Willhauck v. Flanagan Et Al., 448 U.S. 1323 (1980). · Go Syfert
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Willhauck v. Flanagan Et Al., 448 U.S. 1323 (1980). Cases Citing This Book View Copy Cite
“this is mechanical and perhaps arbitrary, but it is the line that the supreme court has drawn and the circuits have followed.”
108 citation events (21 in the last 25 years) across 17 distinct courts.
Strongest positive: United States v. Suazo (ca1, 2021-09-20)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Suazo
1st Cir. · 2021 · quote attribution · 1 verbatim quote · confidence high
this is mechanical and perhaps arbitrary, but it is the line that the supreme court has drawn and the circuits have followed.
discussed Cited as authority (rule) Lewis v. Bickham
5th Cir. · 2024 · confidence medium
For a bench trial, jeopardy does not attach “until the first witness is sworn.” Willhauck v. Flanagan, 448 U.S. 1323, 1326 (1980) (citing Crist, 437 U.S. at 37 & n.15; Serfass v. United States, 420 U.S. 377, 388 (1975)).
discussed Cited as authority (rule) Gilliam v. Foster
4th Cir. · 1996 · confidence medium
See generally Winston v. Moore, 452 U.S. 944 (1981) (Rehnquist, J., dissenting) (without indicating that Younger 39 abstention principles applied, opining that Court should have granted certiorari to address the merits of the double jeopardy claim); Willhauck v. Flanagan, 448 U.S. 1323, 1325 (Brennan, Circuit Justice 1980) (noting that double jeopardy claims may present an exception to Younger abstention); Mincey v. Arizona, 434 U.S. 1343, 1344 (Rehnquist, Circuit Justice 1977) (distinguishing claim that second state trial should be stayed based on alleged error in introduction of evidence fro…
examined Cited as authority (rule) Willhauck v. Halpin (4×) also: Cited "see"
1st Cir. · 1992 · confidence medium
Id. at 1325.
discussed Cited "see" United States v. Jose Carrillo
8th Cir. · 2020 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323 , 1325–26 (1980) (Brennan, J., in chambers) (explaining that “once jeopardy . . . attach[es] in one of” two simultaneous proceedings, the defendant can “make his claim before the second trial judge, at which time the courts can give due consideration to his” double-jeopardy argument (emphasis added)).
examined Cited "see" United States v. Perchitti (3×)
11th Cir. · 1992 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 , 101 S.Ct. 10, 11-12 , 65 L.Ed.2d 1147 (1980) (jeopardy attaches when a trial commences, that is, when a jury is sworn or empaneled or, in a bench trial, when the judge begins to hear evidence). .
examined Cited "see" United States v. Louis Perchitti, Jr., A/K/A Sonny, United States of America v. Gerald Lamar White, United States of America v. James Walter Jones, United States of America v. Margaret Marie Reynolds (3×)
11th Cir. · 1992 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 , 101 S.Ct. 10, 11-12 , 65 L.Ed.2d 1147 (1980) (jeopardy attaches when a trial commences, that is, when a jury is sworn or empaneled or, in a bench trial, when the judge begins to hear evidence) 4 The Supreme Court has repeatedly held that successive prosecutions based on the same conduct are permissible if brought by separate sovereigns.
examined Cited "see" Francis A. Willhauck, Jr. v. Paul Halpin (10×)
1st Cir. · 1992 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323, 1324-25 , 101 S.Ct. 10, 11 , 65 L.Ed.2d 1147 (1980).
examined Cited "see" Fitzgerald v. Lile (3×)
N.D. Ohio · 1990 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323 , 101 S.Ct. 10 , 65 L.Ed.2d 1147 (1980) (Brennan, J. sitting as Circuit Judge on Application for Stay) (the double jeopardy clause guarantees against twice being subject to the ordeal of trial, as well as punishment); Abney v. United States, 431 U.S. 651, 661 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984).
discussed Cited "see" State v. Ruden (2×)
Kan. · 1989 · signal: see · confidence high
See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 , 65 L.
discussed Cited "see" Walter Lamar Goolsby v. Terrell Don Hutto, Director of Virginia Department of Corrections, and the Attorney General of the State of Virginia (2×)
4th Cir. · 1982 · signal: accord · confidence high
Serfass v. United States, 420 U.S. 377, 388 [ 95 S.Ct. 1055,1062 , 43 L.Ed.2d 265 ].” 437 U.S. at 37 n. 15, 98 S.Ct. at 2162 n. 15; accord Willhauck v. Flanagan, 448 U.S. 1323, 1326 , 101 S.Ct. 10, 11 , 65 L.Ed. 1147 (1981) (opinion in chambers per Justice Brennan).
examined Cited "see, e.g." Gilliam v. Foster (3×)
4th Cir. · 1995 · signal: see also · confidence low
See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 964 , 122 L.Ed.2d 121 (1993); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200 , 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325 , 101 S.Ct. 10, 11 , 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980).
examined Cited "see, e.g." Gilliam v. Foster (3×)
4th Cir. · 1995 · signal: see also · confidence low
See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 964 , 122 L.Ed.2d 121 (1993); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200 , 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325 , 101 S.Ct. 10, 11 , 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980).' Indeed, the justification for federal interference in state criminal proceedings is at least as compelling when the retrial itself irretrievably deprives the defendant of…
examined Cited "see, e.g." Gilliam v. Foster (3×)
4th Cir. · 1995 · signal: see also · confidence low
Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 964 , 122 L.Ed.2d 121 (1993); see Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200 , 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325 , 101 S.Ct. 10, 11 , 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980). 10 While federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, the fa…
examined Cited "see, e.g." Gilliam v. Foster (3×)
4th Cir. · 1995 · signal: see also · confidence low
Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 964 , 122 L.Ed.2d 121 (1993); see Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200 , 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325 , 101 S.Ct. 10, 11 , 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980). 10 While federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, the facts…
Retrieving the full opinion text from the archive…
Francis A. Willhauck, Jr., Applicant
v.
Newman A. Flanagan No. A-169
A-169.
Supreme Court of the United States.
Aug 28, 1980.
448 U.S. 1323
Brennan.
Cited by 36 opinions  |  Published
Mr. Justice Brennan, Circuit Justice.

This is an application for a stay pending appeal to the United States Court of Appeals for the First Circuit from an order of the United States District Court for the District of Massachusetts denying a request for a temporary restraining order. The facts are briefly as follows. On July 2, 1979, the applicant, Francis A. Willhauck, Jr., allegedly led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties. In Norfolk County (Quincy District Court), he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County (West Roxbury District Court), he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

With the complaints pending in the respective county District Courts, applicant moved in Quincy District Court to[*1324] consolidate the cases into a single proceeding there pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure. However, since the Rule requires the written approval of both prosecuting attorneys to effectuate transfer and consolidation, his attempt failed when one of the District Attorneys apparently declined to approve the consolidation. Applicant subsequently moved for consolidation in at least one of the Superior Courts of Norfolk and Suffolk Counties, where his indictment was handed down, but the motion was similarly denied.

Finally, applicant brought his claim before a single justice of the Massachusetts Supreme Judicial Court, contending, inter alia, that failure to consolidate would put him twice in jeopardy for the same offenses, in violation of the Constitution. The justice dismissed it in a four-page memorandum and order for judgment entered June 19, 1980, rejecting applicant’s argument that the charges in the two counties were for a single offense. He also noted that, even if he had the power to transfer and consolidate the two trials, he would refuse to do so because, in his view, this would be an unwarranted intrusion and interference with the lower courts and prosecutors.

On August 1, 1980, Willhauck brought an action pursuant to 42 U. S. C. § 1983 in Federal District Court to obtain a declaration that Massachusetts Rule of Criminal Procedure 37 (b)(2). giving prosecuting attorneys a veto over transfer and consolidation, violates the Double Jeopardy and Due Process Clauses of the Constitution. He sought a temporary restraining order, a preliminary injunction, and a permanent injunction against the two county District Attorneys to enjoin their criminal prosecutions against him. The District Court entered an order denying a temporary restraining order on August 12, 1980, on the basis that applicant’s prayer for relief did not fall within one of the recognized exceptions to the rule announced in Younger v. Harris, 401 U. S. 37 (1971). Will-[*1325] hauck later moved for a stay of the District Court order in the Court of Appeals for the First Circuit pending appeal. The Court of Appeals denied this motion on August 13, 1980, assuming without deciding that the District Court’s order was “in reality’’ an order denying a preliminary injunction.

Willhauck now applies to me as Circuit Justice for a stay pending resolution of his appeal to the Court of Appeals for the First Circuit. The cases against him appear to be proceeding simultaneously in Suffolk Superior and Quincy District Courts. He was scheduled for “status” hearings in the two courts on August 14, or August 14 and 15, 1980. Applicant advises me that both cases now have been continued until September 12, 1980.

In my view, Willhauck has a potentially substantial double jeopardy claim, if not on the face of the Massachusetts Rule or as applied to him, then simply on the possibility the State may conduct simultaneous prosecutions against him in two separate courts on the same offenses. Whether the Younger doctrine would bar federal intervention in a continuing state criminal proceeding in this simultaneous prosecution context or, for that matter, in a case where the claim of double jeopardy is made after jeopardy has attached in the first proceeding, seems to me an open question. The principles of Abney v. United States, 431 U. S. 651 (1977), and Harris v. Washington, 404 U. S. 55 (1971) (per curiam), suggest that an exception to Younger for double jeopardy claims may be appropriate, at least when all state remedies have been exhausted.

Nevertheless, I do not find that applicant has alleged sufficient irreparable harm for me to consider whether there is a reasonable probability that four Justices would consider the above issue sufficiently meritorious to grant certiorari, should the merits of the case eventually come before us. Neither trial has begun and no jury has been empaneled. Until a jury is empaneled and sworn, Crist v. Bretz, 437 U. S. 28, 38[*1326] (1978), or, in a bench trial, until the first witness is sworn, id., at 37, n. 15 (federal rule); Serfass v. United States, 420 U. S. 377, 388 (1975) (federal rule), jeopardy does not attach. Accordingly, applicant’s constitutional claim is premature. Of course, once jeopardy does attach in one of the trials, applicant should be able to make his claim before the second trial judge, at which time the courts can give due consideration to his claim.

Therefore, I deny the application for a stay pending appeal.