United States v. Vernon O. Holland and James Davis Drane Mauldin, JR., 956 F.2d 990, 10th Cir. (1992)
United States v. Vernon O. Holland and James Davis Drane Mauldin, JR., 956 F.2d 990, 10th Cir. (1992)
2d 990
Kenneth P. Snoke, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with
him on the briefs), Tulsa, Okl., for plaintiff-appellee.
William A. Cohan, Cohan & Greene, Encinitas, Cal. (Lowell H. Becraft,
Jr., Huntsville, Ala., and James D. Williams, Tulsa, Okl., with him on the
briefs) for defendants-appellants.
Before HOLLOWAY, MOORE and BRORBY, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
This interlocutory appeal asks whether Grady v. Corbin, 495 U.S. 508, 110
S.Ct. 2084, 109 L.Ed.2d 548 (1990), bars a second prosecution for certain
violations of the Internal Revenue Code after defendants' first trial on similar
charges ended in a mistrial. Vernon O. Holland and James Davis Drane
Mauldin, Jr., hinge their double jeopardy claim to the government's dismissal,
with prejudice, of a charge of conspiracy to defraud under 18 U.S.C. 371
shortly before retrial. Defendants then contended jeopardy necessarily tainted
the remaining substantive counts previously charged as overt acts and
prohibited their separate reprosecution. Holding Grady was distinguishable, the
district court denied defendants' motions to dismiss but held Abney v. United
States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), permitted this
appeal. Because defendants' double jeopardy claim lacks the necessary
predicate of termination of original jeopardy on the substantive counts,
Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242
(1984), we affirm.
I.
2
After a three-week trial, the jury was unable to reach a verdict on any of the
five counts. The district court stated it granted the mistrial because of "
'manifest necessity' " and because a mistrial was "the only means by which the
'ends of public justice' could be fulfilled," citing United States v. Perez, 9
Wheat. 579, 6 L.Ed. 165 (1824). The court stated it would set the matter for
retrial unless the government did not plan to retry the case.2
Before the district court, defendants contended each remaining count only
narrowed the focus on an alleged act, for example, failure to report income,
"but the greater includes the lesser, and the greater is alleged as an overt act in
furtherance of the conspiracy, namely that he failed to file a 1040 at all so we're
talking about the same conduct." R. IX, 10. Under Grady, defendants urged, the
same conduct the government dismissed with prejudice would then be used to
reprosecute them on the remaining charges. This argument is elaborated on
appeal with reference to the jury instructions given in the first trial4 and
reliance on post-Grady cases, United States v. Felix, 926 F.2d 1522 (10th Cir.),
cert. granted, --- U.S. ----, 112 S.Ct. 47, 116 L.Ed.2d 25 (1991); United States v.
Calderone, 917 F.2d 717 (2d Cir.1990); and United States v. Gambino, 920
F.2d 1108 (2d Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 54, 116 L.Ed.2d
31 (1991).
III.
7
The Supreme Court furnishes our starting point in holding "the failure of the
jury to reach a verdict is not an event which terminates jeopardy." Id. at 325,
104 S.Ct. at 3086. The Court reasoned:
Id.
10
Therefore, the government could properly reindict and retry defendants on the
same charges without offending principles of double jeopardy because the
required event, such as an acquittal, did not occur to terminate the original
jeopardy on the counts remaining for retrial. Reindictment, in the
circumstances of this case, is equivalent to retrial under the original indictment.
11
12
Not only is this contention supported by a false assumption about the effect of
the dismissal with prejudice in this case, but also it overlooks a fundamental
principle of conspiracy jurisprudence. First, we have no record other than the
government's representations at oral argument about its reasons for dismissing
Count I.5 In fact, the district court did not inquire before granting the Rule 48(a)
motion about "the prosecutor's reasons for dismissing the indictment and the
factual basis for the prosecutor's decision." United States v. Strayer, 846 F.2d
1262, 1265 (10th Cir.1988) (citing United States v. Derr, 726 F.2d 617, 619
(10th Cir.1984)). By agreeing to dismiss Count I with prejudice, the
government inadvertently achieved the remedial purposes of Rule 48(a).
However, to construe this result as the equivalent of an acquittal or an
adjudication on the merits of all counts simply because Count I incorporated
the other four counts as overt acts or means or methods is not the necessary
consequence of the dismissal. Nevertheless, we hold jeopardy attaches to the
dismissal with prejudice of Count I. Derr, 726 F.2d at 619.
13
This conclusion, however, does not mandate dismissal of the remaining counts
in the superseding indictment. Although defendants were already "prosecuted"
for the substantive charges reflected in the superseding indictment, those counts
were never resolved for jeopardy purposes because the court declared a
mistrial. Nor are these counts inextricably bound to the conspiracy charge.
14
16 Double Jeopardy Clause] protects against a second prosecution for the same
'[The
offense after acquittal. It protects against a second prosecution for the same offense
after conviction. And it protects against multiple punishments for the same offense.'
17
Grady, 110 S.Ct. at 2090, quoting North Carolina v. Pearce, 395 U.S. 711, 717,
89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Because the superseding
indictment in this case does not amount to a successive prosecution, and
defendants can be separately charged for the remaining offenses, this case falls
outside of Grady's domain. Defendants' double jeopardy claim is therefore
unfounded, and we AFFIRM the district court's denial of the motion.
The court also granted the government's motion to amend Holland II to delete
references in Counts II, IV, and V to 18 U.S.C. 371 as well as correcting the
reference in Holland II from 31 U.S.C. 5322(b) to 31 U.S.C. 5322(a) in
Pinkerton, in fact, affirmed the vicarious liability of one coconspirator for the
substantive acts committed by his brother