Lee v. United States, 432 U.S. 23 (1977)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

After the prosecutor’s opening statement in petitioner’s bench trial for theft in violation of the Assimilative Crimes Act and the applicable Indiana statute, petitioner’s counsel moved to dismiss the information on the ground that it did not allege specific intent as required by the Indiana statute. The court tentatively denied the motion subject to further study, whereupon petitioner’s counsel outlined the defense and did not object to going forward with the trial. At the close of the evidence, the court, though observing that petitioner’s guilt had been proved beyond any reasonable doubt, granted petitioner’s motion to dismiss. Thereafter, petitioner was indicted for the same crime and convicted. The Court of Appeals affirmed, rejecting petitioner’s claim that the Double Jeopardy Clause barred the second trial. Petitioner contends that (1) he should never have had to undergo the first trial, because the court was made aware of the defective information before jeopardy had attached, and (2) once the court had determined to hear evidence despite the defective charge, he was entitled to have the trial proceed to a formal finding of guilt or innocence.

Held: Petitioner’s retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause. Pp. 27-34.

(a) The proceedings against petitioner did not terminate in his favor, the dismissal clearly not being predicated on any judgment that he could never be prosecuted for or convicted of the theft. The order entered by the District Court was functionally indistinguishable from a declaration of mistrial, which contemplates reprosecution of the defendant, see United States v. Jorn, 400 U.S. 470, 476. Thus, any distinction between dismissals and mistrials has no significance in the circumstances here presented, and established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial fully apply in this case. United States v. Jenkins, 420 U.S. 358, distinguished. Pp. 28-31.

(b) Where a defendant, by requesting a mistrial, exercises his choice in favor of terminating the trial, the Double Jeopardy Clause will not bar reprosecution absent provocative or bad-faith conduct by the judge or prosecutor. United States v. Dinitz, 424 U.S. 600, 611. Here, as in Dinitz, the proceedings were terminated after jeopardy had attached at the defendant’s request and with his consent, and there was no judicial or prosecutorial error that was intended to provoke the motion or that was otherwise motivated by bad faith. The prosecutor’s failure properly to draft the information was, at most, negligent, and the District Court’s failure to postpone the taking of evidence until it could fully consider petitioner’s motion was entirely reasonable in light of the last-minute timing of the motion and defense counsel’s failure to request a continuance or otherwise stress the importance to petitioner of not being placed in jeopardy on a defective charge. Pp. 33-34.

539 F.2d 612, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., post, p. 34, and REHNQUIST, J., post, p. 36, filed concurring opinions. MARSHALL, J., filed a dissenting opinion, post, p. 37.