*District Judge of the Northern District of Mississippi,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 93-7318

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT TERRY,

Defendant-Appellant.

 

No. 93-7340

 

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

 versus

THOMAS S. WALDRON, ROBERT TERRY

and DAVID WENGER,

 Defendants-Appellees.

 

Appeals from the United States District Court

for the Southern District of Mississippi

 

(October 18, 1993)

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and

DAVIDSON*, District Judge.
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HIGGINBOTHAM, Circuit Judge:

Defendants in these consolidated cases allegedly conspired to

defraud a bank out of $2.7 million by arranging a fraudulent loan

and then manipulating records so the loan would look justifiable to

regulators. Defendant Robert Terry claims his prosecution is

barred by double jeopardy. The government claims that the district

court erred in striking two overt acts from the indictment. We

affirm the district court's decision that Terry's prosecution is

not barred by double jeopardy, and we dismiss the government's

appeal for want of jurisdiction.

I.

Defendant Robert Terry was first indicted on September 24,

1991. After a series of continuances, he filed motions to dismiss

the indictment on April 3, 1992 and April 7, 1992. The court

denied the April 3 motion and held the April 7 motion in abeyance.

Trial began April 21, 1992, and ended with the grant of Terry's

motion for a mistrial. The motion for mistrial came during the

testimony of William Kelly, a former codefendant of Terry's who

agreed to testify for the government. The prosecutor asked why he

earlier lied about his fraudulent behavior. He answered that he

had been afraid for his life because Terry had killed someone. The

next morning another prosecutor spoke to Kelly about his testimony

on this issue during a recess that came during defendant's crossexamination of Kelly. 

The judge granted a mistrial, persuaded that the prosecutor's

conversation with the witness prevented the defense from
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effectively minimizing the effects of Kelly's statements by crossexamination. The judge also requested parties to brief whether he

should dismiss the charges with prejudice because of prosecutorial

misconduct. Before any briefs were submitted, the prosecution

moved for leave to dismiss the indictment under Federal Rule of

Criminal Procedure 48(a). Terry did not object and the district

court dismissed the indictment without prejudice. On August 19,

1992, Terry was indicted again and this indictment was dismissed

without prejudice.

On October 7, 1992, an indictment was returned charging that

Terry, Thomas Waldron, and David Wenger, from approximately

December 1986 to April 1992, conspired to commit bank fraud, mail

fraud and wire fraud in violation of 18 U.S.C. §§ 371, 1344, 1341

and 1343. The charging language of the first count, realleged and

incorporated in the other counts, alleged that the three defendants

arranged for a $2.7 million loan to Waldron and then manipulated

bank records to create an apparent adequate net worth. The

indictment also charged acts of concealment as part of the

conspiracy:

It was further a part of the conspiracy that defendants

and their co-conspirators would coverup and conceal from

regulators and others that moneys of Republic, i.e., part

of the proceeds of the six (6) loans described above,

were being used to purchase shares of preferred stock of

Republic.

 

The count set forth 24 overt acts, including:

23. Thereafter, defendant WALDRON met with at least one

co-conspirator and others involved in the bank

fraud scheme in 1988 and 1989 to discuss their

criminal liability for activities described above.
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24. Defendant WALDRON paid legal defense fees for

representation needed as a result of the bank fraud

scheme and money laundering activities of defendant

TERRY, through and after April, 1992.

Terry and Wenger moved to strike overt acts 23 and 24 prior to

trial. In early April of 1993 Terry moved to dismiss the

indictment on the grounds of double jeopardy. 

On April 19, 1993, the district court issued a memorandum

opinion denying Terry's motion to dismiss the indictment on the

grounds of double jeopardy and granting Terry and Wenger's motion

to strike. The United States appeals the decision to grant the

motion to strike and Terry appeals the rejection of his claim of

double jeopardy.

II.

The government argues that we have jurisdiction under 18

U.S.C. § 3731. It first urges that we have jurisdiction because

this is an appeal from a decision "dismissing an indictment . . .

as to any one or more counts." The government does not contend

that the two overt acts struck by the district court constitute a

count of the indictment. Rather, it urges us to adopt the rule of

some circuits that the word "count" in section 3731 includes orders

dismissing only a portion of a count, provided that the stricken

material established a discrete basis of criminal liability that

could have been charged as a separate count. See, e,g., United

States v. Levasseur, 846 F.2d 786 (1st Cir.), cert. denied, 488

U.S. 894 (1988); United States v. Tom, 787 F.2d 65 (2d Cir. 1986).

We did not pass on the merits of this test last year in United

States v. Miller, 952 F.2d 866 (5th Cir.), cert. denied, 112 S.Ct.
5

3029 (1992), and decline to do so today. We have no need to

because even under such a reading of the statute, the government

does not explain what offense could be charged from Counts 23

(having a meeting) and 24 (agreeing to pay attorneys' fees). Cf.

Levasseur, 846 F.2d at 790 (each stricken overt act was a separate

violation of state arson law); United States v. Martin, 733 F.2d

1309 (9th Cir. 1984) (en banc), cert. denied, 471 U.S. 1003 (1985)

(continuing failure to register with Selective Service was a

separate offense). 

Alternatively, the government relies on statutory language

allowing appeal from a decision or order "suppressing or excluding

evidence" and directs us to our recent opinion in United States v.

Miller, 952 F.2d 866 (5th Cir.), cert. denied, 112 S.Ct. 3029

(1992). In Miller, the government argued that there was appellate

jurisdiction because the district court deleted allegations from

the indictment, effectively restricting the trial evidence. This

court said this argument was "reasonable," but found it had no

jurisdiction because the government had not timely filed the

certification required by section 3731. 952 F.2d at 875.

This argument stretches our dicta in Miller too far. Every

order narrowing the scope of an indictment potentially limits the

government's evidence at trial. If Congress had meant for the

"suppression" part of the statute to be read this broadly, it would

not have distinguished between orders dismissing all or part of an

indictment and those excluding evidence. We are unwilling to read
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part of section 3731 as surplusage, and are compelled to conclude

that we have no jurisdiction to hear the government's appeal.

III.

We agree with the government that its second prosecution of

Terry did not wrongfully put him in jeopardy a second time. A

defendant has a right to have his first jury decide guilt; he

waives that right by moving for a mistrial or acquiescing in a

dismissal. Oregon v. Kennedy, 102 S.Ct. 2083, 2089 (1982); United

States v. Nichols, 977 F.2d 972, 974-75 (5th Cir. 1992), cert.

denied, 1993 U.S. LEXIS 5213 (Oct. 4, 1993).

The government contends that Terry waived any jeopardy

contention he may have had by acquiescing in the Rule 48(a)

dismissal. As we have explained, while the parties were briefing

the issue of whether the charges should be dismissed with prejudice

because of prosecutorial misconduct, the prosecution moved to

dismiss without prejudice under Rule of Criminal Procedure 48(a).

Terry did not object and the court then dismissed without

prejudice. This dismissal did not bar retrial. See Woodring v.

United States, 311 F.2d 417, 423 (8th Cir.), cert. denied, 373 U.S.

913 (1963). See also Charles A. Wright, 3A Federal Practice and

Procedure: Criminal § 811, at 195 & n.9 (2d ed. 1982).

We thus have no occasion to decide if the prosecutors "goaded"

a mistrial. See Oregon v. Kennedy, 102 S.Ct. 2083 (1982), and

United States v. Singleterry, 683 F.2d 122 (5th Cir.), cert.

denied, 459 U.S. 1021 (1982). Nonetheless, we must not let pass

without notice the impropriety of the prosecution's actions. The
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prosecutor conducting the direct examination, with no notice to the

defense, knowingly elicited testimony accusing Terry of a serious

criminal offense. The prosecution had made no effort to

investigate the accusation and have never brought any charges based

on it. And once this apparently baseless accusation came before

the jury, another prosecutor spoke to the witness about it, not to

correct it but to place the assertion in a more credible light.

This conduct was wrong. The prosecutors are admonished that such

acts breach their duty to represent the public interest. Trusting

that this failure was an episodic error, we say no more--for now.

DISMISSED IN PART AND AFFIRMED IN PART.