Gonzalez v. Justices of The Muni, 382 F.3d 1, 1st Cir. (2004)
Gonzalez v. Justices of The Muni, 382 F.3d 1, 1st Cir. (2004)
3d 1
Appeal from the United States District Court for the District of
Massachusetts, George A. O'Toole, J.
Robert W. Hagopian, with whom James G. Pepe, Jr. was on brief, for
appellant.
Cathryn A. Neaves, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Thomas F. Reilly, Attorney General, was on
brief, for appellees.
Before SELYA, Circuit Judge, PORFILIO,* Senior Circuit Judge, and
LYNCH, Circuit Judge.
SELYA, Circuit Judge.
circumstances are out of the ordinary: the case turns on whether a disposition
labeled by the state trial judge as an acquittal should be regarded as such for
purposes of the Double Jeopardy Clause despite having been characterized by
the state supreme court as resulting from a "sham trial." Although the question
is close, we answer it in the negative and, accordingly, affirm the district court's
refusal to grant a writ of habeas corpus.
I. THE TRAVEL OF THE CASE
3
More than four years ago, the Commonwealth of Massachusetts charged the
petitioner with (i) distribution of a Class A controlled substance (heroin) and
(ii) trafficking in that substance within 1,000 feet of a school. See Mass. Gen.
Laws ch. 94C, 32, 32J. On May 1, 2000, a justice of the BMC held a pretrial
conference, during which the Commonwealth agreed to provide the petitioner
with evidence concerning drug analysis and school distance measurements.1
Because the petitioner was on probation at the time of his arrest, the state judge
scheduled both a probation surrender hearing and a trial on the merits for June
8, 2000.
On the morning of June 8, both sides reported that they were ready for trial.
The probation surrender hearing ensued. After receiving into evidence drug
analysis certificates and police testimony detailing the circumstances of the
petitioner's arrest, the presiding judge determined that the Commonwealth had
failed to prove a violation of the terms of the petitioner's probation.
The parties returned for the merits trial that afternoon. Before the trial began,
the petitioner filed a motion in limine seeking the exclusion of all evidence
concerning drug analysis and school distance measurements. He predicated this
motion on the ground that the prosecution had not disclosed this evidence to the
defense in a timely manner (i.e., as per the disclosure deadline fixed at the
pretrial conference). The prosecutor offered to furnish the relevant data
immediately. The judge responded that this offer was "not good enough" and
granted the motion in limine.
This ruling effectively gutted the Commonwealth's case. In light of it, the
prosecutor informed the court that she was no longer ready for trial. The judge
announced that the case would nonetheless proceed as scheduled. See
Commonwealth v. Super, 431 Mass. 492, 727 N.E.2d 1175, 1181 (2000)
(concluding "that there is no requirement that the prosecution answer ready for
trial as a condition precedent to commencing a criminal trial"). The prosecutor
could have nol-prossed the case or attempted to file an interlocutory appeal,2
The petitioner waived his right to a jury trial, and the judge instructed the
prosecutor to call her first witness. The prosecutor demurred, again explaining
that she could not go forward because of the court's allowance of the motion in
limine. Defense counsel then moved for a judgment of acquittal (in state court
parlance, a required finding of not guilty). The prosecutor reiterated her
objection to proceeding further and suggested that the court dismiss the case
for noncompliant discovery. The trial judge promptly took the bull by the horns
and interjected:
[I]n order for the motion for required finding of not guilty to be allowed, there
has to be a witness called and a witness sworn in in this matter. Otherwise there
is no jeopardy that attaches and this matter would be basically dismissal
without prejudice at this point. So if counsel wishes to call a witness in this
matter, that's up to counsel....
Defense counsel took the hint. She immediately called the petitioner's daughter
to the witness stand. Although there is no suggestion in the record that the
daughter had been a percipient witness to the events underlying the criminal
complaints, this lack of knowledge proved not to be an impediment. The lawyer
only asked the witness to state her name and to declare whether she knew the
petitioner. After the witness replied in kind,3 the lawyers eschewed any
additional questioning. Neither side called any further witnesses, and the
petitioner renewed his motion for a required finding of not guilty. The court
allowed the motion over the prosecutor's vociferous objection.
10
appeal." Id. On the constitutional issue, the SJC concluded that "[b]ecause there
was no trial on the merits, and no risk of the defendant's conviction, jeopardy
did not attach." Id. at 140. Characterizing the BMC proceeding as a "sham
trial," id. at 142, the court vacated the judgment and remanded the case for
further proceedings on the existing complaints.
11
Gonzalez unsuccessfully petitioned the United States Supreme Court for a writ
of certiorari. Gonzalez v. Massachusetts, 538 U.S. 962, 123 S.Ct. 1748, 155
L.Ed.2d 514 (2003). He then repaired to the United States District Court for the
District of Massachusetts. There he made three filings: a petition for a writ of
habeas corpus based on an alleged double jeopardy violation, a motion to stay
proceedings in the BMC, and a motion for injunctive relief pendente lite. He
named as respondents the Justices of the BMC, the Massachusetts Attorney
General, and the Suffolk County District Attorney (hereinafter collectively the
Commonwealth). The district court issued an order temporarily blocking
further prosecution of the state criminal charges. In due course, however, the
court found the habeas petition wanting. Gonzalez v. Justices of Municipal
Court, Civ.A. No. 03-10859, 2003 WL 22937727 (D.Mass. Nov.25, 2003)
(Gonzalez II). The court discerned "no reason to quarrel" with the SJC's
characterization of the original proceeding as a sham trial. Id. at *4. It
specifically noted that there had been no presentation of evidence concerning
any of the factual elements of the criminal charges and, thus, "there was no risk
to the defendant that he would be found guilty." Id. Consequently, the district
court not only refused to grant a writ of habeas corpus but also dissolved the
stay that it previously had issued. Id. at *5.
12
The petitioner appealed to this court and sought a further stay of the state
criminal proceedings. When the Commonwealth agreed to postpone any trial in
the BMC until after the termination of this appeal, we denied the petitioner's
request for a stay.4 Briefing and oral argument followed.
II. THE NATURE OF THE PROCEEDING
13
In this venue, the Commonwealth continues to insist that section 2254 controls
the case at hand. It claims that the petitioner is "in custody pursuant to the
judgment of a State court" because the SJC's reinstatement of the state criminal
proceedings is the proximate cause of the petitioner's current custody. The
question of which statute governs is not merely of taxonomic interest; the
classification matters because, as we shall see, it influences the applicable
standard of federal court review.
15
Under both section 2241 and section 2254, there is an "in custody" requirement.
To be in custody for purposes of either statute, a person need not be actually
incarcerated. See Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9
L.Ed.2d 285 (1963); Jackson v. Coalter, 337 F.3d 74, 78-79 (1st Cir.2003). The
requirement may be satisfied if the petitioner is subject to state-imposed
"restraints not shared by the public generally." Jones, 371 U.S. at 240, 83 S.Ct.
373.
16
17
19
To be sure, the BMC proceeding would be over and done with (and, thus, the
recognizance order would be a dead letter) were it not for the SJC's judgment.
But that is irrelevant for jurisdictional purposes. Unless we are prepared to
adopt a protean rule of "but for" causation in this contextand we are notthe
plain language of the statutory scheme dictates that the petitioner's case must be
adjudicated within the confines of section 2241.
20
The case law confirms this intuition. Although we find little guidance in our
own reported decisions, see, e.g., Jackson, 337 F.3d at 79 (raising, but not
resolving, a question as to whether a pretrial detainee was correct in filing for
habeas relief under section 2254), the precedents elsewhere are uniform.
Several other courts of appeals have decided, on sufficiently analogous facts,
that section 2241not section 2254applies. See, e.g., Jacobs v. McCaughtry,
251 F.3d 596, 597-98 (7th Cir.2001) (per curiam); Stringer v. Williams, 161
F.3d 259, 261-62 (5th Cir.1998); Mars v. Mounts, 895 F.2d 1348, 1351 n. 3
(11th Cir.1990). The Commonwealth does nothing to discredit, and little to
counter, this impressive array of authority.
21
The Commonwealth's principal effort to find support in the case law revolves
around the decision in Harpster v. Ohio, 128 F.3d 322 (6th Cir.1997). That
decision, carefully read, lends no assistance to the Commonwealth's cause. The
Harpster court simply analyzed the habeas petition before it in accordance with
section 2254 without any discussion of whether that section or section 2241
actually controlled. See id. at 326.
22
To say more on this issue would be to paint the lily. We hold that jurisdiction in
this case was properly premised on 28 U.S.C. 2241.
23
24
25
The Supreme Court recently reaffirmed the well-settled rule that when
"Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion." Duncan v.
Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations
and internal quotation marks omitted). That principle militates strongly in favor
of a conclusion that the AEDPA's review standards should govern only those
habeas petitions cognizable under section 2254.
26
Despite the logic of this position, the only court of appeals that appears to have
confronted the issue has, without any deliberate analysis, simply applied the
AEDPA standard to section 2241 petitions. See Powell v. Ray, 301 F.3d 1200,
1201 (10th Cir.2002) (citing other Tenth Circuit cases), cert. denied, 538 U.S.
927, 123 S.Ct. 1578, 155 L.Ed.2d 321 (2003). With respect, we are inclined to
believe that this approach is incorrect and that section 2241 maintains its
historical posture, evoking de novo review as to state courts' conclusions of
law. Thus, we proceed on the assumption that we, as a federal habeas court
reviewing a petition under section 2241, must defer to the SJC's findings of
fact, see Sumner v. Mata, 455 U.S. 591, 591-92, 102 S.Ct. 1303, 71 L.Ed.2d
480 (1982) (per curiam), but must undertake plenary review of that court's
resolution of issues of law.5
III. THE MERITS
27
The Double Jeopardy Clause guarantees that no person shall "be subject for the
same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V.
Through the instrumentality of the Fourteenth Amendment, the prophylaxis of
the Double Jeopardy Clause extends to state prosecutions. Benton v. Maryland,
395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Clause "protects
against a second prosecution for the same offense after acquittal, against a
second prosecution for the same offense after conviction, and against multiple
punishments for the same offense." Lydon, 466 U.S. at 306-07, 104 S.Ct. 1805.
The petitioner invoked the first of these three prongs. That safeguard "restrains
the government from using its power and resources to subject a defendant to
serial prosecutions, thus prolonging his ordeal and unfairly enhancing the
prospect of his ultimate conviction." United States v. Toribio-Lugo, 376 F.3d
33, 38 (1st Cir.2004) (citing Green v. United States, 355 U.S. 184, 187-88, 78
S.Ct. 221, 2 L.Ed.2d 199 (1957)).
28
Stripped of rhetorical flourishes, the petitioner maintains that the original BMC
proceeding constituted a full trial, resulting in an acquittal; retrial would,
therefore, place him twice in jeopardy for the same offenses. The
Commonwealth resists this appraisal. It joins the SJC in labeling the
proceeding a sham that bore none of the hallmarks of a true acquittal. Retrial
would, therefore, not offend the Double Jeopardy Clause.
29
In resolving this type of dispute, the Supreme Court has implicitly endorsed a
twofold inquiry. See, e.g., Richardson v. United States, 468 U.S. 317, 325, 104
S.Ct. 3081, 82 L.Ed.2d 242 (1984); Lydon, 466 U.S. at 309, 104 S.Ct. 1805.
First, a reviewing court must determine whether jeopardy attached in the
original state court proceeding. If it did, the court must then ask whether the
state court terminated jeopardy in a way that prevents reprosecution. See 15B
Charles A. Wright et al., Federal Practice and Procedure 3919.5, at 637 (2d
ed. 1992 & Supp.2004). Unless both of these queries generate affirmative
answers, the constitutional guarantee against double jeopardy does not bar
reprosecution.
30
Based on the sequence of events, it is at least arguable that the initial inquiry
should be answered in the negative. The Supreme Court has described the
precise moment that jeopardy attaches in a bench trial in various ways.
Compare, e.g., Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43
L.Ed.2d 265 (1975) (focusing on when the court begins to hear evidence), with,
e.g., Crist v. Bretz, 437 U.S. 28, 37 n. 15, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978)
(focusing on when the first witness is sworn). The former phrasing"when the
court begins to hear evidence"is the most frequently invoked. See 15B
Federal Practice and Procedure, supra 3919.6, at 700 (collecting cases); 21
Am.Jur.2d Crim. Law 338 (1998 & Supp.2004) (same). Regardless of
phraseology, this requirement seems to have been met in a technical or
superficial sense here; prior to the entry of judgment, the petitioner's daughter
took the witness stand and testified.
31
Here, however, treating that event as conclusive on the issue elevates form over
substance. This is significant because a long line of cases teaches that jeopardy
connotes risk. See, e.g., Abney v. United States, 431 U.S. 651, 661, 97 S.Ct.
2034, 52 L.Ed.2d 651 (1977); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779,
44 L.Ed.2d 346 (1975); Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26
L.Ed.2d 300 (1970). No less an authority than the Supreme Court itself has
decreed that "[w]ithout risk of a determination of guilt, jeopardy does not
attach, and neither an appeal nor further prosecution constitutes double
jeopardy." Serfass, 420 U.S. at 391-92, 95 S.Ct. 1055; accord United States v.
Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642
(1977) ("The protections afforded by the [Double Jeopardy] Clause are
implicated only when the accused has actually been placed in jeopardy."
(emphasis supplied)).
32
What transpired before the BMC hardly can be said to have imposed any risk of
conviction on the petitioner. The chronology of the proceeding indicates
beyond a shadow of a doubt that the risk of a guilty finding was, as a practical
matter, non-existent. The prosecutor repeatedly refused to move for trial and
apprised the court that she had no evidence with which to mount a prosecution
at that point in time. The judge, for his part, assured the petitioner, in so many
words, that he (the petitioner) faced no risk of conviction. Indeed, after defense
counsel made his initial request for a judgment of acquittal, the judge
conducted an impromptu tutorial on what he thought were the steps necessary
to ensure that the requested disposition would preclude further prosecution.
33
That a witness was sworn and evidence taken during the effort to tailor the
proceeding to the measurements of the double jeopardy bar does not alter the
reality that the petitioner was never in actual danger of conviction. Where the
only evidence received does not subject a defendant to any real risk that he will
be found guilty, courts sometimes have held that jeopardy does not attach. See,
e.g., Aleman v. Hon. Judges of the Circuit Court, 138 F.3d 302, 307-09 (7th
Cir.1998) (concluding that defendant who secured an acquittal by bribing the
trial judge was never in jeopardy "because he was never truly at risk of
conviction"); United States v. Olson, 751 F.2d 1126, 1128 (9th Cir.1985) (per
curiam) (holding that jeopardy did not attach when trial court merely heard
proffers of evidence because the court "did so without subjecting [defendant] to
the risk that he would be found guilty").
34
This result makes eminently good sense. The rule that jeopardy attaches when
the court begins to hear evidence stems partially from the knowledge that, in
almost all cases, the first evidence heard will emanate from the mouth of a
witness tapped by the prosecution. See Newman v. United States, 410 F.2d 259,
260 (D.C.Cir.1969) (per curiam); People v. Deems, 81 Ill.2d 384, 43 Ill.Dec. 8,
410 N.E.2d 8, 11 (Ill.1980). This act is an affirmative step by the government
into the triala step that places the defendant at actual risk of conviction. Once
that step is taken, jeopardy attaches and there is no turning back.
35
Here, the contrast is stark. The only person sworn in the petitioner's case was a
witness whom he selected and the only evidence heard was totally unrelated to
any issue in the case. Consequently, we think it likely that jeopardy never
attached in the BMC proceeding.
36
Having said this much about the attachment of jeopardy, we stop short of
definitively resolving the point. Even were we to assume for argument's sake
that jeopardy did attach, the petitioner would face a second hurdle. On these
facts, we deem that hurdle insurmountable. We explain briefly.
37
"[T]he conclusion that jeopardy has attached begins, rather than ends, the
inquiry as to whether the Double Jeopardy Clause bars retrial." Serfass, 420
U.S. at 390, 95 S.Ct. 1055 (quoting Illinois v. Somerville, 410 U.S. 458, 467, 93
S.Ct. 1066, 35 L.Ed.2d 425 (1973)). To succeed on a double jeopardy
challenge, the defendant also must show that the court in the original
proceeding terminated jeopardy in a way that makes retrial constitutionally
impermissible. See Richardson, 468 U.S. at 325, 104 S.Ct. 3081; Lydon, 466
U.S. at 309, 104 S.Ct. 1805. That requirement is not satisfied here.
38
40
Most judges play by the rules and, fortunately, manipulation of this sort is a
rare occurrence. Cases on point are, therefore, hard to find. We have, however,
located a string of decisions in the Illinois state courts that conclude, on
analogous facts, that such a mislabeled "acquittal" is not an acquittal at all for
double jeopardy purposes. See, e.g., People v. Rudi, 103 Ill.2d 216, 82 Ill.Dec.
936, 469 N.E.2d 580, 583-84 (1984) (discerning no double jeopardy bar when
the prosecution had refused to present evidence after its request for a
continuance had been denied, the defendant was sworn, and the judge entered a
finding of not guilty without taking any testimony); Deems, 43 Ill.Dec. 8, 410
N.E.2d at 10-11 (similar); People v. Verstat, 112 Ill.App.3d 90, 67 Ill.Dec. 691,
444 N.E.2d 1374, 1380 (1983) (deciding that acquittals amounted to appealable
dismissals when the trial judge denied the prosecution's requests for
continuance, swore in the defendants, asked only their names and addresses,
and found them not guilty); People v. Edwards, 97 Ill.App.3d 407, 52 Ill.Dec.
908, 422 N.E.2d 1117, 1119-20 (1981) (similar).
41
In an effort to blunt the force of this reasoning, the petitioner directs our
attention to the Fourth Circuit's decision in Goolsby v. Hutto, 691 F.2d 199 (4th
Cir. 1982). While that panel did find a double jeopardy violation on similar
facts, see id. at 202, the decision makes no attempt to determine "whether the
ruling of the judge, whatever its label, actually represent[ed] a resolution,
correct or not, of some or all of the factual elements of the offense charged."
Martin Linen Supply, 430 U.S. at 571, 97 S.Ct. 1349. Without any such inquiry,
we do not find Goolsby persuasive.7
42
The petitioner also seeks shelter under the umbrella of Fong Foo v. U.S.
Standard Coil Prods. Co., 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)
(per curiam). In that case, the Justices ruled that directed verdicts of acquittal
entered by a trial judge after seven days of testimony were final and, even
though those acquittals were "based upon an egregiously erroneous
foundation," could not be reviewed without putting the defendants twice in
jeopardy. Id. at 143, 82 S.Ct. 671. The petitioner asseverates that, on the logic
of Fong Foo, we should refrain from punishing him for any errors committed
by the trial judge in entering the judgment of acquittal. This asseveration
misperceives the nature of the problem in this case.
43
Fong Foo is merely one iteration of a well-established rule. The law is pellucid
that "when a defendant has been acquitted at trial he may not be retried on the
same offense, even if the legal rulings underlying the acquittal were erroneous."
Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 57 L.Ed.2d 43
(1978). Here, however, our determination that the BMC proceeding did not end
in an acquittal for double jeopardy purposes is not premised on a finding that
the trial judge erred in his assessment of either the evidence adduced at trial or
the law applicable to that evidence. Rather, we conclude that the so-called
acquittal entered by the trial judge was not an acquittal at all because it did not
actually represent a resolution correct or incorrectof some or all of the
factual elements of the offenses charged. See Martin Linen Supply, 430 U.S. at
571, 97 S.Ct. 1349.
44
The sockdolager is that the interests protected by the Double Jeopardy Clause
would not be advanced by barring further prosecution here. The core purpose
of the Clause is to guard against a tyrannical state run amok. See Scott, 437 U.S.
at 96, 98 S.Ct. 2187; Green, 355 U.S. at 187-88, 78 S.Ct. 221. Far from being
an instance of despotic state conduct, this is a tale of human frailty. The
protagonists include a prosecutor who clumsily tried to throw in the towel
before jeopardy attached; a skillful defense lawyer who spied an opportunity to
manufacture an artificial acquittal; and a rogue judge who attempted to reshape
the reality of events. A ruling in the petitioner's favor would require us to pay
obeisance to the very type of rigid, mechanical rule that the Supreme Court
consistently has disparaged in its double jeopardy jurisprudence. See, e.g.,
Serfass, 420 U.S. at 390, 95 S.Ct. 1055; Somerville, 410 U.S. at 467, 93 S.Ct.
1066. The public has an important interest "in fair trials designed to end in just
judgments." United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d
543 (1971) (plurality op.) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct.
834, 93 L.Ed. 974 (1949)). Treating the ersatz acquittal here as an acquittal in
fact would offend that interest. We therefore hold that the Double Jeopardy
Clause does not bar the petitioner's retrial on the existing complaints.8
45
A coda is in order. The petitioner maintains that, at the point he waived his
right to trial by jury, he acquired a "right to have his trial completed by a
particular tribunal." Wade, 336 U.S. at 689, 69 S.Ct. 834. In his view, it follows
that, if his case is to be retried at all, it must be assigned to the same judge.
46
47
48
In all events, the right to have one's factual guilt or innocence adjudged by a
particular factfinder is not absolute, and it "must in some instances be
subordinated to the public's interest in fair trials designed to end in just
judgments." Wade, 336 U.S. at 689, 69 S.Ct. 834. The petitioner here is no
more entitled to be retried by the same judge than a defendant would be entitled
50
Affirmed.
Notes:
*
See Mass. R.Crim. P. 15(a)(2), (b)(1) (providing an aggrieved party ten days
within which to file for leave to appeal a suppression order); Commonwealth v.
Anderson, 401 Mass. 133, 514 N.E.2d 1094, 1095 (1987) (explaining that the
Commonwealth may take advantage of this rule if a motion to exclude all or
most of its evidence is allowed); see also Mass. R.Crim. P. 15(e) ("If the trial
court issues an order which is subject to the interlocutory procedures herein, the
trial of the case shall be stayed and the defendant shall not be placed in
jeopardy until interlocutory review has been waived or the period specified in
[the rule] for instituting interlocutory procedures has expired.").
The petitioner tells us that, on March 30, 2004, the BMC stayed all proceedings
pending the resolution of this appealSee Petitioner's Reply Br. at 2-3. That stay
appears to moot any further federal question as to pretrial proceedings in the
BMC.
We note that, in this case, nothing turns on this determination: we would reach
the same result here even if we were to accord deference to the SJC's resolution
of the federal constitutional issue
We do not think that this overstates the case. In objecting to the calling of a
witness to the stand, the prosecutor cautioned: "It's not a trial at this point, Your
Honor." The judge responded: "Yes, it is because I'm saying it is."
In so holding, we note, but do not resolve, the petitioner's argument that the
Commonwealth should be collaterally estopped from relitigating certain issues
already decided during the probation surrender hearing. That argument must be
adjudicated, in the first instance, in the state court proceedings. It is not
properly before us on this appeal