Syllabus

LEE v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 76-5187. Argued April 25, 1977-Decided June 13, 1977

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.

Joseph P. Bauer, by appointment of the Court, 430 U. S. 928, argued the cause for petitioner. With him on the briefs was Conrad Kellenberg. [REPORTER'S NOTE: Messrs. Bauer and Kellenberg represented petitioner before this Court only. Cf. post, at 34, 37, and 38.]

Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.

MR. JUSTICE POWELL delivered the opinion of the Court.

At the first trial in this case the District Court, having heard the evidence, granted petitioner's motion to dismiss the information for failure to provide adequate notice of the crime charged. Petitioner was retried and convicted. The question is whether the second trial violated the Double Jeopardy Clause.

I

On December 21, 1973, petitioner Phillip Jerome Lee stole two billfolds from the blind operator of a newsstand and candy concession in the lobby of the United States Post Office in Fort Wayne, Ind. A security guard saw Lee take the

billfolds and apprehended him as he tried to escape. In an information filed on February 6, 1974, in the United States District Court for the Northern District of Indiana, the Government charged Lee with the crime of theft, in violation of the Assimilative Crimes Act, 18 U. S. C. § 13, and the applicable Indiana statute, Ind. Code Ann. § 10-3030 (1971).1 Although the defect did not come to light before trial, the allegations of the information were incomplete. The Indiana statute requires proof that the theft be committed knowingly and with intent to deprive the victim of his property. The information made no mention of knowledge or intent and charged only that Lee "did take and steal" the billfolds in violation of the statute. App. 4.

Some two months before trial, Lee's lawyer withdrew and another was appointed to represent him. Lee waived his right to a jury trial and on July 16, 1974, a bench trial began as scheduled. After the prosecutor's opening statement, Lee's new lawyer moved to dismiss the information. The court remarked that the timing of the motion would make full consideration difficult:

"Well, I will consider it, but you certainly were in the case before this morning. It is difficult to deal with a motion to dismiss if you raise any technical questions, and you don't give me the opportunity in advance of trial to research them. So I will hear you, but you have that problem." Id., at 8.

Counsel then called the court's attention to the lack of any allegation of knowledge or intent in the information. Referring the court to the Indiana case of Miller v. State, 250 Ind. 338, 236 N. E. 2d 173 (1968), he argued that if an information failed to charge the specific intent required by § 10

1 The statute provides in pertinent part that a person commits theft when he "knowingly. obtains or exerts unauthorized control over property of the owner and . . . intends to deprive the owner of the use or benefit of the property effective July 1, 1977.

.

..." This provision has been repealed

3030, "then the Information must be dismissed." App. 9. The court tentatively denied the motion:

"Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted.

"Is there anything further by way of opening statement?" Ibid.

Defense counsel proceeded to outline Lee's defense. He offered no objection to going forward with the trial subject to the court's further study of his motion to dismiss.

The trial lasted less than two hours. After the Government had presented its case, consisting of the testimony of the security guard and the victim, the court recessed for 15 minutes. After the recess Lee moved for a judgment of acquittal on the ground that the prosecution had failed to establish the required intent to deprive the victim of his property. Taking care to distinguish this motion from the earlier motion to dismiss on which it had "reserved the right to do some research," the court found sufficient evidence of intent to withstand any motion "directed to the Government's proof." Id., at 12-13.

The defense then rested without presenting any evidence, and the court returned to the defense motions, again distinguishing between them. Speaking to defense counsel, the court said:

"Your motion addressed to the Government's proof borders on being frivolous. Your client has been proven [sic] beyond any reasonable doubt in the world, there is no question about his guilt; none whatsoever." Id., at 13. The court nonetheless found it necessary to grant the motion to dismiss because of the failure of the information to charge either knowledge or intent:

"The Federal law cases are legion that the sufficiency of the charges is dependent upon its containing the allega

tions of all of the elements, and all of the elements here are established by the state statute.

"As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed." Id., at 14.2

On September 25, 1974, Lee again was charged with the theft, this time in an indictment alleging all of the elements of the assimilated Indiana crime. On substantially the same evidence as had been presented at the first trial, he was convicted. On appeal, the Court of Appeals for the Seventh Circuit affirmed, rejecting Lee's claim that the second trial was barred by the Double Jeopardy Clause. 539 F. 2d 612 (1976). We granted certiorari to consider the double jeopardy issue. 429 U. S. 1037 (1977).

II

In urging that his second trial was barred by the Double Jeopardy Clause, petitioner directs his principal arguments to the conduct of the first proceeding. He contends (i) that 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 (ii) that 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. The Government responds that petitioner

3

2 Federal Rule Crim. Proc. 7 (e) provides that a district court "may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

At no time in the course of the first trial did either the defense or the prosecution raise the possibility that the information might be amended under this provision.

As this was a bench trial, jeopardy did not attach until the court began to hear evidence. Serfass v. United States, 420 U. S. 377, 388 (1975).