Where, prior to any declaration of guilt or innocence, the
District Court dismissed an information against petitioner on the
ground that it failed to state an offense, the Government's appeal
from the dismissal was barred by the Double Jeopardy Clause.
Certiorari granted; 548 F.2d 822, vacated and remanded.
PER CURIAM
In an information filed in the United States District Court for
the District of Montana, petitioner was charged with knowingly
fishing on a portion of the Big Horn River in Montana reserved for
use by the Crow Indians, in violation of 18 U.S.C. § 1165. The case
was submitted to the District Court on an agreed statement of
facts, which showed that petitioner had cast his lure into the
river while standing on land owned by the State of Montana within
the exterior boundaries of the Crow Reservation. After considering
the stipulated facts and reviewing the applicable treaties, the
court dismissed the information for failure to state an offense.
395 F.
Supp. 205 (1975).
On the Government's appeal, the Court of Appeals for the Ninth
Circuit reversed. 548 F.2d 822 (1976). The court held that the
appeal was permissible under 18 U.S.C. § 3731 and the Double
Jeopardy Clause because, as in
United States v. Wilson,
420 U. S. 332
(1975), no further factual proceedings would be required in the
District Court in the event that its legal conclusions were found
to be erroneous:
"Here, as in
Wilson, it is easy to separate factual
resolutions from determinations of law. No additional facts must be
found to determine whether the stipulation supports the conviction
of the defendant. The only determination to be made is a legal
one."
548 F.2d at 827.
Page 433 U. S. 677
On the merits, the court viewed the pertinent treaties
differently from the District Court, and held that petitioner had
violated 18 U.S.C. § 1165 "by willfully and knowingly fishing
without lawful authority or permission of the tribe." 548 F.2d at
835. The court directed entry of a judgment of conviction.
We think that the Court of Appeals was without jurisdiction to
entertain the appeal. When the District Court dismissed the
information, jeopardy had attached,
see Serfass v. United
States, 420 U. S. 377,
420 U. S. 388
(1975), but no formal finding of guilt or innocence had been
entered,
see United States v. Jenkins, 420 U.
S. 358 (1975);
Lee v. United States,
432 U. S. 23,
432 U. S. 28 n.
4, 29 n. 7 (1977). In these circumstances, the holding of
United States v. Wilson is inapposite. A successful
Government appeal "would not justify a reversal with instructions
to reinstate the general finding of guilt: there was no such
finding, in form or substance, to reinstate."
United States v.
Jenkins, supra at
420 U. S. 368.
Absent a plea of guilty or
nolo contendere, see
Fed.Rule Crim.Proc. 11, a verdict or general finding of guilt by
the trial court is a necessary predicate to conviction.
See Rule 23(c). Because the dismissal was granted prior to
any declaration of guilt or innocence, "on the ground, correct or
not, that the defendant simply cannot be convicted of the offense
charged,"
Lee, supra at
432 U. S. 30, we
hold that the Government's appeal was barred by the Double Jeopardy
Clause.
We grant the petition for certiorari, vacate the judgment of the
Court of Appeals, and remand to that court with directions that the
appeal be dismissed.
It is so ordered.
MR. JUSTICE STEVENS would grant certiorari and set the case for
oral argument.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
I dissent from the summary disposition of this case for two
reasons. The first is that the factual assumption, made
Page 433 U. S. 678
both by the Court of Appeals for the Ninth Circuit and by this
Court, that petitioner and respondent had agreed to submit the
issue of guilt to the District Court on the "agreed statement of
facts" is by no means clear from Judge Battin's principal opinion
in this case,
395 F.
Supp. 205. My second reason for disagreeing with summary
disposition is that this Court has never passed on any claim of
double jeopardy where the issues were submitted on an agreed
statement of facts, rather than to a jury for its verdict or to the
court for a finding of guilt or innocence after hearing witnesses.
While I am not prepared to say that the Court's decision on the
legal issue involved here is wrong, I am not sufficiently convinced
that it is right so as to justify summary disposition without
either argument or briefing on the merits.
The Court states that "[t]he case was submitted to the District
Court on an agreed statement of facts," and,
"[a]fter considering the stipulated facts and reviewing the
applicable treaties, the court dismissed the information for
failure to state an offense."
The Court of Appeals for the Ninth Circuit put the matter much
the same way. Implicit in this statement is that the submission
involved a waiver of petitioner's right to jury trial and both his
and the Government's consent that the District Court decide the
issue of guilt or innocence. The District Court's opinion in the
case, however, is by no means clear on these points. That court put
the matter this way:
"On June 14, 1974, the defendant filed a motion to dismiss said
information. The parties submitted extensive and well considered
memoranda of law. On September 4, 1974, an order was filed wherein
I denied the motion to dismiss and noted that the information was
sufficient on its face. An Agreed Statement of Facts and additional
memoranda of law have been filed. Additionally, counsel for the
Crow Tribe of Indians, and the State of Montana, Department of Fish
and Game, have appeared herein as
amici curiae. "
Page 433 U. S. 679
"After a thorough review of the file, I am compelled to
reconsider my order dated September 4, 1974, wherein I denied
defendant's motion to dismiss. I conclude that the information is
not sufficient on its face for several reasons."
Id. at 207.
While this statement is by no means inconsistent with an
agreement by the parties to submit the issue of guilt or innocence
to the District Court, neither is it inconsistent with an agreement
by the parties to submit on an agreed statement of facts a motion
for reconsideration of the motion to dismiss the information, which
the District Court had previously denied. This factual uncertainty,
unless somehow clarified, would lead me to deny certiorari in this
case in order that this Court not render an advisory opinion on
what may be an important double jeopardy question.
The Court of Appeals, proceeding on the hypothesis that the case
had been submitted to the District Court for a determination of
guilt or innocence, as well as the sufficiency of the information,
decided that jeopardy had attached. It therefore proceeded to
inquire whether a reversal of the District Court's dismissal of the
information would require further factual determinations, and
therefore constitute double jeopardy under
United States v.
Jenkins, 420 U. S. 358
(1975), or would instead be governed by
United States v.
Wilson, 420 U. S. 332
(1975).
I agree with the Court that the Court of Appeals' alignment of
this case with
Wilson, rather than with
Jenkins,
was conclusory, and gave too little attention to the ways in which
this case differs from
Wilson. But I do not think the
opposite result is so obvious as to warrant summary disposition. In
deciding the question of law which this case poses, I do not think
we can ignore three double jeopardy decisions which have intervened
since the
Jenkins-Wilson-Serfass (
Serfass v. United
States, 420 U. S. 377
(1975)) trilogy of two years ago.
United States v. Dinitz,
424 U. S. 600
(1976),
Page 433 U. S. 680
qualified the "manifest necessity" requirement of
United States v.
Perez, 9 Wheat. 579 (1824), where a mistrial was
granted at the request of the defendant. Its stress on the absence
of prosecutorial overreaching or misconduct, while in no way
inconsistent with that trilogy, nonetheless emphasized more of a
balancing and fairness test than the sort of "bright line"
distinction set forth in
Wilson and
Jenkins.
United States v. Martin Linen Supply Co., 430 U.
S. 564 (1977), and
Lee v. United States,
432 U. S. 23
(1977), likewise read more in terms of balancing and of "double
jeopardy values" than in terms of the strict
Wilson-Jenkins distinction.
If there has been some shift in emphasis in the Court's cases
this Term, it seems to me that the submission of the issue of guilt
or innocence on an agreed statement of facts not only factually
distinguishes this case from
Jenkins, but is a factor to
be weighed in any balancing test against a finding of double
jeopardy. We have held that the Double Jeopardy Clause bars
repeated prosecutions not only to reduce the possibility that an
innocent man will finally be convicted, but to avoid subjecting
defendants "to embarrassment, expense and ordeal and compelling
[them] to live in a continuing state of anxiety and insecurity. . .
."
Green v. United States, 355 U.
S. 184,
355 U. S.
187-188 (1957).
See United States v. Jorn,
400 U. S. 470,
400 U. S. 479
(1971). Since, if the Court's factual hypothesis is right, the
facts of this case are not in issue, not only is some of the
embarrassment and ordeal absent, but the expense that would
normally be involved in a full-scale retrial with its calling of
witnesses for both sides is likewise avoided.
The factual uncertainties in this case are not entirely
unrelated to the double jeopardy questions involved. Because we
have never decided a case involving double jeopardy claims where
the issue of guilt or innocence was submitted to the court on an
agreed statement of facts without the calling of any witnesses, we
have never had occasion to pass on
Page 433 U. S. 681
when jeopardy attaches in such a situation. Assuming that the
factual uncertainties in the procedural history of the case can be
clarified, and that the issue of guilt or innocence was submitted
to the trial judge, I do not believe this case is controlled by
Jenkins. The double jeopardy issues which it raises are
not as straightforward as suggested in the Court's summary
disposition. If the Court feels this case should be decided on the
merits, I would therefore grant certiorari and have it briefed and
argued.
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