UNITED STATES v. SANFORD ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
Decided October 12, 1976
Where the District Court, because of a hung jury, declared a mistrial on the indictment against respondents, the Double Jeopardy Clause of the Fifth Amendment does not bar a retrial, and hence the Government is entitled under the Criminal Appeals Act to appeal from the District Court's subsequent dismissal of the indictment on respondents' motion, since the dismissal was prior to a trial that the Government had a right to prosecute and the respondents were required to defend. Serfass v. United States, 420 U.S. 377 .
Certiorari granted; 536 F.2d 871, reversed and remanded.
Respondents were indicted for illegal game hunting in Yellowstone National Park. A jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The Government's appeal pursuant to the Criminal Appeals Act, 18 U.S.C. 3731, 1 was dismissed by the Court of Appeals because that court thought retrial was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Government petitioned for certiorari, and we vacated the judgment of the Court of [429 U.S. 14, 15] Appeals and remanded for further consideration in the light of our intervening decision in Serfass v. United States, 420 U.S. 377 (1975). 421 U.S. 996 (1975).
On remand, the Court of Appeals, considering the trilogy of Serfass, supra, United States v. Wilson, 420 U.S. 332 (1975), and United States v. Jenkins, 420 U.S. 358 (1975), adhered to its prior determination. The Government now seeks certiorari from that ruling.
The reasoning of the Court of Appeals is best summarized by this language from its opinion:
The District Court's dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun. This case is, therefore, governed by United States v. Serfass, supra, in which we held that a pretrial order of the District Court dismissing an indictment charging refusal to submit to induction into the Armed Forces was appealable under 18 U.S.C. 3731. The dismissal in this case, like that in Serfass, was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend. Since in such cases a trial following the Government's successful appeal of a dismissal is not barred by double jeopardy, an appeal from the dismissal is authorized by 18 U.S.C. 3731.
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.