Petitioners Brief — Abney v. United States

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a te Sapeme Gout ofthe Wied Sites

OCTOBER TERM, 1976

DONALD ABNEY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

FRANK 8. EASTERBROOK,

Assistant to the Solicitor General,

SHIRLEY BACCUS-LOBEL,

MARC PHILIP RICHMAN,

Attorneys,

Department of Justice,

Washington, D.C. 20680.

ID oc inde cheedabeekes seuresuces

SEE gion ets iunesnwaddteeusaee ba

IS 6 inc cecceeeccessusiss

Constitutional provision and statutes involved . .

EE cid kANS Gand bOREKK ED AR SUES O806 88

I GE GINS 5c ccc cccccescccsseses

FN Se ee re

I. A court of appeals does not have jurisdic-

tion to hear any interlocutory appeals by

defendants in criminal cases ...........

RE rer ee ree

B. Congress has granted to the courts of

appeals in criminal cases the power to

review, at a defendant’s behest, only

final judgments of conviction .......

C. This Court consistently has held that

defendants in federal criminal cases

may not appeal before a judgment of

conviction has been rendered ........

D. There is no sufficient justification for

treating double jeopardy claims differ-

ently from other claims for purposes

of interlocutory appeal ............

1. Double jeopardy claims do not pre-

sent issues ‘collateral’ to the pros-

GEE boubccaesdhacedssa cas

2. A right of interlocutory appeal is

not necessary to obtain “full enjoy-

ment” of the rights protected by

the Double Jeopardy Clause .....

3. Pretrial review by this Court of de-

cisions of state courts does not pro-

vide support for pretrial review by

(1)

federal courts of appeals of inter-

locutory decisions in federal crimi-

RPGS o.vseedecdecdésns tends:

E. Courts of appeals do not have the au-

thority to resolve “pendent” claims

that do not involve the loss of a “right

WOR GRR GIINEE 6'5acerecccweaesesas

F. If some form of interlocutory appel-

late review is considered necessary, it

should be by mandamus, not appeal . .

II. A retrial of petitioners would not violate

the Double Jeopardy Clause ...........

1. The instructions to the jury precluded

any chance that petitioners were im-

plicitly acquitted at the first trial ....

2. A second trial is permissible after a

conviction has been set aside on ap-

OD kisi vc ues Uo censdacecivecncs

III. The indictment charges an offense under

Ee Peer eee rte

RR cots Sav euseeenceueedabes «eee

PPT EPP eT re TT TIE TT ee Te

CITATIONS

Cases:

Ainsworth v. United States, 1 App. D.C. 518 ..

Aldinger v. Howard, No. 74-6521, decided

PF re ee

Allee v. Medrano, 416 U.S. 802 .............

American Motorists Insurance Co. v. Starnes,

No. 74-1481, decided May 19, 1976 .......

Arceneaux v. Louisiana, 376 U.S. 336 .......

Ashe v. Swenson, 397 U.S. 486 .............

gmen, Bae parte, EE UB occ cccusecccsss

Barker v. Wingo, 407 U.S. 514 .............

Paxe

III

Page

Cases—continued:

Berman v. United States, 302 U.S. 211 ...... 29

Board of Parole v. Merhige, 487 F. 2d 25, cer-

tiorari denied, 417 U.S. 918 ............. 54

Brady v. Maryland, 373 U.S. 83 ............ 47

Breed v. Jones, 421 U.S. 519 ............... 39

Brown v. Walker, 161 U.S. 591 ............. 30

Bryan v. United States, 338 U.S. 552 ........ 61

California v. Stewart, 384 U.S. 436 (decided

sub nom. Miranda vy. Arizona) ........... 47

Callanan v. United States, 364 U.S. 587 ..... 63

Carroll v. United States, 354 U.S. 394 ........ 8, 19,

23, 27, 34, 41

Cheng Fan Kwok v. Immigration and Natu-

ralization Service, 392 U.S. 206 .......... 19

Claasen, In re, 140 U.S. 200 ............... 22, 35

Cobbledick v. United States, 309 U.S. 323 ....10, 15,

16, 18, 32, 33, 41

Cogen v. United States, 278 U.S. 221 ........32, 34

Cohen v. Beneficial Industrial Loan Corp., 337

FS RR A ay sae ter array 9, 37-38, 39

Colombo v. New York, 405 U.S.9 ........... 47

Costarelli v. Massachusetts, 421 U.S.193 .... 49

Cox Broadcasting Corp. v. Cohn, 420 U.S.469. 48

DeBeers Consolidated Mines, Ltd. v. United

OOO, Ge Ws TUE ew bh ckccsvceeseccass 53, 54

DiBella v. United States, 369 U.S. 121 ...... 6, 13,

18, 34, 35, 36, 40, 41

District of Columbia v. Clawans, 300 U.S.617. 19

Dombrowski v. Pfister, 380 U.S. 479 ........ 43

Easiland v. United States Servicemen’s Fund,

UM ete ee eed cecil araues 43

Eastman v. Ohio, 299 U.S. 505 .....000..4.. 32

Estelle v. Dorrough, 420 U.S. 534 .......... 19

Fisher v. District Court, 424 U.S. 382 ....... 48

Page

Cases—continued:

Forman v. United States, 361 U.S. 416 ...... 61

Georgia v. Rachel, 384 U.S. 780 ............ 44

Gravel v. United States, 408 U.S. 606 ....... 43

Green v. United States, 355 U.S. 184..... 39, 62, 64

Greenwood v. Peacock, 384 U.S. 808 ........ 44

Griffin v. [ilinote, 361 U.S. 12... cece eens 19

Hagner v. United States, 285 U.S. 427 ....... 67

Hamling v. United States, 418 U.S. 87 ...... 67

Harrington v. Holler, 111 U.S. 796 ......... 35

Harris v. Washington, 404 U.S. 55 ...... 40, 47, 48

Heike v. United States, 217 U.S. 423 ........ 8, 10,

29-31, 32, 33, 35, 38, 41, 47

Heike v. United States, 227 U.S.181........ 31

Heike, Ex parte, 30S. Ct. 576 ............. 31

Johnson v. Mississippi, 421 U.S. 213 ...... .. 44

Kearney, Ex parte, 7 Wheat. 37 ............ 20

Kerr v. United States District Court, No. 74-

1023, decided June 14, 1976 ............. 53

LaBuy v. Howes Leather Co., 352 U.S. 249 .. .54, 55

Lefkowitz v. Newsome, 420 U.S, 283 ........ 48

Liberty Mutual Insurance Co. v. Wetzel, 424

SE 464 se cducca cd ueecueneceseceuy 13

Lindsey v. Normet, 405 U.S. 56 ............ 19

Ludwig v. Massachusetts, No. 75-377, decided

adhd eeu oleeries edge any 61

Maness v. Meyers, 419 U.S. 449 ............ 32

Martin v. United States, 528 F.2d 1157 ..... 45

McKane v. Durston, 153 U.S. 684 ........... 19

MeLish v. Roff, 141 U.S. 661 ........... 25, 29, 35

McSurely v. McClellan, 521 F. 2d 1024 ...... 43

Mercantile National Bank v. Langdeau, 371

oF RE er ae rae 48

Mills v. Alabama, 384 U.S. 214 ............ 47

Motes v. United States, 178 U.S. 458 ........ 22

Murphy v. Massachusetts, 177 U.S. 155 ..... 19, 61

Page

Cases—continued:

New Orleans, City of v. Dukes, No. 74-775,

Geetee Game Ty BOGS ccc cs cccccccccsccas 48

North Carolina v. Pearce, 395 U.S. 711 ......12,61

Ohio v. Akron Park District, 281 U.S. 74 .... 19

Ortwein v. Schwab, 410 U.S. 656 ........... 19

Oyler v. Boles, 368 U.S. 448 ............... 44

Palmore v. United States, 411 U.S. 389 ...... 19

Parr v. United States, 351 U.S. 513 ........ 29, 33,

34, 38, 41, 52-53

Perlman v. United States, 247 U.\S.7....... 32

Phillips v. United States, 502 F. 2d 227, set

aside in part en banc, 518 F. 2d 108, vacated

and remanded, 424 U.S. 961, conviction

affirmed on remand, 538 F. 2d 586........ 40

Pinkerton v. United States, 328 U.S.640 .... 60

Polakow’s Realty Experts, Inc. v. Alabama,

TD 6 Cie ee cen gee eke cit 32

Rankin v. The State, 11 Wall. 380 .......... 32

Reetz v. Michigan, 188 U.S. 505 ............ 19, 21

Roche v. Evaporated Milk Association, 319

I Gt al Se Cle ie ae onl a 33, 34, 31, 53

Rowley v. McMillan, 502 F. 2d 1326 ........ 4:

Salinger v. United States, 272 U.S. 542 ...... 65

Schlagenhauf v. Holder, 379 U.S. 104 ....... 54, 54

Shotwell Manufacturing Co. v. United States,

Es bled el es eed we wee oO 0 61

Se Wy a, EE BP in kek db ee cuscekers 39

Stone v. Powell, No. 74-1055, decided July 6,

I a Sak ta Oh a ae ae aie - 20

Stroud v. United States, 251 U.S.15........ 61

Thomas v. Beasley, 491 F.2d 507 ........... 13

Tiffany, Ex parte, 252 U.S. 32 ............. 35

Trono v. United States, 199 U.S. 521 ........ 64

Turner v. Arkansas, 407 U.S. 366 .......... 47

United Mine Workers v. Gibbs, 383 U.S. 715. = 51

Cases—continued: _.

Unitec States v. Alessi, 536 F. 2d 978 (Alessi

ad eee ac whe ea uae een ee ae 14, 43

United States vy. Alessi, C.A. 2, No. 76-1189,

decided July 7, 1976, petition for a writ of

certiorari pending, No. 76-176 (AlessiII) . 14,

39-40, 42, 44, 47, 55-56, 1A

United States v. Armour & Co., 137 F.2d 269. 67

United States v. Avery, 13 Wall. 251 ........ 24

United States v. Bailey, 512 F. 2d 833, certio-

rari dismissed, 423 U.S. 1039 ............ 14

United States v. Ball, 163 U.S. 662 ...... 11-12, 63

United States v. Barket, 530 F. 2d 181, certio-

rari denied, November 1, 1976 (No. 75—-

I og i a a Te el 13, 17, 49

United States vy. Bartemio, C.A. 1. No. 76-

1039, decided April 5, 1976, petition for a

writ of certiorari pending, No. 75-6657... 14

United States v. Beckerman, 516 F. 2d 905 ...13, 14

United States v. Daniel, 6 Wheat. 542 ....... 20

United States v. Dawson, 516 F. 2d 796, certio-

rari denied, 423 U.S. 855 ............... 65

United States v. Dinitz, 424 U.S.600........ 61

United States v. DiSilvio, 520 F. 2d 247, certio-

rari denied, 423 U.S. 1015 .......... 5-6, 13, 49

United States v. Ewell, 383 U.S.116........ 44, 61

United States v. Feola, 420 U.S. 671 ........ 66

United States v. Hall, 536 F. 2d 313, certiorari

denied, November 1, 1976 (Nos. 76-1 and

Dt ai 40 sodden didie dna des ee eke 65

United States vy. Hankish, C.A. 4, No. 76-1334,

decided July 1, 1976, certiorari dismissed

November 11, 1976, No. 76-135 ....... 13, 17, 46

(United States v. Heinze, 218 U.S. 582 ....... 19

United States v. Hewecker, 164 U.S.46...... 22

VII

Page

Cases—continued:

United States v. Lansdown, 460 F. 2d 164 .13, 17, 46

United States v. MacCollom, No. 74-1487, de-

ehfied Jame 16, OTS hn vccccccccsesecens 19

United States v. MacDonald, 531 F. 2d 196,

petition for a writ of certiorari pending No.

PP rere ry er eT ee ere 14, 17, 43, 44

United States v. More, 3 Cranch 159 ........ 20

United States v. Nixon, 418 U.S. 683 ........ 32

United States v. Norton, 539 F. 2d 1082 ..... 54

United States v. Rosenburgh, 7 Wall. 580.... 24

United States v. Ryan, 402 U.S. 530 ........ 32

United States v. Tateo, 377 U.S. 463 ..... 61, 62, 63

United States v. Werker, 535 F. 2d 198, certio-

rari denied sub nom. Santos-Figueroa v.

United States, November 1, 1976 (No. 76—

SN Se bveis been WU ence Ciaeeknnseee ds 54

United States v. Wilson, 420 U.S. 382 ........ 52

United States v. Young, C.A. 9, No. 75-3102,

decided October 19, 1976 ........... 14,17, 34A

United States Alkali Export Association, Ine.

v. United States, 325 U.S. 196 ........... 53

United States ex rel. Webb v. Court of Com-

mon Pleas, 516 F. 2d 1034 .............. 14

Will v. United States, 389 U.S. 90 .......... 52

Wright v. United States, 108 Fed. 805, certio-

rari Gented, 161 U.B. GEO .. ccc cc ccccsccs 66, 67

Yick Wo v. Hopkins, 118 U.S. 356 ........... 44

Constitution and statutes:

United States Constitution:

Article I, Sec. 6, cl. 1, Speech and Debate

ES ie Ser ere are ee 43

ee MS wc cc cccccesessees 43, 44, 47

re... osekeedeese ene 40

ee ce oe bee ae 6S 2, 65

Vill

Page

Constitution and statutes—Continued:

Double Jeopardy Clause .............. 5, 9,

10, 12, 17, 28, 39, 40, 44, 45, 52, 56, 59, 61

Grand Jury Clause ................5. 43

Sixth Amendment .............0.000005 44

Speedy Trial Clause ......... 9, 17, 28, 438, 44

Act of April 29, 1802, Section 6, 2 Stat. 159,

160-161 .........c ccc ccc ceees Neeeses 20, 24

Act of March 3, 1879, 20 Stat. 354.......... 21, 24

Act of February 6, 1889, Section 6, 25 Stat.

Oe 665056500 0455540%5566004564405004% 21, 24

Act of January 20, 1897, 29 Stat. 492 ....... 22, 35

Act of March 3, 1911, 36 Stat. 1087, et seq.:

Section 128, 36 Stat. 1133 ............... 22, 35

Section 238, 36 Stat. 1157 ............... 22, 35

Section 289, 36 Stat. 1167 ............... 22

Act of September 16, 1916, Section 4, 39 Stat.

WD 45.065 66 40400000 0b50644050505000%5 23

Act of February 13, 1925, Section 238, 43 Stat.

WUD 506006454965 65 056050460465 KG bas ees 23

Act of July 3, 1926, 44 Stat. 831 ........... 26

Act of January 31, 1928, 45 Stat.54........ 23

Act of April 26, 1928, 45 Stat. 466 .......... 23

Act of June 25, 1948, Section 43(a), 62 Stat.

OW obo nb een eendeneen cen exees 46021044 23

Circuit Court of Appeals Act, 26 Stat. 826,

EOD. 5 666 050505665000 ebsaeseincees 21, 35

Section 5, 26 Stat. 827 ...............0.. 22, 24

Section 6, 26 Stat. 828 .........000.008., 21

Criminal Appeals Act, 18 U.S.C. 3731 ....... 8, 23,

24, 25, 36, 42, 46, 52

First Judiciary Act, 1 Stat. 73, et seq. ....... 6, 19

Section 10, 1 Stat. 77-78 2.2... ...0.00045. 19, 35

Section 21,1 Stat. 83 ........0 0.0.0.0... 19

Section 22,1 Stat. 84 ...........0...0..0... 19

Page

Constitution and statutes—Continued:

Hobbs Act, 18 U.S.C. 1951... 6.6 eee eee 2, 64

18 U.B.C. 1OB1(G) 2... cccccccccecesacens 56

Speedy Trial Act of 1974, 18 U.S.C. (Supp. V)

3161, et 8€q. 1... creer e reece eeeees 36

Revised Statutes (1873-1874) :

$ BGS... ccc ccccccccccsecccascssecess 21

§ 629, G20... cee cece eee eee ee eeeee 21

\’ Peo!!! 35

+. Peer 35

+ eee 35

1, eh!!! 35

6 Geet, GOD... ccccctsccnceusees eee 35

20 Mant, 296 .. cdc ccecceusscteseueeeeen 35

14 Ghat, SOB... wccceccceeecdeuseseeunee 35

14 Stet, BOP ...ccecccceeeeesessaueeneee 35

BB Ghat, O46 . .occkscedctsndesuuaneene 35

OB Ment, GOR . ww ciacdecccsessess eee 27

18 U.S.C. 20GB 6ccccccecccceseseesenuee 2

18 U.S.C. 2618(10) (BD) ....ccccccesees 25, 36, 42

18 U.S.C. GREG . ss sc cuvunese cus seneeee ~ ae

98 U.S.C. 1GB4C1) .. ccccvcccseseeeenenuee 49

98 U.S. BOOT os caccesesseses eee 47, 48, 49

. $e Cee | Re 2, 8, 18, 19, 23, 25, 35, 36

98 U.S.C. 199Bla) . oo ccces00ssa5ee eee 25, 51

28 U.S.C. 199B(D) .. os ccccsccdccncsucuces 25

98 U.S.C. SBBBID) «oc 0cseeedds ieee 25

D.C. Code § 226 (1901) .........- ee eeeees 26

23 D.C. Cade 1064€) ....0cccccsncvdseneus 25

Miscellaneous :

67 Cong. Rec. (1926) :

D. COBE 0. cc ccccccccccccccsevsesocess 26

‘ Sec tC~S 26-27

Constitution and statutes—Continued: se

Federal Rules of Criminal Procedure:

Se eee Tee eee 65

I ERE alo 54

EE ee ee a 54

EE ea 63

Goebel, History of the Supreme Court of the

United States: Antecedents and Beginnings

ne 20

H.R. Rep. No. 1363, 69th Cong., 1st Sess.

de ad i od adn 7, 27

Note, Supervisory and Advisory Mandamus

Under the All Writs Act, 86 Harv. L. Rev.

te ee i os ai a so 55

Orfield, Criminal Appeals in America (1939). 4

Orfield, History of Criminal Appeal in Eng-

land, 1 Mo. L. Rev. 326 (1936) ........... 20

Payne, The Abolition of Writs of Error in the

Federal Courts, 15 Va. L. Rev. 305 (1929) . = 23

Werner and Starr, Teapot Dome (1959) ..... 27

Git the Supreme Court of the Cited States

OCTOBER TERM, 1976

No. 75-6521

DONALD ABNEY, ET AL., PETITIONERS

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The court of appeals rendered no opinion. An earlier

opinion of the court of appeals is reported at 515 F. 2d

112. The oral opinion of the district court (A. 44-49)

is unreported.

JURISDICTION

The judgment of the court of appeals (A. 50-51)

was entered on February 10, 1976. A petition for re-

hearing was denied on March 5, 1976 (A. 52). The

petition for a writ of certiorari was filed on April 5,

1976, and was granted on June 14, 1976 (A. 53). The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. a. Whether a pretrial order denying a motion to

(1)

ALE

dismiss an indictment on double jeopardy grounds may

be appealed by the accused prior to trial.

b. If so, whether a court of appeals has jurisdic-

tion to consider other claims presented pendent to that

appeal.

2. Whether the Double Jeopardy Clause bars a re

trial following reversal of petitioners’ convictions at

their behest because they had been tried on a duplicitous

indictment.

3. Whether the pending indictment charges an of-

fense.

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides in relevant part:

* * * nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

** *

28 U.S.C. 1291 provides in relevant part:

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States * * *.

18 U.S.C. 1951 is set out at Pet. Br. 3-4.

STATEMENT

1. On March 14, 1974, a one-count indictment re-

turned in the United States District Court for the East-

ern District of Pennsylvania charged petitioners, along

with Clarence Starks and Merrill Ferguson, with con-

spiracy and attempt to obstruct interstate commerce

by extortion, in volation of 18 U.S.C. 1951.

The prosecution’s case at trial, which is fairly sum-

marized in the opinion of the court of appeals on the

first appeal in this case, was hased upon the testimony

of Ulysses J. Rice, the victim of the conspiracy. Rice

owned “Nookie’s Tavern,” a bar in Philadelphia that

sold liquor distilled and bottled outside the State (2B

Tr. 3, 51-52, 56, 61, 64).' Rice testified that on several

occasions in December 1973 petitioner Robinson, a

Black Muslim, had visited his tavern and offered to sell

him the Muslim newspaper and food items. He testified

that on December 8 Robinson and Ferguson entered the

tavern and demanded that Rice give them $200 in honor

of ‘‘Founder’s Day,” a Muslim holiday. Robinson and

Ferguson collected the $200 from Rice three days later

when they returned to the tavern accompanied by peti-

tioner Abney (2B Tr. 5-14).

Petitioners Robinson and Abney returned to the tav-

ern the following week and demanded that Rice pay

them $200 weekly. They told Rice that if he was able to

pay “taxes to the white man and to the Government,”

he could pay “taxes” to them (2B Tr. 19-20). Rice pro-

tested, but was told to pay if he “knew what was good

for [him]” (2B Tr. 21). As Robinson and Abney were

leaving, Abney told Rice: “Don’t give us no trouble

because you know what will happen to you” (2B Tr.

22).

The next evening petitioner Starks approached Rice

at a movie theater; he told him that “they had had a

meeting” about him, that Rice was to have been re-

quired to pay $1500, but that Starks had managed to

reduce the payment to $500. After this incident Rice

1 Transcript references are designated by day of trial, sec-

tion, and page number. Thus “2B Tr. 3” refers to page 3 of

section B of the transcript of the second day of trial.

OO eV

concluded that his life was in jeopardy; he therefore

did not return to the tavern for approximately two

months. He had no contact with petitioners during this

period, although they regularly sought him at the tav-

ern (2B Tr. 25-28, 51; 5B Tr. 616-619).

By February 19, 1974, Rice had returned to the

tavern. On that day petitioner Starks visited him and

demanded $500. Starks told Rice that he could no longer

hide, that the money had to be paid three days later,

and that he didn’t care “‘who died or what’ (2B Tr.

52-54). Starks also told Rice that when he returned for

the money Robinson would be there ‘“‘to straighten this

out” (2B Tr. 54). Fearing once again that his life was

endangered, Rice contacted the Federal Bureau of In-

vestigation (2B Tr. 55).

Petitioner Starks returned to the tavern on February

21. Clarence Starks and petitioner Robinson accom-

panied him but remained outside (2B Tr. 55-56; 5B

Tr. 617-618). Petitioner Starks demanded $500 and

threatened to have petitioner Robinson enforce the

demand. Rice resisted payment, but Stai ks told him he

had ‘better watch [his] life’ (2B Tr. 61). After addi-

tional threats were made, Rice gave petitioner Starks

an envelope containing money that had been marked

by federal agents. Petitioner Starks and Clarence

Starks were promptly arrested (2B Tr. 59-64). Rice

had a tape recorder on his body, and the transaction

was recorded. The recording was received in evidence

at trial (3 Tr. 111).

2 Petitioners’ defense was that the payments by Rice were

bona fide contributions to a religious cause, not the product of

extortion.

2. Petitioners were found guilty; Clarence Starks

and Ferguson were acquitted by the jury. The court of

appeals reversed petitioners’ convictions and remanded

for a new trial because the tape recording had been ad-

mitted into evidence without proper authentication

(515 F.2d at 118-124). The court rejected many of

petitioners’ other arguments (id. at 124-125). It

agreed with petitioners, however, that the indictment

was duplicitous (id. at 115-118).° Because, in the

court of appeals’ view, a new trial was required by the

erroneous admission of the tape recording, it did not

pass upon the government’s argument that the instruc-

tions to the jury prevented petitioners from being prej-

udiced by the duplicity of the indictment (id. at 118).

In order to avoid similar problems at the next trial, the

court of appeals instructed the government to elect

between the conspiracy and attempt charges (id. at

118, 125).

3. At a pretrial conference on remand, the prosecu-

tor stated that the government would proceed on the

conspiracy charge. Petitioners then moved to dismiss

the indictment, contending (1) that retria’ would vio-

late the Double Jeopardy Clause and (2) that the in-

dictment, as modified by the election, does not charge

an offense (A, 38-43). The motions were denied by

the district court (A. 44-49), and petitioners immedi-

ately filed a notice of appeal.

The government, observing that United States v.

’ The indictment and pertinent portions of the trial court’s

instructions are set forth at pages 56-58, infra, in which

we address petitioners’ claim that because of this duplicity

their retrial is barred by the Double Jeopardy Clause.

DiSilvio, 520 F.2d 247, 248 n. 2a (C.A. 3), certiorari

denied, 423 U.S. 1015, had held that the denial of a

pretrial motion to dismiss an indictment on double

jeopardy grounds was immediately appealable, asked

the court of appeals to overrule DiSilvio and to dismiss

the appeal. The court of appeals did not respond to this

request. After ordering the case to be submitted on the

briefs without oral argument, the court affirmed with-

out opinion, rejecting both of petitioners’ contentions

(A. 50-51).

SUMMARY OF ARGUMENT

The first question the Court must consider is whether

the court of appeals had jurisdiction over petitioners’

pretrial appeal from the denial of their motions to dis-

miss the indictment. We submit that it did not have

jurisdiction.

!. “The general principle of federal appellate jurisdic-

tion, derived from the common law and enacted by the

First Congress, requires that review of nisi prius pro-

ceedings await their termination by final judgment.”

DiBella yv. United States, 369 U.S. 121, 124. The First

Judiciary Act did not provide for any appellate review

in criminal cases. Until 1879, when the circuit courts

were given jurisdiction by writ of error to review judg-

ments of conviction in some criminal cases, the only

method of review was by certificate, and that could be

used only when the trial judges were evenly divided on

a legal question and were unable to render a decision.

The first right to appeal was created in 1889, and

that statute allowed review of convictions in capital

cases. When Congress revised the structure of the fed-

eral courts in 1891 it created a right to appeal from

convictions of crimes punishable by imprisonment. Not

until 1911 was there a general right of appellate re-

view of all judgments of conviction.

Congress has given great attention to defining the

circumstances under which an appeal is permissible.

When Congress has perceived the need for greater re-

view, it has provided that review. Interlocutory review

has been particularly disfavored, however; the only

provision for interlocutory review was the certificate

of division, and that was necessary to enable the court

to decide the case before it. Each time Congress has

devised a statute pertaining to crimina’ appeals by

defendants, it has either limited jurisdiction to review

of convictions or used language commonly accepted as

embodying a requirement of finality. Any exception to

the finality principle has been explicitly articulated.

The intent of Congress to forbid interlocutory ap-

peals by defendants is expressed most clearly in its

reaction to a peculiar practice in the District of Colum-

bia that threatened to delay the Teapot Dome trials

because of a pretrial appeal. Congress passed a statute

forbidding such pretrial appeals because, as the House

Report (H.R. Rep. No. 1363, 69th Cong., Ist Sess. 2

(1926) ) stated:

[T]he allowance of [interlocutory] appeals has been

given in civil cases but has not been recognized or

provided for in criminal cases.

* * * Delay in criminal cases is already a grave

subject of general criticism and to allow appeals in

interlocutory matters would serve to bring the ad-

ministration of criminal law into greater discredit.

a Ee ee a Salta a

Only in recent years has Congress provided for any

interlocutory review, and it has done so only in limited

and specifically identified circumstances in which no

review whatever could be had following final judgment.

18 U.S.C. 3731. There is no reason to believe that 28

U.S.C. 1291, which derives from an 1891 act, serves

as a catch-all authorizing interlocutory appeals not

otherwise provided for.

2. This Court has consistently rejected arguments by

defendants in criminal cases that interlocutory appeal

should be allowed in order to spare them the burdens

of a trial that, they say, should not be held at all. In

Heike v. United States, 217 U.S. 423, a witness had

been compelled to testify in exchange for transactional

immunity. He was later indicted, and he claimed that

his immunity, which included the right not to be tried,

extended to that crime. After the trial court rejected

his arguments, Heike sought to appeal; this Court held

that such a pretrial appeal was not authorized by stat-

ute. The Court acknowledged that its holding might

compel Heike to stand trial unnecessarily and that the

trial itself might be forbidden, yet it analogized Heike’s

predicament to that of one whose plea of former jeop-

ardy is rejected and concluded that an appeal would not

be allowed in either case until after a conviction. Heike

has been reaffirmed and applied to other constitutional

claims.

“{T ]he whole history of both growth and limitation

of federal-court jurisdiction since the First Judiciary

Act” (Carroll vy. United States, 354 U.S. 394, 399) thus

demonstrates that in criminal cases there is no appel-

late jurisdiction, absent an explicit statute, until the

entire case has come to a close and all questions concern-

ing the propriety of a conviction can be reviewed at the

same time. The wisdom of this course is obvicus. In a

federal criminal prosecution every question is a fed-

eral question. The resolution of any one of them may

prove to be academic in light of later developments in

the case. Although a trial court decides that the Double

Jeopardy Clause does not bar the pending trial, it later

may decide that critical evidence should be suppressed

or that the Speedy Trial Clause forbids further pro-

ceedings. If the case goes to trial, the jury may acquit.

If each potentially controlling constitutional question

could be presented for resolution by the court of appeals

before trial, litigation would be interminable, and the

vital societal interest in speedy trial of criminal charges

would be crippled; at the same time, the appellate

courts would devote substantial resources to the resolu-

tion of questions that may become moot. During the

time necessary to brief, argue and decide the appeal,

evidence may be lost and memories may fade, thereby

impairing the accuracy of verdicts when the trial finally

is held.

3. Several courts of appeals have concluded, however,

that double jeopardy claims are collateral to the issues

of the case and therefore appealable under the “‘collat-

eral order doctrine” of Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 545-547. Cohen was a civil

case, and its principles are not easily transferrable to

criminal cases, with their different history and needs.

But however that may be, a double jeopardy claim is

not collateral. The ultimate issue at stake in a criminal

case is the propriety of the trial and conviction. A plea

of former jeopardy is simply one among many possible

reasons why there should be no conviction. If the de-

fendant is convicted, the double jeopardy claim can be

raised on appeal; if the district court resolved it incor-

rectly, the conviction will be reversed. The claim is not

forever lost if not resolved by appeal prior to trial.

It is true that the Double Jeopardy Clause, unlike

some other constitutional provisions, may supply a rea-

son why there should be no trial as well as a reason why

there should be no conviction. Some courts have accord-

ingly concluded that an interlocutory appeal is neces-

sary to ensure “full enjoyment” of the right not to be

tried. But the Double Jeopardy Clause is not different

in this regard from the statute at issue in Heike or the

constitutional claims raised in other cases. This Court

consistently has held that “[b]Jearing the discomfiture

and cost of a prosecution for crime even by an innocent

person is one of the painful obligations of citizenship.”

Cobbledick vy. United States, 309 U.S. 323, 325.

The argument that an interlocutory appeal is neces-

sary whenever the defendant asserts a “right not to be

tried” rests upon the unarticulated premise that an ap-

peal is part of the right itself. As this Court has held,

however, jurisdiction of appellate courts is defined by

federal statutes and not by the nature of the right

sought to be enforced. The question thus is not whether

there is an abstract right not to be tried, but whether

Congress has provided for pretrial appeals to contest a

district court's decision to require the accused to stand

trial. To assert that full enjoyment of the rights se-

cured by the Double Jeopardy Clause requires an inter-

locutory appeal is to beg the very question presented

by this case.

Perhaps occasional delay might seem to be an accept-

able price to pay for ensuring the vindication of just

claims. Common sense indicates, however, that because

the district courts correctly resolve the vast majority

of double jeopardy claims presented to them, the price

for correcting a few errors before trial would be delay

in many cases while defendants who find delay advan-

tageous appeal from correct decisions. Congress might

conclude that this price is not too dear, but it has not

yet done so; until it does, defendants must await con-

Viction before obtaining appellate review of their dou-

ble jeopardy claims.

4. Finally, even if a court of appeals has jurisdiction

over a pretrial appeal raising a double jeopardy claim,

this jurisdiction should not be expanded to permit reso-

lution of any other kind of claim—such as, in this case,

petitioners’ assertion that the indictment does not state

an offense—even though appended to a double jeopardy

claim. The only rationale for interlocutory review of

double jeopardy claims is that they are severable from,

and in urgent need of review before, the other issues in

the case, and that they are unreviewable in any mean-

ingful sense after final judgment. It would make a

mockery of this rationale if the double jeopardy claim

were then used as a bootstrap to review the other issues

in the case, as the court of appeals did here.

Petitioners’ double jeopardy argument is insubstan-

tial. Although they were convicted under a duplicitous

indictment, their convictions were reversed on appeal

at their behest. Since United States v. Ball, 163 U.S.

662, it has been settled that the Double Jeopardy Clause

“imposes no limitations whatever upon the power to

retry a defendant who has succeeded in getting his first

conviction set aside.”” North Carolina v. Pearce, 395

U.S. 711, 720 (footnote omitted and emphasis deleted).

Moreover, the instructions to the jury at the first trial

precluded any possibility that petitioners had been im-

plicitly acquitted of the crime with which they are now

charged.

Ill

The indictment charges petitioners with an offense.

It alleges a conspiracy to commit extortion. Petioners’

reading of the indictment as charging that the object

of the conspiracy was attempted extortion—that is, as

charging that the conspirators intended to fail to extort

money—is implausible. The attempted extortion was

simply an overt act of the conspirators; an agreement

to commit an unlawful act is a completed conspiracy

whether or not it attains its end. Petitioners’ further

contention, that the indictment is defective because it

does not allege that they agreed, misunderstands the

nature of the crime of conspiracy ; because a conspiracy

is an agreement, an indictment need not allege both

conspiracy and agreement.

ARGUMENT

Petitioners were tried and convicted. After their

convictions were reversed at their behest, they asked

the district court to dismiss the indictments. They ar-

gued that the Double Jeopardy Clause forbids a second

trial and that the indictment does not charge an offense.

The district court declined, concluding that petitioners’

arguments lad been foreclosed in large measure by the

court of appeals’ order remanding the case for a new

trial.

Before their second trial could begin, petitioners again

appealed. The court of appeals affirmed without op/n-

ion, and petitioners have brought the case here. Unless

the court of appeals had jurisdiction over petitioners’

pretrial appeal, however, this case cannot be considered

on its merits. This Court’s first task, therefore, is to

determine whether the court of appeals was empowered

to entertain the interlocutory appeal. Liberty Mutual

Insurance Co. v. Wetzel, 424 U.S. 737; DiBella v.

United States, 369 U.S. 121.

A COURT OF APPEALS DOES NOT HAVE JURISDICTION TO HEAR

ANY INTERLOCUTORY APPEALS BY DEFENDANTS IN CRIMINAL

CASES

A, INTRODUCTION

1. The courts of appeals are divided on the question

whether the denial of a motion to dismiss an indictment

on double jeopardy grounds is immediately appealable.

The majority have held that it is. United States v. Lans-

down, 460 F.2d 164, 170-172 (C.A. 4) ;* United States

v. Beckerman, 516 F.2d 905, 906-907 (C.A. 2) ; United

States v. DiSilv’o, 520 F.2d 247, 248 n. 2a (C.A. 3),

certiorari denied, 423 U.S. 1015; United States v.

Barket, 530 F.2d 181 (C.A. 8), certiorari denied No-

vember 1, 1976 (No. 75-1280). Cf. Thomas v. Beasley,

491 F.2d 507 (C.A. 6) (grant of pretrial writ of habeas

corpus on double jeopardy grounds) ; United States ex

‘See also United States v. Hankish, C.A. 4, No. 76-1334,

decided July 1, 197€, certiorari dismissed November 11, 1976,

No. 76-135, which extends the Lansdown principle to all dou-

ble jeopardy claims, even frivolous ones.

rel. Webb v. Court of Common Pleas, 516 F.2d 1034

(C.A. 3) (same). Several courts have extended this

holding in various ways. The Second Circuit has al-

lowed a pretrial appeal to argue breach of a plea bar-

gain allegedly involving a promise of non-prosecution.

United States v. Alessi, 536 F.2d 978 (Alessi 1). The

Fourth Circuit has allowed a pretrial appeal from an

order rejecting a speedy trial claim. United States v.

MacDonald, 531 F.2d 196, petition for a writ of certi-

orari pending, No. 75-1892. The Third Circuit in the

instant case considered a statutory claim that was ap-

pealed at the same time as a double jeopardy claim.

The Fifth and Ninth Circuits, however, have held

that interlocutory appeals of double jeopardy issues are

not permissible. United States v. Bailey, 512 F.2d 833,

836-838 (C.A. 5), certiorari dismissed, 423 U.S. 1039;

United States v. Young, C.A. 9, No. 75-3102, decided

October 19, 1976. The Seventh Circuit has dismissed an

interlocutory appeal of this sort without opinion.

United States v. Bartemio, No. 76-1039, decided April

5, 1976, petition for a writ of certiorari pending, No.

75-6657. And Judge Friendly now has written a thor-

ough opinion for himself and Judge Van Graafeiland

explaining why they consider Bailey to be right and

Beckerman wrong. United States v. Alessi, C.A. 2, No.

76-1189, decided July 7, 1976 ( Alessi 11), petition for

a writ of certiorari pending, No. 76-176.°

* Because Alessi 1] and Young are not yet published, we

have reprinted them for the convenience of the Court as an

appendix to this brief. The Alrssi I] panel eventually assumed

jurisdiction and affirmed on the merits; because certiorari had

been granted in the instant case, the panel decided not to seek

en bane reconsideration of Second Circuit precedent.

2. In Cobbledick v. United States, 309 U.S. 323, this

Court explained why interlocutory appeals may not be

taken in criminal cases in the absence of explicit statu-

tory authorization. It is difficult to improve upon the

analysis of the unanimous Court, speaking through Mr.

Justice Frankfurter, and so we set it out at some length

(309 U.S. at 324-326) :

Finality as a condition of review is an historic

characteristic of federal appellate procedure. It was

written into the first Judiciary Act? and has been

departed from only when observance of it would prac-

tically defeat the right to any review at all.* Since the

right to a judgment from more than one court is a

matter of grace and not a necessary ingredient of

justice, Congress from the very beginning has, by

forbidding piecemeal disposition on appeal of what

for practical purposes is a single controversy, set

itself against enfeebling judicial administration.

Thereby is avoided the obstruction to just claims that

would come from permitting the harassment and cost

of a succession of separate appeals from the various

rulings to which a litigation may give rise, from its

initiation to entry of judgment. To be effective, ju-

dicial administration must not be leaden-footed. Its

momentum would be arrested by permitting separate

reviews of the component elements in a unified cause.

These considerations of policy are especially compel-

ling in the administration of criminal justice. Not

until 1889 was there review as of right in criminal

cases.‘ An accused is entitled to scrupulous observ-

ance of constitutional safeguards. But encouragement

of delay is fatal to the vindication of the criminal law.

Bearing the discomfiture and cost of a prosecution

for crime even by an innocent person is one of the

painful obligations of citizenship. The correctness of

a trial court’s rejection even of a constitutional claim

made by the accused in the process of prosecution

must await his conviction before its reconsideration

by an appellate tribunal. Cogen v. United States, 278

U.S. 221.

In thus denying to the appellate courts the power to

review rulings at nisi prius, generally, until after the

entire controversy has been concluded, Congress has

sought to achieve the effective conduct of litigation.

For purposes of appellate procedure, finality—the

idea underlying “final judgments and decrees” in the

Judiciary Act of 1789 and now expressed by “final

decisions” in $128 of the Judicial Code—is not a

technical concept of temporal or physical termination.

It is the means for achieving a healthy legal system.

2 $§ 21, 22, 25 of the Act of September 24, 1789, 1

Stat. 73, 83-85. For a discussion of the historical

background, English and American, of the finality

concept, see Crick, The Final Judgment as a Basis

for Appeal, 41 Yale L. J. 539.

See $129 of the Judicial Code, 28 U.S.C. § 227,

dealing with appeals from interlocutory injunctions,

appeals from interlocutory decisions in receivership

cases and from interlocutory decrees determining

rights and liabilities in admiralty litigation.

4See ['nited States v. More, 3 Cranch 159. Only by

certificate of division of opinion in the circuit courts

could review be obtained. See Curtis, Jurisdiction of

the United States Courts, 82. By the Act of 1889 re-

view as of right was allowed in capital cases. 25

Stat. 655, 656. For the history of federal criminal

appeal see United States v. Sanges, 144 U.S. 310,

319-22.

The policies adduced by the Court in Cobbledick

apply with like force to double jeopardy claims as to

the many other constitutional claims that arise in a fed-

eral criminal case. All should await resolution in the

ordinary course. Any other rule would lead to “leaden-

footed” administration of justice, in which frivolous

arguments could bring the process to a halt while evi-

dence dissipates and the memories of witnesses fade.

Moreover, the prohibition of interlocutory appeals will

rarely work injustice. After all, the vast majority of

meritorious double jeopardy claims will be recognized

by the district courts.® In some cases errors doubtless

6 While we have no means of preparing a complete catalogue

of cases in which interlocutory double jeopardy appeals have

been entertained by the courts of appeals, we are aware of 10

such cases since Lansdown. In every one of these cases the

court of appeals affirmed the district court’s rejection of the

double jeopardy claim. In each of the cases, moreover, the

interlocutory appeal produced substantial delay. The delays in

Hankish and the instant case are discussed in the text (see pp.

45-46, infra). United States v. Barke? supra, is another

example. A two-count indictment was filed in May 1974. Barket

was tried and acquitted on one of those counts early in 1975.

He then moved to dismiss the other count, arguing that prose-

cution on it is barred by the Double Jeopardy Clause. The

district court denied the motion and Barket appealed. The

court of appeals dismissed portions of the appeal and affirmed

on the remaining issues on December 9, 1975. Rehearing was

denied in February 1976, and Barket filed a petition for a writ

of certiorari (No. 75-1280), which was denied on November 1,

1976. The delay so far exceeds 18 months, and the trial still has

not been held. Even when a court of appeals dismisses an

interlocutory appeal for want of jurisdiction, the delay can

be substantial. In United States v. Young, supra, the district

court rejected the double jeopardy claim on August 8, 1975.

Young appealed, and the case was not argued until the summer

of 1976. The appeal was dismissed on October 19, 1976. Young

still can file a petition for a writ of certiorari.

United States v. MacDonald, supra, is the only recent federal

case in which a defendant has prevailed on an interlocutory

appeal. That case involved the Speedy Trial Clause rather than

the Double Jeopardy Clause. It is far from clear, however, that

the district court’s rejection of MacDonald’s claim was in

error. The court of appeals was divided, and we have filed a

petition for a writ of certiorari (No. 75-1892). We have argued

that the district court was right and the court of appeals was

wrong; if this Court should agree with our arguments, Mac-

Donald’s case would return to the district court for trial after

a substantial delay. (Trial had been set for August 1975, but

the court of appeals stayed the trial pending resolution of the

appeal.)

will occur, and in consequence a trial will be held that

should not have taken place. But exposure to that risk

“is one of the painful obligations of citizenship.” The

cost of correcting error before trial in a few cases is

delay in many cases. Here, as with other constitutional

claims, “[t]he correctness of a trial court’s rejection

even of a constitutional claim made by the accused in

the process of prosecution must await his conviction be-

fore its reconsideration by an appellate tribunal.” 309

U.S. at 325-326.

This Court has not retreated from the views it ex-

pressed in Cobbledick. It stated, again unanimously, in

DiBella vy. United States, supra, 369 U.S. at 124, that

“(t]he general principle of federal appellate jurisdic-

tion, derived from the common law and enacted by the

First Congress, requires that review of nisi prius pro-

ceedings await their termination by final judgment.”

On account of this principle, it held, neither the defend-

ant nor the prosecution could appeal before trial from

an adverse ruling on a constitutional search and seiz-

ure question, absent explicit statutory authority. The

Court explained that “[t]his insistence on finality and

prohibition of piecemeal review discourage undue liti-

giousness and leaden-footed administration of justice,

particularly damaging to the conduct of criminal cases”

(ibid.).

Because so many courts of appeals have entertained

pretrial appeals from the rejection of double jeopardy

claims, however, we believe it necessary to explore the

issue in greater depth. We begin with a discussion of

the genesis of 28 U.S.C. 1291, the statute controlling

the right of defendants to appeal in criminal cases.’

This jurisdictional statute must “be construed ‘with

precision and with fidelity to the terms by which Con-

gress has expressed its wishes.’”’ Palmore v. United

States, 411 U.S. 389, 396, quoting from Cheng Fan

Kwok v. Immigration and Naturalization Service, 392

U.S. 206, 212. Because Section 1291 is “‘so much a prod-

uct of the whole history of both growth and limitation

of federal-court jurisdiction since the First Judiciary

Act,” it must be approached ‘in the light of that his-

tory and of the axiom that clear statutory mandate

must exist to found jurisdiction.” Carroll v. United

States, 354 U.S. 394, 399.

B. CONGRESS HAS GRANTED TO THE COURTS OF APPEALS

IN CRIMINAL CASES THE POWER TO KEVIEW, AT A DE-

FENDANT’S BEHEST, ONLY FINAL JUDGMENTS OF CON-

VICTION

1. Tae First Judiciary Act, 1 Stat. 73, did not pro-

vide any appellate review in federal criminal cases. Al-

though the Act conferred appellate jurisdiction in cer-

tain civil cases," the question of providing appellate re-

7 Section 1291, the sole applicable statute, sets up the only

avenue of appellate review for criminal defendants. A right

of appeal, even as to constitutional questions, is not an e¢le-

ment of due process of law. McKane v. Durston, 153 U.S. 684,

687. See also United States v. MacCollom, No. 74-1487, de-

cided June 10, 1976, plurality slip op. 5; Estelle v. Dorrough,

420 U.S. 534, 536-537; Ortwein v. Schwab, 410 U.S. 656, 660;

Lindsey v. Normet, 405 U.S. 56, 77; Griffin v. Illinois, 351 U.S.

12, 18; District of Columbia v. Clawans, 300 U.S. 617, 627;

Ohio v. Akron Park District, 281 U.S. 74, 80; United States v.

Heinze, 218 U.S. 532, 545-546; Reetz v. Michigan, 188 U.S.

505, 508; Murphy v. Massachusetts, 177 U.S. 155, 158.

® See Sections 10, 21 and 22 of the Act, 1 Stat. 77-78, 83-84.

view in criminal cases does not appear to have been

discussed or considered, “either because the book learn-

ing about common law limitations upon the availability

of the writ [of error] in criminal cases was generally

accepted doctrine, or hecause of the sentiment against

enhancement of the scope of the Supreme Court’s ap-

pellate jurisdiction.” Goebel, History of the Supreme

Court of the United States: Antecedents and Begin-

nings to 1801 610 (1971). This Court early held that

the Act had not conferred a right of appellate review

in federal criminal cases. United States v. More, 3

Cranch 159, 172; Ex parte Kearney, 7 Wheat. 37, 42.

The first statutory provision for appellate review in

federal criminal cases was Section 6 of the Act of April

29, 1802, 2 Stat. 159, which allowed the two judges sit-

ting on the circuit courts to certify a controlling ques-

tion to the Supreme Court in the event of disagreement.

This rarely led to consideration of the case by two

courts; the “possibility of Supreme Court review on

certificate of division of opinion in the circuit court was

remote because of the practice of single district judge’s

holding circuit court.” Stone v. Powell, No. 74-1055,

decided July 6, 1976, slip op. 8 n. 7.%°

In 1879 the circuit courts were given jurisdiction to

review by writ of error final judgments in criminal

®*The writ of error in criminal cases in England was not

available to review felony or treason proceedings until rela-

tively recent times, although discretionary review by extra-

ordinary writ could sometimes be obtained. Congress may have

contemplated a similar system of review in federal criminal

cases. Orfield, History of Criminal Appeal in England, 1 Mo.

L. Rev. 326, 332-333 (1936).

cases tried before the district courts, if the sentence

imposed included either imprisonment or a fine exceed-

ing $300.'' Such review was available, however, only at

the discretion of a circuit judge. Act of March 3, 1879,

20 Stat. 354. Hence, “[f]or nearly a century trials

under the Federal practice for even the gravest offences

ended in the trial court, except in cases where two

judges were present and certified a question of law” to

the Supreme Court or where the circuit court allowed

a writ of error. Reetz v. Michigan, 188 U.S. 505, 508.

In 1889 Congress first accorded some criminal de-

fendants a right to appellate review. Section 6 of the

Act of February 6, 1889, 25 Stat. 656, provided that a

defendant had the right to a writ of error in the Su-

preme Court to review the “final judgment” of any fed-

eral court “in all cases of conviction of crime the pun-

ishment of which provided by law is death” (emphasis

added).

Two years later Congress revised the structure of

federal trial and appellate courts. Section 6 of the Cir-

cuit Court of Appeals Act, 26 Stat. &28, established

circuit courts of appeals with “jurisdiction to review

by appeal or by writ of error final decisions in the dis-

trict court and the existing circuit courts in all cases

other than those [reviewable by the Supreme Court],”

including “cases arising * * * under the criminal laws

***" The Act gave the Supreme Court jurisdiction to

1! By this time the district courts had jurisdiction of all

federal crimes and offenses not capital. Rev. Stat. $ 563 (1873-

1874). The circuit courts had exclusive jurisdiction over capital

crimes and jurisdiction concurrent with the district courts over

noncapital crimes. Rev. Stat. § 629, " 20.

hear “appeals or writs of error” from the district or

circuit courts “[i]n cases of conviction of a capital or

otherwise infamous crime”’ (Section 5, 26 Stat. 827; em-

phasis added ).’*? Because the term “infamous crimes”

as used in the statute included all crimes punishable by

imprisonment (/n re Claasen, 140 U.S. 200, 204-205),

the new circuit courts of appeals did not have appellate

jurisdiction over significant cases until six years later.

The Act of January 20, 1897, 29 Stat. 492, amended

the Circuit Court of Appeals Act to provide that “ap-

peals or writs of error may be taken from the district

courts or circuit courts to the proper circuit court of

appeals in cases of conviction uf an infamous crime not

capita)” (emphasis added).

With the later enactment of the Judicial Code, Con-

gress granted to the circuit courts of appeals jurisdic-

tion to review “by appeal or writ of error final deci-

sions in the district courts * * * in all cases other than

those in which appeals and writs of error may be taken

direct to the Supreme Court.” Act of March 3, 1911,

Section 128, 36 Stat. 1133.’ Because Congress also

ended this Court’s jurisdiction over writs of error in

capital cases (Section 238, 36 Stat. 1157), the Judicial

Code effectively transferred to the circuit courts of

appeals the jurisdiction to review almost all convictions

‘* This enactment also gave defendants a right of appeal

from a final judgment to the Supreme Court where the juris-

diction of the lower court was in issue or where a constitutional

claim was involved (see Motes v. United States, 178 U.S. 458,

466-467) and repealed the method of reviewing questions aris-

ing in the lower courts by certificate of division (United States

v. Hewecker, 164 U.S. 46).

‘This Act also abolished the circuit courts. Section 289, 36

Stat. 1167.

in criminal cases. See Carroll v. United States, supra,

354 U.S. at 400-401 n. 9.

In 1925 Congress repealed the provisions of the Cir-

cuit Court of Appeals Act that had allowed direct ap-

peal to the Supreme Court in all cases in which the

jurisdiction of the lower court was attacked or consti-

tutional claims were raised. Act of February 13, 1925,

Section 238, 43 Stat. 938. This established a system of

review at the behest of defendants in criminal cases

identical in substance to the powers of today’s courts

of appeals. Only two changes have been made since

then. First, Congress abolished the “writ of error” and

provided that all cases would be reviewed by appeal."

Act of January 31, 1928, 45 Stat. 54. This statute was

not intended to change the scope of appellate review.

See Act of April 26, 1928, 45 Stat. 466. Second, in 1948

the circuit courts of appeals were renamed the United

States Courts of Appeals. Act of June 25, 1948, Sec-

tion 43(a), 62 Stat. 870. The language of the 1948 Act

delineating the jurisdiction of the courts of appeals is

now found in 28 U.S.C. 1291, which grants to the courts

of appeals “jurisdiction of appeals from all final deci-

sions of the district courts of the United States * * *.”"

14 See generally Payne, The Abolition of Writs of Error in

the Federal Courts, 15 Va. L. Rev. 305 (1929). A great deal

of confusion had arisen as to when an appeal was appropriate

and when a writ of error should be used. Congress had at-

tempted to alleviate this problem 12 years earlier (Act of

September 16, 1916, Section 4, 39 Stat. 727), and it finally

eliminated the problem by abolishing the writ.

15 Appeals by the United States are governed by 18 U.S.C.

3731. For a history of the development of the right of the

prosecution to appeal, see United States v. Wilson, 420 U.S.

332, 336-339; Carroll v. United States, supre.

2. Two themes run through this history. First, when

Congress has perceived a need for more expansive ap-

peal rights in criminal cases, it has provided them ex-

plicitly. Appellate jurisdiction is entirely a statutory

matter, and courts are not free to expand their own

jurisdiction in response to arguments that have not yet

commended themselves to Congress. Second, whenever

Congress has devised a statute pertaining to criminal

appeals alone, it has either limited jurisdiction to re-

view of convictions or sentences, or explicitly provided

for interlocutory review. Compare 20 Stat. 354, 25 Stat.

656, and 26 Stat. 827, with 18 U.S.C. 3731. Any excep-

tion to the finality principle has been plainly expressed.

The Act of April 29, 1802, which granted Supreme

Court jurisdiction on certificate of division, allowed in-

terlocutory review, which Congress carefully circum-

scribed. The statute provided (Section 6, 2 Stat. 160-

161) that Supreme Court resolution of a question

raised on certificate of division was not to “prevent the

cause from proceeding, if, in the opinion of the court,

farther proceedings can be had without prejudice to

the merits * * *.”'* In other statutes the restrictions

‘© Even so, this Court narrowly construed its jurisdiction to

review on certificate of division. United States v. Rosenburgh,

7 Wall. 580, and United States v. Avery, 13 Wall. 251, held

that review was unavailable where the division arose on a

motion to quash the indictment. In Avery the motion to quash

had challenged the court’s jurisdiction over the offense. Despite

a division on the question of jurisdiction, this Court dismissed

the certificate on the authority of Rosenburgh, which had held

there was no jurisdiction because the motion to quash “was

clearly determinable as a matter of [the circuit court’s] dis-

cretion” and because “the denial of the motion could not finally

decide any right of the defendant,” since the grounds asserted

in the motion were “left to be availed of, if available, upon

demurrer or motion in arrest of judgment.” 7 Wall. at 583.

have been even more pronounced.” See 18 U.S.C. 3147

(appeal from decision setting conditions of release).

Indeed, the requirement of finality was so much ac-

cepted as a precondition to appellate review that Con-

gress’ neglect to use the term “final” in describing

what decisions were appealable has been held to afford

no basis for allowing interlocutory review. McLish v.

Roff, 141 U.S. 661, 665.

3. The intent of Congress to forbid interlocutory ap-

peals in criminal cases except where explicitly author-

17 Congress has enacted for the District of Columbia a pro-

vision allowing the government to take interlocutory appeals

to the District of Columbia Court of Appeals from certain

rulings made during the trial; that court must authorize the

appeal and decide the case within 96 hours 23 D.C. Code

104(d). -

The Criminal Appeals Act, 18 U.S.C. 3731, explicitly sets

out a right of interlocutory appeal for the prosecution, This

statute, and 18 U.S.C. 2518(10)(b), which also provides for

interlocutory appeals by the prosecution, conditions such ap-

peals on the making of a certificate of good faith bya respon-

sible public official. Both statutes also require expeditious

resolution of the appeal. See also 28 U.S.C. 1s26(b) (courts of

appeals must act within 30 days on appeals in civil contempt

cases ).

In civil cases, too, inierlocutory appeals are allowed only in

carefully defined circumstances. 28 U.S.C. 1292(a) allows ap-

peals as of right from orders granting or denying interlocutory

injunctions; 28 U.S.C. 1292(b) allows interlocutory appeals

by permission of the district court and the court of appeals,

where resolution of an issue could materially advance the

termination of the litigation. Other statutes pertain to but a

single subject matter, and many of them are catalogued in

DiBella. These examples suggest that Congress, far from using

28 U.S.C. 1291 as an authorization for interlocutory appeals

in all cases not specifically provided for elsewhere, intended

that Section 1291 would authorize, as it says, appeals from

only “final” decisions.

ized is demonstrated most clearly by the Act of July 3,

1926, 44 Stat. 831, which provided:

[N]othing contained in any Act of Congress shall be

construed to empower the Court of Appeals of the

District of Columbia to allow an appeal from any

interlocutory order entered in any criminal action or

proceeding * * *.

This statute was enacted to put a stop to a practice

allowing interlocutory appeals by leave of court, which

had begur just before the turn of the century. See

Ainsworth vy. United States, 1 App. D.C. 518, 520; D.C.

Code § 226 (1901).

Congress enacted the statute to terminate pretrial

legal maneuvering that threatened to delay criminal

proceedings in one of the Teapot Dome cases. Three of

the defendants, including former Secretary of the In-

terior Fall, had filed demurrers to their indictment,

arguing that the indictment did not charge an offense,

was based on an erroneous interpretation of an act of

Congress, and was duplicitous." The demurrers were

overruled by the trial judge, but the court of appeals

entered an order allowing an interlocutory appeal. See

67 Cong. Rec. 12990-12991 (1926). Senator Walsh, an

active participant in the investigation of the scandal,

introduced the bill that became the Act of July 3, 1926,

in order to prevent further dela, in these criminal

cases. 67 Cong. Rec. 9884 (1926).

Reporting favorably on the bill, the Senate Judiciary

Committee stated (67 Cong. Rec. 9968 (1926) ):“[A]n

appeal from an interlocutory order in a criminal case

‘Ss Demurrers in Cr. Nos. 43,324 and 43,325, Supreme Court

of the District of Columbia, filed October 5, 1925, and Novem-

ber 3, 1925.

is an anomaly. No such p: -cedure is authorized or tol-

erated in the Federal system generally * * *.” The

House Report (H.R. Rep. No. 1363, 69th Cong., 1st

Sess. 2 (1926) ) elaborated:

[T]he allowance of [interlocutory] appeals has been

given in «:vil cases but has not been recognized or

provided for in criminal cases. The construction

placed on the section of the District Code [Section

226] by the court is unusual and makes the practice

in the District out of harmony with that obtaining

elsewhere.

* * * Delay in criminal cases is already a grave sub-

ject of general criticism and to allow appeals in inter-

locutory matters would serve to bring the adminis-

tration of criminal law into greater discredit.

The Act passed, the court of appeals dismissed the ap-

peal, the case went to trial, Fall was acquittea, and a

substantial amount of time was saved. Werner and

Starr, Teapot Dome 209 (1959). The particular cir-

cumstances that gave rise to that statute have passed,”

but the House Committee’s observations still reflect the

legislative design.

C. THIS COURT CONSISTENTLY HAS HELD THAT DEFEND-

ANTS IN FEDERAL CRIMINAL CASES MAY NOT APPEAL

BEFORE A JUDGMENT OF CONVICTION HAS BEEN REN-

DERED

“(T]he whole history of both growth and limitation

of federal-court jurisdiction since the First Judiciary

Act” (Carroll y. United States, supra, 354 U.S. at 399)

demonstrates that in criminal cases there is no right

of appeal by a defendant until the entire case has come

19 The Act was repealed in 1948 as obsolete. 62 Stat. 865.

See Carroll v. United States, supra, 354 U.S. at 412.

to a close and all questions concerning the propriety of

a conviction can be reviewed at the same time. The

wisdom of this course is obvious. Each federal criminal

case presents a multitude of federal questions requir-

ing resolution by the trial court. Does the indictment

state an offense? Is the statute constitutional as applied

to the defendant’s conduct? Is particular evidence ad-

missible? Has the accused voluntarily waived one or

more of his procedural rights, whether constitutional

or statutory in origin? Although the answer to any one

question may influence the outcome of the litigation,

the answer to any of the other questions may have

greater influence. Although the trial court decides that

the Double Jeopardy Clause does not bar the pending

trial, it later may decide that the Speedy Trial Clause

or the statute of limitations forbids additional pro-

ceedings or that critical evidence should be suppressed.

If the trial proceeds to verdict, the jury may acquit.

The aphorism that ‘justice delayed is justice denied”

applies with special force to criminal cases. There is a

compelling societal interest both in the swift punish-

ment of the guilty and in the prompt exoneration of the

innocent. Cf. Barker v. Wingo, 407 U.S. 514, 519-521.

But if each important constitutional question were re-

solved in a separate appeal before trial, litigation could

be interminable. What is more, many of the questions

would be presented in an analytical vacuum: pretrial

resolution of a speedy trial argument, for example, is

particularly difficult because the prejudice caused by

the delay may be impossible to assess until the wit-

nesses have testified. Resolution of many of the ques-

tions hypothetically presented in a case and potentially

affecting its outcome may become unnecessary in light

of the resolution at trial of other questions. The time

taken tc decide questions that may prove to be academic

would delay an appellate court’s consideration of other

pressing matters properly before it. During the time

needed to decide the appeal, moreover, evidence may be

lost and memories may fade. These considerations ex-

plain why this Court has set its face against piecemeal

adjudication of criminal cases, why it has consistently

required that ‘the whole case and every matter in con-

troversy in it [be] decided in a single appeal.” McLish

v. Roff, supra, 141 U.S. at 665-666.

A final decision “in a criminal case means sentence.”

Berman v. United States, 302 U.S. 211, 212. See also

Parr v. United States, 351 U.S. 513, 518. The meaning

of this principle is illustrated by Heike v. United States,

217 U.S. 423, a case in which a defendant who claimed

absolute immunity from prosecution as well as from

conviction attempted to take a pretrial appeal from a

decision requiring him to stand trial. We submit that

the Court’s decision in Heike controls the instant case.

Heike was indicted and pleaded absolute immunity

from prosecution because he had previously been com-

pelled to testify before a grand jury regarding the sub-

ject matter of the indictment. The plea was denied and

the case was set for trial. Heike sought immediate re-

view, pointing out that the immunity statute provided

that no person compelled to testify “shall be prose-

cuted,” and arguing that ‘‘[t]o permit the trial to pro-

ceed takes away that which never can be restored,”

namely the right not to be prosecuted (217 U.S. at 424).

The judgment was thus final, Heike contended, and an

appeal should be allowed. The Court disagreed,” observ-

ing that the denial of Heike’s plea had “not dispose[d]

of the whole matter litigated,” that is, “the right to con-

vict the accused of the crime charged in the indict-

ment.” Jd. at 429. The Court continued (id. at 430):

As the case now stands, upon the plea of not guilty,

upon which the issue raised must be tried to a jury,

certainly the whole matter has not been disposed of.

It may be that upon trial the defendant will be ac-

quitted on the merits. It may happen that for some

reason the trial will never take place. In either of

these events there can be no conclusive judgment

against the defendant in this case. It is true that ina

certain sense an order concerning a controlling ques-

tion of law made in a case is, as to that question, final.

Many interlocutory rulings and orders effectually dis-

pose of some matters in controversy, but that is not

the test of finality for the purposes of appeal or

writ of error. The purpose of the statute is to give

a review in one proceeding after final judgment of

matters in controversy in any given case. Any con-

trary construction of the Court of Appeals Act may

involve the necessity of examining successive appeals

or writs of error in the same case, instead of await-

ing, as has been the practice since the beginning of

the Government, for one review after a final judg-

ment, disposing of all controversies in that case be-

tween the parties.

The Court analogized Heike’s predicament to that of

one whose plea of former jeopardy is rejected, and, in

language especially pertinent here, it concluded that

the cases should be treated alike (id. at 432-433):

2° The Court had held in Brown v. Walker, 161 U.S. 591,

608-609, that a statute granting transactional immunity to a

witness compelled to testify before the grand jury was con-

stitutionally adequate even though “the witness * * * may still

be prosecuted and put to the annoyance and expense of plead-

ing his immunity by way of confession and avoidance.”

The Constitution of the United States provides

that no person shall be twice placed in jeopardy of

life and limb for the same offense, yet the overruling

of a plea of former conviction or acquittal has never

been held, so far as we know, to give a right of re-

view before final judgment. In the case of Rankin

v. The State, 11 Wall. 380, an attempt was made to

bring to this court a judgment of a state court upon

a plea in bar of former conviction in a capital case.

But this court, speaking by Mr. Justice Bradley, said:

“* * * (T]n no sense can that judgment be

deemed a final one* * *”’ [?']

It may thus be seen that a plea of former conviction

under the constitutional provision that no person

shall be twice put in jeopardy for the same offense

does not have the effect to prevent a prosecution to

final judgment, although the former conviction or

acquittal may be finally held to be a complete bar to

any right of prosecution, and this notwithstanding

the person is in jeopardy a second time if after one

conviction or acquittal the jury is empanelled to try

him again.

The Court’s reasoning in Heike was straightfor-

ward: the immunity statute created a right not to be

tried as well as a right not to be convicted, but it did

not create a right to take an interlocutory appeal. The

right not to be tried was left to be vindicated in the

trial court.** Nothing in the subsequent decisions of this

21 Rankin was indicted for murder in Tennessee. He had

been acquitted by court-martial of the same offense and ac-

cordingly interposed a plea of former acquittal. The trial court

sustained the plea, but the Supreme Court of Tennessee re-

versed and remanded for trial. This Court held that it was

without jurisdiction to review the Tennessee judgment.

22 The Court not only declined to hear the interlocutory ap-

peal but also refused to issue a writ of mandamus. Ex parte

Heike, 30 S. Ct. 576. The Court ultimately considered the issue

on the merits after Heike was convicted and rejected his claim.

227 U.S. 131.

Court has undermined the validity of Heike or the

soundness of its approach.

In Cogen v. United States, 278 U.S. 221, the Court

held that there was no appellate jurisdiction to review

before trial an order refusing to suppress evidence that

the defendant alleged had been unconstitutionally

seized. Cogen argued that the order refusing to sup-

press was “final” because it would not later be reex-

amined by the trial court; this Court agreed and as-

sumed that an erroneous denial of suppression might

cause much inconvenience, expense and annoyance—it

might even cause an unnecessary trial. That was not

enough, however, for a denial of suppression could be

reviewed on appeal from a judgment of conviction (278

U.S. at 224-225).

Eastman v. Ohio, 299 U.S. 505, summarily dismissed

an appeal on the authority of Rankin and Heike.” Cob-

bledick, which we already have discussed, held that even

third-party witnesses could not obtain review of orders

affecting them until the conclusion of the trial proceed-

ings, unless they were meanwhile held in contempt.”

23 See also Polakow’s Realty Experts, Inc. v. Alabama, 319

U.S. 750.

24 This principle has been modified in certain extreme situa-

tions. See United States v. Nixon, 418 U.S. 683. Cf. Maness

v. Meyers, 419 U.S. 449, 458-468. It retains full vitality in

ordinary cases, however. United States v. Ryan, 402 U.S. 530.

Cobbledick distinguished Perlman v. United States, 247 U.S.

7, upon which amicus curiae relies (Br. 5-6), as a case in which

utterly no review of the third-party’s claims would be available

without prompt appeal; in Perlman the disputed documents

were in the hands of the prosecution and the third party thus

could not obtain review by standing in contempt. As the Court

pointed out, that is an unusual situation, and Perlman does

In Roche v. Evaporated Milk Association, 319 U.S. 21,

the defendants in a criminal antitrust case pleaded that

the district court lacked jurisdiction and that they were

immune. When the court rejected the plea, the defend-

ants sought mandamus. This Court conceded that there

may be enormous costs in taking part in a trial that

never should occur, but it held that interlocutory review

should not be allowed. It wrote (319 U.S. at 30) :

Respondents stress the inconvenience of requiring

them to undergo a trial in advance of an appellate

determination of the challenge now made to the

validity of the indictment. We may assume, as they

allege, that that trial may be of several months’ dura-

tion and may be correspondingly costly and incon-

veni« it. But that inconvenience is one which we must

take 1. Congress contemplated in providing that only

final judgments should be reviewable. Where the ap-

peal statutes establish the conditions of appellate

review, an appellate court cannot rightly exercise its

discretion to issue a writ whose only effect would be

to avoid those conditions and thwart the Congres-

sional policy against piecemeal appeals in criminal

cases.

Parr v. United States, 351 U.S. 513, reaffirmed Heike

and heid that an accused could not obtain pretrial re-

view of an order dismissing an indictment in one dis-

trict and allowing a prosecution to proceed in another.

Parr had argued, not without foundation, that the order

dismissing one of the indictments was “final,” and he

protested that the proceedings on the second indictment

were void from their inception. That was not enough,

the Court concluded: “The testing of the effect of the

dismissal order must abide petitioner’s trial, and only

not stand for a broad principle of jurisdiction. See 309 U.S.

at 328-329.

then, if convicted, will he have been aggrieved” (351

U.S. at 517). The Court held that the decision was not

“final” because there was no judgment of conviction

(id. at 518), and it concluded tnat a defendant’s desire

to avoid a trial that may turn out to be unnecessary is

insufficient to set up a right of appellate review before

trial (id. at 519).

Carroll v. United States, supra, held that the govern-

ment could not appeal from a pretrial order suppress-

ing evidence, even when that order would sound the

death knell of the prosecution. The likelihood that the

erroneous decision would lead to the acquittal of a

guilty defendant did not support an appeal, the Court

reasoned, because “[a]ppeal rights cannot depend on

the facts of a particular case” (354 U.S. at 405). It

concluded (id. at 406): ‘““Many interlocutory decisions

of a trial court may be of grave importance to a liti-

gant, yet are not amenable to appeal at the time en-

tered, and some are never satisfactorily reviewable.”

If problems of this sort call for interlocutory review,

the Court held, Congress rather than the Court must

provide for that review (id. at 407-408).

DiBella vy. United States, supra, reaffirmed Cogen

and Carroll. The Court once more pointed out that

decisions are ‘final’? for purposes of appellate review

in criminal cases only after the proceedings have ended

2 The Court also held that mandamus would not lie to pre-

vent the arguably unnecessary trial. Citing Roche, the Court

concluded that mandamus would not be allowed to substitute

for the appeal that would be available after a conviction (id.

at 520-521).

in conviction.” The defendants had argued that sup-

pression motions involve issues “collateral’’ to the gen-

eral issue of guilt or innocence, and that suppression

decisions made before trial are ‘final’ because they

finally determine the admissibility of evidence. The

Court responded that such decisions are neither col-

lateral nor final because they vitally affect the outcome

of the prosecution itself; that being so, they can be

reviewed on appeal from a judgment of conviction (369

U.S. at 127). DiBella also observed: “Congress has

recognized the need of exceptions for interlocutory or-

ders in certain types of proceedings where the damage

of error unreviewed before the judgment is definitive

26 Amicus curiae (Br. 5) makes much of the fact that 28

U.S.C. 1291 speaks of “final decisions’’ rather than “final

judgments.” The same language was at issue in Heike and Di-

Bella, however, and the Court found it to be of no moment.

Congress has historically used the terms interchangeably. See

1 Stat. 77-78, 5 State. 539, 9 Stat. 450, 455, 10 Stat. 176, 14

Stat. 386, 387, 15 Stat. 44, Rev. Stat. $$ 763, 764. Compare

Rev. Stat. § 702 with § 1911.

The term “final decision” in Section 1291 is derived from the

1891 Circuit Court of Appeals Act; prier to its enactrrent this

Court had decided that “final decision” and “final judgments

and decrees” were identical in import. Harrington vy. Holler,

111 U.S. 796. Moreover, as MeLish v. Roff, supra, makes clear,

the Court has implied a requirement of finality in jurisdictional

statutes even when it was not well expressed. See also Ex parte

Tiffany, 252 U.S. 32, 36. It is also of interest that when

Congress first used the term “final decision” in the Circuit

Court of Appeals Act, the criminal jurisdiction of the circuit

courts of appeals was limited to petty crimes. Jn re Claasen,

supra, 140 U.S. at 204-205. The words “final decisions” as

applied to felony cases did not acquire meaning until Congress

transferred to the circuit courts jurisdiction that previously

had belonged to this Court. The transferred jurisdiction per-

mitted appeals only from judgments of conviction. 29 Stat.

492, 36 Stat. 1133, 1157.

and complete * * * has been deemed greater than the

disruption caused by intermediate appeal” (id. at 124).

Each of these exceptions, however, was addressed to

civil actions (id. at 126), and the Court therefore con-

cluded that it should not create a similar exception for

criminal cases.

The conclusion of DiBella that appeals lie in criminal

cases only with explicit legislative authorization is no

less sound today. The costs of delay in criminal cases

are great. The Speedy Trial Act of 1974, 18 U.S.C.

(Supp. V) 3161 et seqg., demonstrates Congress’ desire

to expedite criminal cases to the greatest extent feasi-

ble. Congress now has authorized interlocutory appeals

in criminal cases (only by the prosecution) in two care-

fully designed provisions (18 U.S.C. 2518(10) (b) and

3731), both of which address particular problems and

call for prompt appellate decisions. Interlocutory ap-

peals cannot be taken under these statutes without a

certificate of good faith by a responsible public official.

See also 18 U.S.C. 3147 (appeals from orders setting

bail).

We submit that it is utterly implausible to believe

that Congress, which has created these limited rights

of interlocutory appeal with such care, could have in-

tended 28 U.S.C. 1291 to serve as a catch-all, authoriz-

ing interlocutory appeals in any other situation that

might be thought to be “important.” That, however, is

the interpretation several courts of appeals have given

to Section 1291 (see pages 13-14, supra). They have

done so because they believe that double jeopardy claims

deserve special treatment, not only because a double

jeopardy claim may state a good reason not to hold a

trial at all but also because such claims are deemed to

be “collateral” to the other issues in the prosecution.

We now turn to an examination of these arguments.

D. THERE IS NO SUFFICIENT JUSTIFICATION FOR TREAT-

ING DOUBLE JEOPARDY CLAIMS DIFFERENTLY FROM

OTHER CLAIMS FOR PURPOSES OF INTERLOCUTORY

APPEAL

1. Double jeopardy claims do not present issues “col-

lateral” to the prosecution

The courts of appeals that have allowed pretrial ap-

peals from the rejection of a claim of former jeopardy

have relied upon the “collateral order doctrine” articu-

lated in Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 545-547. Cohen was a diversity action. Before

trial the question arose whether a state statute requiring

the plaintiff to post security applied in federal court.

The district court thought not; the court of appeals

reversed and ordered the posting of security. This Court

concluded that the court of appeals had jurisdiction.

It began with the settled principle that there can be

no appeal before trial, “even from fully consummated

decisions, where they are but steps towards final judg-

ment in which they will merge. The purpose is to com-

bine in one review all stages of the proceeding that

effectively may be reviewed and corrected if and when

final judgment results” (337 U.S. at 546). The Court

concluded, however, that an order to post security had

nothing to do with the merits of the litigation, and that

the question whether the plaintiff should have been re-

quired to post security could not be reviewed on appeal

from a judgment in defendant’s favor. The order with

respect to security therefore fell “in that small class

which finally determine claims of right separable from,

and collateral to, rights asserted in the action, too

important to be denied review and too independent of

the cause itself to require that appellate consideration

be deferred” (ibid.). The Court concluded (id. at 546-

547): “We hold this order appealable because it is a

final disposition of a claimed right which is not an

ingredient of the cause of action and does not require

consideration with it.”

Our discussion to this point demonstrates that the

principles governing appeals in civil eases cannot be

transferred so easily to criminal cases, with their dif-

ferent jurisdictional development and greater need for

expedition. However that may be, it is clear that the

rejection of a double jeopardy claim is not a collateral

order within the meaning of Cohen. Quite the contrary,

a claim of former jeopardy calls into question the core

issue of the case—‘‘the right to convict the accused of

the crime charged in the indictment” (Heike, supra,

217 U.S. at 429; Parr v. United States, supra, 351 U.S.

at 518-519). A double jeopardy claim is simply one

reason why there should be no conviction. If the dis-

trict court errs in favor of the government, its error

can be corrected (if a conviction ensues) by reversal

on appeal.

The best evidence that the double jeopardy claim is

not “collateral” is the fact that it cannot be litigated

without blocking further proceedings in the case. The

question of security litigated in Cohen could be resolved

without halting other proceedings. The related question

of the amount of bail, litigated in Stack v. Boyle, 342

U.S. 1—the only occasion this Court has applied Cohen

to a criminal case—also was wholly independent of any

questions concerning the propriety of the prosecution

and the validity of any conviction. The question con-

cerning the defendant’s right to release prior to trial

does not merge with a final judgment, and an appellate

court can consider bail questions while the trial court

moves on to other things, as Mr. Justice Jackson ob-

served in his concurrence (342 U.S. at 12).

2. A right of interlocutory appeal is not necessary to

obtain “full enjoyment” of the rights protected by

the Double Jeopardy Clause

The double jeopardy claim is neither severable from

nor collateral to the main issues of the criminal trial.

The courts of appeals that have entertained pretrial

double jeopardy appeals have observed, however, that

the Double Jeopardy Clause protects against repetitious

trials as well as against multiple convictions, and pong

have argued that the accused cannot obtain the a

enjoyment” of his right to be free of repetitious trials

unless interlocutory review is available. Although the

premise of this argument is correct,” the conclusion

does not follow.

Judge Friendly has characterized as “seductive” the

observation that ‘a defendant is entitled under some

circumstances to be protected from an unlawful trial

and not simply from an unlawful conviction”’ (Alessi

27 See Breed v. Jones, 421 U.S. 519; Green v. United States,

355 U.S. 184, 187-188.

II, supra; see App., infra, p. 8A). And so it is.** There

appears to be but a short step from that observation to

the conclusion that there must be a right of interlocu-

tory appeal, else defendants no longer could have the

“full enjoyment” of their constitutional rights. The

step from the observation to the conclusion rests, how-

ever, on the unarticulated minor premise that appellate

review of claims to a particular right is part of its full

enjoyment. Use of that minor premise, however, begs

the very question presented here—whether Congress

28 Part of its seductiveness comes from the fact that it is

not entirely accurate. The Double Jeopardy Clause does not

always preclude a second trial as well as a second conviction.

Principles of collateral estoppel, which are incorporated in

the Double Jeopardy Clause (Ashe v. Swenson, 397 U.S. 436),

are rules of evidence. Once facts have been found by the trier

of fact in one case, the prosecution cannot seek to persuade a

second jury to the contrary. But collateral estoppel may oper-

ate to exclude some proof in a criminal case without forbidding

all of it; in this context, the Double Jeopardy Clause is a rule

of evidentiary exclusion and should be treated no differently

from other reasons to exclude evidence, such as violations of

the Fourth Amendment. Claims founded upon Ashe therefore

should be controlled by DiBella, regardless of the outcome of

the instant case.

This Court appeared to hold in Harris v. Washington, 404

U.S. 55, that collateral estoppel claims based upon Ashe state

reasons why there should be no trial at all. Although this ob-

servation may be accurate when the evidence in the second

prosecution is identical to that in the first, we submit that it

cannot be generalized to all collateral estoppel cases. It is not

difficult to imagine cases in which the evidence to which col-

lateral estoppel might apply is only tangentially relevant to the

central issues in the prosecution. See Phillips v. United States,

502 F.2d 227 (C.A. 4), set aside in part en banc, 518 F.2d 108,

vacated and remanded, 424 U.S. 961, conviction affirmed on

remand, 538 F.2d 586.

has established a right of interlocutory appeal in crimi-

nal cases. To reason that there must be an appellate test

of every claim that a district court has erred avoids the

question by assuming the conclusion. It is quite likely,

in light of the history we have recounted at pages 19-

27, supra, that Congress intended the trial courts to be

the only tribunals to pass upon certain claims in crimi-

nal cases. As the Court put it in Carroll v. United

States, supra, 354 U.S. at 406, some interlocutory de-

cisions are ‘‘never satisfactorily reviewable.”

Many of the cases in which this Court has declined to

allow interlocutory appeal involved claims that the ap-

peal was necessary to obtain “full enjoyment” of the

asserted right. In Heike the defendant asserted abso-

lute immunity under a statute forbidding the prosecu-

tion itself; the statutory immunity had been conferred

as a substitute for the constitutional privilege against

self-incrimination. In Parr the defendant asserted that

further proceedings were absolutely barred, in light of

certain constitutional provisions, by the dismissal and

reindictment. In Roche the defendants asserted a form

of absolute immunity. In the other cases we have dis-

cussed, including Cobbledick and DiBella, the defend-

ants argued that they should not be put to the time and

expense of trial when the proceedings were (they

argued) certain to be so infected with constitutional

error that a reversal on appeal was inevitable. The

Court has held, however, that arguments about incon-

venience and expense are not a satisfactory substitute

for a statute authorizing appeals.

A rule allowing immediate appeals of pretrial orders

rejecting double jeopardy claims would rest, as a legis-

lative matter, on a number of empirical assessments. A

legislature would decide whether double jeopardy

claims are now being erroneously rejected in unaccept-

able numbers by district courts and whether, if an ap-

peal were allowed, those errors would be corrected. It

would then weigh these gains against the drawbacks

of allowing pretrial appeals, foremost among which are

the delay that will be engendered and the costs that will

be incurred in the many cases where the double jeop-

ardy claim was properly rejected by the trial court, but

the accused nonetheless appeals.”

It is far from clear that the benefits of pretrial ap-

peals outweigh the costs: petitioners have not shown,

for example, that significant numbers of valid double

jeopardy arguments are rejected by the district

courts.” In any event, that choice is not for this Court;

it is for Congress, and Congress has declined to extend

to defendants in criminal cases the right of interlocu-

tory appeal that it has made available to the govern-

ment in carefully limited situations (see 18 U.S.C. 2518

(10)(b) and 3731).

A judge-made rule permitting interlocutory appeals

whenever a defendant asserts a right not to be tried

would be illimitable, and it would lead to the very re-

view by piecemeal that Congress intended to avoid. As

Judge Friendly put it in Alessi IJ (App., infra, pp.

27A-28A; footnote omitted) :

°° Another cost arises in that small class of cases in which

the district court correctly rejects a double jeopardy claim,

a court of appeals erroneously reverses, and the matter must

be set to rights in this Court—all prior to trial.

3° See note 6, supra.

We have little doubt that * * * once Cohen is con-

strued to have created a “right not to be tried” ex-

ception to the final decision rule in criminal cases, it

will be hard to limit the claims for such review which

counsel will advance. This is not just an “alarming

specter,” as the Government pu‘ it in Lansdown, 460

F.2d at 172; in four short years the “specter” has

acquired a number of earthly embodiments.

The Fourth Circuit has held that the Speedy Trial

Clause creates a “right not to be tried” that can be the

subject of a pretrial appeal (United States v. MacDon-

ald, supra); the Second Circuit has held that a plea

bargain can create a ‘right not to be tried” that can be

the subject of a pretrial appeal ( Allessi 1, supra) ; in all

probability, this is only the beginning.” To allow pre-

31 Numerous provisions of the Constitution arguably forbid

not only a conviction but also the judicial proceedings leading

to a conviction:

(1) The Speech and Debate Clause (Article I, Sec. 6, cl. 1)

provides that a member of Congress “shall not be questioned

in any other Place” for his official acts. See McSurely v. Me-

Clellan, 521 F.2d 1024 (C.A.D.C.) (rehearing en banc pending

on merits only), and Rowley v. McMillan, 502 F.2d 1326 (C.A.

4), the former holding that in civil cases an immediate appeal

lies from a pretrial order rejecting a defense of legislative or

official immunity and the latter that mandamus lies. Cf.

Eastland v. United States Servicemen’s Fund, 421 U.S. 491;

Gravel v. United States, 408 U.S. 606.

(2) The Grand Jury Clause of the Fifth Amendment pro-

vides that no individual shall be “held to answer” for a capital

or infamous crime except upon indictment. Because this pro-

tection may be implicated any time an indictment is altered

(Ex parte Bain, 121 U.S. 1), it could be a fruitful source of

pretrial appeals, even when the alteration is perfectly proper.

(3) Trials instituted as part of a bad faith campaign to

“chill” First Amendment rights also might fall inte a prohib-

ited category. See Dombrowski v. Pfister, 380 U.S. 479. Cf.

Allee v. Medrano, 416 U.S. 802 (federal injunction against

state proceedings used to harass people exercising other con-

trial appeals simply upon the assertion of the defendant

that prompt review is necessary to ensure “full enjoy-

ment” of his constitutional rights is to erode, if not to

discard, the principle that “[t]he burden of a possibly

needless trial [is] not sufficient reason for instant ap-

pealability” (Alessi 1]; App., infra, p. 15A).”

stitutional rights). Harassment and bad faith are easy to

allege and difficult to disprove. Obscenity prosecutions, in

which the defendant asserts that the materials are absolutely

protected by the First Amendment, also could lead to pretrial

appeals.

(4) Trial also might be barred if the prosecution were

founded on racially discriminatory reasons (Yick Wo v. Hop-

kins, 118 U.S. 356) or were the result of unconstitutionally

discriminatory enforcement. Such claims, while seldom meri-

torious (see Oyler v. Boles, 368 U.S. 448, 456), are often made.

(5) It is not difficult to invent other cases, and this Court’s

decisions under the civil rights removal statutes (Johnson v.

Mississippi, 421 U.S. 213; Georgia v. Rachel, 384 U.S. 780;

Greenwood vy. Peacock, 384 U.S. 808) discuss circumstances

under which a trial itself would be a violation of constitutional

rights.

82 We do not contend that all other assertions that there

is a “right not to be tried” are equivalent to double jeopardy

claims. The Double Jeopardy Clause creates a special interest

in the avoidance of the trial itself that is not duplicated even

in other claims of a right not to be tried. For example, al-

though the Fourth Circuit has held in United States v. Mac-

Donald, supra, that the Speedy Trial Clause of the Sixth

Amendment creates a right not to be tried, the individual’s

interest in being free of trial is not of paramount concern

under a Sixth Amendment analysis. The Speedy Trial Clause

is primarily designed to foster the interests of society in the

expeditious resolution of criminal cases and to shield the in-

dividual against prejudicial delays. See Barker v. Wingo,

supra, 407 U.S. at 519-522. See also United States v. Ewell,

383 U.S. 116, 120. The delay, not the trial itself, offends

against the constitutional guarantee, and a “right not to be

tried” is simply incidental to the remedy for delay. Similarly,

This case and others in the same vein illustrate the

dangers of piecemeal review. In almost all of the cases

the courts of appeals have assumed jurisdiction over

the double jeopardy claim only to reject the defend-

ant’s position on the merits. In the meanwhile valuable

time has been lost. In the instant case petitioners were

convicted and won reversal on appeal. That decision

was handed down on April 21, 1975, yet the retrial that

che court of appeals ordered still has not begun. Peti-

tioners’ arguments on the merits are insubstantial

(see pages 56-67, infra), but have afforded petitioners

lengthy delay.

Other examples are even more unsettling. Paul Han-

kish was convicted in July 1973 for crimes committed

in 1971. He argued on appeal that the evidence was

insufficient to support the conviction and that certain

evidence was improperly admitted. On October 28,

1975, the court of appeals agreed with the latter argu-

ment but rejected the former, and it remanded for a

new trial. Martin v. United States, 525 F.2d 1157

(C.A.4). On remand Hankish persisted in his argument

that the evidence was insufficient, and he added the

argument that, because of this, a second trial would

be barred by the Double Jeopardy Clause. The district

court rejected this claim, which had been authorita-

although a plea bargain might create a right not to be tried,

the enforcement of such an essentially contractual right is of

lesser urgency than the enforcement of the right not to be

tried created by the Double Jeopardy Clause. We therefore

believe that a decision that double jeopardy claims can be

raised on appeal prior to trial should not be extended to other

“rights not to be tried’ that have different purposes and

historical meanings.

tively foreclosed by the court of appeals, and Hankish

immediately appealed. The trial was stayed; the court

of appeals, citing United States v. Lansdown, supra,

assumed jurisdiction over the appeal; on July 1, 1976,

the court affirmed (No. 76-1334). Now Hankish has

filed a petition for a writ of certiorari (No. 76-135),

and his trial, for events that occurred long ago, still is

blocked. It seems fair to say that in many cases even a

preposterous double jeopardy claim can produce a

lengthy delay “or defendants who find delay advan-

tageous.

Perhaps occasional delay might seem to be a neces-

sary price to pay for ensuring the vindication of many

just claims. Common sense indicates, however, that

the reality will be the reverse: because the district

courts resolve correctly the vast majority of claims

presented to them,” the price for ensuring the pretrial

vindication of a few just but erroneously rejected

claims would be lengthy delay in many cases while

defendants appealed from correct decisions.** We sub-

mit that the Court should hold that double jeopardy

claims, like the other constitutional claims that arise

in the course of a criminal case, must await resolution

by appeal from a final judgment of conviction.

88 To the extent district courts err in the resolution of double

jeopardy claims, they have every incentive now to err in favor

of the accused. If an indictment is erroneously dismissed the

government can appeal under 18 U.S.C. 3731; district courts,

knowing this and desiring to avoid unnecessary burdens on

the accused and on their own crowded dockets, may well re-

solve close questions in favor of the accused.

*4 See Orfield, Criminal Appeals in America 40 n. 29, 92

(1939).

3. Pretrial review by this Court of decisions of state

courts does not p) ovide support for pretrial review

by federal courts of appeals of interlocutory deci-

sions in federal criminal cases

In Alessi 1] Judge Friendly expressed concern that

Heike and similar cases had been eroded by recent

decisions of this Court reviewing, under 28 U.S.C.

1257, interlocutory decisions of state courts. A typical

ease is Mills v. Alabama, 384 U.S. 214, 217-218, in which

Mills had been indicted for the state crime of publish-

ing a political editorial on election day. The trial court

sustained a demurrer on First Amendment grounds,

the Supreme Court of Alabama reversed and remanded

for trial, and this Court denied the State’s motion to

dismiss Mills’ appeal. It concluded that the decision

remanding the case for trial was “final” because it had

resolved the federal issue controlling the case, and

further proceedings in the state court would be noth-

ing but formalities.”

After thoroughly discussing these cases Judge

Friendly concluded that they do not support immediate

review of double jeopardy claims in federal cases

(App., infra, pp. 15A-22A), and we think that he is

right. Federal review of decisions of state appellate

courts involves considerations quite different from

those presented by the question whether there should

be any appellate interruption of ongoing trial pro-

ceedings.

35 See also Brady v. Maryland, 373 U.S. 83, 85 n. 1; Califor-

nia v. Stewart, 384 U.S. 436, 498 n. 71 (decided sub nom.

Miranda vy. Arizona); Harris vy. Washington, supra; Colombo

v. New York, 405 U.S. 9; Turner v. Arkansas, 407 U.S. 366.

Harris, Colombo and Turner involve double jeopardy claims.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

476-487, the Court considered and analyzed the many

cases that have involved review under 28 U.S.C. 1257

prior to final judgment. The analysis revealed that

state criminal cases reviewed under Section 1257 have

two things in common: first, the sole federal question

Was properly presented and had been finally decided,

so that a decision on that question by this Court could

terminate the litigation; second, the state courts al-

ready had countenanced pretrial review of the claims

presented, so that additional review by this Court

merely extended a delay that state procedure per-

mitted. In none of them was there a prospect of piece-

meal review of multiple federal claims.** See 420 U.S.

at 477-478.

In a federal criminal case, by contrast, every ques-

tion is a federal question. The prospect of piecemeal

resolution of these questions therefore looms as an

important consideration in deciding whether to allow

interlocutory appeals. Moreover, although in the state

cases the Court merely extended a delay already coun-

tenanced by state procedures,” the central question

86 This is true as well of civil cases after Cox Broadcasting

in which the Court has disposed of federal questions before

final judgment. See, e.g., Fisher v. District Court, 424 U.S.

382; American Motorists Insurance Co. v. Starnes, No. 74-

1481, decided May 19, 1976, slip op. 5 n. 3; City of New Or-

leans v. Dukes, No. 74-775, decided June 25, 1976.

** See generally Mercantile National Bank v. Langdeau, 371

U.S. 555, 558, upon which the Court relied in Harris v. Wash-

ington, supra. A state system of appellate review “ultimately

includes the certiorari or appellate jurisdiction of this Court”

(Lefkowitz v. Newsome, 420 U.S. 283, 290 n. 6), and there-

fore, in a very real sense, the question of the “finality” of a

presented by the instant case is whether Congress has

countenanced any pretrial review and disruption. We

submit, therefore, that this Court’s decisions under

Section 1257 do not provide support for the court of

appeals’ decision to assume jurisdiction of the instant

case.**

E. COURTS OF APPEALS DO NOT HAVE THE AUTHORITY TO

RESOLVE “PENDENT” CLAIMS THAT DO NOT INVOLVE

THE LOSS OF A “RIGHT NOT TO BE TRIED”

The court of appeals apparently assumed jurisdiction

of the appeal in the instant case on the authority of

United States v. DiSilvio, supra. DiSilvio, however, did

not involve a statutory claim pendent to the double

jeopardy claim. The only court of appeals that has

explicitly considered whether such claims should be

resolved before trial has concluded that they should

not. United States v. Barket, supra. Yet the court of

appeals here disposed of both the double jeopardy

claim and the statutory claim presented by petitioners.

case and its suitability for review under Section 1257 depends

upon state law; unless state law creates the beginnings of

appellate review before trial, Section 1257 does not provide for

a continuation. See Costarelli v. Massachusetts, 421 U.S. 193

(state rule requiring a defendant to participate in a second

trial in order to obtain review of errors in the first trial) ;

Arceneaux v. Louisiana, 376 U.S. 336 (denial of request for

preliminary hearing is not “final” because state court system

does not allow interlocutory review).

38 The analog to Section 1257 in federal criminal cases is

28 U.S.C. 1254(1). Under Section 1254(1) a defendant who is

convicted at trial and secures a remand by the court of appeals

could seek certiorari, arguing that he was entitled to a dis-

missal of the indictment. But this right of review does not

imply that he could have taken an interlocutory appeal to the

court of appeals.

We submit that it erred in doing so, even if (con-

trary to our arguments) it had jurisdiction over peti-

tioners’ double jeopardy claim.

An order denying a motion to dismiss an indictment

for failure to state an offense would not by itself be

appealable. It is not a “collateral” order in any sense;

indeed, it touches on the essence of the case. It may

finally resolve a legal issue, but that is not enough; the

“finality” justifying a pretrial appeal in a case like this

one arises, if at all, not from the fact that a legal issue

has been finally resolved, but from the fact that the

legal issue comprises a claim, founded on the Constitu-

tion, of a right not to be tried at all. The justification

for immediate resolution arises from the perceived

need to ensure full enjoyment of that constitutional

right. Nothing of the sort is implicated in a claim that

the indictment does not state an offense.

Practical considerations strongly counsel against al-

lowing statutcry claims to ride piggyback on double

jeopardy appeals. If defendants have serious statutory

arguments, it would not be difficult in many cases for

them to invent a claim to which the apellation “double

jeopardy” could be attached. The double jeopardy argu-

ment mighi be frivolous, but it could bring proceedings

to a standstill while the court of appeals devoted its

energies to the more serious statutory arguments.

There is incalculable potential for delay in appeals of

this sort. They should be avoided not only because of

this potential for delay, but also because they would

compel the courts of appeals to devote precious re-

sources to the resolution of claims that may become

moot in light of later developments.

There is no precedent for allowing nonappealable

issues to be carried piggyback on a permissible inter-

locutory appeal. The appeal of the denial of an inter-

locutory injunction, permissible under 28 U.S.C. 1292

(a), does not allow the appellant to obtain review of

the district court’s disposition of preliminary issues

pertinent to appellant’s request for damages.*® The

rationale for interlocutory review of the double jeop-

ardy claim is that it is severable from, and in need of

review before, the other issues in the case. It would

make a mockery of this rationale if the double jeopardy

claim were then used as a bootstrap to review the

remainder of the issues in the case, as the court of

appeals did here.“

F. IF SOME FORM OF INTERLOCUTORY APPELLATE REVIEW

IS CONSIDERED NECESSARY, IT SHOULD BE BY MAN-

DAMUS, NOT APPEAL

We have argued that the possibility of mistaken de-

cisions by trial courts rejecting meritorious double

jeopardy claims is not a sufficient reason to allow ap-

peal in every case prior to trial. One of the underpin-

nings of this argument has been that an appeal on a

double jeopardy claim, to be effective, must bring other

88 Except insofar as those issues may be common to those

that must inevitably be reached to decide the appeal relating

to the injunction.

40 Aldinger v. Howard, No. 746521, decided June 24, 1976,

United Mine Workers vy. Gibbs, 383 U.S. 715, and similar

pendent jurisdiction cases have nothing to do with the problem

at hand. In Aldinger and Gibbs the question to be decided was

whether certain causes of action against certain parties would

be heard in federal or state court; here the question is one of

timing of appellate review within a single court system.

proceedings in the district court to a halt; allowing ap-

peals therefore would produce lengthy delay in many

cases in order to afford relief in a few cases where error

has been committed. The Court ought not to upset

the settled rule that defendants cannot take interlocu-

tory appeals in criminal cases, but if, contrary to our

arguments, the Court should conclude that double jeop-

ardy claims cannot be reviewed effectively after trial

and that immediate appellate review of some kind is

necessary, it should hold that mandamus, rather than

appeal, is the proper device. Mandamus might provide

relief from the rejection of a valid double jeopardy

claim where the error is blatant and the impending

harm great; at the same time, because mandamus is a

discretionary remedy, its use would not create the sub-

stantial potential for delay that inheres in appeals.

This Court’s decisions concerning the availability of

mandamus before trial in criminal cases look both

ways. A number of decisions indicate that, where Con-

gress has not provided for interlocutory appeal, man-

damus cannot be used as a substitute means of review,

for that would frustrate the Congressional plan. See,

e.g., Will v. United States, 389 U.S. 90;“ Parr v.

United States, supra, 351 U.S. at 520-521; Roche v.

41 We believe that the rationale of Will has been substantially

undermined by the recent amendments to the Criminal Ap-

peals Act, 18 U.S.C. 3731, which provide for interlocutory

appeals by the government. Because Congress intended to af-

ford the prosecution liberal access to appellate review in all

cases except those where the Double Jeopardy Clause would

bar further proceedings on remand (see United States v. Wil-

som, 420 U.S. 332, 336-339), it is now more appropriate than

Evaporated Milk Association, supra. These cases also

indicate that the ultimate availability of appeal after a

judgment of conviction is an independent reason why

mandamus will not issue. Cf. Kerr v. United States Dis-

trict Court, No. 74-1023, decided June 14, 1976. Thus,

these cases appear to say that mandamus will not lie

both when an appeal is available and when it is not.

Roche and Parr doubtless state the rule applicable to

the great majority of cases; if it were otherwise, the

fina] judgment rule would be substantially eroded.

But the rule is not absolute. Shortly after it decided

Roche, the Court held in United States Alkali Export

Association, Inc. v. United States, 325 U.S. 196, and

DeBeers Consolidated Mines, Ltd. v. United States, 325

U.S. 212, that mandamus would issue before trial in a

criminal case when the imposition of private hardship

amounted to a usurpation of power. The Court ac-

knowledged that “[i]t is evident that hardship is im-

posed on parties who are compelled to await the correc-

tion of an alleged error at an interlocutory stage by an

appeal from a final judgment. But such hardship does

not necessarily justify resort to * * * extraordinary

writs as a means of review” ( Alkali Export, supra, 325

U.S. at 202). This principle was tempered, however, by

the holding that mandamus is available, in the court’s

discretion, when the district court’s decision amounts

it was at the times ¥ Will was decided for courts of appeals to

issue pretrial writs of mandamus. Such pretrial writs in crim-

inal cases are particularly appropriate because errors in favor

of the accused that produce an acquittal are unreviewable,

whereas errors in favor of the prosecution can be reviewed

and corrected if the case ends in a conviction.

to “not mere error but usurpation of power” (DeBeers,

supra, 325 U.S. at 217).

The cases, taken together, support the principle that

mandamus will lie when the district court has clearly

overstepped its authority or refused to exercise the au-

thority with which it is endowed. So, for example, if a

district court refused to rule on a defendant’s motion

to dismiss the indictment on double jeopardy grounds,

mandamus would lie to compel the court to act. If the

district judge were known to the court of appeals as

one who regularly rejected double jeopardy claims re-

gardless of their merits, mandamus would perhaps lie

to correct this abuse. See Labuy v. Howes Leather Co.,

352 U.S. 249, affirming the issuance of mandamus for-

bidding a district judge to refer an antitrust case to a

master; both the court of appeals and this Court relied

upon the fact that the district judge routinely abused

his power by making such references. Moreover, man-

damus would lie if the district court acted where it had

no power to do so. Schlagenhauf v. Holder, 379 U.S.

104, is one of many examples.“

42 See also, e.g., United States v. Norton, 539 F.2d 1082

(C.A. 5) (mandamus is appropriate where a district judge

reduces sentence after the time provided by Fed. R. Crim. P.

35); Board of Parole v. Merhige, 487 F.2d 25 (C.A. 4), cer-

tiorari denied, 417 U.S. 918 (mandamus is appropriate where

a district judge grants a discovery order of a sort completely

beyond his power); United States v. Werker, 535 F.2d 198

(C.A. 2), certiorari denied sub nom. Santos-Figueroa v. United

States, November 1, 1976 (No. 76-5270) (mandamus is ap-

propriate where a district judge engages in plea bargaining

with a defendant in violation of Fed. R. Crim. P. 11). The

central feature in these cases and others like them is that the

judge, acting beyond the scope of his power, took an action

The most difficult questions arise where, as here, the

district judge has both the power and the duty to rule

upon the motion, and the defendant alleges that the

judge erred, not that he acted arbitrarily or outside the

legitimate bounds of his power. We think that a claim

of simple error—such as that made here—is insuffi-

cient to permit the issuance of mandamus. A party

seeking pretrial mandamus in a criminal case must

show more: flagrant abuse of power, callous disregard

for the applicable principles, or action where there is

no power to act. This is the standard articulated in

LaBuy and Schlagenhauf for the use of “‘supervisory”

mandamus, and we believe that it should be applied in

criminal cases as well as civil. Note, Supervisory and

Advisory Mandamus Under the All Writs Act, 86

Harv. L. Rev. 595 (1973).

The availability of mandamus under this standard

would allow courts of appeals to correct abuses by dis-

trict judges who reject seemingly meritorious double

jeopardy claims without giving them serious considera-

tion. This would go far to alleviate the concern that the

denial of a right of interlocutory appeal would expose

defendants to unfair or vexatious treatment, but it

would at the same time avoid unnecessary review by

piecemeal and prevent extensive delays in cases free

from error. As Judge Friendly wrote in Alessi I]

(App., infra, p. 22A), “a court of appeals has the op-

portunity of utilizing ‘supervisory’ or ‘advisory’ man-

that would botriewed by no other means; whether his particu-

threshold question of the power to entertain a mandamus

petition.

damus to correct any truly egregious error of a district

court * * *. This resource, usable on a selective basis,

* * * dictates against broad indentation of the final de-

cision rule, especially in criminal cases.”

A RETRIAL OF PETITIONERS WOULD NOT VIOLATE THE DOUBLE

JEOPARDY CLAUSE

If the Court agrees with our submission that appel-

late resolution of petitioners’ double jeopardy argu-

ments must await review of the entire case, should peti-

tioners be convicted, then it should vacate the judgment

of the court of appeals and remand this case for trial.

If, however, it concludes that pretrial appeals are per-

missible, at least as to double jeopardy claims, then it

must consider whether a second trial of petitioners

would violate the Double Jeopardy Clause. We accord-

ingly turn to a discussion of petitioners’ double jeop-

ardy arguments.

The one-count indictment charged petitioners with

violating the Hobbs Act, 18 U.S.C. 1951 (a). It charged

(A. 5-6):

That * * * Larry Starks, Clarence Louis Starks,

Alonzo Robinson, Donald Everett Abney, and Merrill

Albert Ferguson, did unlawfully and willfully con-

spire and attempt to obstruct, delay and affect [in-

terstate] commerce * * * by extortion * * *, that is to

say, by then and there attempting to obtain from

* * * Ulysses J. Rice * * * money * * * to be paid in

order to continue in the business of selling alcoholic

beverages contracted for and obtained in interstate

commerce, the attempted obtaining of said property

* * * being then intended to be accomplished * * *

by the wrongful use * * * of * * * threatened force,

violence and fear * * *.

Petitioners argued before trial that the indictment is

duplicitous because it charges both conspiracy and at-

tempt. The prosecutor argued that it is not duplicitous,

and the trial court directed the government to file a bill

of particulars setting forth (515 F.2d at 117, empha-

sis added by court of appeals) :

A statement as to whether the government intends

to proceed .o prove either a conspiracy, or an attempt

to obstruct, delay and affect commerce and the move-

ment of articles and commodities therein by extortion,

or both.

The prosecutor responded that he intended to prove

both offenses. Defense counsel asked the court to re-

quire the prosecutor to elect between the charges, but

the court declined (A. 8; 515 F.2d at 117).

The trial court recognized that the indictment

charges two crimes, and it accordingly required the

prosecutor to prove both of them. It instructed the jury

that it could find any of petitioners guilty only if it con-

cluded beyond a reasonable doubt that he had both con-

spired to extort and committed attempted extortion.“

43 The court instructed the jury:

[T]he defendants are charged not with the so-

called substantive offense itself but rather with a con-

spiracy and attempt to obstruct, delay and affect

interstate commerce by extortion. If the jury should

find beyond a reasonable doubt that there was a

conspiracy and an attempt to extort money from Mr.

Rice, the natural and probable consequences of which

conspiracy and attempt, if successfully carried out,

would be to obstruct, delay and adversely affect inter-

state commerce in any way or degree, the offense

charged in the indictment of conspiracy and attempt

would be complete, and the jury could properly con-

vict all defendants found beyond a reasonable doubt

Following a conference regarding counsel’s objections

to the charge, the trial court reinforced these instruc-

tions by telling the jury, immediately before it retired

to deliberate (10 Tr. 60):

I would also point out that in the indictment it is

charged that the defendants were guilty of both con-

spiracy and an attempt and the essential elements of

both of those offenses must be proved before any

defendant could be found guilty.

The jury returned a verdict of guilty as to each peti-

tioner, but it acquitted Merrill Ferguson and Clarence

Starks.

to be members of the conspiracy and attempt. [A.

25-26. ]

7 * * * oa

[I]t becomes necessary for me to define both “con-

spiracy” and “attempt,” since the defendants are

charged not with the substantive offense itself of ob-

structing, delaying or adversely affecting interstate

commerce by extortion but rather a conspiracy and

attempt so to do.

Therefore, I shall define to you all of the requisites

of both a conspiracy and an attempt, because all of

these requisites must be found before the jury could

find any defendant guilty. [A. 26.]

« > * * *

In this case the defendants are charged with a

conspiracy and attempt, both as integral and essential

parts of the single charge. [A. 32.]

* * * * *

[Tjhis charge being a single conspiracy and at-

tempt to obstruct, delay and adversely or harmfully

affect interstate commerce by extortion does not re-

quire proof that the conspiracy was successful, or

that its unlawful objectives were obtained. The of-

fense charged may be proved even though the con-

spiracy and attempt failed because the extortion was

not successfully carried out. [A. 35.]

1. The instructions to the jury precluded any chance

that petitioners were implicitly acquitted at the

first trial

The court of appeals agreed with petitioners that the

indictment is duplicitous. 515 F. 2d at 115-118. Be-

cause the court reversed petitioners’ convictions on an-

other ground, it did not consider whether the vice of

duplicity had been eliminated by the trial court’s in-

structions. In order to avoid any problem of duplicity

in the next trial, it instructed the district court to re-

quire the prosecutor to elect between the conspiracy

and attempt charges (id. at 118, 125).

On remand the prosecutor elected to proceed on the

conspiracy charge. Petitioners contend, however, that

a new trial even on the single charge is prohibited by

the Double Jeopardy Clause. They argue that because

the indictment improperly charged two offenses, the

general verdict of guilty does not disclose the offense

of which they were convicted. They appear to suggest

that the jury may, contrary to the judge’s instructions,

have convicted them of attempt and implicitly acquitted

them of conspiracy; this, they say, precludes a second

trial for conspiracy.

We do not doubt that, in many cases, duplicitous in-

dictments lead to ambiguous verdicts because of the

possibility that the jury may have believed the defend-

ants to be guilty of one crime but not the other. An-

other vice of duplicity, noted by the court of appeals,

is that “there is no way of knowing with a general

verdict on two separate offenses joined in a single count

whether the jury was unanimous with respect to

Ved

either” (515 F. 2d at 117). But the instructions to the

jury in this case foreclosed either possibility.

The prosecutor elected before trial to assume the bur-

den of proving both conspiracy and attempt; he did so,

presenting evidence of a conspiracy as well as a con-

certed attempt on the part of petitioners over a two-

month period to extort money from Ulysses Rice. The

court’s instructions to the jury unambiguously in-

formed it that it could convict only if it concluded that

the prosecution had proved all the elements of both

crimes.“ Indeed, this was stressed to the jury immedi-

44 As part of its instruction on conspiracy, the court told the

jury “that there [must] be proof beyond a reasonabie doubt

of the commission by one or more of the conspirators of an

overt act, that is an act knowingly committed in an effort to

accomplish some object or purpose of the conspiracy” (A. 32),

and it added that “[a]n attempt would, of course, constitute

an overt act provided you find that there is a conspiracy, and

an attempt to obstruct, delay or adversely affect interstate

commerce by extortion” (ibid.). Petitioners argue (Br. 11-

12) that this portion of the instructions made it possible for

the jury to convict without finding that each defendant was

guilty of attempted extortion. This argument depends upon

an implausible reading of a straightforward and correct in-

struction. As the trial court correctly noted (A. 37), if one

member of the conspiracy committed attempted extortion dur-

ing the course of the conspiracy and in execution of the

unlawful agreement, that attempt is attributable as a substan-

tive offense to all other members of the conspiracy. Pinkerton

v. United States, 328 U.S. 640. Moreover, even if this portion

of the instruction muddies the verdict as to attempt, peti-

tioners’ double jeopardy claim is hardly advanced. The gov-

ernment has elected to proceed on the conspiracy charge, and

speculation concerning what the jury may have found (or

failed to find) regarding the attempt charge is irrelevant.

Finally, if the attempted extortion properly can be viewed as

simply an overt act of the conspiracy, the indictmént would

not be duplicitous, and the foundation on which petitioners

rest their claim would be removed.

ately before it retired to deliberate. It cannot be as-

sumed that the jury failed to follow these instructions

(Shotwell Manufacturing Co. v. United States, 371

U.S. 341, 367), and its verdict of guilty therefore es-

tablishes that it found each petitioner guilty of both

conspiracy and attempted extortion. There was no im-

plied acquittal, or even the possibility of one, on the

conspiracy count.

2. A second trial is permissible after a conviction has

been set aside on appeal.

a. Although, in our view, the instructions to the

jury adequately guarded against an ambiguous verdict,

another more general argument also supports the prop-

osition that a second trial is permissible under the

Double Jeopardy Clause. Petitioners appealed and pre-

vailed; their convictions were set aside at their behest.

A second trial therefore is proper under a principle that

has been “a well-established part of our constitutional

jurisprudence” (United States v. Tateo, 377 U.S. 463,

465) for nearly a century.

At least since 1896, when United States v. Ball, 163

U.S. 662, was decided, it has been settled that [the

Double Jeopardy Clause] imposes no limitations

whatever upon the power to retry a defendant who

has succeeded in getting his first conviction set aside.

North Carvolina v. Pearce, 395 U.S. 711, 719-720 (foot-

note omitted). See also Ludwig v. Massachusetts, No.

75-377, decided June 30, 1976, slip op. 11-13; United

States v. Dinitz, 424 U.S. 600, 610 n. 13; United States

v. Ewell, 383 U.S. 116, 121-125; Forman v. United

States, 361 U.S. 416; Bryan v. United States, 338 U.S.

552; Stroud v. United States, 251 U.S. 15, 16-18; Mur-

phy v. Massachusetts, 177 U.S. 155, 158-159.

The Court explained the rationale of this rule in

United States v. Tateo, supra, 377 U.S. at 466:

While different theories have been advanced to sup-

port the permissibility of retrial, of greater impor-

tance than the conceptual abstractions employed to

explain the Ball principle are the implications of that

principle for the sound administration of justice.

Corresponding to the right of an accused to be given

a fair trial is the societal interest in punishing one

whose guilt is clear after he has obtained such a

trial. It would be a high price indeed for society to

pay were every accused granted immunity from pur-

ishment because of any defect sufficient to constitute

reversible error in the proceedings leading to con-

viction. From the standpoint of a defendant, it is at

least doubtful that appellate courts would be as zeal-

ous as they now are in protecting against the effects

of improprieties at the trial or pretrial stage if they

knew that reversal of a conviction would put the

accused irrevocably beyond the reach of further pros-

ecution. In reality, therefore, the practice of retrial

serves defendants’ rights as well as society’s interests.

Even if it were open to petitioners to argue that the

jury may not have convicted them of conspiracy, this

speculative possibility is hardly sufficient to override

the soundness of the rule permitting retrial following

reversal of a conviction.”

Petitioners’ claim here relates to the jury’s verdict,

but it is not different in kind from any other assertion

that, “but for” the error, the defendants might have

been acquitted. Indeed, the possibility of harm to the

defense and effect upon the verdict is the reason why

some practices at trial are “error.” The rule for which

unlike the situation presented by Green v. United States, 355

U.S. 184, where it could be said with certainty that the jury

had not convicted the defendant of murder in the first degree.

petitioners contend would immunize from further pros-

ecution any defendant whose first trial was infected

with error that might have affected the verdict—in

other words, all error sufficiently serious to call for re-

versal. Fed. R. Crim. P. 52(a). That would require the

Court to overturn Jateo, Ball, and many other cases.

We submit that there is no reason to do so.

b. Petitioners attempt to avoid Ball and Tateo by

arguing that this case is marked by “prosecutorial

overreaching” that alone is responsible for the need for

a second trial (Br. 10, 13-14). We submit, however

that there is no more “prosecutorial overreaching”

here than in any other case in which the prosecutor

makes a mistake that leads to reversal on appeal. In

this case the prosecutor believed that the indictment

was not duplicitous, and the district court did not re-

quire an election. The district court instructed the jury

that it could convict only if it concluded that petitioners

were guilty of both conspiracy and attempt; these in-

structions may have been unnecessarily favorable to

petitioners.

. The grand jury could have returned an indictment

in two counts, one charging conspiracy and the other

charging attempt. If petitioners had been convicted on

both counts, they could have received consecutive sen-

tences. Callanan v. United States, 364 U.S. 587. Be-

cause the two charges were (erroneously) included in

one count, petitioners were spared exposure to this

risk, The government’s decision to prove both offenses

simply increased its own burden of proof.” Nothing

did at petitioners in

the future could be indicted and tried for either conspiracy or

that happened here was done in bad faith to harass or

prejudice petitioners,“ and a second trial therefore is

permissible.

Ill

THE INDICTMENT CHARGES AN OFFENSE UNDER THE HOBBS ACT

We have argued at pages 49-51, supra, that even if

a double jeopardy claim can be raised by appeal prior

to trial, the special considerations pertaining to double

jeopardy contentions are absent with regard to any

other assertions that defendants may make, and that

arguments “pendent” to a double jeopardy claim

should await appellate resolution in the ordinary

course. If the Court should disagree with that submis-

sion, however, it will be necessary to pass upon peti-

tioners’ argument that the indictment, redacted to

charge only conspiracy, now charges no offense at all.

Petitioners are arguing nothing less than that du-

plicity cannot be cured by an election to proceed on

one of the charges. This is so in their case, they say,

because the redacted indictment could be read to

charge that attempted extortion was the object of the

conspiracy. This is insufficient, they continue, because

the Hobbs Act does not prohibit a conspiracy to com-

attempt. Had the conviction not been overturned at petitioners’

behest, it would have been a bar to further criminal proceed-

ings for either offense. Green v. United States, supra, 355 U.S.

at 188; Trono v. United States, 199 U.S. 521, 533.

47} -titioners’ assertion (Br. 10, 14) that the government

acted in bad faith is groundless. The prosecutors had no in-

centive to offer petitioners two opportunities to be acquitted

and every incentive to conduct the first trial so that a con-

viction, if obtained, would be upheld on appeal.

mit attempted extortion. They also contend that the

indictment is insufficient to charge an offense because

it does not allege that the defendants entered into an

agreement to violate the law.“

1. The indictment, with the attempt charge omitted,

alleges (A. 5-6) that petitioners

did unlawfully and willfully conspire * * * to obstruct,

delay and affect [interstate] commerce * * * by ex-

tortion * * *, thai is to say, by then and there at-

tempting to obtain * * * money [from the victim],

* * * to be paid in order to continue in the business of

selling alcoholic beverages contracted for and ob-

tained in interstate commerce * * *.

The indictment adequately charges a conspiracy to

commit extortion. Petitioners’ reading of the indict-

ment as charging that the object of the conspiracy was

only attempted extortion—that is, as charging that

the conspirators intended to fail to extort money—is

implausible. To be sure, the indictment alleges not only

4* Petitioners do not contend that the redaction of the du-

plicitous language denied them their Fifth Amendment right

to be tried on an indictment properly returned by a grand

jury, and such an argument would not be tenable. See, e.¢.,

Salinger v. United States, 272 U.S. 542; United States v. Hall,

536 F.2d 313, 319-320 (C.A. 10) (collecting cases), certiorari

denied November 1, 1976 (Nos. 76-1 and 76-11); United

States v. Dawson, 516 F.2d 796 (C.A. 9), certiorari denied,

423 U.S. 855. Although it could be argued that deletion of the

duplicitous language altered the nature of the charge by al-

lowing the prosecutor to avoid proving both conspiracy and

attempt, petitioners have not done so, and neither the district

court nor the court of appeals has considered such an argu-

ment. Petitioners requested the prosecufor to elect between

conspiracy and attempt theories, and, as the court of appeals

pointed out on the first appeal (515 F.2d at 117, footnote

omitted), “requiring an election is an appropriate remedy for

duplicitousness.” See also Fed. R. Crim. P. 7(d).

that the unlawful object of the combination was ex-

tortion, but also that acts amounting to an attempted

extortion were performed in furtherance of the con-

spiracy. But the nature of the conspiracy as an unlaw-

ful combination for the purpose of committing extor-

tion is neither defeated nor improperly described be-

cause its contemplated object was not fully achieved.

It is proper to charge that the object of a conspiracy

was extortion and that, in furtherance of this unlawful

object, the conspirators attempted to extort money

from the victim.

2. Also insubstantial is petitioners’ further conten-

tion that the indictment is fatally deficient for failure

to allege agreement.“ The indictment charges that

petitioners “did unlawfully and willfully conspire.”

That is sufficient to allege agreement. “A natural read-

ing of these words * * * is nothing more than an agree-

ment to engage in the prohibited conduct.” United

States v. Feola, 420 U.S. 671, 687. Because every con-

spiracy is an agreement, petitioners in effect urge that

the indictment is insufficient because it is not redun-

dant. The use of the term “conspire” fairly informs

petitioners of the charge against which they must

defend, and it would enable them to plead an acquittal

or conviction to bar future prosecutions for the same

49 Petitioners apparently have abandoned their contention

(Pet. 7-8) that the indictment is insufficient because it does

not allege that the defendants conspired together. In any

event, there would be nothing to such an argument. Wright

v. United States, infra. A common sense reading of the in-

dictment leads to the conclusion that it is alleging that they

conspired with each other, and not each with one or more

unnamed third persons.

offense. No more is required. Hamling v. United States,

418 U.S. 87, 117-119; Hagner v. United States, 285

U.S. 427, 431. See also United States v. Armour & Co.,

137 F.2d 269, 270-271 (C.A. 10); Wright v. United

States, 108 Fed. 805, 809-811 (C.A. 5), certiorari de-

nied, i&1 U.S. 620.

CONCLUSION

The judgment of the court of appeals should be va-

cated and the case should be remanded with directions

to dismiss the appeal for want of jurisdiction. If the

Court reaches the merits, it should affirm the judgment

of the court of appeals.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

SHIRLEY BACCUS-LOBEL,

MARC PHILIP RICHMAN,

Attorneys.

NOVEMBER 1976.

ee See

APPENDIX

UNITED STATES COURT OF APPEALS

For THe SEconp Circuit

———_—__ +>

Nos. 1197, 1198—September Term, 1975.

(Argued June 9, 1976 Decided July 7, 1976.)

Docket Nos. 76-1189, 76-3025

——_—__~+-e--—

Unitep States or AMERICA,

Appellee,

Vv.

Vrroit ALEsst,

Defendant-Appellant.

Before:

FRIENDLY, FFixperc and Vax GRAAPeI.AND,

Circuit Judaes.

—+or

Appeal from an order of the District Court for the

Southern District of }ew York, Dudley B. Bonsal, Judge,

which, after an evidentiary hearing directed by this court,

again denied appellant’s motion to dismiss an indictment

against him on the ground that prosecution would violate

a plea-bargaining agreement made in the Eastern District

of New York.

Affirmed.

(1A)

Nancy Rosner, Esy., New York, N.Y., for Ap-

pellant.

James P. Lavix, Assistant United States Attor-

nev (Robert B. Fiske, Jr.. United States At-

torney, Southern District of New York, and

Frederick T. Davis, Assistant United States

Attorney, of Counsel), for Appellee.

_-—

Friexpviy, Circuit Judge:

Qn or about June 30, 1972, a witness disappeared. The

ensuing events have come to plague the district courts for

the Hastern and Southern Districts of New York and this

court as well. We now have the third ease this year in

which this court must consider the bearing of what then

happened.

The witness was a central figure in the ease developed by

Eastern District Strike Foree Attorney James Druker to

prove the allegations embodied in Eastern District indict-

ment 72 Cr. 475. That indictment charged, among other

inatters, a conspiracy to violate the federal narcoties laws

encompassing appellant, Virgil Alessi, and Vincent Papa,

Anthony Passero, Frank IY Amato, Authony Loria, Sr., and

others; and also charged the just-named defendants with

engaging in a continuing criminal enterprise as defined in

was in the midst of plea hargaining the charges; the “pack-

age” he proposed to achieve had been written down and

apparently cleared with his superiors in Washington, With

his prime witness lost, Druker’s case was greatly weak-

ened, and he proceeded, over the next two months, to nego-

tiate a bargain more favorable to the defendants. Agree-

ment between Druker and the several attorneys who repre-

sented Vincent Papa, one of whom also represented ap-

a en te

pellani Alessi, was finally reached on August 18, 1972.

No contemporaneous written evidence of the terms of

the bargain exists; what they in fact were is a matter best

deferred for the moment.

Sometime between August 18 and September 5, Druker

learned of information that had been supplied to the Kast-

ern District Strike Force by Joseph Ragusa, which poten-

tially implicated Papa in yet further illegal narcotics activ-

ities. Papa was not informed of this, and ignorant of it

he pleaded guilty, on September 5, 1972, to the conspiracy

charge and also to a pending tax evasion information.

On October 2, 1972, Virgil Alessi waived indictment and

he, too, pleaded guilty—to a one count conspiracy charge

contained in a superseding information; 72 Cr. 473 was

dismissed as to him. Appellant’s counsel contends that

this format was used so that it would be clear that this

plea acted to bar a pending prosecution in Nassau County.

Appellant also waived his pre-sentence report, and was

sentenced at the time of his plea. Before accepting the

plea, the district court asked Alessi if anyone had prom-

ised him anything to induce it; Alessi answered that no

one had. However, when the judge indicated that lhe would

be willing to sentence Alessi to “15 years without batting

an eye,” it rapidly became evident that the truth was other-

wise. The upshot was that, on Druker’s recommendation,

Alessi received a five-vear suspended sentence with a man-

datory three-year special parole. Appellant now claims

that the consideration for his plea included certain repre-

sentations by Druker, which, it is contended, prevent the

prosecution in the present case from going forward.

On two previous occasions we have considered these

promises of the summer of 1972. The first case, decided

on April 2 of this year, was United States v. Papa,

F. 2d , slip op. 2977, an appeal from Papa’s convic-

tions in the Southern District of New \ork for conspiracy

to violate and a substantive violation of the narcotics

laws. Papa’s most important contentions were that the

“Southern District conspiracy” was the same as the “Kast-

ern District conspiracy” to whieh he had _ previously

pleaded, and therefore that the Southern District prose-

cution on that charge was violative of his right not to be

twice placed in jeopardy; and that the Southern District

case, based in good part on the testimony of Joseph

Ragusa, violated the bargain. This court affirmed the con-

victions, holding as to the first point that after all the

facts were in, Papa had failed to show the claimed iden-

tity of the conspiracies; and as to the second point that

even if the Eastern District U.S. Attorney’s Office would

have been bound not to prosecute crimes discovered by

use of Ragusa’s information, the bargain did not reach

so far as to preclude the Southern District prosecution

which had been developed entirely independently.

The second case, even more recently decided, was United

States vy. Alessi, F.2d , Slip op. 3881 (May 26,

1976) (Alessi I), which involved the same appellant as the

present case. That appeal, like this one, was from a pre-

trial order; the challenge was to a district court decision

denying Alessi’s claim that the 1972 promises were broad

enough to prevent an Eastern District prosecution for tax

evasion during the years in which the “Eastern District

conspiracy” had been in operation. This court affirmed,

holding that the pre-trial order was appealable but that

whatever crimes were covered by the bargain, a crime as

distant from the conspiracy as tax evasion was not.

We come now to this ease. By indictment filed on August

4, 1975, Anthony Passero, Lawrence Iarossi, and others

were indicted by a grand jury in the Southern District of

New York for conspiracy to violate the narcotics laws;

Vincent Papa, Virgil Alessi, and Frank D’Amato were

among the named but unindictcd co-couspirators. Alessi

a ee

eo ees seh ee ae Se

was indicted on five substantive counts which, as supple

mented by the bill of particulars, all charge him as an

aider and abettor for delivering, at locations in Long

Island City, and others parts of Queens, various quanti-

ties of heroin to one Anthony Manfredonia, which Man-

fredonia then took to the Southern District for distribu-

tion to others. The Government states that if this case

does finally come to trial, it will introduce evidence show-

ing that Alessi “‘was well aware” that the heroin “was

being transported to and concealed, possessed and dis-

tributed to others in the Southern District of New York.”

The Government also contends, and appellant offers noth-

ing in refutation, that insofar as the indictment names

Alessi it is based on information supplied by Manfredonia,

a witness developed entirely by the Southern District, and,

as Druker stated in an affidavit, unknown to him in 1972.

Its brief states that “[n]o witness or evidence used in the

obtaining of this indictment was obtained from prosecu-

tors in the Eastern District.” Finally, the Government

contends, althongh this point is indeed disputed, that

Druker’s representations were by their own terms not

binding on the Southern District.

The essence of appellant’s claim, which is based on

Sautobello vo. New York, 404 U.S. 257 (1971), was. sue-

cinetly stated by the trial court as follows:

According to Alessi, the plea-bargain agreement pro-

vided that Alessi would not be proseeuted with respect

to any overt acts committed during the course of the

Eastern District conspiracy which might constitute a

substantive violation of the narcotics laws. Alessi

contends that the present indictment violates the plea-

bargain agreement and that his prosecution would

therefore amount to a denial of due process.

Trial was scheduled to begin on January 20, 1976. In

November 1975, appellant moved to dismiss the indictment

on the ground just indicated. Judge Bonsal, on December

29, reserved decision until the conelusion of the trial, when

he would have the benefit of the evidence that had been

introduced as to the true nature of the crimes charged

and would conduct an evidentiary hearing. Alessi appealed,

and the Government moved to dismiss the appeal. Without

deciding the question of appealability, a panel of this court,

on January 19, issued « writ of mandamus (Alessi IJ) di-

recting the trial court either to sever Alessi from the trial

and await its evidence, or to hold an evidentiary hearing

and determine the motion prior to trial; a short unprinted

opinion was filed the next day. Following issuance of the

writ, also on January 19, a brief hearing was held before

Judge Bonsal. Appellant’s counsel urged a severance, in

part on the ground that the district court should await the

results of the appeal in Papa, which had been argued but

not yet decided. Appellant also agreed to waive any claim

of denial of a speedy trial that might arise out of the

attendant delay. Judge Bonsal, apparently impressed by

these points and also by the fact that Alessi was not a

defendant to the conspiracy count, granted the severance.

Trial as to seven of the other defendants, under the title

United States v. larossi, began on January 20 and ended

on February 4, with a verdict against all defendants on

all counts. A notice of appeal was filed, and the case is

now docketed in our court, #76-1132, with argument pres-

ently scheduled to be heard in the middle of September.

Meanwhile the pretrial proceedings regarding defendant

Alessi went on. On February 11, 1976, Judge Bonsal held

another short hearing. Appellant’s counsel and the prose-

eutor agreed that there was no further factual material

to be introduced: the issue was submitted on the basis of

ete ee as Gt

ee ee

the record developed in Papa, in yet another case concern-

ing Papa and Alessi that had come before the Eastern

District in October, 1975, and in Jarossi. Four days after

our decision in Papa, on April 6, 1976, Judge Bonsal de-

nied the motion to dismiss the indictment. He supported

his decision on two grounds: first, the conspiracy charged

in the current indictment was not the same as that charged

and pleaded to in the Eastern District, and therefore the

substantive crimes with which Alessi was charged were

not “overt acts” of that conspiracy; and second, the plea

bargain was not intended to cover crimes developed by

independent investigations undertaken by U.S. Attorney’s

Offices outside of the Eastern District. Alessi appealed

from this decision on April 13, 1976.

Shortly thereafter, Alessi’s trial was scheduled for May

4. On April 29, he petitioned for yet a second writ of man-

damus, to halt the trial pending determination of the ap-

peal. On May 3, a temporary stay was issued, and on May

6 a writ followed, staying the trial and setting an expedited

briefing schedule. We heard ora) argument on June 9.'

I. Appealability

Understandably distressed that it is now in this court

for the second time, with Alessi’s trial severed from that

of his co-defendants and delayed for many months and

with another appeal in prospect if he is tried and con-

vieted (in which he might argue that developments at trial

1 This case came to us docketed under the dual caption “Virgil Alessi

v. Honorable Dudley B. Bonsal” and “United States of America v.

Virgil Alessi.” As we understand it, Alessi is presently pursuing only

an appeal, and is not seeking to invoke the extraordinary writ for yet

a third time; apparently the first caption is the result of the April 29

request for relief and is not now applicable. In any event we would

decline to issue mandamus under the principle announced in Kaufman

and Withington vy. Edelstein, —— F.2d (2 Cir. 1976), slip opinions

3287, 3298-99.

had demonstrated that our decision on the merits here was

wrong), the Government naturally wonders how all this is

consistent with Cobbledick v. United States, 309 U.S. 323,

325 (1940). In an opinion by Mr. Justice Frankfurter, the

Court there said among other things that Congress from

the very beginning has, by forbidding “piecemeal disposi-

tion on appeal of what for practical purposes is a single

controversy,” “set itself against enfeebling judicial admin-

istration”; that “[t]o be effective, judicial administration

must not be leaden-footed”; and that “[tlhese considera-

tions of policy are especially compelling in the adminis-

tration of criminal justice,” since “encouragement of delay

is fatal to the vindication of the criminal law.” See also

DiBella v. United States, 369 U.S. 121, 124, 126 (1962);

Kerr v. U.S. District Court, 44 U.S.L.W. 4838, 4841 (U.S.

June 14, 1976). Alarmed at what has happened by the

recent advance of Cohen v. Beneficial Industrial Loan

Corp.. 337 U.S. 541 (1949), into the criminal field under

the seductive guise that a defendant is entitled under some

circumstances to be protected from an unlawful trial and

not simply from an unlawful conviction, and fearful that

still worse may befall in the future, the Government asks

that we reconsider our interpretation of the “final decision”

rule of 28 U.S.C. § 1291 in United States v. Beckerman, 516

F.2d 905, 906-07 (2 Cir. 1975), or at least limit the damage

to the precise situation there presented—a second trial

admittedly for the same offense following one alleged to

have been unlawfully aborted by the trial judge, and to

decline to follow the recent decision on another of Alessi’s

due process appeals, United States v. Alessi I, supra.

Since. as in Beckerman and Alessi 1, we agree with the

Government on the merits and there is a fair possibility

that the issue may soon be settled, Abney v. United States,

No. 75-6521, certiorari aranted, 44 U.S.L.W. 3719 (U.S.

June 14, 1976); see also Barket v. United States, No. 75-

Cn a ee ee

1280, petition for certiorari pending? we think it would

be more useful instead of seeking en banc reconsideration

of Beckerman and/or Alessi I,’ to make our own analysis

but not now to challenge prior precedent in this court.

Such an analysis is particularly desirable because the Gov-

ernment has recently called to our attention two Supreme

Court decisions, Rankin v. The State, 78 U.S. (11 Wall.)

380 (1870), and Heike v. United States, 217 U.S. 423, 433

(1910), seemingly favorable to it, only the latter of which

it cited in Beckerman, and there only in summary fashion,

and neither of which was cited to the Fourth Circuit in

United States v. Lansdown, 460 F.2d 164 (1972), on which

Beckerman heavily relied. On the other hand, neither

party has cited more recent Supreme Court decisions which

might seem to look the other way, although we conclude

they in fact do not.

In Rankin v. The State, supra, a defendant, charged

with murder in the courts of Tennessee, pleaded in bar an

2 These petitions were brought hy defendants to review decisions of the

Eighth Circuit in United States v. Barket, 530 F.2d 181 (1975), and

of the Third Circuit in United States vy. Abney (unprinted judgment

order), which entertained defendants’ pretrial appenls on the ground

of double jeopardy but ruled for the Government on the merits. In

both eases the Government has urged that the defendants’ petitions be

granted in order to have the Court resolve the question of appealability.

In Beckerman and Alessi I in this cirevit, the Government also pre

vailed on the merits and therefore was not in a position to seck certiorari

from the ruling as to appealability. Perhaps for the same reason it did

not seek consideration of the appealability issue en banc, as we would

have to do if we followed its suggestion.

8 We do not agree with the statement in Alessi I, slip op. at 3884, that

the appealability of an order refusing to dismiss an indictment as vi-

olating a plea bargain was “implicitly” affirmed hy the first issuance

of mandamus in this ease. Apart from the possible effect of this court's

rule § 0.23 that disposition by summary order “shall not be cited or

otherwise used in unrelated cases before this or any other court,” the

order granting mandamus held only that Alessi was entitled to an evi

dentiary hearing—not that he was entitled to appeal from an adverse

decision rendered thereafter.

acquittal by a general court-martial for the same crime.

After the lower court had sustained the plea and entered

a judgment of acquittal, the Supreme Court of Tennessee

reversed and remanded for a trial on the merits. The

Supreme Conrt dismissed the writ of error on the ground

that the state court judgment was not final.‘

Next came Heike v. United States, 217 U.S. 423 (1910).

(Charged with violations of the customs laws and with a

conspiracy to defraud the United States of its revenues,

Heike filed a plea in bar claiming immunity from prose-

ention because he had been compelled to testify on the

same subject matter before a grand jury. After the trial

court had directed the jury to deny the plea, it permitted

Heike to plead over, and set a date for trial. A Justice of

the Supreme Court allowed a writ of error to review the

denial of the plea in bar, and the United States moved to

dismiss the writ. The Court held the writ was not within

‘5 of the Court of Appeals Act of 1891, 26 Stat. 826,

827-28, allowing direct appeal to the Supreme Court, “In

4 Mr. Justice Bradley's opinion is short enough tc be quoted in full:

The difficulty with the case, as brought before us, is that the

judgment was not a final one in the ease. This court, under the

25th section of the Judiciary Act, ean only take cognizance of final

judgments of the State courts. And although the court has heen

liberal in its construction of the statute as to what judgments are

final. yet the judgment in this case cannot be deemed such by any

reasonable stretch of construetion. It is a rule in criminal law

in favorem vitae, in capital eases, that when a special plea in bar

is found against the prisoner, either upon issue tried by a jury, or

upon a point of law decided by the court, he shall not he concluded

or convicted thereon, but shall have judgment of respondeat ouster,

and may plead over to the felony the general issue, not guilty.*

And this is the effect of the judgment of reversal rendered by the

Supreme Court of Tennessee in this case; so that in no sense can

that judgment be deemed a final one. The case must go back and

be tried upon its merits, and final judgment must be rendered before

this court can take jurisdiction. If after that it should be brought

here for review, we can then examine the defendant's plea and

decide upon its sufficiency. Writ of error dismissed.

10A

oe ome

any case that involves the construction or application of

the Constitution of the United States.” Construing this

provision as embodying the final judgment rule, the Court,

217 U.S. at 429, deemed it certain that the judgment below

did “not dispose of the whole matter litigated in this pro-

ceeding. ...” The Court continued, 217 U.S. at 430:

As the case now stands, upon the plea of not guilty,

upon which the issue raised must be tried to a jury,

certainly the whole matter has not been disposed of.

It may be that upon trial the defendant will be ac-

quitted on the merits. It may happen that for some

reason the trial will never take place. In either of

these events there can be no conclusive judgment

against the defendant in the case. It is true that in a

certain sense an order concerning a controlling ques-

tion of law made in a case is, as to that question, final.

Many interlocutory rulings and orders effectually dis-

pose of some matters in controversy, but that is not

the test of finality for the purposes of appeal or writ

of error. The purpose of the statute is to give a re-

view in one proceeding after final judgment of matters

in controversy in any given case. Any contrary con-

struction of the Court of Appeals Act may involve

the necessity of examining successive appeals or writs

of error in the same case, instead of awaiting, as has

heen the practice since the beginning of the Govern-

ment, for one review after a final judgment, disposing

of all controversies in that case between the parties.

Turning to Heike’s contention that the immunity statute

provided that “No person shall be prosecuted or be sub-

jected to any penalty or forfeiture” (emphasis supplied)

and that the Government would not be keeping its promise

if it proceeded beyond indictment, the Court said, 217

U.S. at 431:

11A

But we are of opinion that the statute does not in-

tend to secure to a person making such a plea im-

munity from prosecution, but to provide him with a

shield against successful prosecution, available to him

as a defense, and that when this defense is improperly

overruled it may be a basis for the reversal of a final

judgment against him. Such promise of immunity has

not changed the Federal system of appellate proce-

dure, which is not affected by the immunity statute,

nor does the immunity operate to give a right of re-

view upon any other than final judgments.

Still more to the point, the Court said, by way of support-

ing argument, 217 U.S. at 432:

The Constitution of the United States provides that

no person shall be twice placed in jeopardy of life and

limb for the same offense, yet the overruling of a plea

of former conviction or acquittal has never been held,

so far as we know, to give a right of review before

final judgment.

The Court then went on to refer to and quote from Rankin

v. The State, supra. All this is especially significant in

that the statement in United States v. Ball that “The pro-

hibition [of the double jeopardy clause] is not against be-

ing twice punished, but against being twice put in jeop-

ardy”’, 163 U.S. 662, 669 (1896)—the cornerstone of our

recent decision in Beckerman upholding review before the

second trial—must have been fully as well known to the

members of the Heike court, several of whom had par-

ticipated in Ball, as it is to judges of the 1970's.

The arrival of Cohen on the secne would not seem, at

first blush, to affect the holding or the considered dictum

in Heike. For the eornerstone of the Cohen decision was

12A

that the order of the district court refusing to apply New

Jersey’s statute requiring security for costs in stockhold-

ers’ derivative actions

did not make any step toward final disposition of the

merits of the case and will not be merged in final

judgment. When that time comes, it will be too late

effectively to review the present order, and the rights

conferred by the statute, if it is applicable, will have

been lost, probably irreparably.

337 U.S. at 546. An order denying a plea of double

jeopardy, or denying a claim that an indictment violates

the terms of a plea bargain, is merged in the final judg-

ment and can be reviewed on an appeal therefrom—

except on the view that the purpose. of the double jeop-

ardy and due process clauses can only be served by pre-

venting prosecution (beyond the stage of indictment)

rather than conviction, a view rejected by Heike by its

holding with respect to the immunity statute and by dic-

tum with respect to double jeopardy.

The Court’s first, long its only, application of Cohen in

a criminal case, Stack v. Boyle, 342 U.S. 1 (1951), did not

presage any significant impairment of the final judgment

rule. The order there held to have been appealable under

Cohen was a refusal to reduce bail pending trial. The

rationale was thus explained in the concurring opinion of

Mr. Justice Jackson, who should have known the meaning

of Cohen if anyone did, 342 U.S. at 12:

While only a sentence constitutes a final jvdqment in

a criminal case, Berman vy, United States, 302 U.S. 211,

212, it is a final decision that Congress has made re-

viewable. 28 U. S. C. 61291. While a final judgement

alwavs is a final decision, there are instances in which

a final decision is not a final judgment. The purpose

13A

of the finality requirement is to avoid piecemeal dis-

position of the basic controversy in a single case

“where the result of review will be ‘to halt in the

orderly progress of a cause and

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