WATTS v. U.S. - 422 U.S. 1032 (1975)
U.S. Supreme Court
WATTS v. U.S. , 422 U.S. 1032 (1975)
422 U.S. 1032
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 (1959), and Bartkus v. Illinois, 359 U.S. 121 (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 [422 U.S. 1032 , 1034]