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600 F.2d 186

Docket Nos. 78-3177, 78-3149.

United States v. Phillips

Ninth Circuit Court of Appeals

Decided April 19, 1979.

Ninth Circuit Court of Appeals · decided 1979-04-19

Cited by 3 later decisions — most recently February 1981

3 federal appellate ·

2 counsel of record

Applies 18 U.S.C. § 659

Relies on Burks v. United States · Abney v. United States · United States v. Scott

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1979-04-19

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¶1John P. Moran, Phoenix, Ariz., for defendant-appellant.

¶2Joel D. Sacks, Asst. U. S. Atty., and Allen B. Bickart, Kanne & Bickart & Kaufman, Phoenix, Ariz., on brief; Daniel Drake, Asst. U. S. Atty., for plaintiff-appellee.

¶3*187Before CHOY and ANDERSON, Circuit Judges, and BARTELS,* District Judge.

¶5PER CURIAM.

¶6Appellants Larry and Columbus Phillips were each convicted of one count of theft from an interstate shipment in violation of 18 U.S.C. § 659. Columbus Phillips was convicted of a second count for concealment of stolen chattels under the same statute.

¶7On appeal to this court, appellants contended that a mistrial should have been granted since they were prejudiced by the prosecution’s failure promptly to inform the trial court and defense counsel that it would seek to reopen its case because a Government witness, who had lied on the witness stand, was prepared to recant his testimony. Although not finding that the Government had engaged in misconduct, we held that appellants had been unduly prejudiced by the Government’s acts; we therefore reversed. 575 F.2d 1265 (9th Cir. 1978) (Phillips I).

¶8Upon remand, appellants filed a motion to dismiss the indictment on the ground that a retrial would violate their constitutional protection against double jeopardy. The district court issued an order1 stating that it found no prosecutorial misconduct and denied appellants’ motion. This appeal followed. We affirm.

¶9Appellants argue that the double jeopardy clause bars a retrial after a successful appeal by a criminal defendant when reversal was predicated upon prosecutorial misconduct or overreaching.2 Appellants contend that this court, in Phillips I, found that the Government had acted improperly. But this court explicitly stated that it did not find prosecutorial misconduct. 575 F.2d at 1267. Further, on remand, the district court found no misconduct. Because appellants have not shown that the district court’s findings were clearly erroneous, we affirm. Fed.R.Civ.P. 52(a).

¶10AFFIRMED.

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