United States v. Vernon Percy Howard

announced the judgment of the court, and the following opinion.

The United States put Howard, hereinafter designated as the defendant, on trial on the second count of an indictment, which count charged that the defendant sold and facilitated the sale of heroin, knowing that the heroin had been imported into the United States in violation of 21 U.S.C.A. § 174 . The trial was in the United States District Court for the District of Alaska, before a jury, which found the defendant guilty as charged. Timely motion for new trial or judgment of acquittal were made and denied by the court. Sentences of imprisonment and fine were imposed. The defendant appealed to this court.

At the trial, the Government’s evidence was to the effect that the defendant had an active part in the sale of certain heroin. At the close of the Government’s case the defendant’s counsel made a motion for an acquittal. The motion was denied.

The defendant testified in his own behalf. He was the only witness for the defense.

The Court asked the Government if it had any proposed instructions to offer. The Government requested that an instruction referring to the inference of importation and knowledge of…

(concurring) :

Judge Hufstedler and I concur in the result reached in Judge Madden’s opinion, but in concluding that Howard may be retried, we take a slightly different approach. We cannot see that any serious problem concerning the issue of double jeopardy is presented. Nor can we see that the two Pennsylvania civil cases cited in the principal opinion are significantly germane. When a judgment of conviction is reversed for insufficiency of the evidence, the determination of whether the indictment should be dismissed or there should be a retrial rests within the discretion of the court. See, e. g., Bryan v. United States, 338 U.S. 552 , 70 S.Ct. 317 , 94 L.Ed. 335 (1950); C. Wright, Federal Practice and Procedure, Criminal § 470. When an appellate court exercises this discretion, it must look to the record, undertaking to ascertain if the prosecution had the opportunity fully to develop its case, or, in fact, did so. If it did, or if it appears that it was responsible for its failure adequately so to do, then it is not ordinarily fair that the successful appellant should be required to undergo another trial. See, e. g., Davis v. United States, 382 F.2d 221 (9th Cir. 1967);…

432 F.2d 1188 UNITED STATES of America, Plaintiff-Appellee, v. Vernon Percy HOWARD, Defendant-Appellant. No. 25162. United States Court of Appeals, Ninth Circuit. October 9, 1970. Stephen C. Cowper (argued), Boyko & Walton, Anchorage, Alaska, for defendant-appellant. A. Lee Petersen (argued), Asst. U. S. Atty., Douglas B. Baily, U. S. Atty., Anchorage, Alaska, for plaintiff-appellee. Before MADDEN, * Judge, United States Court of Claims, and ELY, and HUFSTEDLER, Circuit Judges. 1 J. WARREN MADDEN, Judge, announced the judgment of the court, and the following opinion. 2 The United States put Howard, hereinafter designated as the defendant, on trial on the second count of an indictment, which count charged that the defendant sold and facilitated the sale of heroin, knowing that the heroin had been imported into the United States in violation of 21 U.S.C.A. § 174 . The trial was in the United States District Court for the District of Alaska, before a jury, which found the defendant guilty as charged. Timely motion for new trial or judgment of acquittal were made and denied by the court. Sentences of imprisonment and fine were imposed. The defendant appealed to this court. 3…