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-
Page 422 U.S.
1032 , 1033
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
Page 422 U.S.
1032 , 1034
constitute 'compelling reasons' for the federal prosecution.' He
notes that the State did not indict petitioner for possession of a
sawed-off shotgun, but for carrying a concealed weapon, as to which
the length of the shotgun was irrelevant, and he speculates that,
since there was ample evidence of concealment, the state jury
likely acquitted petitioner because of insufficient evidence of
possession. In light of the fact that possession is an element of
the federal offense proscribed by 5861(d), the Solicitor General
reasons that the policies underlying the Department's internal
directive 'are directly involved.'
Since this is the third occasion in recent months upon which I
have been unable to agree with the Court's acquiescence in a
request by the Government for aid in implementing the policy of the
Department of Justice, I deem it appropriate to state my views. See
also Hayles v. United States, 419 U.S. 892 (1974); Ackerson v.
United States, 419 U.S. 1099 (1975).
I
The policy upon which the Government relies was first
promulgated shortly after our decisions in Abbate and Bartkus,
supra, in a memorandum from Attorney General Rogers to United
States Attorneys. See Petite v. United States,
361 U.S.
529, 531 (1960). Noting the duty of federal prosecutors 'to
observe not only the ruling[s] of the [C]ourt but the spirit of the
rulings as well,' and advocating continuing efforts 'to cooperate
with state and local authorities to the end that the trial occur in
the jurisdiction, whether it be state or Federal, where the public
interest is best served,' the Attorney General concluded that if
'this be determined accurately, and is followed by efficient and
intelligent cooperation of state and Federal law-enforcement
authorities, then considera-
Page 422 U.S.
1032 , 1035
tion of a second prosecution very seldom should arise.' He
directed that 'no Federal case should be tried when there has
already been a state prosecution for substantially the same act or
acts without . . . [the approval of the appropriate Assistant
Attorney General after consultation with the Attorney General].'
N.Y. Times, April 6, 1959, p. 19, col. 2.
I question whether the action taken by the Court in Hayles and
Ackerson, supra, and the action taken today represent 'efficient
and intelligent cooperation' among federal law-enforcement
authorities, let alone between state and federal authorities. In
this case, for instance, we are asked to intervene in order that
the Government may move for the dismissal of charges lawfully
brought by it in the first instance, tried before a jury in the
District Court, and the conviction upon which was affirmed by an
opinion of a panel of the Court of Appeals. It requires more than
the desire of the Department of Justice to keep its house in order
to persuade me that the Court should have a hand in nullifying such
a substantial commitment of federal prosecutorial and judicial
resources. Indeed, since it appears that the trial and conviction
of petitioner were without reversible defect, constitutional or
otherwise, and that the putative hardship which the policy was
designed to prevent has already been suffered and cannot be
remedied, I believe that the Court's action today ill serves the
'interest of justice,' Petite v. United States, 361 U.S., at 531,
if that phrase be interpreted to comprehend society's interest in
the efficient use of its judicial resources to convict the guilty.
Cf. Orlando v. United States,
387 F.2d
348, 349 (CA9 1967) (Pope, J., dissenting). The only purpose
served by the Court's action is to aid the Government in
emphasizing to its staff lawyers the need for a con-
Page 422 U.S.
1032 , 1036
sistent internal administrative policy. But with all deference I
suggest that is not a judicial function and surely not the function
of this Court.
Neither the rulings of this Court, nor their 'spirit,' require
that we sacrifice the careful work of the District Court and the
Court of Appeals-to say nothing of the public funds which that work
required-to the vagaries of administrative interpretation. If the
Government attorneys who initiated this prosecution did so without
consulting their superiors, that is an internal matter within the
Department of Justice to be dealt with directly by that department,
but it should not bear on a judgment lawfully obtained. Corrective
action more appropriately lies through prospective enforcement of
departmental policies. Cf. Sullivan v. United States,
348 U.S.
170, 172-174 (1954); United States v. Hutul,
416 F.2d
607, 626-627 (CA7 1969), cert. denied, 396, U.S. 1012 (1970).
The resources of law-enforcement agencies and courts, once
committed to a rational course of action culminating in a valid
judgment, should not be dissipated without better reason.
II
Quite apart from my general disagreement with the use of this
Court to implement executive policy decisions, it is not at all
clear to me that any federal court, and particularly this Court,
should automatically conform its judgments to results allegedly
dictated by a policy, however wise, which the judicial branch had
no part in formulating. If these doubts be well founded,
independent judicial appraisal is required a fortiori where, as
here, the policy purportedly derives from the rulings of this Court
and their 'spirit.' The federal courts have no role in
prosecutorial decisions, but, once the judicial power has been
invoked,
Page 422 U.S.
1032 , 1037
it is decidedly the role of federal courts to interpret the
decisions of this Court and to assess the validity of judgments
duly entered.
Judicial involvement in an independent appraisal of the Justice
Department's application of its internal policy in this instance,
however, could give rise to a form of surveillance in other
instances. Surely it is not our function either to approve or
disapprove internal prosecutorial policies and even less so their
implementation. But the course on which the Government has
persuaded this Court to embark requires us to do just that unless
we are blindly to accept the Government's belated analysis. Cf.
United States v. Williams,
431 F.2d
1168, 1175 (CA5 1970), rev'd en banc on other grounds,
447 F.2d
1285 (1971), cert. denied, 405 U.S. 954, 92 S. Ct. 1168
(1972).
III
The present case vividly demonstrates the difficulties which
confront judges who would undertake to do more than rubber stamp
the policy decisions of the Department of Justice. The policy
relied on, which appears to have been cast in terms to provide
great flexibility and discretion, inevitably involves
considerations and nuances inappropriate for judicial evaluation.
Moreover, such evaluation is impossible without access to data
regarding other applications of the policy in the 16 years since it
was publicly announced. Finally, a comparison of the 1959 directive
with the Government's statement of the policy in this case reveals
variations which are not explained and of course need not be
explained so long as application of the policy remains a matter
within the Department of Justice. The 1959 memorandum referred to
'a state prosecution for substantially the same act or acts.'
However, in speculating as to the basis for the verdict acquitting
petitioner in state court, the Govern-
Page 422 U.S.
1032 , 1038
ment seems to suggest that the relevant inquiry under the policy
is not whether the charges in federal court are based on the 'same
act or acts' as those which founded the state prosecution, but
rather whether the state and federal offenses share common elements
or require the same evidence for conviction. Cf. Abbate v. United
States, 359 U.S., at 196-197 (opinion of Brennan, J.).
For present purposes, it is unnecessary to pursue these
ambiguities. The factors I have discussed suggest the
incompatibility of the action the Court takes today with the goal
of 'efficient and intelligent cooperation' which animated the
Attorney General's 1959 memorandum, and with the 'interest of
justice,' broadly conceived. The Department's 1959 policy is in no
way questioned. But assuming as I do that Abbate and Bartkus remain
good law, there is no reason for this Court to lend its aid to the
implementation of an internal prosecutorial policy applicable only
by speculation on our part, and there are abundant reasons for not
doing so.
Mr. Justice DOUGLAS took no part in the consideration or
decision of this motion and petition.
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