Petition — Young v. United States

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 704 d

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RONALD DENNIS YOUNG,

PETITIONER,

-Vs-

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Law Offices of

PHILIP A, DEeMASSA

A Professional Corporation

2150 First Avenue

San Diego, California 92101

Telephone: (714) 236-0897

Attorney for YOUNG

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

RONALD DENNIS YOUNG,

PETITIONER,

-vs-

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

INDEX

Table of Cases

Opinion Below

Jurisdiction

Question Presented for Review

Importance of the Question

Presented

Constitutional Provision Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

' Appendix A — Opinion of the

Court of Appeal

October 19, 1976

ul

17

TABLE OF CASES

Cases:

Abney v. United States, 75-6521

OM JUNC 14, LolO ee eeeeerencccees 2

Benton v. Maryland, 395 U.S. 784

PPEISSSo6b SSeS 0s CON E6oeeR CESS

Cobbledick v. United States,

~ 309 U.S.

Cohen v. Beneficial Industrial Loan

~ Corp., oa” U.S. 541 (145)...

DiBella v. United States, 369 U.S.

Green v. United States, 355 U.S.

184 eeeseeweaeeeenee ene eeeeeseeeeneee

Price v. Georgia, 398 U.S. 323

Serfass v. United States, 420 U.S.

United States v. Bailey, 512 F.2d

uw. eoeeeenereeeeeneee

United States v. Ball, 163 U.S.

United States v. Barket, 530 F.2d

re. eeeeeneeeeeneeee

United States v. Beckerman

516 F.od 905 (ed Cir. 1575). cece

United States v. DiSilvio, 520 F.2d

247 (3d Cir. 1975) ccccccccccce

ii

ll

12,13

14,15

15

13

12

13

12

ll

13

13

13

United States v. Jorn, 400 U.S.

United States v. Lansdown,

° ( Cir. 1972).....

Statutes:

18 U.S.C. §$4208(aX2) cccccccccccce ”

21 U.S.C. §841(b)1KA) -..-ceccecee

BH U.S.C. SOALAM) cccccccccciccce

Te OF pei pte iays

SEs IED dccccceccceceuss

23 U.S.C. §1291 eoeneneeeeeeeeeeneeeeee

iii

13

13,14

414,16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

RONALD DENNIS YOUNG,

+ PETITIONER,

-vs-

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioner, RONALD DENNIS YOUNG,

prays that a writ of certiorari issue to review

the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered

October 19, 1976.

OPINION BELOW

The Court of Appeals entered its published

decision, No. 75-3102, on October 19, 1976. A

l.

copy of the opinion is attached as Appendix "A".

JURISDICTION

The jurisdiction of this Court is invoked

under Titlé 28, United States Code, Section

1254(1).

QUESTION PRESENTED FOR REVIEW

Whether a District Court's denial of a

motion to dismiss an indictment is an

appealable order within the meaning of Title

28, United States Code, Section 1291, where

the challenge to the indictrnent is founded upon

a claim of double jeopardy?

IMPORTANCE OF THE QUESTION PRESENTED

Presently the Second, Third, Fourth and

Eighth Circuit Courts of Appeals Have ruled

that such an order is appealable and, thus,

properly the subject of pre-trial review. The

Fifth and Ninth Circuit Courts of Appeals have

ruled adversely. The critical importance of

the fundamental constitutional guarantee

involved, as well as the obvious state of

confusion arnong the Circuit Courts of Appeals,

requires this Court to address the issue.

This Court granted certiorari in Abney v.

United States, (75-6521) on June |4, - The

Solicitor General's reply brief raises the issue

of the appealability of a pre-trial plea of

Double Jeopardy. Therefore, this issue is

presently before this Court.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V:

"...Nor shall any person be

subject for the same offense to

be twice put in jeopardy of life

or lirmmb.. o”

2.

STATEMENT OF THE CASE

There have been two trials of petitioner

prior to the instant petition.

Prior to the commencing of trial on

December 19, 1974, one of petitioner's

co-defendants, James Hunter, entered a plea

of guilty to conspiracy to possess with intent to

distribute cocaine. (Reporter's Transcript,

hereinafter referred to as "R.T. 75-1690",

ll-12). Hunter told the district court that he

had discussions with another co-defendant,

Michael Jones, relative to the sale of a pound

of cocaine to some friends of Jones's. Hunter

talked to friends of Jones including an informant

and a special government agent. After lengthy

discussions, Hunter agreed to sell the agents

cocaine and left the discussion area and went to

procure the cocaine. Hunter returned and

delivered a pound of cocaine in a bag to the

agents. He thereupon fled the scene after

realizing the buyers were federal agents.

(R.T. 75-1690, 31-32). Hunter insisted that

he did not obtain the cocaine from petitioner

Young; rather, he had gotten the drug from his

own vehicle. (R.T. 75-1690, 34-36).

Shortly after Hunter's judicial confession,

jury trial for petitioner and the remaining

defendants commenced. Petitioner was found

guilty by jury of conspiracy to possess and

distribute cocaine and possession with intent to

distribute cocaine in violation of Title 2l

U.S.C. §§84l(aX1l) and 846, a Schedule II

controlled substance. (Clerk's Record

hereinafter referred to as "C.R." 75-1690,

59).

-3-

On February 10, 1975, petitioner was

committed to the custody of the Attorney

General for a term of three years pursuant to ,

18 U.S.C. §4208(aX2) on each count, sentences

to run concurrent, along with a special parole

term of three years as prescribed under

21 U.S.C. §84l(b)A)(A). (C.R. 75-1690, 63).

On June 16, 1975, petitioner moved for a

new trial based upon the testimony of

co-defendant James Hunter who exonerated

petitioner from criminal liability in the two

counts of which petitioner was convicted.

Hunter testified at the evidentiary hearing that

petitioner had nothing to do with the cocaine

conspiracy or possession of cocaine with intent

to distribute charges, as Hunter had made all

the arrangements for the sale himself and had

asked petitioner for a ride to the area where

the agents were awaiting Hunter's return with

the cocaine he had previously agreed to sell

them. After the evidentiary hearing, the

Honorable Edward J. Schwartz of the United

States District Court for the Southern District

of California granted petitioner's motion for

new trial. (C.R. 75-1690, 78).

On July 29, 1975, the re-trial commenced

before the Honorable Edward J. Schwartz.

The facts adduced at trial are as follows:

On Septermber 10, 1974, Drug Enforcement

Agent Roger Johnson began an investigation

regarding co-defendant Michael Jones in San

Diego. He spoke with Jones at 11:00 a.m. and

made arrangements to buy approximately one

ounce of cocaine for $1,000.00 if it could be

brought to the Los Angeles area. Jones

arrived in a late model Pontiac with the

government informant Reed and consummated

-4-

the ounce sale. (Reporter's Transcript of

second trial, hereinafter referred to as "R.T.

75-3102", 13-16).

On September 17, Agent Johnson arrived

in San Diego and picked up $14,000.00 at the

Narcotics Task Force Office in order to do a

deal with Jones and his connection. Johnson

went to Jones and co-defendant Ulak’s

apartment and was advised the source of

cocaine was not available as he was in school.

(R.T. 75-3102, 23-27).

While waiting at the Jones apartment, a

phone call was received and Jones said they

had to go to another place 1O minutes away

where the source lived. Upon arrival at the

apartment complex, Jones went into an

apartment and returned stating their arrival

had frightened the source away. The source

had a previous record for dealing and was under

charges. (R.T. 75-3102, 34).

Jones later returned with co-defendant

James Hunter and was introduced to Special

Agent Johnson. Hunter and Johnson discussed

narcotics deals. Hunter explained he had just

gotten out of school, that he didn't know

Johnson, that he only knew Jones, and was

reluctant to deal with anyone and only knew

Jones who knew Harold Reed. (R.T. 75-3102,

38-39). Upon Hunter's demand to see the

meney it was produced and then placed back

into the trunk of the agent's vehicle. Hunter

stated he had to make a phone call and

disappeared with his vehicle. A few minutes

later he returned from the opposite direction

and discussed alternate methods of doing the

transaction. Hunter was fearful because he

didn't know the agents. Hunter suggested they

go into the apartment and various methods were

-5—

discussed to consummate the transaction.

Hunter related that he had made a phone call to

his source or persons with the narcotics who

was "his man". No agreement was reached

between the two, and the agents, fearing that

they were to be robbed, left the area to

exchange the money for newspapers. (R.T.

75-3102 , 45-48).

Upon returning, Special Agents Johnson

and Griffin met Jones and Hunter between the

apartments and Hunter asked Johnson to

release the money to an area out by Coolidge

Street. Hunter said his source was in the

area and to give him the money and he would

go get the narcotics. Johnson refused and

demanded to see the narcotics first. Hunter

was observed leaving the apartment area and

going out towards Coolidge Street. The next

time Johnson saw Hunter was when he was

returning from the opposite end of the

apartments. Hunter asked again to allow the

money to go around the corner of the apartment

building but Johnson refused. Hunter then

retraced his footsteps from the area in which

he had just returned. The next thing Johnson

observed was a late model Pinto pull up with

its lights out. Johnson observed Hunter get

out of the vehicle and saw through the overhead

light in the car Hunter talking to a male

subject who wore a colored cap. Hunter

approached Johnson and asked to let the money

go to the car. Johnson refused, stating he

wanted to see the narcotics. Hunter thereupon

returned to the Pinto and returned to Johnson,

producing the narcotics from under his

armpit in a large folded grocery market bag.

The bag was concealed under his shirt. (R.T.

75-3102, 49-53).

-6-

Johnson admitted at the re-trial that he

prepared a report the day of the arrest and

tried to put in all important details at that time.

He was trying to put in as much as possible and

considered that whether or not there were one

or two trips would be important and he would

have mentioned the two trips in his report.

However, he had only placed one trip in his

report. He remembered the second trip

approximately one to two weeks before the first

trial in December 1974. When his report was:

originally prepared, he had it checked for

accuracy and saw no glaring weakness or

discrepancies in it, and if he had seen some-

thing that was overlooked he would have changed

his report at that time. (R.T. 75-3102, 85-91).

San Diego County Deputy Sheriff Lyle

McCabe was stationed across the street from

the transaction point watching both the area

where the two vehicles were parked and the

area where the Pinto eventually arrived.

(R.T. 75-3102, 140, 146). Shortly after the

two agents who had left the transaction area

had returned about 1:00 a.m., McCabe

observed a Pinto with its lights out driving

south on Coolidge Street. McCabe saw the

Pinto traveling slowly and just before the Pinto

arrived at the north end of an alley saw a

person later identified as Hunter walk up to the

car and squat down by the passenger door for

15 to 30 seconds. Hunter then got in the car

and the vehicle went down the alley to where the

Pinto ultimately stopped. McCabe only saw the

tail lights go on and did not see the headlights

on at all. McCabe observed the passenger get

out of the Pinto, and return to it after a short

while, and then return back to the area where

Johnson was. Hearing the arrest signal,

McCabe crossed the street to where the Pinto

aJa

was parked and heard the sound of the car

trying to start which thereupon backed into

McCabe's car. (R.T. 75-3102, 142-47). A

later search of the Pinto revealed a vial

containing sucrose in a light blue jacket.

@A.T. 75-3102, 150, 152).

McCabe admitted that in a report he

prepared on the day of the arrest, Hunter is

depicted as only making one trip between

Johnson's position and the Pinto in which

petitioner was driving. He also reviewed it

prior to signing it. (R.T. 75-3102, 157-58).

McCabe also did not recall seeing a dome

light going on when Hunter got in the Pinto.

(R.T. 75-Ho02, 163).

Special Agent Jones was on surveillance

on another part of the area that evening and

observed a Pinto and a black or blue 1957

Cadillac following each other on Burton Street,

across from Coolidge. (R.T. 75-3102,

176-77). The Pinto driver faced the driver of

the Cadillac for approximately 5 to 10 seconds.

The Pinto then drove off and the Cadillac

remained with its lights off. The Pinto's

lights remained on. The 1967 Cadillac was

registered to petitioner Young. After the

arrest signal, Maureen Williams was arrested

but later released as they were satisfied she

was not involved in the transaction. (R.T.

75-3102, 178-83, 186).

Government informant Harold Reed

recalled that at the time when the Pinto arrived

seeing headlights pull in and park. (R.T.

75-3102, Vol. 2, '3).

James Hunter, co-defendant who had

previously entered a plea of guilty testified

-8-

that on December 19, 1974, at the time of his

entry of guilty plea he implicated Ulak but told

the Court that Young was not involved and was

not the person whom he got the cocaine from.

Rather, Hunter got the cocaine out of the left

front wheel well out of his wife's automobile.

(R.T. 75-3102, Vol. 2, 30-34). Hunter also

informed Narcotics Task Force Agent

Gregory Miller in late September, when

Miller came to interview him at the County

Jail after his arrest, that petitioner Young was

not involved in the transaction. (R.T. 75-3102,

Vol. 2, 35).

After meeting Jones and Johnson, a

discussion was held with Hunter on various

ways to front the money to Hunter. Hunter

complained that he didn't know Johnson and

only knew Jones. (R.T. 75-3102, Vol. 2,

39-43). Hunter said he was going to make a

phone call, get in his car, left the area and

parked it in a grassy area below the apartments.

From a phone number he had received earlier

Hunter madé a call and ordered a pound of

cocaine. He gave directions to someone as to

how to get to the car, which car to look for, and

where to find it. The cocaine was to be left in

the front wheel well. (R.T. 75-3102, 43-47).

After making the call, he returned to

where Johnson and Jones were, telling ther

that the cocaine was on its way and would be

there shortly. Hunter denied referring to his

connection. Hunter finally went to pick up the

package and saw a vehicle approaching him.

Hunter recognized petitioner Ronald Young

driving the car, approached him and told

petitioner to wait because the $50.00 Hunter

owed petitioner would be repaid after a

business deal. (R.T. 75-3102, Vol. 2, 48-57).

a

‘When Hunter approached petitioner he had

the package under his coat behind his back.

Hunter rode with Young a short distance, got

out of the car, and delivered the package to

Johnson. He denied making more than one trip

from the Pinto, and did not return to the Pinto.

(R.T. 75-3102, Vol. 2, 56-60).

Hunter had met his cocaine source at the

Jabber—Wocky, a private club and had made

prior arrangements with him for deliveries of

cocaine. Hunter did not want to talk about this

person because he feared reprisals from being

labeled a "snitch" and once had his clothes set

on fire while in the San Diego County Jail.

(R.T. 75-3102, Vol. 2, 63-67, 97).

Special Agent Griffin stated that the

Pinto arrived with its lights on and was not

sure if Hunter made one or two trips from the

Pinto to Johnson. (R.T. 75-al02, Vol. 2,

96-A-C).

Maureen Williams was petitioner's

roommate. They had argued earlier in the day.

When petitioner had left Williams though he

was going to another girl friend's house so she

followed him. When she caught up with petition—

er, he told her he was picking up some money

owed to him. (R.T. 75-3102, Vol. 2, 177-188).

On August 1, 1975, the jury retired to

deliberate after instructions. On August l,

1975, the jury separated for the weekend and

returned for deliberations on August 4, 1975.

At the end of the day on August 4, the jury

informed the Court that they had been unable to

reach a verdict. Winen they returned to the

courtroom the district court made a finding

that the jury was unable to reach a verdict and

-10-

declared a mistrial. No objection was entered

by petitioner to the mistrial order. (R.T.

August 4, 1975, 1-6).

On August 12, 1975, petitioner filed a

motion to disrniss the indictment. The

government filed an opposition and on

August 20, 1975, after hearing, the Court

denied the motion to dismiss the indictment.

(C.R. 96).

On August 28, 1975, petitioner filed a

notice of appeal from the order of the district

court. (C.R. 97).

On October 19, 1976, the United States

Court of Appeal for the Ninth Circuit rendered

its decision dismissing petitioner's appeal and

finding that the district court's denial of the

motion to dismiss the indictment is not a

final and appealaple order within the meaning

of 28 U.S.C. §1291 where the challenge to the

indictment is founded on a claim of double

jeopardy. (Appendix "A").

REASONS FOR GRANTING THE WRIT

The fundamental ideal and guarantee

embodied in the Fifth Amendment's Double

Jeopardy Clause has long been recognized by

this Court. Benton v. Maryland, 395 U.S.

784, 794-95 (1969S).

The guarantee of the Double Jeopardy

provision is that an individual not be "twice

put in jeopardy”. United States v. Ball, 163

U.S. 662, 669 (1896). Tt is clear that the

Double Jeopardy provision guarantees against

the potential or risk that an accused will be

convicted of an offemse for which he has

previously stood trial. As this Court

-ll—

recognized in Price v. Georgia, 398 U.S. 323

(1970):

"The Double Jeopardy Clause...

is cast in terms of the risk or

hazard of trial and conviction,

not of the ultimate legal

consequences of the verdict. To

be charged and to be subjected

to a second trial...is an ordeal

‘not to be viewed lightly.”

(Id., at S31).

The instant decision of the Ninth Circuit

following the lead of the Fifth Circuit opinion

in United States v. Bailey, 512 F.2d 833 (1975),

represents the erosion of the express

constitutional protection against being twice

put in jeopardy. After reviewing the

underpinnings of the finality rule, the Ninth

Circuit concluded that:

"...-bearing the discomforture

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.” citing: Cobbledick v.

United States, 309 U.S. 333,

).

Petitioner submits that review of a

pre-trial double jeopardy claim cannot await

final judgment. This Fifth Amendment

protection is meant to spare a once—

jeopardized defendant not only a subsequent

-l|2—

conviction, but also a subsequent trial. The

Double Jeopary provision is designed to prevent

the government from:

"...subjecting a defendant to

embarrassment, expense and

ordeal and compelling him to

live in a continuing state of

anxiety and insecurity, as well

as enhancing the possibility

that even though innocent he

may be found guilty.” Green v.

United States, 355 U.S. 184, 187-

)} United States v. Jorn,

400 U.S. 470, 475 (1571); Serfass v.

United States, 420 U.S. 377,

387-388 (1975).

Petitioner submits that to require a

defendant to await final judgment clearly

defeats the protection afforded against the

subsequent trial. United States v. Lansdown,

460 F.2d 164, 170-i71 (4th Cir. 1975);

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

r. ); United States v.

DiSilvio, 520 F.2d 247 r. 3

United States v. Barket, 530 F.2d 181, 185

wr. .

The Cobbledick decision, which is

commonly relied upon to prevent piecemeal

appellate review and relied upon by the Ninth

Circuit in the instant case, is important for

another often overlooked statement, to-wit:

"Finality as a condition of

review is an historical

characteristic of federal

appellate procedure. It was

written into the first

Judiciary Act and has been

-13—

departed from only when the

observance of it would

practically defeat the ri

to any review at all.

om at Ge4—Go5) (= mphasis

ed).

This early statement of the practical

necessity for exception to the strict finality

rule reached fruition in Cohen v. Beneficial

Industrial Loan Corp., 3387 U.S. 541 (1949).

In Cohen, this Court recognized that if an

appeal of the district court's order denying

the defendant's request that plaintiff file an

expense bond were not permitted, and decision

of the question postponed until final judgment

was entered:

"...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."

(Id., at 546).

The Courts of Appeals in the Second,

Third, Fourth and Eighth Circuits have relied

upon this precedent and extended its

applicability to a pre-trial denial of a plea of

former jeopardy. The Court in United States v.

Lansdown, ra, extensively discussed this

rationale and petitioner can add very little.

The Court of Appeals stated:

In Cohen, the Court was

interpreting the meaning of

"Final judgment" under

28 U.S.C.A. § 1291 which

gives the court of appeals

jurisdiction "from all final

decisions of the district

-14—

courts of the United States..."

and thus the rule announced is

equally applicable to criminal

as well as civil cases. For

an order to be considered

"Final", and thus appealable

under Cohen, it must possess

three characteristics: (1) it must

be separable from, and

collateral to, the main cause of

action; (2) the right involved must

be too important to be denied

review; and (3) the question

presented must be such that, if

review is postponed until final

termination of the case, the

claimed right will be

irreparably lost.

We believe that the district

court's denial of the defendant's

motion to dismiss based on a

claim of double jeopardy is a

final and appealable order

under Cohen. First, defendant's

right is under the fifth amendment

and it is separable from, and

collateral to, the main cause of

action which is whether he is

innocent or guilty of the crimes

charged. Second, the right

claimed is a constitutional

one and, as such, it is too

important to be denied review.

Finally, if review is not had

now, the right claimed-to be

free from being twice forced

to stand-trial for the same

offense—will be irreparably

lost.

pre-trial suppression motions could not form

the basis of an interlocutory appeal. The Court

noted that such matters were not severable

from the pending trial and, indeed, could

"vitally affect the result". (Id., at 127).

The Court further discussed the paramount

concern that piecemeal appeals and the

attendant delays and disruption were

"...especially inimical to the effective and fair

administration of the criminal law." (Id., at

126).

Petitioner submits that the instant case is

readily distinguishable by the very nature of

the harm which results from a delayed appeal.

To forestall appellate consideration of the

merits of a pre-trial piea of Doubie Jeopardy

undermines not only the historical significance

of the constitutional guarantee, but also serves

to cut the heart out of this portion of the Fifth

Amendment. An ex post facto verification of

such a plea fails to serve the express purpose

of protecting a defendant from being

subjected to successive trials. To delay

consideration of the merits of this unique

defense to an indictment results in the absolute

loss of its intended protections and guarantees.

The Ninth Circuit in the instant opinion

chose to classify pre-trial appeals alleging

Double Jeopardy violations with all other

pre-trial appeals, stating that aggrieved

defendants must await final judgment. This

was necessary, the Court concluded, to prevent

"an unduly expansive interpretation” of

28 United States Code § 1291. Petitioner

submits this opinion was ill-advised. The

considerations underlying the finality rule in

criminal cases must give way to the express

mandate of the Fifth Amendment's prohibition

In DiBella v. United States, 369 U.S. -16-

121 (1962), this Court determined that denial of

-15- ®

against Double Jeopardy, and pre-trial

appellate consideration of the merits of such

a plea is mandatory to ensure its preservation.

CONCLUSION

For all the reasons stated herein,

petitioner respectfully requests this Court to

grant the writ prayed for, and review the

decision below.

DATED: November 18, 1976

Ronald Dennis Young

ee

Assistance with the brief

ccm

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT |

>No. 75-3102

Rowatp Demons Youns, OPINION

Defendant-Appellant. ;

[October 19, 1976]

Appeal from the United States District Court

for the Southern District of California

Before: CHOY and WALLACE, Circuit Judges,

and RICHEY,® District Judge.

RICHEY, District Judge:

The question presented on this appeal is whether a district

court’s denial of a motion to dismiss an indictment is a final and

In 1974 appellant was convicted in federal district court of

conspiracy to possess with intent to distribute, and possession

with intent to distribute, cocaine under 21 U.S.C. §§841 (a) (1)

and .

for the District of Arizona, sitting by designation.

APPENDIX "A"

9

~

Umited States of America vs.

29, 1975. During the retrial, appellant filed two motions for

judgment of acquittal. Both were denied. The case was submitted

to the jury August 1. After the jury had deliberated for almost

two days, the court polled the jurors as to the likelihood of

reaching a unanimous verdict. The jurors responded that there

was no reasonable probability of reaching a verdict if given

additional time. Without objection from counsel, the court

declared a mistrial. Retrial was scheduled for August 20. On

August 12, appellant moved to dismiss the indictment on the

ground that further prosecution of the case would constitute a

violation of his fifth amendment guarantee againsi double jeop-

ardy. After consideration of appellant’s arguments, the district

court denied the motion. Appellant thereafter filed notice of

appeal from the orders of the district court denying the motions

for acquittal and the motion to dismiss the indictment. He

alleges jurisdiction in this Court pursuant to 28 U.S.C. §1291.

Title 28 U.S.C. § 1291 provides for jurisdiction “of appeals

from all final decisions of the district courts of the United

States.” In the context of a mistrial, the denial of a motion for

acquittal is not a final order. United States v. Carey, 475 F.2d

1019, 1021 (9th Cir. 1975); United States v. Kaufman, 311 F.2d

695, 698-699 (2d Cir. 1963). Therefore this Court is without jur-

isdiction to review the district court’s denial of the motions for

acquittal until final judgment is rendered. Similarly, as a gen-

eral rule the denial of a motion to dismiss an indictment is not

@ final order within the meaning of the statute. People of the

Territory of Guam v. Lefever, 454 F.2d 270 (9th Cir. 1972);

Kyle v. United States, 211 F.2d 912 (9th Cir. 1954). Thus, were

it not for appellant’s claim of double jeopardy, this case could

be disposed of by memorandum. However, several circuits re-

cently have carved out an exception to the general rule of final-

ity where a claim of former jeopardy is raised. Since the issue

is one of first impression in this Circuit, we examine the ques-

tion at some length.

Appellate review is not a constitutional entitlement. It is a

purely statutory right, and to avail oneself of that right, one

must satisfy the terms of the statute. Under 28 U.S.C. §1291,

the essential condition of review is that there be a “final deci-

sion” in the case. This prerequisite of finality is founded on the

long-standing policy of avoidance of piecemeai review: “Finality

Ronald Dennis Young .

i ’ tion to dismiss was

district court’s denial of appellant's mo s

on nah to Goan terminating the —— = co

Ht y* store v. United States, 302 U.S. 211, 212 (1937).

: ity bond was “separ-

The alleged right to the posting of a security y :

able from, and collateral to, rights eS oie mae

- anortant to be denied review and too ind - '

+ United States of America vs.

the district court’s order appealable because it was “a finai dis-

position of a claimed right which is not an ingredient of the

cause of action and does not require consideration with it.” 337

U.S. at 547.

In subsequent decisions the Court has made clear that the

Cohen doctrine should be iimited to those few situations where

the order appealed from is truly collateral to the main cause of

action and not subject to review on appeal from a final judg-

ment. In Parr v. United States, 351 U.S. 513 (1956), the Court

rejected appellant’s argument that the Cohen rationale should be

applied to allow appeal from a dismissal of an indictment. There

the government had obtained a second indictment in another

district and then moved for leave to dismiss the first indictment.

The district court granted the motion and defendant appealed.

Finding that the district court’s action was a step toward final

disposition of the case and would be merged in the final judg-

ment, the Court concluded that the order in question was not

appealable. 351 U.S. at 519-520."

The extension of the Cohen doctrine upon which appellant

relies and which we today reject is found in United States v.

Lansdown, supra. There the Fourth Circuit held that a district

court’s denial of a motion to dismiss an indictment based on a

claim of double jeopardy was a final and appealable order. In

the court’s view, the right asserted under the fifth amendment

met the criteria of the Cohen ruling: it was separable from the

main issue of guilt or innocence; it was constitutional in nature

1The narrow applicability of Cohen was recently made im

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), where the Court

held appealable a district court’s order imposing notice costs on the

plaintiff class. The two grounds for the Cohen holding were set forth:

(1) the order appealed from conclusively settled the rights at stake,

and (2) the order concerned a collateral matter which could not be

reviewed on final judgment. At 171. A decision from this Circuit

further illustrates the rigorous standard imposed by Cohen. In Higgins

v. United States, 205 F.2d 650 (9th Cir. 1953), we allowed appeal

from an order adjudging defendant incompetent to stand trial. There

we stated: “The order does not purport to merely refuse trial from

day to day at the convenience of the court or for a short period of

time to enable defendant to recover from a temporary upset. It is, in

nature, kind of order which would never be reviewed

Si

the on

appeal after trial.” At 652. See also Kyle v. United States, 211 F

912 (9th Cir. ).

Ronald Dennis Young 5

and, thus, too important to be denied review; and it would be

irreparably lost if zeview were not had before trial. 460 F.2d at

re i ye that to provide a defendant with the

| P ion of the guarantee against double jeopardy, the

decision as to whether jeopardy has attached a be reviewed

prior to any retrial? Lansdown has been adopted in three other

circuits. United States v. Barket, 530 F.2d 181 (8th Cir. 1975);

United States v. DeSilvio, 520 F.2d 247 (3d Cir. 1975); United

States v. Beckerman, 516 F.2d 905 (2d Cir. 1975).3

in United States v. Bailey, 512 F.2d 833 (5th Cir. 1975), the

Fifth Circuit refused to follow Lansdown. The court reasoned

that the presence of a double jeopardy claim did not transform

the trial court’s interlocutory order into a final decision.

But even if it were assumed that the second trial was for-

bidden as double jeopardy, that does not invest us with ju-

risdiction to vindicate such right. The Constitution does not

guarantee an appeal. That comes wholly from the statute.

. . . At least so long as a criminal case is pending, review

of such matters as, for example, unlawful search and seizure,

unlawfal arrest, unlawful detention, unlawful indictment,

unlawful confession, must await the trial and its outcome.

512 F.2d at 835, quoting from Gilmore v. United States, 264

F.2d 44, 46 (5th Cir. 1959).

We agree with the Fifth Circuit. Review of the district court’s

denial of appellant’s motion to dismias the indictment should be

postponed until final judgment is obtained. Unlike the defend-

ants’ request for an expense bond in Cohen, appellant’s claim of

double jeopardy does not concern a purely collateral matter.

*We note that the court expressly narrowed the applicability of its

holding “to that very small number of criminal cases in which a mic-

trial is declared against the wishes of the defendant.” 460 F.2d at 172.

. i the

holding Lansdown, but bowed to its own precedent, noting the

grant of certiorari June 14, 1976, in Abney v. United States

_. (3d Cir. Feb. 9, 1978). . a

6 United States of America vs.

Rather, it is a challenge to the validity of the prosecution itself.

The district court’s rejection of appellant’s claim was a step

toward final resolution of the main action. The constitutional

claim will be merged in the final judgment and may be reviewed

on appeal from that judgment.

In so holding, we do not overlook the unique nature of the

double jeopardy guarantee as compared to other constitutional

rights. Unlike a fourth amendment claim or a claim based on the

guarantee against self-incrimination, the double jeopardy claim

goes to the vary power of the government to bring an individual

into court to answer the charge against him. Menna v. New York,

423 U.S. 61 (1975); United States v. Wilson, 420 U.S. 332

(1975); Blackledge v. Perry, 417 U.S. 21 (1974). Denying review

at this time may subject appellant to a prosecution which the

government has no right to initiate. However, “[bjearing 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 constitu-

tional claim made by the accused in the process of prosecution

must await his conviction before its reconsideration by an appel-

late tribunal.” Cobbledick, supra, 309 U.S. at 325-326.

Moreover, denying interlocutory review of appellant’s double

jeopardy claim is consistent with early opinions from the Su-

preme Court. In Rankin v. The State, 78 U.S. (11 Wall) 380

(1870), the Court held that a state court’s rejection of defend-

ant’s plea of a prior acquittal for the same offense was not a

final judgment and, thus, not appealable. And in Heike v. United

States, 217 U.S. 423 (1910), the Court found non-appealable a

district court’s denial of defendant’s plea of immunity to fur

ther prosecution.*

Finally, we note that the delays and disruptions caused by

intermediate appeals are especially detrimental to the effective

administration of the criminal law. DiBella v. United States,

*In dicta the Court in Heiki remarked that a plea of double

jeopardy was likewise not appealable until final judgment. “[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

conviction or acquittal may be finally held to be a complete bar to any

right of prosecution. .. .” 217 U.S. 433.

Ronald Dennis Young T

su Rather than give 28 U.S.C. §1291 an unduly expansive

re smn on we prefer to limit aggrieved defendants to review

after final judgment, or, under exceptional circumstances, to

relief pursuant to the extraordinary writs.®

Appeal dismissed.

STitle 28, Rules of Appeilate Procedure, Rule 21. See, ¢.g., Goldman,

Sachs & Co. v. Edelstein, 404 F.2d 76 (2d Cir. 1974).

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