361 U.S. 529 (1960)
In the Eastern District of Pennsylvania, petitioner faced an indictment for conspiring to make false statements to a United States agency during deportation hearings in Philadelphia and Baltimore, as well as a separate indictment for suborning perjury at the Philadelphia hearings.1 His co-defendants pleaded guilty to the conspiracy charge.2 Petitioner proceeded to trial on both indictments but, at the close of the government's case, changed his plea to nolo contendere on the conspiracy count, prompting the government to dismiss the subornation indictment.3 He was fined $500 and sentenced to two months' imprisonment, which he served.4
Petitioner was later indicted in the District of Maryland for suborning the perjury of two witnesses at the Baltimore hearings.5 The testimony of these witnesses had been relied upon as an overt act in the Pennsylvania conspiracy indictment.6 Petitioner moved to dismiss the Maryland indictment on double jeopardy grounds, but the motion was denied at 147 F. Supp. 791, and his conviction was affirmed by the Court of Appeals for the Fourth Circuit at 262 F. 2d 788.7
A petition for a writ of certiorari was filed presenting the double jeopardy issue as the single question, and the Supreme Court granted certiorari at 360 U. S. 908.8 The government did not oppose the petition but indicated that the Department of Justice was considering whether the second prosecution comported with its policy on controlling government litigation.9
The government subsequently moved to vacate the judgment below and remand the case to the District of Maryland with directions to dismiss the indictment.10 It represented that it is the general policy of the Federal Government that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions.11 Petitioner joined in and consented to the motion.12
Whether the Court should vacate the judgment below and remand the case to the district court with directions to dismiss the indictment?13
The Supreme Court possesses authority under 28 U.S.C. § 2106 to vacate judgments and remand cases to the district court with directions to dismiss an indictment when such action is in the interest of justice.14 The Court adheres to the settled rule against anticipating questions of constitutional law before it becomes necessary to decide them.15
Yes. The government moved for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment.16 This motion rested on the general policy of the Federal Government that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions.17
The policy is dictated by considerations of fairness to defendants and of efficient and orderly law enforcement.18 The petitioner joined in and consented to the government's motion.19 The established facts demonstrate that the Maryland indictment for suborning perjury at the Baltimore hearings arose from the same criminal conduct that formed the basis of the Pennsylvania conspiracy indictment.20
The testimony of the two witnesses at the Baltimore hearings had been relied upon as an overt act in the Pennsylvania conspiracy charge. Petitioner had already been convicted and sentenced on the conspiracy charge after changing his plea to nolo contendere.21 These circumstances align directly with the government's stated policy against successive prosecutions for offenses from a single transaction.22
The Court exercises its power under the statute to dispose of the matter without reaching the double jeopardy issue that was presented in the petition for certiorari.23 This approach respects the principle that constitutional questions should not be decided in advance of necessity.24
The judgment below should be vacated and the case remanded to the district court with directions to dismiss the indictment.25
Related opinions on this issue
Chief Justice Warren concurred in the judgment but wrote separately to explain his reasons.26 He noted that the Solicitor General has statutory authority to conduct litigation in the Court and requested the vacatur and remand in the interests of justice, with the petitioner's consent.27 Warren emphasized that authority to grant such a motion is distinct from the considerations relevant to exercising that authority.28
He observed that the Court should not automatically grant such motions through invocation of the policy of avoiding constitutional decisions.29 However, in this case, no devious purpose could be ascribed to the government, which asserted that the prosecution was by inadvertence and that it does not intend to take such action in the future.30 The Attorney General's memorandum supported the representation regarding future practice, and the request was just under the circumstances of section 2106.31
Justice Brennan agreed that the judgment of the Court of Appeals should not stand but would have reversed it on the merits.32 He stated that the government had done the just and right thing in asking the Court to wipe the slate clean of the second federal conviction for the same criminal conduct.33 Brennan believed that the Court's duty could not be fully performed by simply giving effect to a policy of the government.34
He noted that even where the government confesses error, the Court examines the case on the merits.35 Brennan expressed the view that the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to the second prosecution.36 He referenced his separate opinion in Abbate v. United States for his reasons supporting this view and would reverse on that basis.37