UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 94-5310

DERRICK R. COOPER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Chief District Judge.
(CR-93-123)

Argued: December 6, 1995

Decided: February 15, 1996

Before HALL, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Vincent Bernard Orange, Sr., Washington, D.C.; Mark
Edward Hall, Columbia, South Carolina, for Appellant. Albert Peter
Shahid, Jr., Assistant United States Attorney, Charleston, South Caro-
lina, for Appellee. ON BRIEF: J. Preston Strom, Jr., United States
Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Derrick R. Cooper was re-indicted for tax evasion in violation of
28 U.S.C. § 7201 after the district court had dismissed earlier charges
against him for violating the same statute in the same tax year. Coo-
per claims the later indictment was barred by the Double Jeopardy
Clause of the Fifth Amendment. The district court refused to dismiss
the new indictment and Cooper noted an interlocutory appeal. See
Abney v. United States, 431 U.S. 651, 659 (1977). Because jeopardy
did not attach in the initial proceeding and the doctrines of res judi-
cata and collateral estoppel do not bar the subsequent indictment, we
affirm.

I.

On July 14, 1993, a federal grand jury returned a superseding
indictment against Cooper, charging him with two counts of willfully
attempting to evade and defeat income taxes in violation of 26 U.S.C.
§ 7201. Count One alleged that Cooper attempted to evade payment
of income taxes for calendar year 1986 "by failing to make an income
tax return on or about October 15, 1987, as required by law." Count
Two alleged that Cooper attempted to evade payment of income taxes
for calendar year 1987 "by failing to make an income tax return on
or about October 17, 1988, as required by law." Following his
arraignment, Cooper moved to dismiss or quash the indictments pur-
suant to Rule 12(b) of the Federal Rules of Criminal Procedure. The
district court held a lengthy hearing on the motion at which the gov-
ernment conceded that the Internal Revenue Service had granted Coo-
per an extension permitting him to file his 1987 income tax return
after October 17, 1988. In view of this concession, the court granted
Cooper's motion as to Count Two and dismissed the charges as to the
1987 tax year. The court explained, "I would grant the defendant's
motion as to count 2 of the superseding indictment because I am of

                    2
the opinion that the count would fail because the charge of failing to
make an income tax return on or about October 17, 1988, as required
by law, was not required by law, because in fact the testimony before
the Court from both the government and the Defendant. . . indicated
that the defendant had been granted an extension in which to file the
tax return . . . ."

The government obtained a second superseding indictment against
Cooper again charging him with two counts of violating 26 U.S.C.
§ 7201. Count One alleged that Cooper attempted to evade payment
of income taxes for the calendar year 1986 by preparing and signing
a false income tax return; Count Two made the same allegations with
regard to calendar year 1987. Cooper moved to dismiss Count Two,
arguing that in light of the court's dismissal of Count Two in the first
superseding indictment, which alleged a violation of the same statute
for the same tax year, prosecution of Count Two in the second super-
seding indictment violated his rights under the Double Jeopardy
Clause. At the hearing on that motion, the district judge, although
agreeing that he had dismissed Count Two of the first superseding
indictment "with prejudice," denied the motion. He explained, "it's
altogether a different charge than that contained . . . in the original
indictment . . . and I think you agree . . . it could have been brought
as a separate count in the original indictment . . .."

II.

The principal issue presented in this appeal is whether double jeop-
ardy bars the government from charging Cooper with attempting to
evade and defeat income tax payments in violation of§ 7201 after the
district court dismissed an earlier indictment charging him with vio-
lating the same statute for the same tax year. Accordingly, we begin
our inquiry with the Double Jeopardy Clause of the Fifth Amend-
ment.

The Double Jeopardy Clause assures that no person shall "be sub-
ject for the same offense to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. The underlying idea animating this bedrock
prohibition "is 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

                     3
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 (1957). Intrinsic to the protection against double jeop-
ardy is the fact that a defendant has been put in jeopardy once. See
Serfass v. United States, 420 U.S. 377, 393 (1975) ("an accused must
suffer jeopardy before he can suffer double jeopardy").

In cases involving the Double Jeopardy Clause, courts have used
the concept of "attachment of jeopardy" to"define a point in the crim-
inal proceedings at which the constitutional purposes and policies are
implicated." Id. at 388. See also United States v. Jorn, 400 U.S. 470,
480 (1971). The Supreme Court has repeatedly stated that "jeopardy
does not attach, and the constitutional prohibition can have no appli-
cation, until a defendant is `put to trial before the trier of facts,
whether the trier be a jury or a judge.'" Serfass, 420 U.S. at 388 (cita-
tions omitted). In a jury trial, jeopardy attaches only after the jury has
been empaneled and sworn; in a nonjury trial, jeopardy attaches when
the court begins to hear evidence. Id. (citations omitted).1

In the present case, shortly before his scheduled jury trial, Cooper
moved to dismiss the entire indictment on various grounds. The dis-
trict court held a hearing on this and other pretrial motions and ulti-
mately decided to grant the motion to dismiss Count Two of the
indictment. At the time of this hearing, no jury had been empaneled
or sworn, nor had Cooper waived his right to a jury trial. Thus, no
jeopardy could or did "attach" at this hearing. The Seventh Circuit
considered a similar double jeopardy claim in United States v. Igoe,
331 F.2d 766 (7th Cir. 1964), cert. denied, 380 U.S. 942 (1965),
where the defendant, like Cooper, was charged with evading taxes in
violation of § 7201. Because no jury had been empaneled and the
defendant had not effectively waived his right to a jury when the court
dismissed the charges, the Igoe court held that there was no double
jeopardy violation. Id. at 768.
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1 We have held that the "court begins to hear evidence" and for this rea-
son jeopardy attaches when the first witness is sworn, even if that wit-
ness never testifies. See Goolsby v. Hutto, 691 F.2d 199, 202 (4th Cir.
1982).

                     4
Nevertheless, Cooper argues that when the district court dismissed
Count Two of the first superseding indictment, that dismissal was
"tantamount" to an "acquittal on the merits" because it was "with prej-
udice." The Supreme Court considered a very similar argument in
Serfass v. United States, 420 U.S. 377 (1975). There, as here, the dis-
trict court dismissed an indictment during a pre-trial hearing. The
defendant in Serfass acknowledged that " `formal or technical jeop-
ardy had not attached' at the time the District Court ruled on his
motion to dismiss the indictment." 420 U.S. at 389-90. Even so, Ser-
fass argued that since the trial court's ruling was based on evidentiary
facts that would constitute a defense on the merits at trial, it was the
"`functional equivalent of an acquittal on the merits' and `construc-
tively jeopardy had attached.'" Id. at 390.

The Supreme Court unequivocally rejected this argument. It noted
that Serfass, like Cooper, "had not waived his right to a jury trial" and
that this right could not be waived without the consent of the govern-
ment and the district court. Id. at 389. In such circumstances, the
Court held "the District Court [is] without power to make any deter-
mination regarding petitioner's guilt or innocence." Id. at 389. Chief
Justice Burger, for a nearly unanimous Court, explained:

          Both the history of the Double Jeopardy Clause and its
          terms demonstrate that it does not come into play until a
          proceeding begins before a trier `having jurisdiction to try
          the question of the guilt or innocence of the accused.' With-
          out risk of a determination of guilt, jeopardy does not attach,
          and neither an appeal nor further prosecution constitutes
          double jeopardy.

420 U.S. at 391-92 (citations omitted).

Directly addressing the claim that the granting of a motion to dis-
miss is the "functional equivalent of an acquittal on the merits," the
Court noted that although "a verdict of acquittal. . . is a bar to a sub-
sequent prosecution for the same offence . . . an`acquittal' cannot be
divorced from the procedural context in which the action so character-
ized was taken." Id. at 392. (citations omitted). Thus, the word "ac-
quittal" has no "talismanic quality for purposes of the Double
Jeopardy Clause." Id. In fact, it "has no significance in this context

                     5
unless jeopardy has once attached and an accused has been subjected
to the risk of conviction." Id. "With prejudice" similarly has no "talis-
manic quality"; the Double Jeopardy Clause does not bar reprosecu-
tion of charges dismissed "with prejudice" if jeopardy has not
attached.

Thus, Serfass teaches that a trial court's pretrial dismissal of an
indictment does not implicate double jeopardy concerns, even when
the dismissal is based on the court's evaluation of facts not included
in the indictment because, absent a defendant's waiver of his or her
right to a jury trial, the trial court has no "power" to determine guilt
or innocence. See also United States v. Vaughan , 715 F.2d 1373,
1376-77 (9th Cir. 1983)(even if the 1982 indictment charged "the
same continuing conspiracies as were the subjects of the 1977 indict-
ment," there was no bar to re-indictment because the defendant was
not put in jeopardy when the 1977 indictment was dismissed); United
States v. Valle, 697 F.2d 152, 153-54 (6th Cir.) (dismissal of indict-
ment based on extrinsic evidence did not place defendant in jeopardy
and so "did not invoke the fifth amendment's prohibition"), cert.
denied, 461 U.S. 918 (1983); United States v. King, 581 F.2d 800,
801 (10th Cir. 1978) (because pretrial order dismissing information,
which was based on extrinsic evidence, was issued before the trier of
fact commenced to take evidence, "[s]ubsequent prosecution is not
barred by double jeopardy clause"); United States v. Mann, 517 F.2d
259 (5th Cir. 1975) (same with respect to indictment), cert. denied,
423 U.S. 1087 (1976); United States v. Hawes, 774 F. Supp. 965, 969
(E.D.N.C. 1991) (pre-trial dismissal of counts in initial indictments to
which defendants did not plead guilty does not bar subsequent prose-
cution of those counts because jeopardy had not attached as to them).

Serfass involved the government's right to appeal while the present
case concerns its right to bring a subsequent prosecution. However,
Cooper has not suggested, and we do not see any reason why the
Supreme Court's rationale in Serfass is not equally applicable to the
question at issue here. Indeed, there is some indication in Serfass
itself that the Supreme Court intended its holding to apply in the pres-
ent situation. Serfass, 420 U.S. at 391-92 ("[w]ithout risk of determi-
nation of guilt, jeopardy does not attach, and neither an appeal nor
further prosecution constitutes double jeopardy") (emphasis added).

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All of our sister circuits that have considered the question have so
held. See, e.g., Lomax v. Armontrout, 923 F.2d 574, 576 (8th Cir.)
(subsequent prosecution of defendant did not place him in double
jeopardy where nolo prosequi filed by prosecutor in initial trial was
entered before jury was sworn), cert. denied, 502 U.S. 812 (1991);
Rodrigues v. Gudeman, 794 F.2d 1458, 1460 (9th Cir.) (pretrial "ac-
quittal" on basis of insanity defense does not bar subsequent prosecu-
tion on same charge), cert. denied, 479 U.S. 964 (1986); Lockett v.
Montemango, 784 F.2d 78, 83-85 (2d Cir.) (defendant never risked
conviction at preliminary proceeding in which he pled not responsible
by reason of mental disease, therefore he was never in jeopardy and
so, even though he waived his right to a jury trial, his reprosecution
on the same charge was not barred), cert. denied , 479 U.S. 832
(1986); Chatfield v. Ricketts, 673 F.2d 330 (10th Cir.) (trial court did
not violate double jeopardy by permitting retrial of defendant after
initial charge was dismissed at state's request because jeopardy had
not attached), cert. denied, 459 U.S. 843 (1982); Klobuchir v.
Pennsylvania, 639 F.2d 966, 970 (3d Cir.) (double jeopardy does not
prevent subsequent prosecution after guilty plea was vacated because
jeopardy had not attached), cert. denied, 454 U.S. 1031 (1981);
United States v. Garcia, 589 F.2d 249, 251 (5th Cir.) (subsequent
indictment after dismissal of initial indictment not barred because
jeopardy had not attached), cert. denied, 442 U.S. 909 (1979); United
States v. Smith, 584 F.2d 759, 761 (6th Cir. 1978) (double jeopardy
does not prevent subsequent prosecution after guilty plea was vacated
because jeopardy had not attached), cert. denied , 441 U.S. 92 (1979);
United States v. Myles, 569 F.2d 161 (D.C. Cir.), aff'g, 430 F. Supp.
98 (D.D.C. 1978) (same). See also United States v. MacDonald, 585
F.2d 1211, 1212 (4th Cir. 1978) (double jeopardy does not bar subse-
quent prosecution in district court since jeopardy had not attached in
earlier proceeding before military tribunal), cert. denied, 440 U.S. 961
(1979).

Applying the principles of Serfass to the present case, it is clear
that the Double Jeopardy Clause does not bar the government from
charging Cooper with Count Two of the second superseding indict-
ment. When the district court issued its order dismissing the indict-
ment, no jury had been sworn and the defendant had not waived his
right to a jury trial. Thus, the court below, like the district court in
Serfass, had no "power to make any determination regarding petition-

                    7
er's guilt or innocence." 420 U.S. at 389. Cooper, like Serfass, did not
"risk determination of guilt" when the indictment was dismissed and
so jeopardy did not attach.

The Double Jeopardy Clause does not bar the government's re-
indictment of Cooper.

III.

Our holding that Cooper's re-indictment is not barred by the Dou-
ble Jeopardy Clause does not necessarily render Cooper's appeal
meritless. Implicit in Cooper's claim is the alternative argument that
the re-indictment is barred by principles of res judicata and collateral
estoppel. Courts have long recognized that res judicata and collateral
estoppel may bar relitigation of an issue or reprosecution of a defen-
dant even when traditional double jeopardy constraints do not.

As Justice Holmes explained in United States v. Oppenheimer, 242
U.S. 85, 87 (1916):

          [T]he proposition of the government is that the doctrine of
          res judicata does not exist for criminal cases except in the
          modified form of the 5th Amendment, . . . . It seems that the
          mere statement of the position should be its own answer. It
          cannot be that the safeguards of the person, so often and so
          rightly mentioned with solemn reverence, are less than those
          that protect from a liability in debt. . . .

          [T]he 5th Amendment was not intended to do away with
          what in civil law is a fundamental principle of justice, . . .
          in order, when a man once has been acquitted on the merits,
          to enable the government to prosecute him a second time.

See also Ashe v. Swenson, 397 U.S. 442, 443-445 (1970). Thus, a
proper dismissal of an indictment "on the merits" and "with preju-
dice" bars reindictment on the same charge, even if jeopardy has not
attached. See, e.g., United States v. Blackwell, 900 F.2d 742, 745 (4th
Cir. 1990); United States v. Cejas, 817 F.2d 595, 600 (9th Cir. 1987).

                     8
Here, although the district court dismissed Count Two based on
facts not contained in the indictment, and later said that this dismissal
was "with prejudice," unlike courts in similar cases, the court below
did not do this at the government's request, compare Blackwell, 900
F.3d at 744, or explain that it was concluding that no prosecution for
violating the statute charged was possible. Compare Cejas, 817 F.2d
at 600. Rather, the district court made it quite clear that it was not
addressing the general issue of guilt or innocence or concluding that
no charge was possible for the offense alleged in the stricken count--
Cooper's asserted violation of § 7201 with regard to the 1987 tax year.2

The district court did find that because the Internal Revenue Ser-
vice had granted Cooper an extension, permitting him to file his 1987
return after October 18, 1988, his failure to file his return by that date
was not a "violation of law" as charged in Count Two of the first
superseding indictment. But the court never suggested that Cooper
was not guilty of the crime of attempted tax evasion for the 1987 cal-
endar year or could not be charged with this offense.

In fact, to interpret the trial court's order dismissing Count Two in
the way Cooper suggests--as a determination on the merits with prej-
udice that he could not be tried for a violation of§ 7201 in connection
with the 1987 tax year--would undermine precedent prohibiting a
district court from reviewing the substance of evidence which pro-
duces an indictment. See Costello v. United States, 350 U.S. 359, 363
(1956) (rejecting argument that indictment can be challenged as not
supported by adequate evidence); United States v. Mills, 995 F.2d
480, 487 (4th Cir.) ("courts lack authority to review either the compe-
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2 When, as here, an order of dismissal does not "contemplate[ ] an end
to all prosecution of the defendant for the offense charged" then it is
treated like a declaration of mistrial. Lee v. United States, 432 U.S. 23,
30-31 (1977). Thus, in such circumstances, even if jeopardy has attached,
retrial is not barred unless the defendant's motion to dismiss the indict-
ment was "provoked" by the government or "motivated by bad faith or
undertaken to harass or prejudice" the defendant. Id. at 34 quoting United
States v. Dinitz, 424 U.S. 600, 612 (1976). Here, as in Lee, there is no
evidence of such overreaching by the government.

                     9
tency or sufficiency of evidence which forms the basis of an indict-
ment"), cert. denied, ___ U.S. #6D 6D6D#, 114 S.Ct. 283 (1993).3

Moreover, the government would not have been on notice of the
effect of the district court's order and so not able to exercise its right
to appeal because at the time the district court issued the dismissal
order the court did not in any way indicate that it was to have this
effect. In dismissing Count Two, the court below did not state that a
new indictment charging a violation of § 7201 in connection with the
1987 tax year could not be brought or even that the dismissal was
"with prejudice." Nor is there any indication of this in the docket
entry evidencing the dismissal order.4 Thus, to interpret the dismissal
order as Cooper suggests would mean that the government would not
have been provided with any notice or opportunity to appeal a dis-
missal order that assertedly barred for all time any prosecution against
Cooper for violation of § 7201 in connection with the 1987 tax year.
There is no indication that the experienced trial judge intended this
result and we see no reason to construe his dismissal order in this
inequitable manner.
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3 It may be that Count Two in the second superseding indictment
charges a different offense than that charged in Count Two of the first
superseding indictment, i.e. attempt to evade assessment of a tax rather
than attempt to defeat payment of a tax. See Sansone v. United States,
380 U.S. 343, 354 (1965); Lawn v. United States , 355 U.S. 339, 341 n.1
(1958); United States v. Waldeck, 909 F.2d 555, 558 (1st Cir. 1990)
(dicta). But see, United States v. Mal , 942 F.2d 682, 687-88 (9th Cir.
1991); United States v. Dunkel, 900 F.2d 105, 107 (7th Cir. 1990),
vacated and remanded on other grounds, 498 U.S. 1043 (1991); United
States v. Masat, 896 F.2d 88, 97-99 (5th Cir. 1990), cert. denied, ___
U.S. ___, 113 S.Ct. 108 (1992). Similarly, it may be that the old count
is based on separate and distinct conduct from the new count. See Cohen
v. United States, 297 F.2d 760, 769-770 (9th Cir.), cert. denied, 369 U.S.
865 (1962). See also, United States v. Pollen, 978 F.2d 78, 85-87 (3rd
Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 2332 (1993). We need
not and do not reach either of these questions here.
4 It was not until more than a month later at the hearing on Cooper's
motion to dismiss Count Two of the second superseding indictment that
the trial court orally agreed with defense counsel that Count Two of the
first superseding indictment had been dismissed"with prejudice."

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IV.

For the reasons stated, the judgment of the district court is

AFFIRMED.

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