty.
Green v. United States, 355 U.S. 184,
187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957), quoted in Serfass
v. United States, supra at 4319. Accord, United States v.
Wilson, supra at 4304.
However, this policy, although compelling,
does not necessarily control the decision in any particular case. It is
clear that in certain instances the interests of justice may outweigh the
policy of only one trial. As noted in Wade v. Hunter, 336 U.S. 684, 688-89,
93 L. Ed. 974, 69 S. Ct. 834 (1949):
The double-jeopardy provision of the
Fifth Amendment, however, does not mean that every time a defendant is
put to trial before a competent tribunal he is entitled to go free if the
trial fails to end in a final judgment. * * [A] defendant's valued right
to have his trial completed by a particular tribunal must in some instances
be subordinated to the public's interest in fair trials designed to end
in just judgments.
Thus, the Government argues that in
spite of defendants' objections to our jurisdiction to hear this appeal,
we should accept jurisdiction due to the public interest in fair trials
designed to end in just judgments, contending that it did not receive a
fair trial.
While it is a fact that the Government
was on trial for alleged misconduct during the greater part of this trial
and rather vehemently contends it did not receive a fair trial, certainly
neither § 3731 nor the Constitution would allow retrials whenever
it could be shown that prejudicial or erroneous rulings were made against
the Government. We must approach the question of appealability from the
standpoint of the constitutional right of an individual to be free of repetitious
trials after jeopardy once attaches, although recognizing the limited exceptions
where a retrial does not offend the Double Jeopardy Clause.
The Hunter court was not attempting
to engraft a new exception to the Double Jeopardy Clause that would create
a right of appeal whenever the Government felt it did not receive a fair
trial. Rather, it was restating the philosophy underlying a retrial in
the traditional situation of a mistrial due to "manifest necessity."
Retrial has been allowed in a number
of circumstances determined not violative of the Double Jeopardy Clause.
Where a defendant has secured reversal of his conviction on direct appeal,
a new trial may be had. See, e.g., Forman v. United States, 361
U.S. 416, 4 L. Ed. 2d 412, 80 S. Ct. 481 (1960); United States v. Ball,
163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192 [F.2d 1333] (1896).
The same rule obtains when a defendant successfully mounts a collateral
attack upon his conviction. United States v. Tateo, 377 U.S. 463, 12 L.
Ed. 2d 448, 84 S. Ct. 1587 (1964).
Retrials because of a mistrial granted
at the defendant's instance, United States v. Tateo, supra at 467,
or where required by manifest necessity or when the ends of justice would
be defeated, United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165
(1824) (hung jury), are not barred by the Double Jeopardy Clause. Indications
of circumstances falling within the Perez rationale can be found
in Gori v. United States, 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct. 1523
(1961) (mistrial granted in sole interest of defendant);6
Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066
(1973) (mistrial over defendant's objection granted due to incurably defective
indictment); Wade v. Hunter, 336 U.S. 684, 93 L. Ed. 974, 69 S. Ct. 834
(1949) (military tactical situation justified discontinuance of first trial).
Neither the facts nor the policies
expressed in the aforementioned cases apply to the present case. Defendants
were not convicted at trial, nor was a mistrial declared. The situation
presented herein is a trial which terminated in defendants' favor after
jeopardy had attached, before a finding of guilt by the trier of fact,
and with no determination by the trial court that due process precludes
a retrial or that "manifest necessity" or the ends of justice require a
retrial. Further, the court specifically rejected the mistrial alternative.
Although our precise question was not answered by the Supreme Court in
its recent trilogy,7
the policies expressed in those opinions require our conclusion that a
government appeal in this case would violate the Double Jeopardy Clause
of the Constitution.
In United States v. Wilson, supra,
the district court dismissed the indictment upon grounds of prejudicial
preindictment delay after trial had terminated in a jury verdict of guilty.
The Court of Appeals dismissed a government appeal. The Supreme Court reversed.
It determined that the constitutional protection against double jeopardy
attaches only where there is a danger of subjecting the defendant to a
second trial for the same offense. Since the district court's dismissal
could be reviewed and if reversed would result in the reinstatement of
the jury verdict without subjecting defendant to a second trial, the Government
was allowed to appeal.
Serfass v. United States, supra,
involved a pretrial dismissal. The Supreme Court held that labelling the
trial court's action an "acquittal" instead of a dismissal was without
significance until jeopardy attached,8
and that there was no bar to a government appeal under § 3731 from
a pretrial ruling of a district court when the defendant has not been put
in jeopardy.
The language used by the Supreme Court
in the third case of the trilogy buttresses our conclusion of non-appealability.
[F.2d 1334] When a case has
been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal
by the Government providing that a retrial would not be required in the
event the Government is successful in its appeal.
United States v. Jenkins, 420 U.S.
358, 95 S. Ct. 1006, 43 L. Ed. 2d 250, 43 U.S.L.W. 4309, 4311 (1975).
While Jenkins was a bench trial
and the case at bar a jury trial, the relevant facts are substantially
identical. In Jenkins, after conclusion of the trial but before
the court had made a finding of guilty or not guilty, it entered a judgment
dismissing the indictment and discharging the defendant. The Supreme Court
held the dismissal nonappealable. It indicated that the guiding consideration
is whether "further proceedings of some sort, devoted to the resolution
of factual issues going to the elements of the offense charged would have
been required upon reversal and remand." United States v. Jenkins, supra
at 4312.
The Government attempts to avoid the
applicability of the Double Jeopardy Clause and these decisions by arguing
that before the judgment of dismissal was entered a mistrial had occurred
by operation of law. This "mistrial by operation of law" theory is implicitly
bottomed on the belief that the District Court could do nothing but declare
a mistrial when the Government refused to consent to proceed with 11 jurors.
The Government's belief, however, is unsupported by the District Court's
action, as well as by law. Its mistrial by operation of law concept would
do violence to the long-standing principle that the declaration of a mistrial
requires a scrupulous exercise of judicial discretion.
The Government urges that since Fed.
R. Crim. P. 23(b) requires its consent to proceedings with less than 12
jurors, at the moment it refused to stipulate a mistrial occurred, even
though none was declared by the trial court. This argument ignores the
long line of cases in which it has been held that the declaration of a
mistrial is discretionary with the trial judge. In 1815 Justice Story,
sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas.
622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror,
creating a technical mistrial9
in a situation where the jury could not agree on a verdict. He stated in
regard to the practice that "it is now held that the discretion [to declare
a mistrial] exists in all cases, but is to be exercised only in very extraordinary
and striking circumstances." 25 F. Cas. at 623. Nine years later, writing
for a unanimous court in United States v. Perez, 22 U.S. (9 Wheat.) 579,
6 L. Ed. 165 (1924), Justice Story stated:
We think, that in all cases of this
nature, the law has invested courts of justice with the authority to discharge
a jury from giving any verdict, whenever in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the
act, or the ends of public justice would otherwise be defeated. They are
to exercise a sound discretion on the subject; and it is impossible to
define all the circumstances, which would render it proper to interfere.
To be sure, the power ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes.
United States v. Perez, supra
at 580.
The Perez formulation has been
consistently approved and adhered to by the Supreme Court. Illinois v.
Somerville, 410 U.S. 458, 462, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973);
United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547
(1971); Gori v. United States, 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct.
1523 (1961).10
As the Supreme Court has stated, this formulation:
[F.2d 1335] Abjures the application
of any mechanical formula by which to judge the propriety of declaring
a mistrial in the varying and often unique situations arising during the
course of a criminal trial. The broad discretion reserved to the trial
judge in such circumstances has been consistently reiterated in decisions
of this court.
Illinois v. Somerville, 410 U.S. 458,
462, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973).
The contention advanced by the Government
would deny a trial court any discretion in determining whether a mistrial
should be declared, in contravention of the clear policy of discretion
enunciated in the foregoing cases. Even if we could conceive of a situation
in which a mistrial would arise by operation of law, we are convinced that
this is not the case. To so hold, we would at the very least have to determine
that there were no alternatives to a mistrial once the Government refused
to stipulate under Rule 23(b), a finding that would lack foundation in
this case. As Judge Nichol recognized, upon the Government's refusal to
stipulate, at least two alternatives were presented: he could declare a
mistrial or grant the defendants' motion. See United States v. Banks,
383 F. Supp. 389, 393 (D.S.D. 1974). Another possible alternative, delaying
completion of the trial until the ill juror was able to resume deliberations,
also comes quickly to mind. Since there were alternatives to declaring
a mistrial, we cannot say that Judge Nichol lacked the discretion to determine
whether a mistrial was "manifestly necessary" in the circumstances.
Whether or not Judge Nichol's dismissal
of the indictments was correct is not the question before this court, and
we intimate no opinion as to whether the instances of government misconduct
specified by Judge Nichol are supported by the record11
or were severe enough to warrant dismissal. Instead, our question is whether
the dismissal is appealable. Since the dismissal terminated the trial in
defendants' favor, after jeopardy had attached, and there is no way that
a retrial could be avoided in the event of a reversal and remand, we hold
that the Government's appeal is barred by the Double Jeopardy Clause and
must be dismissed. Cf. United States v. Jaramillo, 510 F.2d 808,
slip op. at 12-13 (8th Cir. 1975).
The statement of the Court in United
States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971),
is applicable here:
In the absence of such a [mistrial]
motion, the Perez doctrine of manifest necessity stands as a command
to trial judges not to foreclose the defendant's option [to have his trial
completed by a particular tribunal] until a scrupulous exercise of judicial
discretion leads to the conclusion that the ends of public justice would
not be served by a continuation of the proceedings.
Here, although the Government suggests
that jurisdiction should be assumed due to the "public's interest in fair
trials designed to end in just judgments," Judge Nichol determined "that
the misconduct by the government in this case is so aggravated that a dismissal
must be entered in the interests of justice." United States v. Banks, 383
F. Supp. 389, 392 (D.S.D. 1974). This conclusion, coming after jeopardy
had attached and before verdict, is effectively unreviewable. Cf.
United States v. Jorn, 400 U.S. 470, 487-88, 27 L. Ed. 2d 543, 91 S. Ct.
547 (Burger, C.J., concurring).
[F.2d 1336] We are concerned
and ill at ease with the impact that this case has on the administration
of criminal justice. Presented with a civil rebellion the Government filed
numerous charges; and now, after a protracted 8 1/2 month trial, no definitive
result was achieved. And all of this despite substantial expenditures of
public funds and a consequent erosion of public confidence in the effective
administration of justice.
It is not our function, nor do we intend
in this opinion, to attempt to place the blame or apportion fault for the
unsatisfactory resolution of this case on the parties, Government, enforcement
agencies, or the courts. We appreciate that this was a difficult case for
the court to control, and it, no doubt, was beset and harassed by many
of the tactics and procedures utilized by both sides. More time was spent
trying the witnesses and the counsel than the defendants. That fact alone,
regardless of the cause, is not a healthy situation for the administration
of justice and the commonwealth.
Any resolution of this case in its
present posture will be unsatisfactory to many. The Government feels particularly
aggrieved at the charges of prosecutorial misconduct, yet these charges
and the court's findings thereon must be left unreached and unresolved
on this appeal. The resolution should not even be entirely satisfactory
to the defendants. They apparently felt a judgment of acquittal was probable
and, if so, they certainly had an interest in having their case heard and
disposed of in one trial. The illness of the juror, unfortunate for her,
was even more unfortunate for the effective administration of justice,
and possibly the defendants, coming when it did. But that uncontrollable
event should not have spawned this unsatisfactory denouement.
Applicable to the discharge of defendants
herein is the statement of Justice Story, although in a different context,
in United States v. Perez, supra at 580:
But, after all, [trial judges] have
the right to order the discharge; and the security which the public have
for the faithful, sound and conscientious exercise of this discretion rests,
in this, as in other cases, upon the responsibility of the judges under
their oaths of office.
Appeal dismissed.
* Associate Justice Tom C. Clark, United
States Supreme Court, Retired, sitting by designation.
1 A pretrial order of the District
Court dismissed one of these counts against each of the defendants. United
States v. Banks, 368 F. Supp. 1245 (D.S.D. 1973). At the close of the Government's
case defendants' motion for judgment of acquittal was granted as to five
of the remaining 10 counts. United States v. Banks, 383 F. Supp. 368 (D.S.D.
1974).
2 The memorandum decision of Chief
Judge Fred Nichol, District of South Dakota, dismissing the indictments
"in the interests of justice" is reported as United States v. Banks, 383
F. Supp. 389 (D.S.D. 1974). An earlier ruling upon a defense motion to
dismiss because of government misconduct, made during the course of the
trial, in which Judge Nichol indicated he was at "the brink of dismissing
this case," is reported as United States v. Banks, 374 F. Supp. 321 (D.S.D.
1974).
3 United States v. Banks, 383 F. Supp.
389, 391, 394 (D.S.D. 1974).
4 The court in its written opinion
dismissing the charges stated that a judgment of acquittal would be inappropriate
as it was not making an evaluation of the evidence and recognized that
"a judgment of dismissal is not the only possible remedy in this situation,
i.e. a new trial could be ordered" and then stated its belief "that the
misconduct by the government in this case is so aggravated that a dismissal
must be entered in the interests of justice." The dismissal was not on
the due process ground that because of governmental misconduct the defendants
cannot now or in the reasonably foreseeable future receive a fair trial
but was bottomed on the court's supervisory powers over the administration
of justice to establish and maintain "civilized standards of procedure
and evidence," citing McNabb v. United States, 318 U.S. 332, 340,
87 L. Ed. 819, 63 S. Ct. 608 (1943).
5 U.S. Const. amend. V, which provides
in pertinent part, "* * * nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb."
6 As stated in Gori, supra at
368:
Where, for reasons deemed compelling
by the trial judge, who is best situated intelligently to make such a decision,
the ends of substantial justice cannot be attained without discontinuing
the trial, a mistrial may be declared without the defendant's consent and
even over his objection, and he may be retried consistently with the Fifth
Amendment. Simmons v. United States, 142 U.S. 148, 35 L. Ed. 968, 12 S.
Ct. 171; Logan v. United States, 144 U.S. 263, 36 L. Ed. 429, 12 S. Ct.
617; Dreyer v. Illinois, 187 U.S. 71, 85-86, 47 L. Ed. 79, 23 S. Ct. 28.
7 The Supreme Court expressly left
open our particular question in Serfass v. United States, 420 U.S. 377,
95 S. Ct. 1055, 43 L. Ed. 2d 265, 43 U.S.L.W. 4315, 4321 (1975):
We of course express no opinion on
the question whether a similar ruling [dismissing the indictment] by the
District Court after jeopardy had attached would have been appealable.
8 Jeopardy attaches when a defendant
has been "put to trial before the trier of facts, whether the trier be
a jury or a judge." Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055,
43 L. Ed. 2d 265, 3 U.S.L.W. 4315, 4321 (1975).
9 See 5 Wharton's Criminal Law
and Procedure § 2701 (1957).
10 See also Brock v. North Carolina,
344 U.S. 424, 427, 97 L. Ed. 456, 73 S. Ct. 349 (1953):
This Court has long favored the rule
of discretion in the trial judge to declare a mistrial * * * if the ends
of justice will be best served. * * * Justice to either or both parties
may indicate to the wise discretion of the trial judge that he declare
a mistrial * * *. As in all cases involving what is or is not due process
* * * no hard and fast rule can be laid down. (Citations omitted.)
11 The record in this case contains
over 21,000 pages in 119 volumes of transcript. The Government stated at
oral argument that only some 1700 pages of this were devoted to the issue
of defendants' guilt. The implication is that the remainder is devoted
to what might be called the trial of the Government, explaining somewhat
why the trial of this case lasted over eight months, some five months longer
than the actual occupation of Wounded Knee.
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