Douglas Watts v. United States, 422 U.S. 1032 (1975)
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Scribd Government DocsDouglas Watts v. United States, 422 U.S. 1032 (1975)
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Scribd Government Docs422 U.S.
1032
95 S.Ct. 2648
45 L.Ed.2d 688
Douglas WATTS
v.
UNITED STATES.
No. 74-6118.
Supreme Court of the United States
June 23, 1975
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 incident 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.
3
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, 79
S.Ct. 666, 3 L.Ed.2d 729 (1959), and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct.
676, 3 L.Ed.2d 684 (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 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, 95 S.Ct. 168,
42 L.Ed.2d 136 (1974); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769,
42 L.Ed.2d 796 (1975).
6
* 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, 80 S.Ct. 450, 4 L.Ed.2d 490 (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 lawenforcement authorities, then consideration 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, 80 S.Ct. 450, 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 consistent 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 Appealsto say nothing of
the public funds which that work requiredto 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, 75 S.Ct. 182, 99 L.Ed. 210 (1954);
United States v. Hutul, 416 F.2d 607, 626-627 (CA7 1969), cert. denied, 396,
U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970). The resources of lawenforcement agencies and courts, once committed to a rational course of action
culminating in a valid judgment, should not be dissipated without better reason.
II
9
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, it is decidedly the role of federal courts to interpret the decisions of
this Court and to assess the validity of judgments duly entered.
10
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, 31 L.Ed.2d 231 (1972).
III
11
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 Government
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, 79 S.Ct. 666 (opinion of
Brennan, J.).
12
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.
13
Mr. Justice DOUGLAS took no part in the consideration or decision of this
motion and petition.
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