Dissenting Opinion
with whom Mr. Justice White and Mr. Justice Rehnquist join, dissenting.
Petitioner was acquitted in the Superior Court of Fulton County, Ga., of aggravated assault with intent to rob and carrying a concealed weapon. Thereafter, petitioner was cоnvicted in federal court of knowingly possessing an unregistered firearm, a sawed-off shotgun, in violation of 26 U. S. C. § 5861 (d). The federal charge arose out of the same episode, and involved the same weapon, as the statе prosecution. The Court of Appeals affirmed the judgment of conviction, rejecting, inter alia, petitioner’s contention that the state acquittal barred his federal prosecution under the Double Jeopardy Clause of the Fifth Amendment.
The evidence at petitioner’s federal trial established that in connection with a robbery attempt on November 14, 1973, petitioner, accompanied by another, assaulted Robert McGibbon with a 12-gaugе, single-barreled, sawed-off shotgun. McGibbon managed to break away from his assailants and immediately reported the inci
In rejecting petitioner’s double jeopardy claim, the Court of Appeals pointed оut that, under Ga. Code Ann. §§ 26-9911a, 9913a, possession of a sawed-off shotgun 15 inches or less in length is prohibited, whereas the shotgun involved here had an overall length of 16% inches. The Court of Appeals held that, in any event, the prior statе prosecution and acquittal were not a bar to the subsequent federal prosecution under Abbate v. United States,
In support of his position, the Solicitor General states that nо approval was sought in this case, and he concludes that it “does not present circumstances which
Since this is the third occasion in recent months upon which I have been unable to agree with the Court’s acquiescence in a request by the Government for aid in implementing the policy of the Department of Justice, I deem it appropriate to state my views. See also Hayles v. United States,
I
The policy upon which the Government relies was first promulgated shortly after our decisions in Abbate and Bartkus, supra, in а memorandum from Attorney General Rogers to United States Attorneys. See Petite v. United States,
I question whether the action taken by the Court in Hayles and Ackerson, supra, and the action taken today represent “efficient and intelligent cooperation” among federal law enforcement authorities, let alone between state and federal authorities. In this case, for instance, we are asked to intervene in order that the Government may move for the dismissal of сharges lawfully brought by it in the first instance, tried before a jury in the District Court, and the conviction upon which was affirmed by an opinion of a panel of the Court of Appeals. It requires more than the desire of the Department of Justice to keep its house in order to persuade me that the Court should have a hand in nullifying such a substantial commitment of federal prosecutorial and judicial resources. Indeed, since it appears that the trial and conviction of petitioner were without reversible defect, constitutional or otherwise, and that the putative hardship which the policy was designed to prevent has already been suffered and cannot bе remedied, I believe that the Court’s action today ill serves the “interest of justice,” Petite v. United States, supra, at 531, if that phrase be interpreted to comprehend society’s interest in the efficient use of its judicial resources to convict the guilty. Cf. Orlando v. United States,
Neither the rulings of this Court, nor their “spirit,” require that we sacrifice the careful work of the District Court and the Court of Appeals — to say nothing of the public funds which that work required — to the vagaries of аdministrative interpretation. If the Government attorneys who initiated this prosecution did so without consulting their superiors, that is an internal matter within the Department of Justice to be dealt with directly by that Department, but it should not bear on a judgment lawfully obtained. Corrective action more appropriately lies through prospective enforcement of departmental policies. Cf. Sullivan v. United States,
II
Quite apart from my general disagreement with the use of this Court to implement executive policy decisions, it is not at all clear to me that any federal court, and particularly this Court, should automatically conform its judgments to results allegedly dictated by a policy, however wise, which the judiciаl branch had no part in formulating. If these doubts be well founded, independent judicial appraisal is required a fortiori where, as here, the policy purportedly derives from the rulings of this Court and their “spirit.” The federal courts have no rоle in prosecutorial decisions, but, once the judicial power has been invoked,
Judicial involvement in an independent appraisal of the Justice Department’s application of its internal policy in this instance, however, could give rise to a form of surveillance in other instances. Surely it is not our function either to approve or disapprove internal prosecutorial policies and even less so their implementation. But the course on which the Government has persuaded this Court to embark requires us to dо just that unless we are blindly to accept the Government’s belated analysis. Cf. United States v. Williams,
Ill
The present case vividly demonstrates the difficulties which confront judges who would undertake to do more than rubberstamp the policy decisions of the Department of Justice. The policy relied on, which appears to have been cast in terms to provide great flexibility and discretion, inevitably involves considerations and nuances inappropriatе for judicial evaluation. Moreover, such evaluation is impossible without access to data regarding other applications of the policy in the 16 years since it was publicly announced. Finally, a comparison of the 1959 directive with the Government’s statement of the policy in this case reveals variations which are not explained and of course need not be explained so long as application of the рolicy remains a matter within the Department of Justice. The 1959 memorandum referred to “a state prosecution for substantially the same act or acts.” However, in speculating as to the basis for the verdict acquitting petitioner in state court, the Govern
For present purposes, it is unnecessary to pursue these ambiguitiеs. The factors I have discussed suggest the incompatibility of the action the Court takes today with the goal of “efficient and intelligent cooperation” which animated the Attorney General’s 1959 memorandum, and with the “interest оf justice,” broadly conceived. The Department’s 1959 policy is in no way questioned. But assuming as I do that Abbate and Bartkus remain good law, there is no reason for this Court to lend its aid to the implementation of an internal prosecutorial рolicy applicable only by speculation on our part, and there are abundant reasons for not doing so.
Lead Opinion
C. A. 5th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Upon representation of the Solicitor General set forth in his brief for the United States filed May 2, 1975, judgment vacated, and case remanded to the United States District Court for the Northern District of Georgia to permit the Government to dismiss charges against petitioner. Mr. Justice Douglas took no part in the consideration or decision of this motion and petition. Reported below: