Richardson v. United States

Justice Stevens,

dissenting.

The dispositive question of appellate jurisdiction that is presented in this case is whether an order denying a motion for a judgment of acquittal on the ground that the evidence is legally insufficient is appealable as a final judgment. 1 I believe that the order is not appealable; therefore, as a matter of law, not even a colorable double jeopardy question is presented.

I

After the District Court had discharged the jury because it was unable to agree upon a verdict on two counts of the indictment, petitioner filed two separate motions: (1) a motion for a judgment of acquittal on the ground that the evidence was legally insufficient to support a conviction; and (2) a motion to bar retrial on the ground that because he was “entitled to judgments of acquittal on those counts,” a second trial would violate the Double Jeopardy Clause. App. 15a. On Friday, September 11, 1981, the District Court entered a written order denying the first motion. Id., at 18a. Petitioner promptly filed a notice of appeal in which he described *333 that order as having “denied motions for judgments of acquittal and by necessary implication double jeop. claim. ” Record 28. On Monday, September 13, 1981, in a colloquy with petitioner’s counsel, the District Court agreed that “the double jeopardy claim [that] hinged on the ruling [on the motion for] Judgment of Acquittal” had been denied implicitly. 2

Two separate questions of appellate jurisdiction were therefore presented to the Court of Appeals. Judge Wilkey’s opinion for the Court of Appeals correctly recognized the separate character of the two questions and correctly answered them both. First, if we separately consider the order denying the motion for a judgment of acquittal, it is perfectly clear that, because the District Court did not reach a final judgment, the motion is not appealable on its face as a “final decision,” 28 U. S. C. §1291 , or under the “collateral order” exception to the final-judgment rule established in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). 3

*334 Second, it is equally clear that unless petitioner was entitled to have his first motion granted, there was no basis in law for his dependent double jeopardy motion. Indeed, as petitioner recognized in his notice of appeal and in his colloquy with the District Court, the double jeopardy argument is entirely contingent on the validity of his first motion — the second “hinged” on the first; the denial of the first implicitly rejected the second. Because the order denying the principal motion is not appealable, it is difficult for me to understand how the Court can conclude that the order implicitly denying the dependent motion can either be appealable in its own right, or can convert the otherwise nonappealable, nonfinal order into an appealable order.

Plainly there can be no substance or “color” to a double jeopardy claim that does not identify some order terminating *335 a first jeopardy as constituting a bar to a second trial. As long as the claim rested entirely on an asserted “entitlement” to such an order, the claim can be no stronger than the right to that order. If petitioner had obtained a favorable ruling on his motion for acquittal, a second trial would, of course, be barred. Without that ruling, however, there is not even an arguable basis for a double jeopardy claim.

II

The Court states that “petitioner’s argument necessarily assumes that the judicial declaration of a mistrial was an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy.” Ante, at 325. That is not the way I read the record. Rather, petitioner argues that because the evidence was insufficient, he was “entitled” to have his jeopardy terminated by an order granting his motion for a judgment of acquittal. Until such an order was entered, in view of the fact that he did not argue that the mistrial order itself constituted a termination of jeopardy, his jeopardy would continue.

different if the petitioner were claiming that the order declaring a mistrial was itself a bar to a second trial. If, for example, the jury had deliberated for only a few minutes and the prosecutor, fearful of an adverse verdict, had persuaded the trial judge to discharge the jury before it could fairly be said that they were deadlocked — in other words, when there was no “manifest necessity,” see Arizona v. Washington, 434 U. S. 497, 505-508 (1978)—the defendant might then argue that the mistrial order was itself tantamount to an acquittal that terminated the first jeopardy. This is not, however, such a case because petitioner does not challenge the order declaring a mistrial and he has no other order to which he can point as constituting a bar to a second trial.

III

Although I recognize the precedential authority of Abney v. United States, 431 U. S. 651 (1977), I do not believe that *336 case acts as a vacuum cleaner of appealability for every claim couched as a double jeopardy violation. In Abney , the Court carefully noted that “it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review,” id., at 659 , but that such orders fell within the Cohen collateral-order exception to the final-judgment rule. 431 U. S., at 659 . To begin with, I have already noted that the denial of a motion for a judgment of acquittal based on insufficient evidence cannot separately survive the Cohen analysis. More important, I believe that the Court’s discussion of Cohen’s collateral-issue prong in Abney supports the view that Abney was not intended to reach a situation such as that before us today. The Court stated:

“Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. The elements of that claim are completely independent of his guilt or innocence. . . . Thus, the matters embraced in the trial court’s pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not ‘affect, or ... be affected by, decision of the merits of this case.’” 431 U. S., at 659 -660 (quoting Cohen, 337 U. S., at 546 ) (citations omitted).

Although the Court began with a broad general reference to “a double jeopardy claim,” its specific discussion of the particular double jeopardy claim involved highlights differences *337 between it and the one here. Here, the petitioner is challenging the merits of the charge against him; the elements of his insufficient-evidence claim are not completely independent of his guilt or innocence; the matters embraced within the trial court’s order will affect the decision of the merits of the case. Thus, although broadly written, Abney is not broad enough to support the conclusion “that petitioner has raised a colorable double jeopardy claim appealable under 28 U. S. C. §1291 .” Ante, at 322.

Because the essence of petitioner’s claim is that he should be relieved of any additional jeopardy as soon as he is entitled to the entry of a judgment of acquittal, there is no more reason to allow immediate appellate review in this case than in one in which the defendant tried to appeal from an order denying a motion for judgment of acquittal at the close of the prosecution’s case. As I recently noted in a similar context, the availability of premature review would give defendants “every incentive . . . not only to delay eventual punishment, but to obtain leverage in plea negotiations.” Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 334-335 (1984). Moreover, “[t]he speed and efficiency of the process would quickly be eroded if [interlocutory appeals] intervened between the first and second trials.” Ibid. “[U]ndue litigiousness and leaden-footed administration of justice [is] particularly damaging to the conduct of criminal cases.” DiBella v. United States, 369 U. S. 121, 124 (1962); see also Cobbledick v. United States, 309 U. S. 323, 325 (1940). Further, while it is true that the postponement of appellate review, see n. 3, supra, will cause some hardship because defendants will have to proceed through second trials before having their claims reviewed, as Judge Wilkey correctly observed, 4 that hardship is far less grievous than the Court’s conclusion that such claims may never be reviewed. See ante, at 323, 326.

*338 In sum, I would affirm the. judgment of the Court of Appeals. It correctly held that the order denying the motion for judgment of acquittal was not appealable. Because petitioner’s entire appeal constituted an attack on that order, it was properly dismissed. Accordingly, I respectfully dissent.

The Government states the question presented as follows:

“Whether a criminal defendant whose first trial resulted in a hung jury has a right to have the trial court’s determination of sufficiency of the evidence at that trial reviewed on appeal before the commencement of the second trial.” Brief for United States I.

“Mr. Palmer: Yes, Your Honor. Just as a housekeeping matter, the double jeopardy claim, of course, hinged on the ruling of Judgment of Acquittal.

“Having denied the Judgment of Acquittal a fortiori, I assume that you also denied the double jeopardy claim.

“The Court: No question about it.

“Mr. Palmer: So, just as a matter of record, can it also be indicated that, on September 11th, you also sought and did deny the double jeopardy claim also?

“The Court: Yes.” App. 20a.

As Judge Wilkey explained:

“To come within the reach of the Cohen exception, the decision in question must meet three tests. First, it must fully dispose of the controverted issue; in no sense may it ‘leave the matter “open, unfinished or inconclusive.”’ Second, it must not be ‘simply a “step toward final disposition of the merits of the case” it must resolve ‘an issue completely collateral to the cause of action asserted.’ Finally, the decision must involve ‘an important right which would be “lost, probably irreparably,”’ if review awaited final judgment.

“We have little difficulty in applying this test to the district court’s ruling on Richardson’s insufficiency claim. That ruling fails to meet the second *334 and third requirements of Cohén. As two other circuits have noted, the legal sufficiency of the evidence presented is ‘a completely non-collateral issue.’ This is because the ultimate question in a criminal trial is whether the defendant is guilty of the crime charged. A defendant who chooses to go to trial is not guilty unless the prosecution is able to prove beyond a reasonable doubt that the defendant committed the crime. If the evidence presented at the first trial was legally insufficient, Richardson is automatically not guilty. Thus, the sufficiency of the evidence is anything but collateral to the merits of the upcoming trial (i. e., the question of defendant’s guilt, for this is determined by the sufficiency of the evidence); rather, it is a ‘step toward final disposition of the merits of the case [which will] be merged in the final judgment,’ the type of issue which is not covered by the collateral order exception.

“Further, the right to appellate review of the issue will not necessarily be lost if we refuse review at this time. Three circuits have held that a criminal defendant can challenge the sufficiency of the evidence presented at his first trial (which resulted in a hung jury) when appealing his conviction at the second trial. Indeed, in the present case the government concedes that Richardson’s insufficiency claim will not be lost if it is not reviewed at this time, noting that ‘in the event he is convicted, [Richardson] can raise [the insufficiency claim] on appeal from that conviction.’ Therefore, because the insufficiency claim does not meet either the second or third Cohen requirements, we cannot review that claim until after a final judgment is entered.” 226 U. S. App. D. C. 342, 344, 702 F. 2d 1079, 1081 (1983) (footnotes omitted).

226 U. S. App. D. C., at 346-347, and n. 30, 702 F. 2d, at 1083-1084 , and n. 30.