POLAND v. ARIZONA

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ORAL ARGUMENT OF W.K. WILHELMSEN, ESQ., ON BEHALF OF THE PETITIONERS, APPOINTED BY THIS COURT

Chief Justice Burger: We will hear arguments next in Poland against Arizona and the related case.

Mr. Wilhelmsen, I think you may proceed whenever you are ready.

Mr. Wilhelmsen: Mr. Chief Justice, and may it please the Court, for a brief background of the case, the two petitioners are charged and convicted and on death row for murder resulting from the death of two Purolator guards who were delivering some $338,000 cash in northern Arizona.

They left Phoenix.

They disappeared.

The next morning they find the van.

The two guards are gone.

Some $281,000 of the money is gone.

The bodies are subsequently found a month later apparently drowning and/or combination heart attack in the case of Mr. Dempsey.

The bodies are recovered on the Nevada side of Lake Mead in Debbie's Cove.

Those facts are not what we are really talking about today.

We are talking an issue of double jeopardy.

The Polands went to trial.

They were convicted.

Pursuant to our procedure on aggravating and mitigating circumstances, the trial court on the first sentencing proceeding found one aggravating circumstance, especially heinous, cruel and depraved.

He specifically found no on pecuniary gain, but he qualified that answer, and I will get back to that later.

They were sentenced to death.

The court did find certain mitigating circumstances, that they had good character, close family ties, model prisoners, and the court did consider their age.

Automatic appeal under our procedure.

The case is appealed to the Arizona Supreme Court.

They, in handling the guilt phase of the trial, they find that there has been jury impropriety that is not material here, that they are granted a new trial on the guilt phase.

The Court goes on to discuss the punishment phase, and in discussing the punishment phase, they find that it was not established beyond a reasonable doubt that the evidence thus far shows it was especially cruel.

In addition, they also went on to find it has not been established beyond a reasonable doubt that it was especially heinous or depraved.

Unidentified Justice: This is the Supreme Court of Arizona, Mr. Wilhelmsen?

Mr. Wilhelmsen: Yes, Justice Rehnquist.

In their first opinion, Poland I.

In remanding the case for a new trial, they do admonish the trial judge or suggest to him that if the Poland boys are found guilty next time, you may consider pecuniary gain in that the offense was committed in the expectation of or consideration for the receipt of something of value.

Unidentified Justice: Well, the trial court had said something about that the first time around.

Mr. Wilhelmsen: Yes.

They found like in Mr. Rumsey, Judge Coulter in Rumsey I found... he didn't agree with the law as then interpreted.

Our trial occurred and sentencing before State v. Clark which was, I believe, July of 1980, and the opinion released in September.

The initial sentence on Poland was in April.

But he did find that this was not pecuniary gain.

He considered it limited to the contract type killing, but if we were to consider pecuniary gain as more broad, then they did receive something of value, $281,000.

Unidentified Justice: And that was before the case went to the Supreme Court of Arizona the first time?

Mr. Wilhelmsen: No, that was the Supreme Court's... oh, yes, that was the trial judge's ruling.

Then it goes to the Supreme Court, and then that is when they find that the one aggravating circumstance found by the trial judge was not supported by the evidence, but he made error on the other one or... not error, misinterpreted the law.

The case comes back to trial.

They are again convicted.

Another aggravating, mitigating hearing, and this time in the case of petitioner Patrick Poland there are three aggravating circumstances found.

In the interim while his case was on appeal he was convicted of another offense in Phoenix, Arizona, in Federal Court, an armed robbery, and that was used as an aggravating circumstance under E-2.

In addition, they found that both petitioners had committed this crime for pecuniary gain, and in spite of what the Arizona Supreme Court said the first time around, the trial court also found it was especially heinous, cruel and depraved.

Mitigating circumstance, we lost one.

They had close family ties, but they did not have good character.

Their character was false, in that they were deceptive and had committed a crime.

The appeal goes up the second time on Poland II.

One of the issues, and the only issue we are concerned with, is the double jeopardy question.

The Arizona Supreme Court found that it did not offend double jeopardy, and they did not agree, nor shall any person be subject for a same offense to be twice put in jeopardy for the same offense.

What is the purpose of double jeopardy?

It has got many concepts, and it depends on what direction the case and the posture of it is coming out.

One of the fundamental principles of double jeopardy is, Mr. Prosecutor, you get one fair, full chance to present your evidence, and if you do, fine, and if you don't, you want another second bite at the apple, then that is when this veil of double jeopardy comes down upon the petitioner.

Why does double jeopardy apply in this particular case?

It boils down to really maybe a hard question to answer but a simple issue.

What we have is trial error detrimental to the state, prejudicial to the state in that the judge should have found pecuniary gain the first time around but he didn't.

Then we have another trial error, which would be detrimental to the petitioners, insufficient evidence.

Unidentified Justice: Didn't the trial court find sufficient facts to meet the definition of pecuniary gain in the Arizona statute the first time out?

He just didn't think those facts met the legal definition.

Mr. Wilhelmsen: It didn't apply to the law.

Just like in Rumsey, when Judge Coulter said, I don't agree with the way the law is being interpreted.

I don't agree with that, and I don't... it is stated in Matson.

Unidentified Justice: I didn't understand the trial court the first time around to say I don't agree with the Supreme Court of Arizona.

There would have been no decision from the Supreme Court.

Mr. Wilhelmsen: No.

Right.

At that time State v. Clark had not come out, as cited by the trial lawyers in their memorandum sentencing... I believe it is March the 25th of 1980.

They cite several cases that have been before the Supreme Court of Arizona that involve pecuniary gain, just as Mr. Rumsey involved pecuniary gain.

He was convicted of robbery, which was not set aside, but it was there.

The law as interpreted at the trial level was one of reading special aggravating circumstance E4 and E5 as a combination, E4 being the man who hires the contract type killing, E5 the man who performs it or maybe someone who would kill for inheritance or something like that.

The argument at the first sentencing hearing before Judge Rosenblatt, petitioner's counsel were exclusively directing their argument to the status of the law and trying to understand what it was, and in their memorandum they went to great length and cite other jurisdictions on how they handled it.

In fact, even the state's memorandum thought maybe this might be limited to the Mafia-type killing, but be that as it may, and then he did argue they planned this job as the evidence in the trial had shown, and the drivers did die, therefore they received pecuniary gain.

Jeopardy.

Petitioners' position is, jeopardy attached.

We had a sentence.

We had a hearing.

And we had death pronounced.

Petitioner now goes up to to the Arizona Supreme Court and hit a hole in one.

Insufficient evidence, not showing beyond a reasonable doubt, the only aggravating circumstance, especially heinous, cruel and depraved, and each one of those would constitute an aggravating circumstance in the disjunctive to warrant death penalty was not proven.

Petitioners rely on Burkes as cited in the brief.

We rely upon Green v. Massey, which applied Burkes to the state.

And then we also rely on Hudson v. Louisiana.

The purpose there of Hudson was to show that it didn't mean any evidence, but it has not been shown beyond a reasonable doubt.

Those cases would show that the status of the petitioner's case when the Arizona Supreme Court ruled in Poland I is what can be done from here.

There is insufficient evidence.

The only way we can cure this is send it back for a new trial on death penalty.

Enter Mr. Bullington.

Mr. Bullington was convicted, the only distinction being Bullington and Rumsey didn't receive death.

The double jeopardy, we are not talking merits of the case.

We are talking whether that veil is there or not and whether or not it requires a new trial.

Bullington tells us that there are two separate trials, one on guilt and one on innocent, I mean, on punishment.

The one on punishment is independent of the one on guilt.

Because of the constitutional change Mr. Bullington received a new guilt trial, entitled to a different panel of the jury, but they couldn't retry him on punishment, and this Court so held.

Further, the Arizona Supreme Court, interpreting its own law in Rumsey II has made it quite clear that double jeopardy applies to Arizona's death sentencing procedure.

Unidentified Justice: May I interrupt you for a moment?

Mr. Wilhelmsen: Yes, Justice.

Unidentified Justice: What is it that precluded a second sentencing hearing in your submission?

Mr. Wilhelmsen: Based on insufficient evidence to support one aggravating circumstance--

Unidentified Justice: But not insufficient evidence to support the death penalty.

Mr. Wilhelmsen: --Trial error.

Trial error prejudicial to who?

The state.

The state had their opportunity to present their evidence to convince that Court that pecuniary gain did apply just as whoever the trial lawyer was in state v. Park, which convinced that court, and it came up in the Arizona Supreme Court did find that pecuniary gain is not limited to the hired gun.

Unidentified Justice: But I am still not entirely clear not entirely clear on your submission.

Your submission is that if there is insufficient evidence to support the particular aggravating circumstance on which the trial judge relied, there cannot be a second death penalty hearing?

Mr. Wilhelmsen: It requires a new hearing.

Rumsey was the same problem.

Unidentified Justice: Except in Rumsey there was a decision not to impose the death penalty, which is tantamount to an acquittal in the second hearing.

Mr. Wilhelmsen: That is the only distinction.

Unidentified Justice: You don't have that.

Mr. Wilhelmsen: We have the distinction that both Rumsey and Bullington received life.

The double jeopardy is not defined in terms of the merits of the issue or of the case.

Does double jeopardy apply to this factual situation?

What is necessary after the Supreme Court of Arizona entered its opinion in 1982, Poland I, what is necessary now to impose the death penalty?

Well, first of all, they have got to reconvict the Polands.

Then, second of all, they have got to have an aggravating mitigating hearing, which they did have.

It calls for a new proceeding, a second proceeding.

Why are we having a second proceedings on the death penalty on the Polands, whereas we don't have a second proceedings on Mr. Bullington, because Bullington got life the first time.

Unidentified Justice: That is right, and therefore you have something tantamount to an acquittal, which bars a second hearing, but you don't have anything tantamount to an acquittal of the death penalty in this case.

Mr. Wilhelmsen: We have what is tantamount to an acquittal is by the ruling of the Arizona Supreme Court in Poland I.

That was not an explicit acquittal as one would phrase Mr. Rumsey's--

Unidentified Justice: Nor was it--

Mr. Wilhelmsen: --but it was an... acquittal.

Unidentified Justice: --Well, no, it wasn't the equivalent of Burke either, because it was not a holding that there was not enough evidence in the record to support a death penalty.

Mr. Wilhelmsen: If I recall Burke correctly, I believe there was not a sufficient prosecution of the evidence to overcome the presumption of the insanity type defense.

They had presented a record on insanity, and the government had come back in and overcome that presumption, so not talking merits of the case or 100 percent free trial for the government.

Do they get a perfect trial, or is it under our system there are so many protections granted to a defendant that we require proof beyond a reasonable doubt in criminal cases, and the same principle would apply here.

Why should the government get a second bite at the apple?

Unidentified Justice: But in that case the second bite enabled them to put in evidence to shore up the case that was deficient.

Here they use exactly the same evidence which they claim is sufficient and was always sufficient, if I understand the case.

It is rather complicated.

Mr. Wilhelmsen: Yes, Justice, but there is one little problem.

The trial lawyer for the Polands, if you will read their memorandum and likewise the sentencing hearing, they are arguing the law on this.

They are saying this doesn't apply because this is not a contract killing.

They didn't present or address the issue like in consideration of or in the expectation of.

Now, what is the fine technical meaning of those words?

Our court has in Clark explained it.

One could feasibly argue that this is different from Clark.

The guards disappeared, and that van disappeared some time early on May the 24th.

The van was found the next morning at about 6:30 in the morning, locked, in a desolate area of Yavapai County about halfway between Phoenix and the little village of Prescott, where their first deliveries were to be made.

There is the van, locked.

They could get into it.

There was some money there, but most of it is gone.

Where are the guards?

A day passes.

A week.

The guards' bodies surface approximately a month later and a week apart.

I say surface.

They are found floating in Lake Mead a month later.

Was their killing in consideration or in expectation of pecuniary gain, or if you are in another... like some other states have statutes and aggravating circumstances where if you are going to dispose of a witness to this crime, that constitutes an aggravating circumstance.

Do we take every feasible situation and try to squeeze it into pecuniary gain?

The trial lawyer argued strictly from the standpoint of the law on the issue, that it is limited to the hired gun.

You have got to read four and five together.

So the misinterpretation of the law if one wants to characterize it as such was really a common interpretation made across the state of Arizona.

This death penalty was passed in 1973.

Here we are, July of 1980, before we get to the Clark case for an interpretation that it is not limited.

What is necessary again is a multiple trial.

You have got to have another hearing on this, and as a result of that second hearing, the Polands' lost ground.

They lost their good character in the interim.

The same evidence.

What new occurred?

The next point would be that the weight or the sufficiency of the evidence to establish the one pecuniary gain found by the cruel, heinous, and depraved found by the Arizona court based on a reading of Richmond and likewise in Watson.

The Arizona court in looking at an aggravating circumstance doesn't weigh the evidence as perhaps the Florida court does, where they have Zandt v. Green and their earlier cases, where if the evidence was so tenuous it wouldn't support this conviction.

We have the right as a judge to send it back to the trial court and have a new hearing.

Arizona, we looked to see whether or not there is evidence to support this aggravating, and we look to see whether or not there is evidence to support the mitigating circumstance.

Then the court would weigh these in their independent reviews, one against another, and then their, of course... review.

Certainly as far as one of the statements... the Arizona Supreme Court in relying upon their decision in Poland II and saying we do not agree, they refer to a case called Knapp v. Carwell, which is an unusual case.

Knapp v. Carwell results from an earlier case which was called State v. Watson, where the constitutionality of the Arizona death penalty that was involved here was first brought to the attention of the Arizona Supreme Court, and by judicial interpretation they found that the statute wasn't unconstitutional.

This was an answer in regard to Lockett v. Ohio.

They go through this case and one thing they find is that double jeopardy doesn't apply in the Watson case, because its resentencing is ameliorating.

Who has been damaged by limiting mitigating circumstances?

Only the petitioner.

Subsequently, when this gets cleared up, and then we get a class action of all the people down on death row, it goes into the federal court.

They in that time, in making their decision to the Ninth Circuit, compare Arizona's procedure to Missouri, and they find a big distinction at that point, because it involved a judge in Bullington... I mean, excuse me... yes, the judge in Bullington and vice versa.

In Bullington the jury determines it, but in Arizona the judge does it.

That was the distinction.

And in addition, they found that the sentencing procedure is ameliorative, that these people haven't started serving their death sentence, so double jeopardy does not apply, and further, one case out of that whole group presents an issue somewhat compatible with the issue here, and that was Mr. Valencia.

Mr. Valencia had been convicted and sentenced to death on murder, and then he had been resentenced pursuant to Watson before the court heard Knapp v. Carwell.

Mr. Valencia, due to the publicity of his first conviction, had a lady come into the Tucson port and indicate she had been raped by that man, and so there was a subsequent trial on that.

He was convicted, and then when he was resentenced per Lockett and Arizona's Watson, they brought up this second new aggravating circumstance, but in the Ninth Circuit, in light of our finding that Watson changed in interpretation his procedural and ameliorative, that Bullington is distinguishable, and we hold double jeopardy does not apply.

I would like to reserve the remainder of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Grant?

ORAL ARGUMENT OF GERALD R. GRANT, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Grant: Thank you, Mr. Chief Justice, and may it please the Court, on May 24th, 1977, the petitioners Michael and Patrick Poland, disguised as police officers stopped a Purolator armored van on an interstate highway north of Phoenix.

The van and its guards, Cecil Newkirk and Russell Dempsey, were on their way on a regularly scheduled run to deliver money to banks in northern Arizona.

The petitioners managed to subdue the guards, and they removed something in excess of $280,000 in cash from the van and took it with them.

The following morning, petitioners rented a boat at Lake Mead in northern Arizona.

They put the guards on the boat, took them out onto the lake, put them in canvas bags, weighted the bags down with rocks, and dropped them into the water, where they drowned.

It was based upon these facts--

Unidentified Justice: Is it clear that they were still living when they were dropped in the water?

Mr. Grant: --Yes, Your Honor.

The testimony of the medical examiner at the trial indicated that the cause of death of both men was drowning.

He had a slight qualification with respect to Mr. Dempsey in that he found some evidence of heart disease, and he testified that that could have been a possible cause of death.

However, his testimony was that the cause of death of both men was drowning.

It was based upon these facts that petitioners were convicted of first degree murder and sentenced to death.

Petitioners are now claiming that the double jeopardy clause precludes their death sentences because the Arizona Supreme Court acquitted them of the death penalty on their first appeal.

Respondent submits that no court in the state of Arizona has acquitted petitioners of the death penalty, and that the state has never failed to prove its case for imposition of the death penalty.

Petitioners admit that the trial court imposed the death penalty at their first sentencing.

With respect to the trial court's findings at that sentencing, however, the petitioners do not clearly focus on all the findings that the trial court made.

According to petitioners, the trial court simply found that one aggravating circumstance existed, that being the cruel, heinous, or depraved nature of the killings.

Petitioners also maintain that the trial court simply found that a second factor, that being that the killings were committed for a pecuniary motive, did not exist.

The trial court's findings were not that simple, especially with respect to the pecuniary gain factor.

Counsel in argument has likened the trial court's handling of the pecuniary gain factor in this case to the handling of that same factor by the trial court in Rumsey--

They were not handled the same.

In Rumsey, the trial court specifically found that the pecuniary gain factor did not exist, period.

In this case, the state's evidence in support of the factor was that the killings were obviously committed for the obtaining of a financial profit, that being the money taken from the vans.

Unidentified Justice: Would the death penalty have been justified here only on the manner in which these people were murdered, tying them in a sack and dropping them in the water?

Mr. Grant: That was one of the--

Unidentified Justice: Would that have been enough alone, if there had been no mitigating... showing of mitigating circumstances?

Mr. Grant: --Yes, if a... yes, that would have... that amounted to an aggravating factor in this case.

Unidentified Justice: So that in your view the fact that they made $281,000 out of it is irrelevant?

Mr. Grant: It is not irrelevant.

Unidentified Justice: Or it is cumulative?

Mr. Grant: It is an additional reason to impose the death penalty.

The evidence regarding the pecuniary gain factor was never disputed by petitioners at the first sentencing.

It has never been disputed at any stage of this case.

There is no claim that the state failed to prove the pecuniary gain aggravating factor.

The only argument that petitioners made at sentencing and even at resentencing was that the legal meaning of the factor did not apply to that evidence.

The dispute was between whether the pecuniary gain factor applied to contract killings only or whether it went farther to embrace all killings where the obtaining of money is a motivating factor in the killing.

At the time of the first sentencing, as counsel has pointed out, the trial court did not have the benefit of later Arizona Supreme Court opinions defining the pecuniary gain factor.

It thus faced the problem of determining for itself what the exact legal meaning of the factor was.

What the trial court did was, it took note of the two conflicting theories.

It then made findings of fact regarding each of those theories--

It stated that there was no evidence that this was a contract killing.

It went on to state that the evidence clearly did show that the killings were committed for a financial motive.

It then made what respondent refers to as a conditional finding.

It stated, if the pecuniary gain factor is limited to the contract killing situation, it does not exist here.

If, however, it goes farther than the contract killing situation, it does apply here.

Essentially, what the trial court did was make evidentiary findings and left the legal question on the meaning of the pecuniary gain back to the Arizona Supreme Court.

Unidentified Justice: If you are correct in it, why didn't the Supreme Court of Arizona accept the trial court's conditional finding of the pecuniary gain factor the first time around?

Mr. Grant: I think reading Poland I and Poland II together, I think it is clear that the Arizona Supreme Court did.

However, in Poland II, the Arizona Supreme Court had already reversed the convictions.

The case was already going back.

In the event of a conviction or first degree murder, there was going to be another sentencing hearing.

For that reason, the Arizona Supreme Court did not take the extra step and say, yes, indeed, this exists here and it supports the death penalty.

There was no need to at that point, because it had already reversed the convictions.

Unidentified Justice: It reversed the convictions themselves, not the penalties.

Is that it?

Mr. Grant: Correct.

Unidentified Justice: I see.

Mr. Grant: It reversed the convictions based upon an allegation of misconduct by the jury.

That is what it did first, before discussing the findings by the trial court with respect to the aggravating factors.

After the Arizona Supreme Court had reversed the conviction, as counsel pointed out, it went on to discuss the findings on the aggravating factors.

It stated with respect to the cruel, heinous, and depraved factor that the evidence, in the court's words, "so far produced" was not sufficient to support the trial court's finding.

On the pecuniary gain factor, it quoted the exact findings that the trial court had made.

It then noted the trial court's confusion over the legal meaning of the pecuniary gain factor.

It provided the trial court with the correct definition of that factor, and then it in effect advised the trial court that in the event of a conviction following a retrial, that that factor could be found again.

Petitioner's contention is that an acquittal occurred on the death penalty issue at the first appeal.

I believe the basis of the argument for an acquittal is that when the Arizona Supreme Court found the evidence insufficient with respect to the cruel, heinous, or depraved factor, essentially there was nothing left to support the death penalty.

This position fails to deal with the trial court's finding on the pecuniary gain aggravating factor and the Supreme Court's own discussion regarding that same factor.

There is admittedly no failure of proof with respect to that factor.

Even at resentencing, there was no argument by the petitioners that the state's evidence was exactly the same as it had been at the first sentencing, did not show that these killings were committed with a financial motive.

Even though the Arizona Supreme Court found that one aggravating factor was not sufficient would prove the trial court's findings with respect to the aggravating factor were sufficient to prevent an acquittal in Poland I.

One of the major factors in this Court's decisions regarding double jeopardy cases, it involves the special treatment that acquittals are given.

The double jeopardy clause is designed to protect defendants from having to go through a second ordeal of a trial or in death penalty cases that are sufficiently like a trial, a second sentencing proceeding.

A retrial after an acquittal would force a defendant to undergo that ordeal a second time.

Therefore, when the proceedings terminate in favor of the defendant with an acquittal, double jeopardy protection will apply, and that will be the end of the matter.

In this case, there simply no acquittal.

There was no point in this case when the defendants could consider themselves free of the death penalty.

The trial court's findings with respect to the pecuniary gain factor kept that issue open, and prevented the Arizona Supreme Court's decision in Poland I from amounting to an acquittal on the issue of the death penalty.

In the absence of such an acquittal, the rationale that this Court discussed in Pierce would apply here, but petitioners' appeal and obtaining of a reversal of their convictions on appeal in effect wipes the slate clean and allows not only for a second trial but for a second sentencing.

There has been some argument in the brief regarding a failure to appeal by the state with respect to the trial court's finding at the first sentencing.

It is respondent's position that there was simply no need for the state to appeal from that finding.

There had been nothing decided, to its detriment.

The trial court specifically found that the evidence the state presented supported a finding that the killings were committed for a financial motive.

Furthermore, the Arizona Supreme Court in all cases in which the death penalty has been imposed does conduct what it calls an independent review.

That review is not the usual review that an appellate court does when it comes to reviewing evidence.

With respect to the aggravating and mitigating factors, the Arizona Supreme Court conducts an independent review.

It independently weighs the evidence regarding each aggravating factor and each mitigating factor and determines the weight for itself they should be given.

Because of that independent review performed by the Arizona Supreme Court, there was no need for the state to appeal in this case.

Unidentified Justice: General Grant, may I ask you if there had not been a setting aside of the conviction and the appeal was only on the death penalty, and they had then done exactly what they did, under your view, as a matter of Arizona law, I am curious, would the Arizona Supreme Court have had the authority to affirm the death penalty changing the rationale by saying that he made an error of law on the pecuniary circumstance, aggravating circumstance, even though the other one was not supported by the evidence?

Mr. Grant: My opinion is that the Arizona Supreme Court does have that power.

In the exercise of that power, however, the Arizona Supreme Court in other cases has tended to exercise it carefully, and in that type of situation they normally handled it by remanding it to the trial court for a clarification and a resentencing.

Unidentified Justice: To be sure that he would have opposed the death penalty--

Mr. Grant: Correct.

Unidentified Justice: --with this different mix of aggravating circumstances?

Mr. Grant: Correct.

That is generally the way that they handled it, although I do submit that they have the power to treat it differently and to make the findings themselves.

In conclusion, the respondent's position is simply that there has been no acquittal of the death penalty in this case at any stage of the proceedings.

There has been no failure of proof on the part of the state.

Because of that, the double jeopardy clause does not prohibit the death penalty in this case.

Respondents would ask this Court to affirm the judgment of the Arizona Supreme Court.

Unless the Court has any additional questions, I have no further comments.

Thank you.

Chief Justice Burger: Thank you.

Do you have anything further, Mr. Wilhelmsen?

STATEMENT OF W.K. WILHELMSEN, ESQ.

, ON BEHALF OF THE PETITIONERS, APPOINTED BY THIS COURT... REBUTTAL--

Mr. Wilhelmsen: Mr. Chief Justice and the Court, the issue has been clearly drawn.

We have error that was prejudicial to the government.

Does that guarantee the government a new trial?

Are they entitled to a perfect trial?

Burkes tells us that the case should be over, and one of the cases cited by the petitioner... excuse me, the respondent, the issue of jeopardy attaches, and that would be at the start of the trial.

Does it ever terminate?

Or could it go back a third time and have a third sentencing if we found a flaw prejudicial to the government?

It is submitted to this Court that the error prejudicial to the government does not entitle them to a second bite at the apple, and if there are no questions, I am through.

Chief Justice Burger: --Thank you, counsel.

The case is submitted.