After petitioner was convicted of state offenses arising out of
a robbery, he was tried and convicted of a federal offense arising
out of the same robbery, in violation of the Government's policy
against multiple prosecutions for the same act (the so-called
Petite policy based on
Petite v. United States,
361 U. S. 529).
Government trial counsel had represented to the District Court that
the Government had decided vigorously to prosecute the federal
charges in spite of the prior state prosecution, when in fact the
federal prosecution had not been authorized as required by the
Petite policy. Thereafter, notwithstanding the
Government's subsequent acknowledgement that the
Petite
policy had been violated, the District Court denied the
Government's motion to dismiss the indictment pursuant to Fed.Rule
Crim.Proc. 48(a) (which provides that the Government may "by leave
of court" file a dismissal of an indictment), on the ground,
inter alia, that the prosecutor had acted in bad faith by
representing to the court that he had been properly instructed to
maintain the prosecution despite the prior state convictions. The
Court of Appeals affirmed.
Held: The District Court abused its discretion in
denying the Government's motion to dismiss on the ground that the
violation of the
Petite policy resulted from prosecutorial
misconduct, rather than inadvertence. The salient issue is not
whether the decision to prosecute was made in bad faith, but rather
whether the Government's later efforts to terminate the prosecution
were similarly tainted with impropriety. It does not appear that
there was any bad faith on the Government's part at the time it
sought leave to dismiss the indictment, but rather that the
decision to terminate the prosecution, based as it was on the
Petite policy, was motivated by considerations which
cannot fairly be characterized as "clearly contrary to manifest
public interest." The overriding purpose of that policy is to
protect the individual from any unfairness associated with needless
multiple prosecutions, and accordingly the defendant should receive
the benefit of the policy whenever its application is urged by the
Government.
Certiorari granted; 544 F.2d 203, vacated and remanded.
Page 434 U. S. 23
PER CURIAM.
Petitioner's participation in a plot to rob safe-deposit boxes
of the Doral Beach Hotel in Miami Beach, Fla., violated the laws of
both the State of Florida and the United States. He has been tried,
convicted, and sentenced to imprisonment by both sovereigns. He
claims that his federal conviction was obtained in violation of
established federal policy against multiple prosecutions for the
same offense and, for that reason, should be set aside. The
Solicitor General agrees and submits that the Court should
summarily "vacate the judgment of the court of appeals and remand
the case to the district court with instructions to dismiss the
indictment." [
Footnote 1] Based
on our independent evaluation of the unusual circumstances
disclosed by this record, we conclude that such summary disposition
is appropriate.
In February, 1973, petitioner was charged with state offenses
arising out of the Doral Beach Hotel robbery. [
Footnote 2] In March, 1973, an indictment was
returned in the United States District Court for the Southern
District of Florida, charging him with conspiracy to affect
interstate commerce by robbery in violation of the Hobbs Act, 18
U.S.C. § 1951. [
Footnote
3] In May, petitioner was convicted of the state charges in the
Dade County Circuit Court and sentenced to six years' imprisonment.
[
Footnote 4] A subsequent
Page 434 U. S. 24
federal trial ended in a mistrial. Thereafter, the District
Court questioned Government counsel regarding the need for another
trial in view of petitioner's state convictions. Government counsel
responded that he had been instructed by his superiors at the
Department of Justice to pursue the federal prosecution vigorously
because of their concern that the state convictions might be
reversed on appeal. After a second jury trial, petitioner was
convicted on the Hobbs Act charge; the District Court imposed a
12-year sentence to run concurrently with the state sentence.
On appeal to the United States Court of Appeals for the Fifth
Circuit, petitioner argued that his conviction had been obtained in
violation of a longstanding federal policy against multiple
prosecutions for the same act.
See Petite v. United
States, 361 U. S. 529,
361 U. S. 530
(1960). [
Footnote 5] The
Government acknowledged that its
Petite policy had been
violated, and moved the
Page 434 U. S. 25
Court of Appeals to remand the case to the District Court to
permit it to seek a dismissal of the indictment. The Court of
Appeals granted the motion to remand.
The Government then filed a motion to dismiss the indictment
pursuant to Fed.Rule Crim.Proc. 48(a). [
Footnote 6] Noting that the Rule requires "leave of
court," the District Court denied the motion because (1) the motion
was not made until after the trial had been completed; and (2) the
prosecutor had acted in bad faith by representing to the District
Court that he had been properly instructed to maintain the
prosecution notwithstanding the fact that petitioner had already
been convicted of a state offense. [
Footnote 7] The Government, joined by petitioner and his
codefendant Washington, appealed from the denial of the motion to
dismiss.
A divided panel of the Fifth Circuit affirmed,
In re
Washington, 531 F.2d 1297 (1976). The Court of Appeals then
granted a petition for rehearing en banc and, by a vote of 7 to 6,
reaffirmed the panel's holding.
In re Washington, 544 F.2d
203 (1976). All members of the court agreed that the Government's
motion to dismiss was timely, [
Footnote 8] but they disagreed
Page 434 U. S. 26
on the question whether the prosecutor's bad faith justified the
District Court's refusal to set aside defendant's conviction.
The majority was of the view that the Government's unclean hands
gave the District Court adequate reason to deny it relief,
[
Footnote 9] and that the
defendant had no right to have an otherwise valid conviction
dismissed simply because the Justice Department violated its own
procedures. [
Footnote 10]
The dissenters were of the view that the District Court's inquiry
should have been limited to the propriety of the Government's
motivation in seeking a dismissal; [
Footnote 11] under their view, the earlier misconduct
Page 434 U. S. 27
was irrelevant, and could not justify the judicial imposition of
multiple convictions on the defendant. [
Footnote 12]
The policy described in the
Petite case limits the
federal prosecutor in the exercise of his discretion to initiate,
or to withhold, prosecution for federal crimes. The policy is
useful to the efficient management of limited Executive resources
and encourages local responsibility in law enforcement. [
Footnote 13] But it also serves the
more important purpose of protecting the citizen from any
unfairness that is associated with successive prosecutions based on
the same conduct.
In this respect, the policy represents the Government's response
to repeated expressions of concern by Members of this Court. In
United States v. Lanza, 260 U. S. 377,
260 U. S. 383
(1922), for example, Mr. Chief Justice Taft quoted the following
passage from
Fox v. Ohio, 5
How. 410,
46 U. S. 435
(1847):
"It is almost certain, that, in the benignant spirit in which
the institutions both of the state and federal systems
Page 434 U. S. 28
are administered, an offender who should have suffered the
penalties denounced by the one would not be subjected a second time
to punishment by the other for acts essentially the same, unless
indeed this might occur in instances of peculiar enormity, or where
the public safety demanded extraordinary rigor."
What has come to be known as the
Petite policy was
formulated by the Justice Department in direct response to this
Court's opinions in
Bartkus v. Illinois, 359 U.
S. 121 (1959), and
Abbate v. United States,
359 U. S. 187
(1959), holding that the Constitution does not deny the State and
Federal Governments the power to prosecute for the same act. As
these decisions recognize, in our federal system the State and
Federal Governments have legitimate, but not necessarily identical,
interests in the prosecution of a person for acts made criminal
under the laws of both. These cases reflect the concern that, if
the Double Jeopardy Clause were applied when the sovereign with the
greater interest is not the first to proceed, the administration of
criminal justice may suffer.
Bartkus v. Illinois, supra at
359 U. S. 137;
Abbate v. United States, supra at
359 U. S. 195.
Yet mindful of the potential for abuse in a rule permitting
duplicate prosecutions, the Court noted that "[t]he greatest
self-restraint is necessary when that federal system yields results
with which a court is in little sympathy."
Bartkus v. Illinois,
supra at
359 U. S.
138.
In response to the Court's continuing sensitivity to the
fairness implications of the multiple prosecution power, the
Justice Department adopted the policy of refusing to bring a
federal prosecution following a state prosecution except when
necessary to advance compelling interests of federal law
enforcement. [
Footnote 14]
The
Petite policy was designed to limit the
Page 434 U. S. 29
exercise of the power to bring successive prosecutions for the
same offense to situations comporting with the rationale for the
existence of that power. Although not constitutionally mandated,
this Executive policy serves to protect interests which, but for
the "dual sovereignty" principle inherent in our federal system,
would be embraced by the Double Jeopardy Clause. In light of the
parallel purposes of the Government's
Petite policy and
the fundamental constitutional guarantee against double jeopardy,
the federal courts should be receptive, not circumspect, when the
Government seeks leave to implement that policy.
Here, the Government filed a motion under Fed.Rule Crim.Proc.
48(a) seeking "leave of court" to dismiss the federal charges
against petitioner. Under the standard applied by the Court of
Appeals, the District Court was empowered to withhold leave if the
Government's decision to terminate this prosecution clearly
disserved the public interest.
United States v. Cowan, 524
F.2d 504, 513 (CA5 1975). [
Footnote 15] Pursuant
Page 434 U. S. 30
to the instructions of a superior at the Justice Department,
Government trial counsel represented to the District Court that the
United States had decided to vigorously prosecute the federal
charges against petitioner in spite of the prior state prosecution.
In fact, however, the federal prosecution had not been authorized
as required by the Government's
Petite policy. The Court
of Appeals considered the prosecutor's representations incompatible
with the public interest in preserving the integrity of the courts.
The salient issue, however, is not whether the decision to maintain
the federal prosecution was made in bad faith, but rather whether
the Government's later efforts to terminate the prosecution were
similarly tainted with impropriety. Our examination of the record
has not disclosed (and we will not presume) bad faith on the part
of the Government at the time it sought leave to dismiss the
indictment against petitioner. The decision to terminate this
prosecution, based as it was on the
Petite policy, was
motivated by considerations which cannot fairly be characterized as
"clearly contrary to manifest public interest." 524 F.2d at 513.
[
Footnote 16]
Page 434 U. S. 31
The overriding purpose of the
Petite policy is to
protect the individual from any unfairness associated with needless
multiple prosecutions. The defendant, therefore, should receive the
benefit of the policy whenever its application is urged by the
Government. [
Footnote 17]
Without derogating from the concern expressed by the Court of
Appeals regarding the actions of certain Government officials at an
earlier stage in this prosecution, we agree with the Solicitor
General that
"[n]o action by the Department or the Court can now replace the
waste of judicial and prosecutorial resources expended in obtaining
petitioner's conviction . . . , [and] no societal interest would be
vindicated by punishing further a defendant who has already been
convicted and has received a substantial sentence in state court
and who, the Department has determined,
Page 434 U. S. 32
should not have been prosecuted by the federal government."
It was, therefore, an abuse of the discretion of the District
Court to refuse to grant the Government's motion on the ground that
the violation of the
Petite policy in this case resulted
from prosecutorial misconduct, rather than inadvertence. The motion
for leave to proceed
in forma pauperis and the petition
for writ of certiorari are granted. The judgment is vacated, and
the case is remanded to the District Court for the purpose of
dismissing the indictment.
It is so ordered.
MR. CHIEF JUSTICE BURGER, dissents.
[
Footnote 1]
Memorandum for United States 9.
[
Footnote 2]
The state offenses were conspiracy to commit robbery, conspiracy
to commit grand larceny, and carrying a concealed weapon.
[
Footnote 3]
Section 1951 provides in part:
"(a) Whoever in any way or degree . . . affects commerce . . .
by robbery . . . or conspires so to do . . . shall be fined not
more than 10,000 or imprisoned not more than twenty years, or
both."
[
Footnote 4]
He was sentenced to concurrent terms of five years' imprisonment
on the conspiracy to commit robbery and grand larceny counts and a
consecutive term of one year's imprisonment on the weapons count.
On the State's confession of error, petitioner's conviction of
conspiracy to commit grand larceny was reversed on appeal. His
convictions on the other two counts were affirmed.
See
Scaldeferri v. State, 294 So. 2d 407 (Fla.App.),
cert.
denied sub nom. Pompeo v. State, 303 So. 2d 21 (Fla.),
cert. denied sub nom. Washington v. Florida, 419 U.S. 993
(1974).
[
Footnote 5]
The
Petite policy is most frequently applied against
duplicating federal-state prosecutions. As stated by the Department
of Justice, under that policy, a federal trial following a state
prosecution for the same act or acts is barred "unless the reasons
are compelling." A United States Attorney contemplating a federal
prosecution in these circumstances is required to obtain
authorization from an appropriate Assistant Attorney General. In
this case, the Justice Department official who instructed trial
counsel to insist upon a retrial had not obtained the requisite
approval.
But, as the
Petite case itself illustrates, the policy
also encompasses successive federal prosecutions arising out of the
same transaction. In that case, the Solicitor General represented
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.' 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)."
361 U.S. at
361 U. S.
530-531.
[
Footnote 6]
Rule 48(a) states:
"The Attorney General or the United States attorney may by leave
of court file a dismissal of an indictment, information or
complaint and the prosecution shall thereupon terminate. Such a
dismissal may not be filed during the trial without the consent of
the defendant."
[
Footnote 7]
See n 5,
supra.
[
Footnote 8]
The prior authorization requirement in the
Petite
policy ensures that the Department of Justice will normally make
the "compelling reasons" determination prior to commencement of the
federal prosecution. On occasion, however, a prosecution is
initiated and a conviction obtained in violation of the policy.
When the Solicitor General has discovered such a violation in a
case pending before this Court, he has sought to remedy it by
moving to have the case remanded to allow the Government to dismiss
the indictment. Exercising our power to afford relief which is
"just under the circumstances," 28 U.S.C. § 2106, we have
granted the Government's motion on several occasions.
See Watts
v. United States, 422 U. S. 1032
(1975);
Ackerson v. United States, 419 U.S. 1099 (1975);
Hayles v. United States, 419 U.S. 892 (1974);
Cf.
Redmond v. United States, 384 U. S. 264
(1966);
Marakar v. United States, 370 U.
S. 723 (1962);
Petite v. United States,
361 U. S. 529
(1960).
[
Footnote 9]
The majority described the Government's bad faith in the
following terms:
"In this case, an unidentified, but responsible, official within
the Department authorized a federal prosecution with full knowledge
that such a prosecution was forbidden by the
Petite
Policy. For the Government to attempt to dismiss by arguing that no
compelling reason now exists for a separate federal conviction,
when the considerations that allegedly imply a lack of 'compelling
reason' were known as fully to the Government throughout both
federal trials as now, does, for this court, constitute bad
faith."
544 F.2d at 208.
[
Footnote 10]
The majority stated:
"The fact that the Justice Department is now reconsidering its
original decision to prosecute does not vest defendants with any
right to have an otherwise valid conviction dismissed. . . . While
a determination of such a motion obviously affects defendants, it
is not a defendant's interest in avoiding a validly obtained
conviction that we weigh in our examination of the propriety of . .
. [the District Court's] order."
Id. at 209.
[
Footnote 11]
They stated:
"[T]he withholding of leave [to dismiss] in this case was not
justified. The motive of the prosecutor in
moving for
dismissal was based upon the
Petite Policy which is
not contrary to the public interest. The prosecutor may have acted
in the conduct of the entire litigation in a manner not consistent
with the public interest, but his motion to dismiss should not be
tainted with that prior activity."
Id. at 213 (emphasis in original).
[
Footnote 12]
The dissenters also questioned the logic of the majority's "bad
faith" rationale:
"[I]n what has been determined and, indeed, confessed to have
been bad faith, the government persisted in a prosecution and
obtained, as a result of that bad faith, convictions. The majority
holds today that, in order not to 'invite future misconduct by the
Government,' we insist that the government be rewarded with the
very convictions that it obtained through bad faith prosecutions
and, we deny government counsel the right at long last to recant
and in good faith dismiss the indictment."
Id. at 210-211.
[
Footnote 13]
In announcing the policy, Attorney General Rogers stated:
"Cooperation between federal and state prosecutive officers is
essential if the gears of the federal and state systems are to mesh
properly. We should continue to make every effort 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. If this be determined accurately, and is
followed by efficient and intelligent cooperation of state and
federal law enforcement authorities, then consideration of a second
prosecution very seldom should arise."
Dept. of Justice Press Release, Apr. 6, 1959, p. 3.
[
Footnote 14]
At the heart of the policy announced by Attorney General Rogers
was the statement:
"It is our duty to observe not only the rulings of the Court,
but the spirit of the rulings as well. In effect, the Court said
that, although the rule of the
Lanza case is sound law,
enforcement officers should use care in applying it."
"Applied indiscriminately and with bad judgment, it, like most
rules of law, could cause considerable hardship. Applied wisely, it
is a rule that is in the public interest. Consequently -- as the
Court clearly indicated -- those of us charged with law enforcement
responsibilities have a particular duty to act wisely and with
self-restraint in this area."
Ibid.
[
Footnote 15]
The words "leave of court" were inserted in Rule 48(a) without
explanation. While they obviously vest some discretion in the
court, the circumstances in which that discretion may properly be
exercised have not been delineated by this Court. The principal
object of the "leave of court" requirement is apparently to protect
a defendant against prosecutorial harassment,
e.g.,
charging, dismissing, and recharging, when the Government moves to
dismiss an indictment over the defendant's objection.
See,
e.g., United States v. Cox, 342 F.2d 167, 171 (CA5),
cert.
denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965);
Woodring v. United States, 311 F.2d 417, 424 (CA),
cert. denied sub nom. Felice v. United States, 373 U.S.
913 (1963). But the Rule has also been held to permit the court to
deny a Government dismissal motion to which the defendant has
consented if the motion is prompted by considerations clearly
contrary to the public interest.
See United States v.
Cowan, 524 F.2d 504 (CA5 1975);
United States v.
Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973).
It is unnecessary to decide whether the court has discretion under
these circumstances, since, even assuming it does, the result in
this case remains the same.
[
Footnote 16]
In reaching a contrary conclusion, the Court of Appeals relied
heavily on the remarks of a Government attorney during oral
argument. Attempting to rebut the charge that the "responsible
person" in the Justice Department who authorized this prosecution
showed bad faith by not seeking the approval of the Attorney
General, the Government attorney apparently contended it would be
proper to continue a federal prosecution until the integrity of a
prior state conviction was assured, and then to seek dismissal of
the federal charges. If counsel's argument represented the position
of the United States, it would indeed mark a departure from the
Petite policy. But we are persuaded that counsel's
overzealous attempt to rationalize the prior conduct of the
prosecution did not signal a new Executive policy on multiple
prosecutions. The Solicitor General unequivocally states that the
Government has strictly adhered to the
Petite policy since
its announcement in 1959. Memorandum for United States 3, 7. The
Solicitor General represents further that the Government sought
dismissal of the indictment in this case because it discovered on
appeal from petitioner's federal conviction that the prosecution
was initiated and maintained without the prior authorization
required by the
Petite policy.
Id. at 3; 7. There
is no suggestion in this case that the Assistant Attorney General
charged with enforcement of the
Petite policy was
cognizant of the violation until shortly before the Government's
request for leave to dismiss the indictment. In these
circumstances, we cannot accept the conclusion of the Court of
Appeals that the Government's decision to dismiss the indictment
was made in bad faith.
[
Footnote 17]
The Court of Appeals thought it necessary to deprive petitioner
of the policy's benefit in order to deter future misconduct by
Government attorneys. As did the dissenters below, we fail to see
how rewarding those responsible for the
Petite policy
violation with a conviction serves to deter prosecutorial
misconduct. Indeed, a result which leaves intact a conviction
obtained through a prosecution tainted by bad faith may encourage
repetition of the impropriety disclosed by the record in this
case.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins,
dissenting.
In
Watts v. United States, 422 U.
S. 1032 (1975), this Court, with three Justices
dissenting, remanded a federal criminal case with instructions to
dismiss the indictment because of the concession of the Solicitor
General that the Justice Department had accidentally violated its
own
Petite policy.
See also Ackerson v. United
States, 419 U.S. 1099 (1975);
Hayles v. United
States, 419 U.S. 892 (1974). Whatever may be the propriety of
our assisting in the enforcement of the Justice Department's
internal
Petite policy, the Court today places its
imprimatur on a quite different and unsettling prosecutorial
policy. Under this new policy, the Government prosecutes under
federal laws individuals who have already been tried and convicted
of violating similar state laws in order to protect against the
possibility of the state convictions' being reversed on appeal, but
the policy contemplates that the federal prosecutions will be
dismissed, even after entry of guilty verdicts, if the state
convictions are ultimately affirmed. According to the Court of
Appeals:
"[T]he Government attorney conceded that a 'responsible person'
within the Department of Justice . . . was aware
Page 434 U. S. 33
that the
Petite Policy was being violated through its
prosecution of defendants, but nevertheless, out of his fear that
the state convictions would be reversed on appeal, instructed the
trial attorney to proceed with the case; only after a Florida
appellate court affirmed the state convictions and after defendants
raised the
Petite Policy on appeal did the Government move
for dismissal. . . . [According to the Government attorney], the
position of the Department of Justice is not that the prosecution
should never have been brought, but that, once the state
convictions had been affirmed, the Government could properly have
moved to dismiss the federal indictment against defendants. Indeed,
he states that, had permission to prosecute been sought from an
Assistant Attorney General by the 'responsible person' in charge of
the case, it might well have been given, and, hence, there would
have been no violation of the
Petite Policy. Had that
event occurred, . . . it would have then been absolutely proper,
once the Florida appellate court affirmed the state conviction on
appeal, for the Department of Justice to rescind, retroactively,
its authorization of the prosecution and now, finding the
Petite Policy to have been violated by a federal trial for
an offense for which a state prosecution was made, to seek a
dismissal based on this violation of the policy and the interest
against duplicitous prosecutions that it seeks to promote."
In re Washington, 544 F.2d 203, 207.
*
Page 434 U. S. 34
Federal Rule Crim. Proc. 48(a) allows the United States to move
to dismiss an indictment only "by leave of court." This proviso was
specifically added as an amendment to the original draft, which had
provided for automatic dismissal upon the motion of the United
States, and would seem clearly directed toward an independent
judicial assessment of the public interest in dismissing the
indictment.
Cf. United States v. Cowan, 524 F.2d 504 (CA5
1975). Here, both the District Court and the Court of Appeals
concluded that dismissal would not be in the public interest. I
cannot find this conclusion an abuse of the discretion given the
lower courts by Rule 48(a). As the Court of Appeals reasoned,
"the Government's attempt to manipulate the use of judicial time
and resources through its capricious, inconsistent application of
its own policy clearly constitutes bad faith and a violation of the
public interest; our sanction of such conduct would invite future
misconduct by the Government."
544 F.2d at 20.
In the past, the Court has ordered indictments dismissed upon
the Government's concession that it violated its own
Petite policy without discussing the justification for its
action. Here, in its first full opinion on the subject, the Court
again fails to enunciate why federal courts must reverse a valid
conviction because of the Government's admission of administrative
error not going to the guilt or innocence of the defendant.
Cf.
Watts, supra, at 1032-1038 (BURGER, C.J., dissenting). The
apparent inability of the Court to agree on a rationale for
enforcing the Government's
Petite policy at its request
suggests that this case is inappropriate for summary disposition,
and should be set for full argument.
* The Solicitor General does not contradict or repudiate the
position of the Government attorney who argued before the Court of
Appeals. Under such circumstances, this Court should not casually
reject the Court of Appeals' understanding of the position of the
Department of Justice in this case, an understanding that the
dissenters there apparently shared. According to the Solicitor
General, when the Government's appellate counsel was informed that
the prosecutor had not strictly followed the Justice Department's
Petite policy, further consideration was given to the case
within the Department and "it was determined that there were no
compelling reasons to justify
retroactive authorization of
petitioner's prosecution." Memorandum for United States 3 (emphasis
added). By this time, as the Court of Appeals noted, the state
conviction was safely affirmed.