Petition of UNITED STATES of America for a Writ of Mandamus

United States Court of Appeals for the Ninth Circuit1962-08-16No. No. 17644

306 F.2d 737

Summary · law.co

Holding. The writ of mandamus petition is granted; the district court's order dismissing three counts was entered beyond its lawful authority and must be vacated. The court deferred final action for thirty days to allow the district court to correct its ruling and to consider whether the defendant's plea should be set aside.

A federal district court accepted a defendant's plea of nolo contendere to one tax evasion count out of four charged and then dismissed the remaining three counts, stating it had already imposed sufficient punishment. The government petitioned for a writ of mandamus to overturn the dismissal order. The court held that a district judge lacks the authority to dismiss multiple counts solely on the basis that the defendant has already received adequate punishment on a separate count, as this unconstitutionally infringes on the executive branch's prosecutorial rights.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court may dismiss counts over government objection based solely on defendant already receiving sufficient sentence
Scope of judicial power to terminate prosecution in the interests of justice
Whether dismissal of separate and independent offenses violates the executive branch's prosecutorial authority

Procedural posture

The United States petitioned for a writ of mandamus in a federal appellate court seeking to overturn a district court's order dismissing three counts of an indictment after the defendant pleaded nolo contendere to one count.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM.

A federal grand jury returned a four-count indictment charging Louis A. Baumer with willful attempt to evade and defeat income taxes for each of the years 1954, 1955, 1956 and 1957. A date was fixed for trial of all counts. The defendant expressed a desire to enter a plea of nolo contendere to one count, but to no more. The government offered to dismiss two counts, but was not willing to dismiss three. The Court vacated the trial setting, accepted the plea of nolo contendere to one count, and called for a presentence report.

After reviewing and considering the presentence report the Court imposed sentence on the count to which defendant had pleaded nolo contendere, and dismissed the remaining three counts. The Court stated its reason as follows: “I am going to dismiss them in the interests of justice. The defendant has been sentenced on one count and I think that is fair, and I will just say in the interests of justice. I think he has been punished enough. They have a civil remedy, and I think that is sufficient.” The United States now seeks a writ of mandamus directing the District Court to vacate the order dismissing the three counts and to set a date for trial.

Each of the four counts charged a separate and independent offense. United States v. Johnson, 123 F.2d 111, 119 (7th Cir. 1941); United States v. Sullivan, 98 F.2d 79, 80 (2d Cir. 1938). We have concluded that dismissal of three of the counts over the government’s objection on the sole ground that the Court had already imposed a “sufficient” sentence upon the fourth count denied the executive branch its right to prosecute, and the entry of the order was therefore beyond the Court’s power. See Ex Parte United States, 287 U.S. 241, 250-251, 53 S.Ct. 129, 77 L.Ed. 283 (1932); United States v. Thompson, 251 U.S. 407, 412, 415, 40 S.Ct. 289, 64 L.Ed. 333 (1920); Ex Parte United States, 242 U.S. 27, 41-42, 37 S.Ct. 72, 61 L.Ed. 129 (1916); In re United States, 286 F.2d 556, 563-565 (1st Cir. 1961), reversed on other grounds sub nom. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). This does not mean, of course, that the District Court lacks power to terminate a prosecution in a proper case. See, e. g., Gore v. United States, 367 U.S. 364, 367-370, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Heath, 260 F.2d 623, 625-627, 632 (9th Cir. 1958); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, 881-882 (1953).

In the circumstances, defendant’s plea of nolo contendere may have been entered under such a misapprehension that the District Court might properly give serious consideration to a motion to set aside the conviction and permit withdrawal of the plea. Fed.Rules Crini.Proc., Rule 32 (d), 18 U.S.C.A.

We entertain no doubt that on the basis of our decision the District Court will take appropriate steps to correct its earlier ruling. Action on the petition for writ of mandamus is deferred for thirty days from the date of filing of this opinion.