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Petite v. United States

U.S.
Feb 23, 1960
361 U.S. 529 (1960)

Summary

granting government's motion to remand to dismiss the indictment as contrary to the government's policy against multiple prosecutions based on the same conduct

Summary of this case from United States v. $35,140.00 in U.S. Currency

Opinion

ON MOTION TO VACATE THE JUDGMENT AND DISMISS THE INDICTMENT.

No. 45.

Decided February 23, 1960.

In a case where double jeopardy was the sole question presented, based on separate indictments and convictions in two different United States District Courts for the same criminal conduct, the Solicitor General moved to vacate the second judgment and to dismiss the second indictment, on the ground that it is the general policy of the Federal Government that several offenses arising out of a single transaction should not be made the basis of multiple prosecutions. Counsel for petitioner joined in and consented to the motion. Held: Without passing on the merits of the question of double jeopardy, the case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its judgment and dismiss the indictment. Pp. 529-531.

262 F.2d 788, remanded with directions to vacate judgments and dismiss indictment.

Edward Bennett Williams, Raymond W. Bergan and Agnes A. Neill for petitioner.

Solicitor General Rankin, Assistant Attorney General Wilkey, Wayne G. Barnett, Beatrice Rosenberg and Jerome M. Feit for the United States.


Petitioner was indicted, with others, in the Eastern District of Pennsylvania for conspiring to make false statements to an agency of the United States at hearings held in Philadelphia and Baltimore under proceedings for the deportation of an alien. Petitioner was also separately indicted for suborning perjury at the Philadelphia hearings. Petitioner's co-defendants pleaded guilty to the conspiracy charged. Petitioner went to trial on both indictments, but at the close of the Government's case he changed his plea to nolo contendere to the conspiracy charge, and the Government dismissed the subornation indictment. He was fined $500 and sentenced to two months' imprisonment, which he served. Petitioner was subsequently indicted in the District of Maryland for suborning the perjury of two witnesses at the Baltimore hearings. Among the overt acts which had been relied upon in the Pennsylvania conspiracy indictment was the testimony of these two witnesses. Because of this, petitioner moved to dismiss the Maryland indictment on the ground of double jeopardy, but his motion was denied, 147 F. Supp. 791, and the conviction which resulted was affirmed by the Court of Appeals for the Fourth Circuit, 262 F.2d 788.

Thereupon a petition for a writ of certiorari was filed with the double jeopardy issue as the single question presented, and certiorari was granted. 360 U.S. 908. The Government did not oppose the granting of this petition, but informed the Court that the case was under consideration by the Department of Justice to determine whether the second prosecution in the District of Maryland was consistent with the sound policy of the Department in discharging its responsibility for the control of government litigation wholly apart from the question of the legal validity of the claim of double jeopardy.

In due course the Government filed this motion for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment. It did so on the ground that it is the general policy of the Federal Government "that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement." The Solicitor General on behalf of the Government represents this policy as closely related to that against duplicating federal-state prosecutions, which was formally defined by the Attorney General of the United States in a memorandum to the United States Attorneys. (Department of Justice Press Release, Apr. 6, 1959.) Counsel for petitioner "joins in and consents" to the Government's motion.

The case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its judgment and to dismiss the indictment. In the interest of justice, the Court is clearly empowered thus to dispose of the matter, 28 U.S.C. § 2106, and we do so with due regard for the settled rule that the Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." Liverpool, New York Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39. By thus disposing of the matter, we are of course not to be understood as remotely intimating in any degree an opinion on the question of double jeopardy sought to be presented by the petition for certiorari.


The Government has commendably done the just and right thing in asking us to wipe the slate clean of this second federal conviction for the same criminal conduct. But with all deference. I do not see how our duty can be fully performed in this case if our action stops with simply giving effect to a "policy" of the Government — a policy whose only written expression does not even cover the case at bar. Even where the Government confesses error, this Court examines the case on the merits itself, Young v. United States, 315 U.S. 257, 258-259, and one would not have thought our duty less in this case — particularly where the Government has reserved the right to apply or not apply its "policy" in its discretion. Presumably this reservation would apply to cases at the appellate level as well. "[T]he proper administration of the criminal law cannot be left merely to the stipulation of parties." Id., at 259. I believe that the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to this second prosecution. My reasons supporting this view have been detailed in my separate opinion in Abbate v. United States, 359 U.S. 187, 196. On this basis I agree that the judgment of the Court of Appeals is not to stand; but I would reverse it on the merits.


I concur with the judgment of the Court, but desire to record my reasons for so doing.

The Solicitor General, who has statutory authority to conduct litigation in this Court, has requested us to vacate the judgment and remand for dismissal in the interests of justice. The petitioner has consented. Under these circumstances, I believe that 28 U.S.C. § 2106 empowers us to entertain the motion.

1 Stat. 92; 16 Stat. 162; R. S. § 359; 5 U.S.C. § 309.

Section 2106 reads as follows: "The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, Page 532 or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."

Authority to grant this type of motion is one thing, however, and determination of the considerations relevant to a proper exercise of that authority is another. As I believe that the Court should not deny all such motions peremptorily, so do I believe that we should not automatically grant them through invocation of the policy of avoiding decision of constitutional issues. There are circumstances in which our responsibility of definitively interpreting the law of the land and of supervising its judicial application would dictate that we dispose of a case on its merits. In a situation, for example, where the invalidity of the judgment is clear and the motion to vacate and remand is obviously a means of avoiding an adjudication, I think we would be remiss in our duty were we to grant the motion.

But this is not such a case. Although a full hearing might well establish petitioner's contention that his conviction violated the Double Jeopardy Clause of the Constitution, no devious purpose can be ascribed to the Government, which asserts that the prosecution of petitioner "was . . . by inadvertence," and that it "does not intend to take [such action] in the future." Its representation with respect to future practice is given support by the Attorney General's memorandum to United States Attorneys which establishes a closely related policy against successive federal-state prosecutions; and the reasonableness of its request is demonstrated by the fact that this memorandum was issued after the prosecution, the conviction, and the judgment of the Court of Appeals in this case. For these reasons the action requested is, in the words of § 2106, "just under the circumstances."


Summaries of

Petite v. United States

U.S.
Feb 23, 1960
361 U.S. 529 (1960)

granting government's motion to remand to dismiss the indictment as contrary to the government's policy against multiple prosecutions based on the same conduct

Summary of this case from United States v. $35,140.00 in U.S. Currency

granting government's motion to remand to dismiss the indictment as contrary to the government's policy against multiple prosecutions based on the same conduct

Summary of this case from U.S. v. Gruttadauria

granting prosecutor's motion to remand for dismissal of the indictment as contrary to the government's policy against multiple prosecutions based upon the same conduct

Summary of this case from U.S. v. Moran

granting the federal government's motion to vacate a judgment in the district court where the conspiracy to make false statements to an agency of the United States indictment against the defendant arose from the same acts and transactions as a different indictment for suborning perjury

Summary of this case from U.S. v. Claiborne

vacating conviction based on Government's motion

Summary of this case from Al Bahlul v. United States

vacating and remanding for dismissal of indictment on government's motion

Summary of this case from U.S. v. Fletcher

vacating conviction at government's request because prosecution contravened internal Justice Department policy forbidding multiple prosecutions for same criminal conduct

Summary of this case from U.S. v. Gary

recognizing the policy

Summary of this case from U.S. v. Barrett

recognizing policy as formally defined by the Attorney General

Summary of this case from U.S. v. Byars

establishing three elements of crime of subornation of perjury

Summary of this case from U.S. v. Washington

discussing the policy, adopted by the Attorney General for the United States after Bartkus and Abbate, that limited federal prosecutions following state prosecutions

Summary of this case from U.S. v. All Assets of G.P.S. Automotive Corp.

In Petite, the government sought to have a conviction vacated based upon its policy of refraining from multiple prosecutions stemming from the same conduct. Petite does not give a criminal defendant the right to enforce this policy.

Summary of this case from U.S. v. Beard

In Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), for example, the Solicitor General asked the Supreme Court to remand a case so that the lower court could dismiss an indictment brought in violation of the government's long-standing policy that several offenses arising out of a single transaction should not be made the basis of multiple prosecutions.

Summary of this case from Jackson v. Culinary School of Washington, Ltd.

noting that government has general policy "against duplicating federal-state prosecutions"

Summary of this case from U.S. v. Tierney

In Petite, the Supreme Court did not forbid, or even criticize the investigation of one crime by successive grand juries.

Summary of this case from United States v. Claiborne

In Petite, the Supreme Court granted the Government's motion to dismiss a federal indictment returned by a grand jury in violation of a Department of Justice policy forbidding successive state and federal prosecutions for the same crime.

Summary of this case from United States v. Claiborne

In Petite, the Supreme Court, at the request of The Solicitor General, remanded a case to the district court with instructions to dismiss the indictment on the ground that it was the policy of the Justice Department not to prosecute a federal case where there has been a state prosecution for substantially the same act or acts unless, for compelling federal interest, The Attorney General recommends prosecution.

Summary of this case from United States v. Garner

In United States v. Petite, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), the Supreme Court, at the request of the Solicitor General, remanded a case to the lower courts with instruction to dismiss the indictment against the defendant.

Summary of this case from United States v. Snell

In Petite, the defendant was indicted in the Eastern District of Pennsylvania for conspiring to make false statements to an agency of the United States and also for suborning perjury.

Summary of this case from United States v. Pappas

In Petite v. United States, 1960, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490, and Marakar v. United States, 1962, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803, judgments of conviction were vacated when the Court granted the Government's motions made "on the ground that it is the general policy of the Federal Government `that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.'"

Summary of this case from United States v. Williams

In Petite v. United States, 361 U.S. 529 (1960), the Supreme Court noted the Department of Justice's general policy "that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions."

Summary of this case from United States v. Ramos

In Petite v. United States, 361 U.S. 529, 530 (1960), the Supreme Court recognized the policy when the Government sought to have a conviction vacated based upon its policy of refraining from multiple prosecutions arising out of the same conduct. The Petite Policy is based upon the fair exercise of justice and efficient exercise of law enforcement resources.

Summary of this case from Cuciniello v. U.S.

In Petite, the defendant was indicted and sentenced in the Eastern District of Pennsylvania for conspiring to make false statements to an agency of the United States at hearings held in Philadelphia and Baltimore and then subsequently indicted in the District of Maryland for suborning the perjury of two witnesses at the same Baltimore hearings.

Summary of this case from U.S. v. Pickens

In Petite, the Supreme Court expressly refused to address the issue of double jeopardy, but rather merely granted the parties' joint motion to remand and dismiss the indictment.

Summary of this case from U.S. v. Bradford

explaining formulation of policy in 1959

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Case details for

Petite v. United States

Case Details

Full title:PETITE v . UNITED STATES

Court:U.S.

Date published: Feb 23, 1960

Citations

361 U.S. 529 (1960)
80 S. Ct. 450

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