IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7318
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT TERRY,
Defendant-Appellant.
No. 93-7340
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
THOMAS S. WALDRON, ROBERT TERRY
and DAVID WENGER,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Mississippi
(October 18, 1993)
Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and
DAVIDSON*, District Judge.
*
District Judge of the Northern District of Mississippi,
sitting by designation.
HIGGINBOTHAM, Circuit Judge:
Defendants in these consolidated cases allegedly conspired to
defraud a bank out of $2.7 million by arranging a fraudulent loan
and then manipulating records so the loan would look justifiable to
regulators. Defendant Robert Terry claims his prosecution is
barred by double jeopardy. The government claims that the district
court erred in striking two overt acts from the indictment. We
affirm the district court's decision that Terry's prosecution is
not barred by double jeopardy, and we dismiss the government's
appeal for want of jurisdiction.
I.
Defendant Robert Terry was first indicted on September 24,
1991. After a series of continuances, he filed motions to dismiss
the indictment on April 3, 1992 and April 7, 1992. The court
denied the April 3 motion and held the April 7 motion in abeyance.
Trial began April 21, 1992, and ended with the grant of Terry's
motion for a mistrial. The motion for mistrial came during the
testimony of William Kelly, a former codefendant of Terry's who
agreed to testify for the government. The prosecutor asked why he
earlier lied about his fraudulent behavior. He answered that he
had been afraid for his life because Terry had killed someone. The
next morning another prosecutor spoke to Kelly about his testimony
on this issue during a recess that came during defendant's cross-
examination of Kelly.
The judge granted a mistrial, persuaded that the prosecutor's
conversation with the witness prevented the defense from
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effectively minimizing the effects of Kelly's statements by cross-
examination. The judge also requested parties to brief whether he
should dismiss the charges with prejudice because of prosecutorial
misconduct. Before any briefs were submitted, the prosecution
moved for leave to dismiss the indictment under Federal Rule of
Criminal Procedure 48(a). Terry did not object and the district
court dismissed the indictment without prejudice. On August 19,
1992, Terry was indicted again and this indictment was dismissed
without prejudice.
On October 7, 1992, an indictment was returned charging that
Terry, Thomas Waldron, and David Wenger, from approximately
December 1986 to April 1992, conspired to commit bank fraud, mail
fraud and wire fraud in violation of 18 U.S.C. §§ 371, 1344, 1341
and 1343. The charging language of the first count, realleged and
incorporated in the other counts, alleged that the three defendants
arranged for a $2.7 million loan to Waldron and then manipulated
bank records to create an apparent adequate net worth. The
indictment also charged acts of concealment as part of the
conspiracy:
It was further a part of the conspiracy that defendants
and their co-conspirators would coverup and conceal from
regulators and others that moneys of Republic, i.e., part
of the proceeds of the six (6) loans described above,
were being used to purchase shares of preferred stock of
Republic.
The count set forth 24 overt acts, including:
23. Thereafter, defendant WALDRON met with at least one
co-conspirator and others involved in the bank
fraud scheme in 1988 and 1989 to discuss their
criminal liability for activities described above.
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24. Defendant WALDRON paid legal defense fees for
representation needed as a result of the bank fraud
scheme and money laundering activities of defendant
TERRY, through and after April, 1992.
Terry and Wenger moved to strike overt acts 23 and 24 prior to
trial. In early April of 1993 Terry moved to dismiss the
indictment on the grounds of double jeopardy.
On April 19, 1993, the district court issued a memorandum
opinion denying Terry's motion to dismiss the indictment on the
grounds of double jeopardy and granting Terry and Wenger's motion
to strike. The United States appeals the decision to grant the
motion to strike and Terry appeals the rejection of his claim of
double jeopardy.
II.
The government argues that we have jurisdiction under 18
U.S.C. § 3731. It first urges that we have jurisdiction because
this is an appeal from a decision "dismissing an indictment . . .
as to any one or more counts." The government does not contend
that the two overt acts struck by the district court constitute a
count of the indictment. Rather, it urges us to adopt the rule of
some circuits that the word "count" in section 3731 includes orders
dismissing only a portion of a count, provided that the stricken
material established a discrete basis of criminal liability that
could have been charged as a separate count. See, e,g., United
States v. Levasseur, 846 F.2d 786 (1st Cir.), cert. denied, 488
U.S. 894 (1988); United States v. Tom, 787 F.2d 65 (2d Cir. 1986).
We did not pass on the merits of this test last year in United
States v. Miller, 952 F.2d 866 (5th Cir.), cert. denied, 112 S.Ct.
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3029 (1992), and decline to do so today. We have no need to
because even under such a reading of the statute, the government
does not explain what offense could be charged from Counts 23
(having a meeting) and 24 (agreeing to pay attorneys' fees). Cf.
Levasseur, 846 F.2d at 790 (each stricken overt act was a separate
violation of state arson law); United States v. Martin, 733 F.2d
1309 (9th Cir. 1984) (en banc), cert. denied, 471 U.S. 1003 (1985)
(continuing failure to register with Selective Service was a
separate offense).
Alternatively, the government relies on statutory language
allowing appeal from a decision or order "suppressing or excluding
evidence" and directs us to our recent opinion in United States v.
Miller, 952 F.2d 866 (5th Cir.), cert. denied, 112 S.Ct. 3029
(1992). In Miller, the government argued that there was appellate
jurisdiction because the district court deleted allegations from
the indictment, effectively restricting the trial evidence. This
court said this argument was "reasonable," but found it had no
jurisdiction because the government had not timely filed the
certification required by section 3731. 952 F.2d at 875.
This argument stretches our dicta in Miller too far. Every
order narrowing the scope of an indictment potentially limits the
government's evidence at trial. If Congress had meant for the
"suppression" part of the statute to be read this broadly, it would
not have distinguished between orders dismissing all or part of an
indictment and those excluding evidence. We are unwilling to read
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part of section 3731 as surplusage, and are compelled to conclude
that we have no jurisdiction to hear the government's appeal.
III.
We agree with the government that its second prosecution of
Terry did not wrongfully put him in jeopardy a second time. A
defendant has a right to have his first jury decide guilt; he
waives that right by moving for a mistrial or acquiescing in a
dismissal. Oregon v. Kennedy, 102 S.Ct. 2083, 2089 (1982); United
States v. Nichols, 977 F.2d 972, 974-75 (5th Cir. 1992), cert.
denied, 1993 U.S. LEXIS 5213 (Oct. 4, 1993).
The government contends that Terry waived any jeopardy
contention he may have had by acquiescing in the Rule 48(a)
dismissal. As we have explained, while the parties were briefing
the issue of whether the charges should be dismissed with prejudice
because of prosecutorial misconduct, the prosecution moved to
dismiss without prejudice under Rule of Criminal Procedure 48(a).
Terry did not object and the court then dismissed without
prejudice. This dismissal did not bar retrial. See Woodring v.
United States, 311 F.2d 417, 423 (8th Cir.), cert. denied, 373 U.S.
913 (1963). See also Charles A. Wright, 3A Federal Practice and
Procedure: Criminal § 811, at 195 & n.9 (2d ed. 1982).
We thus have no occasion to decide if the prosecutors "goaded"
a mistrial. See Oregon v. Kennedy, 102 S.Ct. 2083 (1982), and
United States v. Singleterry, 683 F.2d 122 (5th Cir.), cert.
denied, 459 U.S. 1021 (1982). Nonetheless, we must not let pass
without notice the impropriety of the prosecution's actions. The
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prosecutor conducting the direct examination, with no notice to the
defense, knowingly elicited testimony accusing Terry of a serious
criminal offense. The prosecution had made no effort to
investigate the accusation and have never brought any charges based
on it. And once this apparently baseless accusation came before
the jury, another prosecutor spoke to the witness about it, not to
correct it but to place the assertion in a more credible light.
This conduct was wrong. The prosecutors are admonished that such
acts breach their duty to represent the public interest. Trusting
that this failure was an episodic error, we say no more--for now.
DISMISSED IN PART AND AFFIRMED IN PART.
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