Petite v. United States/Concurrence Warren

Mr. Chief Justice WARREN, concurring.

I concur with the judgment of the Court, but desire to record my reasons for so doing.

The Solicitor General, who has statutory authority to conduct litigation in this Court, has requested us to vacate the judgment and remand for dismissal in the interests of justice. The petitioner has consented. Under these circumstances, I believe that 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, empowers us to entertain the motion.

Authority to grant this type of motion is one thing, however, and determination of the considerations relevant to a proper exercise of that authority is another. As I believe that the Court should not deny all such motions peremptorily, so do I believe that we should not automatically grant them through invocation of the policy of avoiding decision of constitutional issues. There are circumstances in which our responsibility of definitively interpreting the law of the land and of supervising its judicial application would dictate that we dispose of a case on its merits. In a situation, for example, where the invalidity of the judgment is clear and the motion to vacate and remand is obviously a means of avoiding an adjudication, I think we would be remiss in our duty were we to grant the motion.

But this is not such a case. Although a full hearing might well establish petitioner's contention that his conviction violated the Double Jeopardy Clause of the Constitution, Amend. 5, no devious purpose can be ascribed to the Government, which asserts that the prosecution of petitioner 'was * *  * by inadvertence,' and that it 'does not intend to take (such action) in the future.' Its representation with respect to future practice is given support by the Attorney General's memorandum to United States Attorneys which establishes a closely related policy against successive federal-state prosecutions; and the reasonableness of its request is demonstrated by the fact that this memorandum was issued after the prosecution, the conviction, and the judgment of the Court of Appeals in this case. For these reasons the action requested is, in the words of § 2106, 'just under the circumstances.'  Mr. Justice BRENNAN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAs join.

The Government has commendably done the just and right thing in asking us to wipe the slate clean of this second federal conviction for the same criminal conduct. But with all deference, I do not see how our duty can be fully performed in this case if our action stops with simply giving effect to a 'policy' of the Government-a policy whose only written expression does not even cover the case at bar. Even where the Government confesses error, this Court examines the case on the merits itself, Young v. United States, 315 U.S. 257, 258-259, 62 S.Ct. 510, 511-512, 86 L.Ed. 832, and one would not have thought our duty less in this case particularly where the Government has reserved the right to apply or not apply its 'policy' in its discretion. Presumably this reservation would apply to cases at the appellate level as well. '(T)he proper administration of the criminal law cannot be left merely to the stipulation of parties.' Id., 315 U.S. at page 259, 62 S.Ct. at page 511. I believe that the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to this second prosecution. My reasons supporting this view have been detailed in my separate opinion in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 671, 3 L.Ed.2d 729. On this basis I agree that the judgment of the Court of Appeals is not to stand; but I would reverse it on the merits.