United States v. Ewell/Concurrence Brennan

Mr. Justice BRENNAN, concurring in the result.

I am unable to join the Court's opinion, because it could be read as implying approval of a course of government conduct that I find most oppressive. Appellees were indicted initially under only one of the three statutes which this Court held in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, over my dissent, might constitutionally be applied to a single narcotics sale. Their successful attacks upon their sentences brought on these new indictments for all three statutory offenses. I can think of no plausible reasons for this tactic except to increase the pressure on appellees to plead guilty by raising the threat of cumulative sentences, or to punish them for asserting their rights to challenge their original sentences. The Government offered to abandon this tactic and limit prosecution to 26 U.S.C. § 4704 (1964 ed.) only on rehearing, after the prosecution seemed imperiled.

Government tactics of this kind raise very serious questions for me. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; Abbate v. United States, 359 U.S. 187, 196-201, 79 S.Ct. 666, 671-674, 3 L.Ed.2d 729 (separate opinion); Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965). But I agree with the Court that because the prosecution is now limited to § 4704, appellees have suffered no prejudice. I would not, however, as the Court seems to do, imply approval of the tactics the Government employed. Indeed, the Government informed us after argument that this problem is involved in another case, pending below, where an accused initially indicted for only one offense has been reindicted for three. It does not appear that the Government has limited the prosecution in that case to § 4704.

Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS joins, dissenting.