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Vogel v. Commonwealth of Pennsylvania

May 16, 1986


Appeal from the United States District Court For the Middle District of Pennsylvania - Scranton (Civil Action No. 84-0560).

Author: Stapleton

Before: HIGGINBOTHAM and STAPLETON, Circuit Judges and TEITELBAUM, District Judge.*fn*


STAPLETON, Circuit Judge.

On August 1, 1962, appellant Dennis Vogel fatally shot two of his coemployee during the course of an armed robbery. Three successive juries found Vogel guilty of two counts of second degree murder and one count of robbery. At each of his trials, Vogel's sole defense was insanity.

The Supreme Court of Pennsylvania reversed appellant's first conviction in a 5-2 per curiam opinion that lacked a majority viewpoint. Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970) [ Vogel I ]. Similarly, Vogel's second guilty verdict did not survive judicial scrutiny; the trial judge granted a defense motion for a new trial finding the verdict against the weight of the evidence. The Supreme Court affirmed, Commonwealth v. Vogel, 458 Pa. 200, 321 A.2d 633 (1974) [ Vogel II ]. Appellant's third trial resulted in a conviction which was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976) [ Vogel III ].

Appellant filed a petition under the Pennsylvania Post Conviction Hearing Act, 42 Pa. C.S. § 9541 et seq., arguing that his second and third trials offended the double jeopardy clause and that his counsel had been ineffective. The trial court agreed with Vogel's second contention but rejected his double jeopardy argument. The Pennsylvania Supreme Court also rejected the double jeopardy claim, but in addition it reversed the trial court's grant of a new trial based on the ineffective assistance of counsel claim. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) [ Vogel IV ]. The United States Supreme Court denied certiorari.

Finally, appellant filed a petition for habeas corpus in federal district court, the denial of which he now appeals. We have jurisdiction under 28 U.S.C. § 2253. Appellant once again contends that his second and third trials violated the double jeopardy clause. His argument relies on Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978), which held that a finding of insufficiency of evidence during or after a criminal trial bars retrial. Appellant further contends that Burks should be retroactively applied.


The right not to be twice put in jeopardy for the same offense is "fundamental to the American scheme of justice." Benton v. Maryland, 395 U.S. 784, 796, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). The Double Jeopardy Clause reflects

[t]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, . . . that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957).

In Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978), the Court held that the Double Jeopardy Clause precludes the second prosecution of a defendant whose guilty verdict is reversed by a reviewing court because of the insufficiency of the evidence.*fn1 Burks, accused of robbery, principally defended on the grounds of insanity. Before his case went to the jury, Burks submitted a motion for acquittal, which the district court denied. The jury then returned a guilty verdict. The Court of Appeals for the Sixth Circuit reversed, concluding that the prosecution's evidence fell short of proving sanity beyond a reasonable doubt. The Sixth Circuit then remanded the case to the district court for a "balancing of equities" to determine if a directed verdict of acquittal or a new trial should follow.

The Supreme Court found that such a remand was inappropriate. The appellate court's reversal meant that the trial court erred in not granting the motion for acquittal. But had the trial court itself initially recognized the insufficiency of the United States proof of sanity, "a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense." 437 U.S. at 10-11, citing Fong Foo v. United States, 369 U.S. 141, 7 L. Ed. 2d 629, 82 S. Ct. 671 (1962); Kepner v. United States, 195 U.S. 100, 49 L. Ed. 114, 24 S. Ct. 797 (1904).

The Double Jeopardy Clause, the Court continued, bars "a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." 437 U.S. at 11. The Court acknowledged that its prior holdings could "hardly be characterized as models of consistency and clarity." Id. at 11. To restore order, the Court revitalized the crucial but often ignored distinction between reversals based on insufficient evidence and reversals based on trial error.

Reversal because of trial error "implies nothing with respect to the guilt or innocence of the defendant," id., nor does it suggest that the government has in any way failed to prove its case. Instead, "it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct." Id. Consequently, "'it would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.'" Id., quoting United States v. Tateo, 377 U.S. 463, 466, 12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964).

The Burks Court thus made clear that retrial may follow a reversal based on trial error:

The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.

437 U.S. at 14 quoting United States v. Tateo, 377 U.S. 463, 465, 12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964) (emphasis supplied by Burks).

In contrast, reversal because of insufficient evidence

means that the government's case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal -- no matter how erroneous its decision -- it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

437 U.S. at 16. Thus, such a reversal cannot be said to prejudice the prosecution, which "has been given one fair opportunity to offer whatever proof it could assemble." 437 U.S. at 16.

In Tibbs v. Florida, 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (1982), the Court drew another double jeopardy distinction, this time between reversal based on insufficient evidence and reversal because the conviction was against the weight of the evidence. In a five to four vote, it held that the Double Jeopardy Clause does not preclude retrial after the latter.

The Tibbs majority confirmed the continuing viability of United States v. Ball, 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192 (1896), which, to the Tibbs Court, stands for the proposition "that a criminal defendant who successfully appeals a judgment against him 'may be retried anew . . . for the same offence of which he had been convicted.'" 457 U.S. at 39-40, quoting United States v. Ball, 163 U.S. 662, 672, 41 L. Ed. 300, 16 S. Ct. 1192 (1896). The Court reasserted the principle "that the Double Jeopardy Clause 'imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside,'" 457 U.S. at 40, quoting North Carolina v. Pearce, 395 U.S. 711, 720, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Two considerations supported this principle: first, the unacceptable societal cost of immunizing from punishment every defendant whose conviction was tainted by reversible error, and second, the Court's recognition that "retrial after reversal of a conviction is not the type of governmental oppression targeted by the Double Jeopardy Clause." 457 U.S. at 40.

Burks and Green represented a narrow exception to this general rule. Two politics informed the Burks exception:

First, the Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it means that no rational fact-finder could have voted to convict the defendant.

Second, Burks and Greene implement the principle that "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks, supra, at 11. This prohibition, lying at the core of the Clause's protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental preseverance. . . . For this reason, when a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.

457 U.S. at 41-42 (citations omitted) (emphasis added).

These policies the Court found less persuasive in the context of reversals where the verdict was against the weight of the evidence. Such a reversal does not imply that acquittal necessarily was the proper verdict. Rather, "the appellate court sits as a 'thirteenth juror,'" and its disagreement with the jury's resolution of the evidence "no more signifies acquittal than does a disagreement among the jurors themselves." Id. at 42. Just as retrial is not barred because the first trial ended in a deadlocked jury, so is retrial not barred where the appellate court disagrees with the jury's weighing of the evidence.

The Court continued,

A reversal based on the wright of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict.

The reversal simply affords the defendant a second opportunity to seek a favorable judgment. An appellate court's decision to give the defendant this second chance does not create "an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant" and obtain conviction solely through its persistence.

Id. at 42-43, quoting United States v. DiFrancesco, 449 U.S. 117, 130, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980). Thus, the "Double Jeopardy Clause does not require society to pay the high price of freeing every defendant . . . who persuades an appellate panel to overturn an error-free conviction and give him a second chance at acquittal." 457 U.S. at 44.


In Vogel IV, the Supreme Court of Pennsylvania found that appellant, in securing reversals of his first two convictions, "had the benefit of a metamorphosis in the law" of Pennsylvania and, accordingly, that double jeopardy did not bar his second or third trial. The court held:

in both Vogel I and Vogel II, it is without question that the prosecution did not fail because of the inadequacy of its evidence to prove Vogel's commission of the crimes charged. In each instance the jury convicted. The judgments of sentence were disturbed only because of an after the fact determination that the "judicial process [was] defective in some fundamental respect. . . ." Burks. . ., supra, 437 U.S. at 15. . . . The adjustment of the judicial process, which was the basis for overturning the verdicts of guilt in the first and second trials, was properly achieved in providing Mr. Vogel with a further opportunity "in obtaining a fair readjudication of his guilt free from error" and at the same time accommodated society's "valid concern for insuring that the guilty are punished." Id.

This case provides a vivid example of an accused being given the benefits of the refinements in our process which he clearly would not have been entitled to nor could he reasonably have expected on the day he committed these heinous acts. The absurdity of an application of double jeopardy considerations, in a situation where the defendant's rights have been scrupulously accorded, is evident. Moreover, we may not ignore the obligation to the citizenry of this Commonwealth to assure ...

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