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.
361 U. S.
529-531.
262 F.2d 788 remanded with directions to vacate judgments and
dismiss indictment.
PER CURIAM.
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 codefendants pleaded guilty to the
conspiracy charged. Petitioner went to trial on both indictments,
but, at the close of the Government's case, he
Page 361 U. S. 530
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. "
Page 361 U. S. 531
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,
113 U. S. 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.
Case remanded with directions.
MR. CHIEF JUSTICE WARREN, concurring.
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, [
Footnote
1] 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. [
Footnote 2]
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."
[
Footnote 1]
1 Stat. 92, 16 Stat. 162; R.S. § 359; 5 U.S.C. § 309.
[
Footnote 2]
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, 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."
MR. JUSTICE BRENNAN, with whom MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS join.
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,
315 U. S.
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
312 U. S. 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,
359 U. S. 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.