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Case Comments H. Double Jeopardy United States V. Council

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Case Comments H. Double Jeopardy United States V. Council Washington and Lee Law Review Volume 50 | Issue 1 Article 19 Winter 1-1-1993 Case Comments H. Double Jeopardy United States V. Council Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Law Commons Recommended Citation Case Comments H. Double Jeopardy United States V. Council, 50 Wash. & Lee L. Rev. 322 (1993), https://scholarlycommons.law.wlu.edu/wlulr/vol50/iss1/19 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. WASHINGTON AND LEE LAW REVIEW [Vol. 50:243 H. DoiLE JEOPARDY United States v. Council 973 F.2d 251 (4th Cir. 1992) The Double Jeopardy Clause of the Fifth Amendment prevents a person from being tried for the same crime twice. 362 While a defendant may not be retried at all after being acquitted by a jury,363 the government may appeal a judicially-delivered acquittal under U.S.C. section 3731.16 If a reviewing court determines that the acquittal functions as a dismissal, then double jeopardy does not bar the reprosecution of the defendant on the same counts. 365 Similarly, a mistrial may bar a subsequent retrial on the charges, depending on which party requested the mistrial andwhether 366 the mistrial was manifestly necessary. In United States v. Council,367 the United States Court of Appeals for the Fourth Circuit considered the issue of whether a defendant may be retried after a trial court entered a judgment of acquittal as a sanction for a prosecutorial Rule 16 violation. The Fourth Circuit also decided whether a mistrial, urged by the prosecutor, bars the retrial of the defendant on those counts. Finally, in an order entered after a rehearing of the case, the Fourth Circuit stated that the government must preserve an objection to the District Court's acquittal in order to appeal and reprosecute a defendant. In Council, federal agents arrested the defendant, Robert Council, Jr., on federal weapons charges. Council had learned that his brother-in- law, Clarence, had been arrested for a crime involving hand grenades. Council asked Clarence's wife if Clarence had any other weapons at Clarence's house, and then Council removed the .ones that he found. Council told Clarence's wife that he was moving the weapons, which included hand grenades and a mine, for the protection of Council's grandchildren who lived in the area. Council placed the weapons behind his house and attempted to call a deputy sheriff to remove the weapons 362. See U.S. CONST. amend. V (stating that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb"). 363. See United States v. DiFrancesco, 449 U.S. 117, 129 (1980) (stating that acquittals are given special weight in double jeopardy jurisprudence); Ball v. United States 163 U.S. 662 (1896) (stating that defendant may not be retried after jury acquittal). 364. See 18 U.S.C. § 3731 (1988). The section states that the United States may appeal a final decision of a district court dismissing an indictment or information except where the Double Jeopardy Clause bars a retrial of the defendant. Id. 365. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (stating that acquittals and dismissals are not to be determined by their label, but by their substance). 366. See Green v. United States, 355 U.S. 184, 188 (1957) (stating that defendant should not be subjected to reprosecution if prosecutor or judge discontinues trial, but double jeopardy does not bar reprosecution if trial's completion is impossible). 367. 973 F.2d 251, amended, 1992 U.S. App LEXIS 28890 (4th Cir. 1992). 1993] CASE COMMENTS from his house. Before the deputy sheriff could pick up the weapons, federal agents came to Council's house and he showed the agents where he had placed the weapons. Both Council and Clarence were indicted by a grand jury. Council was indicted on five counts: one count of receiving with intent to convert stolen property belonging to the United States, three counts of knowingly receiving and possessing unregistered firearms, and one count of being an accessory after the fact to Clarence's crimes. Council pled not guilty to all of the counts and requested a jury trial. During the trial, the government introduced evidence through a gov- ernment witness that Council had stated that he had taken the weapons in order to assist Clarence. The government had not provided this statement to the defendant as required by Rule 16 of the Federal Rules of Criminal Procedure.368 The court ruled that the statement was relevant to the counts of knowingly receiving stolen property and accessory after the fact, counts eight and twelve. The court suggested a mistrial as to those two counts. The government, however, felt that a mistrial would bar a reprosecution of the counts due to double jeopardy and offered to dismiss counts eight and twelve. The district court, using the discretion given to the court as a remedy for Rule 16 violations, 369 decided that it would grant the defendant's motion for judgment of acquittal at the end of the govern- ment's case on counts eight and twelve. The government did not protest or note an exception to the entry of the acquittal. The court dismissed one count because of multiplicity and submitted two counts, counts nine and eleven, to the jury. Both of the counts dealt with the knowing possession of unregistered weapons. The government did not need to show that Council knew that the weapons were unregis- tered, but only that Council knew that he possessed the weapons. The court accordingly instructed the jury that an action done "knowingly" was an action done voluntarily and intentionally. In neither the court's instructions to the jury nor the parties' closing arguments was motive mentioned as to counts nine and eleven. Nevertheless, during deliberations the jury foreman sent a note to the court asking a definition of "knowingly." The court repeated the definition given in the jury instructions. Later, the jury foreman sent another note which seemed to indicate that the jury had confused the issue of Council's motive in moving the weapons with the issue of Council's knowledge that he had possessed the weapons. The court noted that motive was irrelevant 368. FED. R. Cams. P. 16(a)(1)(a). The rule states that: "The government shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial." Id. 369. FED. R. Cams. P. 16(d)(2). The rule states that: "If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may... enter such other order as it deems just under the circumstances." Id. WASHINGTON AND LEE LAW REVIEW [Vol. 50:243 to counts nine and eleven, and suggested that a new instruction explaining the issue of volition would enable the jury to deliberate correctly. The prosecutor suggested that the court should declare a mistrial. Over Coun- cil's objections, the court declared a mistrial as to counts nine and eleven. The court stated that it had granted the mistrial in fairness to both sides because the court had precluded the development of the trial and created a manifest necessity for the mistrial. The government sought to reprosecute on counts eight, nine, eleven, and twelve. Council moved to dismiss all of the counts on double jeopardy grounds. The court determined that double jeopardy did not bar the reprosecution of Council on any of the counts. Council then appealed the decision to the Fourth Circuit. In deciding Council's appeal, the Fourth Circuit first analyzed counts eight and twelve, the counts on which the district court entered a judgment of acquittal because of the Rule 16 violations. The majority began by determining whether the judgment of acquittal was, in fact, an acquittal, or if it was a dismissal. The government conceded that if Council actually had been acquitted double jeopardy would bar his reprosecution. However, the government contended that the judgment of acquittal functioned as a dismissal, and therefore Council could be retried on the counts. The Supreme Court propounded this theory in United States v. Martin Linen Supply Co.,370 in which the Court stated that any decision, whether called a dismissal or an acquittal, could be an acquittal for double jeopardy purposes if and only if the decision represented a resolution of the factual elements of the crime.171 Consequently, the substance of a court's decision, and not the label attached to the decision, will determine whether the government may retry a defendant on the same charge. The Fourth Circuit majority noted that, in applying this doctrine, the circuits have found that actions called "dismissals" were in fact acquittals, 372 and that actions 37 3 styled "acquittals" were actually dismissals. Based on the Martin Linen test, the majority in Council held that the trial court's judgment was actually a dismissal. The majority based this decision on the trial judge's use of the acquittal as a sanction for the Rule 16 violation, instead of basing the acquittal on the facts as developed at trial.
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