Majority
Petitioner was indicted, with others, in the Eastern District of Pennsylvania, for conspiring to make false statements to an' agency of the United States at hearings held in Philadelphia and Baltimore under proceedings for the deportation of an alien. Petitioner was also separately indicted for suborning perjury at the Philadelphia hearings. Petitioner’s co-defendants pleaded • guilty to the conspiracy charged. Petitioner went to trial on both indictments, but at the close of the Government’s case he
Thereupon a petition- for a writ of certiorari was filed with the double jeopardy issue as the single question presented, and certiorari was granted. 360 U. S. 908 . The Government-did-not oppose the granting of this petition, but informed the Court that the case was' under consideration by the Department of Justice to determine whether the second prosecution in the District of Maryland was consistent with the sound policy of the Department in discharging its .responsibility for the control of government litigation wholly apart from the question of the legal validity of the claim of double jeopardy.
In due course the Government filed this motion for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment. It did so on the ground that it is the general policy of the Federal Government “that several offenses arising out of a single transaction should be alleged and tried tqgether and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.”
Concurrence — Warren C.J.
The ca'se is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate. its judgment and to dismiss the indictment. In the interest of justice, the Court is clearly empowered thus to dispose of the matter, 28 U. S. C. § 2106 , and we do so with due regard for the settled rule that the Court will not “anticipate a question of constitutional law in ádvance of the necessity of deciding it.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 39. By thus disposing of the matter, we are of course not to be understood as remotely intimating in any degree an opinion on the question of double jeopardy sought to be presented by the petition for certiorari.
concurring.
1 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,[1] 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 empowers us to entertain the motion.[2]
1 1 Stat. 92 ; 16 Stat. 162 ; R. S. § 359; 5 U. S. C. § 309 .
2 Section 2106 reads as follows: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, *532 or order of a court lawfully brought before it for review, and may ■remand the cause and direct the entry, of such appropriate judgment, decree, or order, or require such.further proceedings to be-had as may be just under the circumstances.-” ■
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, 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.”
with whom Mr. Justice Black and Mr.. Justice Douglas join.
The Government has eommendably 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 orfly 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, and one would not have thought our duty less in this casé — 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., at 259 . 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. 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.
Cases cited
- 147 F. Supp. 791 147 F. Supp. 791 p. 530
- 262 F. 2d 788 262 F. 2d 788 p. 530
- In re Disbarment of Alker 360 U. S. 908 p. 530
- Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration 113 U. S. 33 p. 531
- Young v. United States 315 U. S. 257 at 259 p. 532
- Abbate v. United States 359 U. S. 187 p. 532