United States v. Tateo

No. 328. Argued April 20, 1964.—Decided June 8, 1964. Respondent, when informed during trial of the trial judge’s expressed intention if the jury found him guilty to impose a life sentence on a kidnaping charge and consecutive sentences on other felony charges, pleaded guilty, whereupon the jury was discharged, the kidnaping count dismissed, and sentence imposed on the remaining counts. In a subsequent proceeding under 28 U. S. C. § 2255, another district judge, doubting that respondent’s guilty plea was voluntary, set aside the conviction and granted a new trial. A third trial judge dismissed all charges, holding that reprosecution was barred by the Double Jeopardy Clause of the Fifth Amend- ment. Held: Retrial of a defendant whose conviction is set aside on collateral attack for error in the proceedings leading to con- viction is not barred for double jeopardy. United States v. Ball, 163 U. S. 662, followed; Downum v. United States, 372 U. S. 734, distinguished. Pp. 463-468. 216 F. Supp. 850, reversed and remanded. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Cox, Assistant Attorney General Miller, Philip B. Heymann and Jerome Nelson. Robert Kasanof argued the cause for appellee. With him on the brief was 0. John Rogge. Mr . Justi ce Harlan delivered the opinion of the Court. This case presents the question whether a federal crim- inal defendant who has had his conviction overturned in collateral proceedings on the ground that a guilty plea entered by him during trial was not voluntary but in- duced in part by comments of the trial judge, may be tried again for the same crimes or is protected against such 729-256 0-65-34

Gol db er g, J., dissenting. 377 U. S.

U. S., at 368; see also 367 U. S., at 370 (dissenting opinion of Douglas , J.).3 Although there may be good reasons why Tateo and his counsel chose not to make such a motion before the trial judge, it would be strange were Tateo to benefit because of his delay in challenging the judge’s conduct.4 We conclude that this case falls squarely within the reasoning of Ball and subsequent cases allowing the Gov- ernment to retry persons whose convictions have been overturned. The judgment below is therefore reversed and the case remanded to the District Court with instruc- tions to reinstate the four bank robbery counts. It is so ordered. Mr . Justice Goldberg , with whom Mr . Justice Black and Mr . Justi ce Douglas join, dissenting. I would affirm the District Court’s holding, 216 F. Supp. 850, that under our decision last term in Downum v.

Gol db er g, J., dissenting. 377U.S.

that the impaneled jury was likely to acquit. Instead, the “jury first selected to try petitioner and sworn was discharged because a prosecution witness had not been served with a summons and because no other arrange- ments had been made to assure his presence.” Downum v. United States, supra, at 737. In sustaining the claim of double jeopardy as to a retrial commenced two days later, this Court said: “At times the valued right of a defendant to have his trial completed by the particular tribunal sum- moned to sit in judgment on him may be subordi- nated to the public interest—when there is an im- perious necessity to do so. Wade v. Hunter, supra, 690. Differences have arisen as to the application of the principle. See Brock v. North Carolina, 344 U. S. 424; Green v. United States, 355 U. S. 184, 188. Harassment of an accused by successive prosecu- tions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to con- vict are examples when jeopardy attaches. Gori v. United States, supra, 369. But those extreme cases do not mark the limits of the guarantee. The dis- cretion to discharge the jury before it has reached a verdict is to be exercised ‘only in very extraordinary and striking circumstances,’ to use the words of Mr. Justice Story in, United States v. Coolidge, 25 Fed. Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is ‘not against being twice punished, but against being twice put in jeopardy.’ United States v. Ball, 163 U. S. 662, 669.” Id., at 736. The Court further said: “We resolve any doubt ‘in favor of the liberty of the citizen, rather than exercise what would be an unlim- ited, uncertain, and arbitrary judicial discretion.’ ” Id., at 738.

“No matter how heinous the offense charged, how overwhelming the proof of guilt may appear, or how hopeless the defense, a defendant’s right to continue with his trial may not be violated. His constitu- tional right to require the Government to proceed to a conclusion of the trial and to establish guilt by independent evidence should not be exercised under the shadow of a penalty—that if he persists in the assertion of his right and is found guilty, he faces, in view of the Trial Court’s announced intention, a maximum sentence, and if he pleads guilty, there is the prospect of a substantially reduced term.” Id., at 567. “The realities of human nature and common experi- ence compel the conclusion that the defendant was enveloped by a coercive force resulting from the knowledge conveyed to him of the Court’s attitude as to sentence which, under all the circumstances, foreclosed a reasoned choice by him at the time he entered his plea of guilty.” Id., at 568. Tateo was thereupon re-indicted by the Government and brought before Judge Tyler for retrial. Judge Tyler sustained defense motions to dismiss the indictment and ordered Tateo discharged from prison just one month short of seven years after the original sentence. Judge Tyler found that Tateo “was coerced from avail- ing himself of his Fifth Amendment right to go to the original jury for its verdict of guilt or innocence.” 216 F. Supp., at 853. Applying Downum, Judge Tyler held that “[s]ince neither constitutionally sound consent nor an ‘exceptional circumstance’ underpinned the termina- tion here, a second trial is constitutionally impermissible.” Id., at 852. The Government does not, and indeed cannot, challenge Judge Weinfeld’s and Judge Tyler’s conclusion that Ta-

sider his case at all. Wade v. Hunter, supra. Any ex- perienced trial lawyer aware of the realities of jury trials will recognize the difference between the two cases. Many juries acquit defendants after trials in which re- versible error has been committed, and many experienced trial lawyers will forego a motion for a mistrial in favor of having his case decided by the jury. The Court says further that “[i]f Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him.” Ante, at 467. This completely overlooks Judge Weinfeld’s unchallenged finding that Tateo was so “en- veloped by [the] coercive force” of the trial judge’s threat that he had no choice but to plead guilty. 214 F. Supp., at 568. To hypothesize the results of a defense request for a mistrial under these circumstances obscures the issue. Here it was the trial judge, not the defendant, who took the case away from the jury by coercing the guilty plea. The Court also intimates that if Tateo’s plea of double jeopardy is accepted then, logically, it will be neces- sary to bar reprosecutions under the Double Jeopardy Clause of persons whose guilty pleas, made before the jury is sworn, are ultimately found to be coerced. But again, under this Court’s decisions, this does not follow. By settled interpretation the protection of the Double Jeop- ardy Clause does not attach before a jury is impaneled and sworn or, in a non jury trial, before the court has begun to hear evidence.4 Thus, the application of the double jeop- ardy guarantee to Tateo’s case, where the plea was co- erced after four days of trial, will in no way impair the settled interpretation.