Gore v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The first three counts of this indictment cover one sale of narcotics made on February 26, 1955. The one sale was broken down for purposes of the three counts into three crimes:

(1) petitioner made the sale 'not in pursuance of a written     order' which is contrary to the requirement of 68A Stat. 551,     26 U.S.C. (Supp. V) § 4705(a), 26 U.S.C.A. § 4705(a);

(2) the narcotics were sold 'not in the original stamped     package' which is contrary to the requirements of 68A Stat. 550, 26 U.S.C. (Supp. V) § 4704(a) 26 U.S.C.A. § 4704(a);

(3) petitioner 'facilitated the concealment and sale' which     is in violation of 65 Stat. 767, 21 U.S.C. § 174, 21 U.S.C.A.     § 174.

Another single sale, one made on February 28, 1955, was likewise broken down into three separate and distinct crimes.

Consecutive sentences were imposed for the three crimes resulting from the first sale. Sentences imposed for the three crimes resulting from the second sale were made to run concurrently with each other and with the sentences imposed for the three offenses resulting from the first sale.

Plainly, Congress defined three distinct crimes, giving the prosecutor on these facts a choice. But I do not think the courts were warranted in punishing petitioner three times for the same transaction. I realize that Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, holds to the contrary. But I would overrule that case.

I find that course necessary because of my views on double jeopardy, recently expressed in Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913. And see Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983. Once a crucial issue is litigated in a criminal case that issue may not be the basis of another prosecution. Here the same sale is made to do service for three prosecutions. The different evidence test, which was adopted without much analysis by the Court in Carter v. McClaughry, 183 U.S. 365, 394-395, 22 S.Ct. 181, 192-193, 46 L.Ed. 236 (cf. Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118), would permit the practice. Yet I agree with Bishop: ' * *  * in principle, and by the better judicial view, while the legislature may pronounce as may combinations of things as it pleases criminal, resulting not unfrequently in a plurality of crimes in one transaction or even in one act, for any one of which there may be a conviction without regard to the others, it is, in the language of Cockburn, C.J., 'a fundamental rule of law that out of the same facts a series of charges shall not be preferred."  1 Criminal Law (9th ed. 1923) § 1060. I think it is time that the Double Jeopardy Clause was liberally construed in light of its great historic purpose to protect the citizen from more than one trial for the same act.

That analysis was adopted by the Court in Ballerini v. Aderholt, 5 Cir., 44 F.2d 352, 353, a case close on its facts to the present one. There two counts were charged from one sale: (1) a sale without registration and payment of the tax and (2) a sale without requiring a written order. The court said:

'The offense charged in each count was the unlawful sale of     the same ounce of heroin. As there was but one sale, it would     seem to follow that there was but one criminal act committed      against the laws of the United States. The failure of     appellant to register and pay the special tax, as charged in      the first count, or to obtain a written order, as charged in      the second count, could not have been the basis of a criminal prosecution. It was only in the event of a sale that such     failure could become material. At last it was the sale, and     not the failure to register, pay the tax, or secure the      written order, that constituted the offense.'

Cf. Mr. Justice Rutledge concurring in District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 305, 128 F.2d 17, 21.

I would read the three present statutes from that approach. I would hold that the prosecutor was given the choice of one of three prosecutions for this single sale. I would resist a reading which inferred that Congress intended multiple offenses from the same sale, for that would not make the statutes square with the Constitution.