United States v. Nelson E. "Buck" Sanford

This appeal by the Government from an order dismissing indictment is back before us on remand from the Supreme Court of the United States. When it was before us the first time, 503 F.2d 291 (9th Cir.1974), we held that the Government could not appeal dismissal of the indictment against appellees under 18 U.S.C. § 3731 , since further prosecution would place them twice in jeopardy. Writ of certiorari was granted by the United States Supreme Court, resulting in an order vacating our judgment and remanding the cause “for further consideration in the light of Serfass v. United States, 420 U.S. 377 , 95 S.Ct. 1055 , 43 L.Ed.2d 265 (1975).” 421 U.S. 996 , 95 S.Ct. 2392 , 44 L.Ed.2d 663 (1975).

The facts on the basis of which the district court ordered dismissal of the indictment are discussed in our earlier opinion. It suffices here to say that trial of appellees resulted in a hung jury and declaration of mistrial, and that prior to retrial the district court granted appellees’ motion to dismiss the indictment. Relying on evidence presented at the trial the court ruled as matter of law that the Government, through its authorized agents, had given its consent to the actions of…