United States v. Ewell/Dissent Fortas

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

I cannot agree that the District Court erred in dismissing the second indictment. Following vacation of the convictions under the original indictment, the Government was at liberty to reindict and retry appellees for the same offense. I agree with the opinion of the Court the circumstances, this would not have deprived appellees of their Sixth Amendment right to a speedy trial.

But the Government did not merely reindict appellees for the identical offense. They were charged, on the basis of the same alleged sale of 400 milligrams of heroin, with violations of two additional narcotics statutes. Under the original one-count indictment charging a violation of 26 U.S.C. § 4705(a) (1964 ed.), Dennis faced a sentence of from five to 20 years; Ewell, a second offender, 10 to 40 years. Under the new three-count indictment, the District Court may cumulate the sentences on the three counts and impose terms of from 12 to 50 years upon Dennis and from 25 to 100 years upon Ewell. Cumulative sentences are permitted by this Court's holding in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405. But cf. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 299-317 (1965). In my opinion, however, the Government may not, following vacation of a conviction, reindict a defendant for additional offenses arising out of the same transaction but not charged in the original indictment.

In a different setting this Court has vividly criticized the Government's attempt to penalize a successful appellant by retrying him on an aggravated basis. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. Although the decision in green was premised upon the Double Jeopardy Clause, its teaching has another dimension. Green also demonstrates this Court's concern to protect the right of appeal in criminal cases. It teaches that the Government, in its role as prosecutor, may not attach to the exercise of the right to appeal the penalty that if the appellant succeeds, he may be retried on another and more serious charge. Mr. Justice Black, speaking for the Court in green, said: 'The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.' 355 U.S., at 193, 78 S.Ct., at 227.

In the present case it appears that the purpose as well as the effect of the Government's action was to discourage the exercise of the right, conferred by statute, to seek review of criminal convictions. According to the District Court, the only reason advanced by the Government for the multiplication of charges against appellees was that the prosecutor wanted to discourage others convicted of narcotics offenses from attacking their convictions. As the District Judge put it, there was 'the expressed concern of the prospective liberation of a number of similarly convicted narcotic felons.' 242 F.Supp. 451, at 456. The prosecutor's concern is understandable, but the right to direct and collateral review is granted by law. The prosecutor may not consistently with the Due Process Clause boobytrap this right, either to punish or to frighten.

It is no answer to the foregoing that after-and only after the District Court had dismissed the entire three-count indictment, the Government in support of its petition for rehearing advised the court that 'upon a plea or finding of guilty' all counts except that under 26 U.S.C. § 4704(a) (1964 ed.) would be dismissed. This belated offer, conditioned upon a conviction, did not absolve the Government. The Government continued to insist upon going to trial on an unsupportable indictment. Even in its Notice of Appeal to this Court, the Government asserted its right to try the appellees upon the entire 'present indictment.' Not until the Solicitor General filed the jurisdiction statement was it suggested that the Government would agree to action taken to dismiss two of the counts-and that suggestion was negatively phrased: the Government 'would not question dismissal' of the counts alleging violation of § 4705(a) and 21 U.S.C. § 174 (1964 ed.). I cannot agree that this backhanded concession warrants our reversing the District Court's dismissal of the three-count indictment. The indictment is the Government's responsibility. it must stand the test of lawfulness as the Government presents it. The Government cannot rest upon a faulty indictment, and defend it by indicating its willingness to acquiesce in surgery which it is apparently unready to initiate.

In my view, this reindictment, greatly exceeding the original indictment in its charges and threatened penalties, was not a lawful basis upon which to put appellees to their defense. Apart from considerations of the impermissible purpose as found by the District Court, this technique has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction under federal law. This, in my opinion, is forbidden by the Due Process Clause. I would affirm the decision of the District Court, without prejudice, if other factors permit, to re-indictment within the limits of the original charge.