Petition — Naifeh v. United States

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Sup: ne (aur, U

| #FiLes

JUL 12 1979

Buihe Supreme court of the Wniied States —

OcTOBER TERM, 1979

ROBERT Z. NAIFEH,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES P. LINN, Esq.

and .

B. J. ROTHBAUM, Jr., Esq.

LINN, HELMS, KIRK & BURKETT

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

Attorneys for Petitioner

ROBERT Z. NAIFEH

July, 1979

——<ew ww ww wwe

UTTERBACK TYPESETTING CC.. } CKLAHCMA City. PH. 2385-0039 ,

TABLE OF AUTHORITIES

Cases PAGE

Abney v. United States, 431 U.S. 651

A: | Ean ER ee RRC Moreton. 1, 2, 3, 6, 7, 8, 9, 10, 11, 13, 14

Bellis v. United States, 417 U.S. 85 (1974) Sa 17

Carter v. Carter Coal Co., 298 U.S. 238 (1936) _.._. 11

Crist v. Bretz, _... US. ._.., 98 S.Ct. 2156 (1978) ——.. 14

Edwards v. California, 314 U.S. 160 (1941) _.....»\»>-—»s-_—s—“<€10

Helstoski v. Meanor, No. 78-546 (June 18, 1979)

47 U.S.L.W. 4708 - m _ _2, 10, 13, 14

Helvering v. Smith, 90 F. 2d 590 (2d Cir. 1937) eee 5

Jeffers v. United States, 432 U.S. 137 (1977) _...... 4, 17, 18

Launius v. United States, 575 F.2d 770 (1978) 9,15

Martinez v. United States, 562 F.2d 633 (10th Cir.

tee EAN ark Weare namely Mir Was ee a Dee 6

Menna v. New York, 423 U.S. 61 (1975) 15

North Carolina v. Pearce, 395 U.S. 711 (1969) 3

Rosenzweig v. United States, 299 F.2d 22 (Em.App.

1962), cert. denied, 369 U.S. 818 ____ Het a Poe sis WO she 16

Sanabria v. United States, 437 U.S. 54 (1978) 3,17

Serfass v. United States, 420 U.S. 377

(1975) . ea 7, 8, 9,11, 12, 14

United States v. A& P Alaa Company, 358 U.S.

UE EDS co cctapsbccesl eee. os i perke ceem are 15, 16

United States v. Covington, 320 U.S. 57 (1969) _... 9

United States v. Dotterweich, 320 U.S. 277 (1943) .. 16

United States v. Garcia, 589 F.2d 249 (5th Cir. 1979) 9

United States v. Helstoski, No. 78-349, 47 U.S.L.W.

ee Tee Ts Ne eke edecta sede ec es he 13

United States v. Inmon, 568 F.2d 326 (3rd Cir. 1977) 2

United States v. MacDonald, 435 U.S. 850, 98 S.Ct.

Bah. | SRM Nbr Neue ea sr ei ern toy Ms Me Sawer

United States v. Perez, 565 F.2d 1227 (2d Cir. 1977). 9,10

—iii—

AUTHORITIES CONTINUED PAGE

United States v. Robinson, 361 U.S. 220 (1960) _... 10

United States v. Sisson, 399 U.S. 267 (1970) ~ K 9

United States v. Slutsky, 322 F.Supp. 1105 (S. D. N. y.

+} Eh nae ee

United States v. United States Gypsum Company, . a

ee ee CAPD 16

United States v. White, 322 U.S. 964 (1944) 0. «17

Weingarten v. Universal C.I.T. Credit Corporation,

302 F.2d 1 (2d Cir. 1962) -......... 5

Western Laundry & Linen Rental Co. v. , United States,

424 F.2d 441 (9th Cir. 1970), cert. denied, 400 U.S.

849 - Sietaaeckepedveeciiae ETS ce aero 6, 15, 16

United States Constitution

SEAS One ee

Statutes

if S| i Cee eekohicocabaaipeastieve eae 3,9

an ssthctatenas drlimnemeteestnncebinnens 8, 11, 12, 13

Nee secinmenioretnnannaneenninienen 3

I aa ceuninl 4, 7,8, 10,11, 13, 14

Federal Rules of Criminal Procedure

SENN ea ener siistdarinegte AE AEA REA 2,4,9

ERE SE SRE 4,10

Federal Rules of Appellate Procedure

NS Se OM Ae

Treatise

15 Wright and Miller, Federal Practice and Procedure,

EEE, SRS eee EN 13

Miscellanevus

Rule 16, Rules of Court of Saclem for the Tenth

a. i a AE EPO Ore TOO 2

In the

Supreme Court of the United States

OCTOBER TERM, 1979

ia CRO z

ROBERT Z. NAIFEH,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

INTRODUCTION

Petitioner, Robert Z. Naifeh, respectfully prays that

this Court review the jurisdictional dismissal entered by

the Court of Appeals for the Tenth Circuit, dismissing Mr.

Naifeh’s appeal from an order of the District Court for the

Western District of Oklahoma which denied his motion to

dismiss an indictment charging a vioiation of the Sherman

Act. The ground for the motion to dismiss was that the in-

dictment shows on its face it is barred by the Double Jeop-

ardy Clause of the Fifth Amendment. The Court of Ap-

peals ruled it had no jurisdiction to review the District

Court’s order denying Mr. Naifeh’s motion to dismiss the

indictment on double jeopardy grounds, holding that the

principle announced in Abney v. United States, 431 US.

en

651 (1977), was inapplicable in this case because a jury

had not yet been formally sworn and, thus, jeopardy had

not formally “attached.” This jurisdictional dismissal! pre-

sents important questions concerning what one Court of

Appeals has described as “the procedural consequences of

the rule of Abney,” United States v. Inmon, 568 F.2d 326,

329 (3rd Cir. 1977) (cf., Helstcski v. Meanor, No. 78-546

(June 18, 1979), 47 U.S.L.W. 4708, 4710 n.4). The dismis-

sal below has the potentional to transform the apparently

clear rule announced in Abney into a jurisdictional quag-

mire; to create a serious conflict between the require-

ments for presenting pre-trial motions set forth in Rule

12, Federal Rules of Criminal Procedure and the jurisdic-

tional time-bar of Rule 4(b) of the Federal Rules of Ap-

pellate Procedure for taking an appeal from a “final de-

cision” of a District Court; and appears to place defense

counsel in a position of tension between his duty to rep-

resent his client and his professional responsibility to the

trial court.

Apparently agreeing that its holding raises a substan-

tial question, the Court of Appeals took the distinctly non-

routine step of staying its mandate pending final dispo-

sition of the instant petition for certiorari by this Court

(App. A, p. A-4). (See, Rule 16 of the Rules of the Court

of Appeals for the Tenth Circuit regarding such stays.)

OPINION BELOW

The opinion of the Court of Appeals, the Court’s order

on rehearing, and the order of the. District Court for the

Western District of Oklahoma, appear as Appendix A

hereto.

a ae

JURISDICTION

The judgment of the Court of Appeals was entered on

May 15, 1979. A timely petition for rehearing was granted

to the extent of amending the form of the judgment, and

otherwise denied, on June 15, 1979. The jurisdiction of this

Court rests upon 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. The jurisdictional dismissal of Mr. Naifeh’s appeal

presents a question which comes to this: When the vice of

double jeopardy inheres in the indictment itself, is an ap-

peal from the denial of a motion to dismiss that indictment

within the scope of the principle announced by this Court

in Abney v. United States, 431 U.S. 651 (1977)? Put a

slightly different way: was the Court of Appeals in error

in holding that the double jeopardy question in this case

could not be decided until (at least) petitioner had fol-

lowed the highly disruptive course of re-urging the ques-

tion after a jury had been empaneled and sworn in the

District Court?

2. Does an indictment charging a conspiracy to vio-

late the Sherman Act, 15 U.S.C. §1, naming as defendants

both a family-owned partnership composed of two broth-

ers, and one of the brothers individually, violate the Double

Jeopardy Clause of the Fifth Amendment by impermis-

sably doubling the quantum of punishment for an alleged

Sherman Act violation which Congress has defined, see,

Sanabria v. United States, 437 U.S. 54, 69-70 (1978), and

by subjecting the defendant to “multiple punishments for

the same offense”, North Carolina v. Pearce, 395 U.S. 711,

var ee

717 (1969); Jeffers v. United States, 432 U.S. 137, 150-151

(1977)?

3. If so, does the action of the Government in seek-

ing a severance of the family-owned partnership, and its

immediate trial— while this appeal was pending in the

Court of Appeals — constitute an election which bars the

Government from now trying Mr. Naifeh?

CONSTITUTIONAL AND, STATUTORY

PROVISIONS AND FEDERAL RULES

OF PROCEDURE INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides in pertinent part:

“Nor shall any person be subject for the same of-

fense to be twice in jeopardy of life or limb; .. .”

28 U.S.C. §1291 provides in pertinent part:

“The Courts of Appeals shall have jurisdiction of

appeals from all final decisions of the District Courts

of the United States... .”

Federal Rule of Criminal Procedure 12(b) and 12(f) pro-

vide in pertinent part:

“Any defense . . . which is capable of determina-

tion without the trial of the general issue may be

raised before trial on motion. . . . The following must

be raised prior to trial: ... (2) defenses or objections

based on defects in the indictment ...;... Failure by

a party to raise defenses or objections or to make re-

quests which must be made prior to trial . . . shall

constitute waiver thereof, .. .”

allie

Federal Rule of Appellate Procedure 4(b) provides in pert-

inent part:

“In a criminal case the notice of appeal by a de-

fendant shall be filed in the District Court within ten

days after the entry of the judgment or order appealed

from.”

STATEMENT OF THE CASE

On December 7, 1978, an indictment charging a con-

spiracy to violate Section 1 of the Sherman Act, 15 U.S.C.

$1, was returned by a grand jury empaneled within the

Western District of Oklahoma against four defendants:

Central Liquor Company, a two-brother partnership in

which Robert Z. Naifeh is the principal partner, and Rob-

ert Z. Naifeh individually; Jarboe Sales Company, a small

partnership in which Louis Abraham, Jr. is a partner, and

Louis Abraham, Jr. individually.

The District Court required all pre-trial motions to be

filed by December 27, 1978. On that date Mr. Naifeh filed

a motion to dismiss the indictment as to him on double

jeopardy grounds. The core of the dismissal motion was

that the Government had brought an alter ego indictment

by indicting both Central and Mr. Naifeh. Mr. Naifeh con-

tended that such an indictment was vitiated by the Double

Jeopardy Clause of the Fifth Amendment since the effect

of the indictment was to indict Central because Central is

Mr. Naifeh, and to indict Mr. Naifeh because he is Central.

Under the general federal rule that a partnership is merely

an aggregation of its members, see, Weingarten v. Uni-

versal C.1.T. Credit Corporation, 302 F.2d 1 (2d Cir. 1962),

Helvering v. Smith, 90 F.2d 590, 591 (2d Cir. 1937) (L.

a

Hand, J.), it necessarily followed that the indictment was

duplicitous and barred by the Double Jeopardy Clause be-

cause, in effect, Mr. Naifeh had been indicted twice for the

same offense.

The District Court heard all pre-trial motions on Jan-

uary 4, 1979.

At that time, the District Court overruled Mr. Nai-

feh’s motion to Cismiss the indictment on double jeopardy

grounds. The District Judge stated his opinion to be that

Mr. Naifeh’s motion seemed well taken. The District Judge

observed that, as an original proposition, counsel for the

defense would “have no difficulty . . . persuading me that

we have double jeopardy here... .” (Tr. pp. 19-20). The

District Judge stated that he, nevertheless, felt constrained

to overrule the motion to dismiss in light of the prevailing

opinion of a divided panel of the Court of. Appeals in

Western Laundry & Linen Rental Co. v. United States, 424

F.2d 441 (9th Cir. 1970), cert. denied, 400 U.S. 849. Id. The

District Court noted, in its order overruling the motion to

dismiss, that the ruling on the double jeopardy question

was a final order and was immediately appealable to the

Court of Appeals' (App. A, p. A-6).

At no time in the proceedings in the District Court

did the Government question Judge Eubanks’ ruling that,

under this Court’s decision in Abney v. United States,

1 Indeed, Judge Luther B. Eubanks, the Judge who heard the defense

motions in this case recessed the hearing in order to confer with an-

other Judge of the Western District of Oklahoma, Judge Ralph G.

Thompson, with regard to procedural matters relating to a double jeop-

ardy a which had recently been before J Thompson and which

was on immediate to the Court of Appeals. See, Martinez

V. United States, 562 F.2d 633 (10th Cir. 1977).

ilies

supra, his denial of the motion to dismiss on double jeop-

ardy grounds was an immediately appealable final order.

Petitioner took a timely appeal to the Court of Ap-

peals. The double jeopardy question was elaborately briefed

on the merits.

In its brief on appeal, the Government, in addition to

responding on the merits, suggested for the first time that

there was a question as to the appealability of the District

Court’s order. The Government suggested that since the

Double Jeopardy Clause claim appeared to be directed pri-

marily to the question of multiple punishment for the same

offense, rather than sequential trials, the appeal was not

within the scope of the principle announced in Abney.

Petitioner vigorously disputed the Government’s theory

in his reply brief in the Court of Appeals, and it is, we

believe, significant that the Court of Appeals aid not accept

the Government’s suggested distinction. Rather, the Court,

sua sponte, noted that this Court had held in Serfass v.

United States, 420 U.S. 377 (1975) (in the context of a

government appeal) that jeopardy did not “attach” at the

pre-trial stage of a criminal proceeding so as to bar the

Government’s right to appeal. The Court believed that the

Serfass requirement applied the subsequent holding in

Abney with regard to defendant’s appeals under 28 U.S.C.

$1291. The Court agreed that the language of the Abney

opinion did not place such a limitation upon petitioner’s

right to appeal. The Court held, nevertheless, that this lim-

itation was implicit in the facts of Abney. The Court did

not discuss the fact that Serfass presented the question of

“attachment of jeopardy” in the opposite context than it is

presented here. In Serfass, the question was whether jeop-

ailbinis

ardy had sufficiently “attached” so as to prevent an appeal

by the Government under 18 U.S.C. §3731; in the instant

case, the question is whether a defendant may appeal under

28 U.S.C. §1291 as interpreted in Abney.

The Court of Appeals, nevertheless, concluded that

since Mr. Naifeh had not yet stood before the trier of fact,

Serfass required that the appeal be dismissed as prema-

ture’ (App. A, pp. A-2, A-3).

The Court of Appeals stayed its mandate pending final

disposition of this petition for certiorari (App. A, p. A-4).

REASONS FOR GRANTING THE WRIT

1. The jurisdictional dismissal of Mr. Naifeh’s motion

to dismiss on double jeopardy grounds entered by the Court

of Appeals presents an important question in the admini-

stration of federal criminal justice which will, doubtless,

recur, absent an authoritative ruling from the Court as to:

(a), the scope of the rule announced in Abney v. United

States, 431 U.S. 651 (1977) and (b), the consequences of

Abney’s holding that an order of a District Court over-

ruling a plea of double jeopardy is a final, and thus im-

mediately appealable, decision within the scope of Rule

4(b), Federal Rules of Appellate Procedure. The dismissal

below reminds once again that

“[c]larity is to be desired in any statute, but in

matters of jurisdiction it is especially important. Other-

* The Court of A ’ opinion of May 15, stated that the District

Court’s denial of the motion to dismiss the indictment was “affirmed.”

After petitioner, in his petition for rehearing, called attention to this

language, the Court of Appeals amended the judgment to state that

the appeal was “dismissed” (Order of June 15, 1979, App. A, p. A-4).

—I—

wise the courts and the parties must expend great

energy, not on the merits of dispute settlement, but

on simply deciding whether a court has the power to

hear a case.” Serfass v. United States, 420 U.S. 377,

384 (1975), quoting, United States v. Sisson, 399 U.S.

267, 307 (1970).

The jurisdictional dismissal entered below cannot be satis-

factorily reconciled with the construction which the Court

of Appeals for the Fifth Circuit has given to the principle

announced in Abney in United States v. Garcia, 589 F.2d

249, 250-251 (5th Cir. 1979). There, the Fifth Circuit flatly

stated that, even though it determined on the merits that

sufficient jeopardy had not “attached” to bar the Govern-

‘ment from proceeding to trial on a superseding indictment,

“the [District] Court’s order [overruling the motion to dis-

miss the indictment on double jeopardy grounds] is appeal-

able.” 589 F.2d at 250.

And, insofar as the dismissal below draws a constitu-

tional distinction between sequential jeopardy and simul-

taneous jeopardy, it is substantially inconsistent with the

holding of the Court of Appeals for the Ninth Circuit that

there is “no basis for such a distinction.” Launius v. United

States, 575 F.2d 770, 771 (1978).

More fundamentally, the jurisdictional dismissal of the

appeal entered by the Court of Appeals, when considered

in conjunction with: (1) the requirements of Rule 12 of

the Federal Rules of Criminal Procedure governing the

presentation of defenses which can be determined “with-

out the trial of the general issue”, see, United States v.

Covington, 395 U.S. 57, 60-61 (1969), and which may well

be waived if not presented prior to trial, see, United States

a

v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977) (double jeop-

ardy claim subject to waiver under Rule 12(f)); (2) the

holding of this Court in Abney v. United States, that a

decision of a District Court denying a motion to dismiss on

double jeopardy grounds is a “final decision” within the

. meaning of 28 U.S.C. §1291 which is immediately appeal-

able and (3) the “mandatory and jurisdictional”, United

States v. Robinson, 361 U.S. 220, 224, 229 (1960), require-,

ment of Rule 4(b) of the Federal Rules of Appellate Pro-

cedure that ih a criminal case a notice of appeal must be

filed within ten days from the date of the judgment or

order appealed from or be jurisdictionally time barred, see,

Helstoski v. Meanor, supra, No. 78-546, 47 U.S.L.W. 4708,

4710 n.4, threatens to create an insoluble jurisdictional di-

lemma. The effect may well be to turn the guaranty of

the Double Jeopardy Clause, and the principle of appellate

review announced in Abney, into

“a promise to the ear to be broken to the hope, a teas-

ing illusion like a munificent bequest in a pauper’s

will.” Edwards v. California, 314 U.S. 160, 186 (1941)

(Jackson, J., concurring).

The court below has decided a major question under

the Double Jeopardy Clause, and has, we firmly believe,

decided it erroneously. That question, in essence, is whether

the concept of “attachment of jeopardy” is the sine qua

non for appellate jurisdiction under 28 U.S.C. §1291 as in-

terpreted in Abney v. United States, supra, when a de-

fendant is seeking to appeal from an order of the District

Court denying his motion to dismiss. The Court of Appeals

held that it is, apparently on the theory that since “attach-

ment of jeopardy” is a crucial question in determining

aidilinis

whether the Government will be allowed to take an appeal

under the Criminal Appeals Act, 18 U.S.C. §3731, it is an

equally crucial question in deciding whether a defendant

will be allowed to appeal from a motion to dismiss pre-

senting a double jeopardy question under 28 U.S.C. §1291.

The jurisdictional dismissal of the court below is, thus,

based upon a holding that the concept of “attachment of

jeopardy” is fungible. This is a fundamental error, an error

caused, we believe, by overlooking the reminder of a great

Justice that a principle of constitutinal law “is not sus-

ceptible of comprehensive statement in an adjective.” Car-

ter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (Cardozo,

J., dissenting). The disposition below presents an important

question which has not been, but should be, reviewed, and

corrected, by this Court.

The holding below is wrong both in principle and in

practical effect. It requires a ritualistic, senseless waste of

the energies of the defendant, the Government and the trial

court, a ritual which benefits no one, not the defendant, not

the Government and certainly not the District Court.

Indisputably, Serfass v. United States, supra, was cor-

rectly decided. But Serfass is simply irrelevant here.*

Government appeals, as the Court has recently said, do

3 Indeed, even the Government did not suggest to the Court of Appeals

that the Serfass rationale had any relevance here. The Court invoked

Serfass sua sponte. The Government's theory — that petitioner should

not be allowed to appeal the double jeopardy question here at all prior

to verdict — is simply an reronyg <A to limit the principle announced in

Abney to the facts of that case. The Government's argument was essen-

tially the same as its argument in Abney, that is, a double jeopardy

plea, if god, can always be the basis for an appeal in the event of an

unfavorable verdict and becomes moot in the event of a favorable ver-

dict. See, Abney v. United States, No. 75-6521, O.T., 1975, Brief for

the United States, pp. 39-47. The argument did not prevail in Abney

and should not prevail here.

inl.

not have “anything whatsoever to do with a defendant’s

right to appeal the denial of a motion to dismiss the in-

dictment .. .” United States v. MacDonald, 435 U.S. 850,

98 S.C*. 1547, 1550 n.5 (1978). While the context of Mac-

Donald was different from that herein, the basic premise —

that the two issues are not interchangeable — is the same.

The important question posed in this case is the op-

posite of the question posed in Serfass. Here, the Court of

Appeals, has held that formal “attachment of jeopardy”,

in the sense at least of formally swearing a jury, is a

jurisdictional precondition which must be met before a

defendant will be allowed to receive appellate considera-

tion of his double jeopardy claim, even when the vice of

double jeopardy is apparent on the face of the indictment.

Serfass simply gives no support to this theory, nor does it

cast any light upon the important Double Jeopardy Clause

considerations which are at issue here. As The Chief Justice

was careful to observe in his opinion in Serfass, that case

dealt only with the use of the Double Jeopardy Clause as

a bar to prevent an appeal by the Government under the

Criminal Appeals Act. And The Chief Justice guarded the

Serfass holding as well as language will allow, stating:

“We hold only that the Double Jeopardy Clause

does not bar an appeal by the United States under 18

U.S.C. §3731 with. respect to a criminal defendant who

has not been ‘put to trial before the trier of the facts,

whether the trier be a jury or a judge’.” Serfass v.

United States, 420 U.S. 377, 394 (1975) (emphasis ad-

ded; citation omitted).

There is no indication in this precisely-worded hold-

ing that the Court in Serfass intended that decision to

a

function as a cleaver to carve an implied exception out of

the subsequent holding two Terms later in Abney. The

contrary view of the Court of Appeals cannot be recon-

ciled with this Court’s emphasis only last Term on the

lack of any congruence between a government appeal un-

der 18 U.S.C. §3731 and a defendant’s appeal under 28

U.S.C. §1291. United States v. MacDonald, supra, 435 U.S.

850, 98 S.Ct. 1547, 1550 n.5 (1978). Compare, Helstoski

v Meanor, No. 78-546, 47 U.S.L.W. 4708, 4709-4710 (June

18, 1979) (28 US.C. §1291) with, United States v. Hel-

stoski, No. 78-349, 47 U.S.L.W. 4710, 4712 and n.6 (June

18, 1979) (18 U.S.C. §3731).

Abney itself certainly appears to have been written

with a view to avoiding exactly the sort of fact-specific

focus on each particular appeal under the Double Jeopardy

Clause which the decision below would require. Abney has

been so understood by scholarly commentators on federal

jurisdiction. See, 15 Wright and Miller, Federal Practice

and Procedure, $3918 (1978 Supp.):

“The Abney decision is written in terms that ap-

pear to cover all motions to dismiss on double jeopardy

grounds ... [because] immediate appeal provides the

only effective protection of the important purpose of

the double jeopardy guaranty to insulate not only

against conviction, but also against the personal strain,

public embarrassment and expense of an improper

criminal trial.” (emphasis added).

An improper criminal trial is precisely what petitioner

herein seeks to prevent. See also, Pelstoski v. Meanor,

supra, No. 78-546, 47 U.S.L.W. 4708, 47.9 and n.4 (June

18, 1979). As the decision in Helstoski vividly demonstrates,

_ we

“clarity in matters of jurisdiction” is vital. Confusion on

a jurisdictional issue can readily result, as it did in Hel-

stoski, in denial of any appellate review of important con-

stitutional claims.

The jurisdictional dismissal entered by the Court of

Appeals imports uncertainty in an area where clarity is

essential. And, additionally, it forces the parties and the

trial court to expend great effort in a meaningless ritual

before the merits of the double jeopardy question can be

adjudicated. The question of whether such a procedure

should be required is an obviously important one which

has not been previously addressed by the Court.

In this regard, we have carefully examined the briefs

filed in this Court by both the petitioner and the Govern-

ment in Serfass v. United States, No. 73-1424, O.T. 1973,

and the briefs filed by the petitioner and the Government

in Abney v. United States, No. 75-6521, O.T. 1976. In none

of the briefs of the petitioners or the Government in those

cases is the question here presented discussed. The same

is true with respect to the briefs of the parties, and of the

United States, as amicus curiae, on argument and reargu-

ment, in Crist v. Bretz, No. 76-1200, O.T. 1976. The reason

is simply that none of those cases presented facts raising

the question which is presented by the facts here, and by

the dismissal below.

This case, thus, involves substantial and important

questions involving the Double Jeopardy Clause, 28 U.S.C.

$1291, Rule 12 of the Federal Rules of Criminal Procedure,

and Rule 4(b) of the Federal Rules of Appellate Proced-

ure, which have not previously been addressed by this

Court, and which should not go without plenary review.

-

2. The double jeopardy question presented in this

case, to-wit, whether an indictment for alleged conspiracy

to violate the Sherman Act naming as defendants both a

family-owned partnership and one of the family members,

individually, offends the Double Jeopardy Clause, is, obvi-

ously, an important one. However, since the question was

not addressed on the merits by the Court of Appeals, this

Court may wish to remand the case for consideration of

this question by the Court of Appeals before resolving it.

The issue has never been addressed by this Court. The

only Court of Appeals which has considered the issue di-

vided 2-1 as to whether the Double Jeopardy Clause pro-

scribed such an indictment. Western Laundry & Linen

Rental Co. v. United States, 424 F.2d 441 (9th Cir. 1970)

cert. denied, 400 U.S. 849; compare, Id. at 445 (Hufstedler,

J., concurring specially in the result).4 The two judges who

comprised the majority in Western Laundry believed this

Court’s decision in United States v. A& P Trucking Com-

pany, 358 U.S. 121 (1958) required a holding that such

an indictment did not violate the Double Jeopardy Clause.

See, 424 F.2d 441, 444. This is plainly incorrect. No con-

stitutional question of =ny kind was presented in A&P,

and the A&P Court specifically noted that, “[h]jere the

Government does not seek to hold the individual partners,

but only the partnerships as entities.” United States v.

+ Judgé Hufstedler dissented on the double j dy question. Her con-

currence was based on the belief that the individual defendant in the

case had waived his right to a determination of the double jeopard

issue by pleading molo contendre. As the Ninth Circuit has recognized,

this Court's subsequent decision in Menna v. New York, 423 US. 61

(1975), is inconsistent with that view, and the statements in Judge

Hufstedler’s concurrence regarding waiver have been disapproved. Laun-

ius V. United States, 575 F.2d 770, 771; n.2 (9th Cir., 1978).

—16—

A & P Trucking Company, supra, 358 U.S. at 126, n.6 (em-

phasis added).

The sole question in A&P was whether a trucking

partnership could be held to answer, alone, for a violation

of a regulatory misdemeanor provision of the Motor Car-

rier Act. A felony indictment of both partnership and part-

ner under the Sherman Act presents very different issues

from the narrow question presented in A & P. Cf., United

States v. Dotterweich, 320 U.S. 277 (1943), a case relied

upon in A & P. The Court has recently taken pains to em-

phasize that the Dotterweich line of regulatory misde-

meanor cases is inapplicable to a felony prosecution under

the Sherman Act. United States v. United States Gypsum

Company, _... U.S. ...., -..., 98 S.Ct. 2864, 2872-2876 and

n.18 (1978). Moreover, the Government itself has success-

fully argued that the rationale of A & P is limited to the

“purposes of the law involved in that case.” Rosenzweig v.

United States, 299 F.2d 22, 27 (Em.App. 1962) (Maris, J.),

cert, denied, 369 U.S. 818, a decision which simply cannot

be reconciled with the reasoning of the Western Laundry

majority.

The question presented is of obvious importance to

both petitioner and the Government. As the Government

itself noted in its brief in the Court of Appeals “there are

approximately 1,062,000 partnerships in the United States

having gross annual receipts of $139,000,000,000.” (Brief for

the United States, United States v. Naifeh and Abraham,

No. 79-1017 and 79-1018, Tenth Circuit, p. 8.) Since the

Double Jeopardy Clause has as one of its most important

functions insuring that prosecutors do not impose greater

punishment for an offense than that intended by Congress,

=

see, Sanabria v. United States, 437 U.S. 54, 69-70 (1978)

and Jeffers v. United States, 432 U.S. 137 (1977) (plurality

opinion) (double punishment), the question of whether the

Government may indict both a family-owned partnership

and one of its individual partners for the same offense is

plainly one going to the core of Double Jeopardy Clause

concerns. The question is particularly important in the con-

text of a family partnership such as Central. Central’s only

partners are Mr. Naifeh and his brother. Its only other

partners since its inception were Mr. Naifeh’s mother and

father.

The Court has recognized that such small family-unit

proprietorships may well be different from any others for

purposes of constitutional analysis, Bellis v. United States,

417 U.S. 85, 101 (1974), citing, United States v. Slutsky,

322 F.Supp. 1105 (S.D.N.Y., 1972) (two-brother partner-

ship); see generally, United States v. White, 322 U.S. 964,

701 (1944). The question should either be remanded to the

Court of Appeals for an initial determination or decided

on the present petition by this Court.

3. If the Double Jeopardy Clause does forbid the in-

Stant indictment, the Government's conduct in seeking a

severance of the partnership defendants from the individ-

ual partners, and attempting to bring the partnerships to

immediate, separate trial — while the double jeopardy ques-

tion was pending in the Court of Appeals — should be held

to constitute an election by the Government which requires

it to try the partnerships only. The Government’s election

was made by a responsible official, the Chief of the Re-

gional Office of the Antitrust Division, and was formally

communicated to the Chief Judge for the Western District

iil

of Oklahoma by letter (App. B, pp.1-2). The Government

must have been aware, at the time it wrote the letter to

the Chief Judge for the Western District of Oklahoma seek-

ing the severance, that a favorable ruling thereon would

bar trial of the individual partners in the event the part-

ner’s appeal on double jeopardy grounds was successful.

There is no sound reason why the Government should not

be bound by its election, as the defendants would be if the

motion for severance had come from the defense. See, Jef-

fers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 2217

(1977).

We note in closing that issues such as these simply re-

emphasize the need for clarity in an area where the de-

cision below had injected confusion.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES P. LINN, Esq.

and

B. J. ROTHBAUM, Jr., Esq.

Linn, HeLMs, KirK & BURKETT

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

Attorneys for Petitioner

ROBERT Z. NAIFEH

July, 1979

eet 2 ms

CERTIFICATE OF SERVICE

| This is to certify that the undersigned has mailed three

(3) copies of the foregoing Petition for a Writ of Certiorari

in conformity with Rule 33 of the Supreme Court Rules to:

Hon. Wade H. McCree, Solicitor General

Office of the Solicitor General

U.S. Department of Justice

Washington, D.C. 20530

ee GO we

, 1979, with postage fully

prepaid thereon.

APPENDIX A

NOT FOR ROUTINE PUBLICATION

FILED

United States Court of Appeals

Tenth Circuit

MAY 15 1979

HOWARD K. PHILLIPS

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 79-1017, 79-1018

UNITED STATES OF AMERICA, )

) Appeal From The

Appellee, ) United States

Vv ) District Court For

) The Western District

of Oklahoma

(D.C. + CR-78-

LOUIS ABRAHAM, JR. and )

)

) 00215-E)

)

ROBERT Z. NAIFEH,

Appellants.

Tom L. Armstrong, of Dyer, Powers, Marsh, Turner &

Armstrong, Tulsa, Oklahoma, for Appellant, Louis Abra-

ham, Jr.

B. J. Rothbaum, Jr., Oklahoma City, Oklahoma (James P.

Linn, Oklahoma City, Oklahoma, and Linn, Helms, Kirk &

Burkett, Oklahoma City, Oklahoma, of Counsel, with him

on the Brief), for Appellant, Robert D. Naifeh.

Peter L. de la Cruz, Attorney, Department of Justice, Wash-

ington, D.C. (John H. Shenefield, Assistant Attorney Gen-

eral, Barry Grossman, Attorney, Department of Justice,

Washington, D.C., and Barry F.’ McNeil and J. Michael

A-2

(APPENDIX)

_ Weston, Attorneys, Department of Justice, Dallas, Texas,

with him on the Brief), for Appellee.

Before SETH, Chief Judge, MARKEY* and HOLLOWAY,

Circuit Judge.

*Honorable Howard T. Markey, Chief Judge, United States

Court of Customs and Patent Appeals, sitting by designa-

tion.

PER CURIAM.

These appeais present double jeopardy questions which

are not ripe for review. On December 7, 1978, the grand

jury empaneled within the Western District of Oklahoma

handed down a one-count indictment which charged the

appellants and their respective partnerships with criminal

violations of section 1 of the Sherman Act, 15 U.S.C. § 1.

The individuals, who are the appellants here, filed mo-

tions to dismiss the indictment on double jeopardy grounds.

In these motions to dismiss and on appeal, appellants argue

that if both the partner and his partnership were convicted,

the partner would be subject to double punishment in that

the partner would have to pay his personal fine as well as

all or a share of the fine assessed against his partnership.

The district court denied appellants’ motions to dismiss,

and they bring these appeals.

The Government contends that the district court’s or-

der overruling a motion to dismiss on double jeopardy

grounds was proper as the defendant has not been put on

trial for the first time. It seems apparent that to support

a double jeopardy challenge, jeopardy must have attached

at some stage of the proceedings. Illinois v. Somerville, 410

U.S. 458; United States v. Rich, 589 F.2d 1025 (10th Cir.);

see Collins v. Loisel, 262 U.S. 426, 429. The Supreme Court

in Serfass v. United States, 420 U.S. 377, stated:

A-3

(APPENDIX)

“The Court has consistently adhered to the view

that jeopardy does not attach, and the constitutional

prohibition can have no application, until a defendant

is ‘put to trial before the trier of the facts, whether the

trier be a jury or a judge.’ 420 U.S. at 388 (empha-

sis added).

Since the defendant must first be put in jeopardy before a

claim can be made that the double jeopardy clause is vio-

lated, these appellants, who have yet to be put in jeopardy

for the first time, cannot advance a double jeopardy chal-

lenge.

The appellants rely on certain language in Abney v.

United States, 431 U.S. 651, as support for their contention

that this court must decide these double jeopardy ques-

tions. They correctly point out the issue addressed by the

Supreme Court:

“We granted certiorari to determine whether a pre-

trial order denying a motion to dismiss an indictment

on double jeopardy grounds is a final decision within

the meaning of 28 U.S.C. $1291, and thus immedi-

ately appealable.” 431 U.S. at 653.

They argue that since the Supreme Court did not recite

that the defendant must first be put in jeopardy for such

an appeal, the contention that jeopardy must attach before

double jeopardy may be challenged on appeal is incorrect.

It is apparent that the Court in Abney was confronted

by a case where the defendant had already been put on

trial and was appealing prior to a subsequent prosecution

for the same indictment. The Court in Abney expressly

held that the threat of a subsequent trial was so severe

that a defendant may appeal a double jeopardy challenge

prior to that second trial. 431 U.S. at 660-62. See National

Broadcasting Co. v. Niemi, 434 U.S. 1354, 1355.

We affirm the district court’s overruling of the appel-

lants’ motions to dismiss the indictment.

A4

(APPENDIX)

MAY TERM — JUNE 15, 1979

Before The Honorable Oliver Seth, Chief Judge, The Hon-

orable Howard T. Markey, Chief Judge, U.S. Court of Cus-

toms and Patent Appeals*, and The Honorable William J.

Holloway, Jr., Circuit Judge.

*Sitting by Designation.

“UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

vs. ) No. 79-1017

) 79-1018

LOUIS ABRAHAM, JR., and )

ROBERT Z. NAIFEH, )

Defendant-Appellants. )

This matter comes on for consideration of appellants’

petition for rehearing in the captioned cases, or in the al-

ternative, for clarification of the judgment, and for stay of

mandate pending certiorari.

Upon consideration whereof, the Court orders:

1, The judgments of this Court in the captioned cases

are amended to state “The appeal is dismissed.”

2. The petition for rehearing is otherwise denied.

3. The mandates in these cases are stayed to and in-

cluding July 15, 1979 pending timely filing of petitions for

writ of certiorari. If on or before that date there is filed

with the Clerk of the Court of Appeals, a notice from the

Clerk of the Supreme Court of the United States that ap-

pellant has timely filed a petition for writ of certiorari in

the Supreme Court, the stay shall continue until final dis-

position by the Supreme Court.

HOWARD K. PHILLIPS, Clerk

s}. Robert L. Hoecker

By:

Robert L. Hoecker

Chief Deputy Clerk

A-5

(APPENDIX)

FILED

JAN 17 1979

Herpert T. Hopz

CierK, U. $. District CouRT

By Debora R. Kirby

DEPUTY

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

Plaintiff, )

)

Vv. )

) No, CR-78-00215E

CENTRAL LIQUOR COMPANY; )

JARBOE SALES COMPANY; )

LOUIS ABRAHAM, JR.; and )

ROBERT Z. NAIFEH, )

Defendants. )

ORDER OVERRULING MOTION TO DISMISS

INDICTMENT ON FIFTH AMENDMENT GROUNDS

The individual Defendants herein, Robert Z. Naifeh

and Louis Abraham, Jr., have each filed a Motion to Dis-

miss the instant indictment as to each of them as individ-

uals. The asserted ground for said Motion to Dismiss is that

the indictment of both a partner in a partnership, and the

partnership, for the same cffense places the partner in

double jeopardy and in jeopardy of double punishment in

violation of the Fifth Amendment to the Constitution of

the United States.

The Government has filed a responsive brief in oppo-

sition to each of the Motions to Dismiss of the individual

Defendants.

The Court has heard oral argument upon the Defend-

ants’ Motions and the Government’s response thereto.

A-6

(APPENDIX)

Based upon the Court’s understanding of the holding

of United States v. A&P Trucking Co., 358 U.S. 121, 79

S.Ct, 203, 3 L.Ed. 2d 165 (1968), as interpreted by the pre-

vailing opinion of the Court of Appeals in Western Laun-

dry and Linen Rental Co. v. United States, 424 F.2d 441

(9th Cir. 1970), cert. denied, 400 U.S. 849, the Court holds

that the Motions to Dismiss on double jeopardy grounds

filed by the Defendants Naifeh and Abraham must be

overruled. While it appears that Defendants’ arguments in

favor of dismissal are supported by the specially concur-

ring opinion of Judge Hufstedler in the Western Laundry

and Linen Rental Co. case, the Court feels bound to follow

the interpretation contained in the majority opinion of

Judge Madden in said case.

The Court recognizes that under the decision of the

Supreme Court in Abney v. United States, 431 U.S. 651, 97

S.Ct. 2034, 52 L.Ed. 2d 651 (1977) and the Court of Ap-

peals for the Tenth Circuit in United States v. Martinez,

562 F.2d 633 (10th Cir. 1977), this Order is a final decision

within the meaning of 28 U.S.C. §1291 and therefore, ap-

pealable to the Court of Appeals for the Tenth Circuit.

s/ Luther B. Eubanks

LUTHER B. EUBANKS

UNITED STATES DISTRICT JUDGE

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

ANTITRUST DIVISION

Dallas Office

1100 Commerce Street Room 8C6

Dallas, Texas 75242

February 15, 1979

Honorable Frederick A. Daugherty

Chief Judge, Western District of Oklahoma

Room 3321, U.S. Courthouse

200 N.W. Fourth St.

Oklahoma City, Oklahoma 73102

Re: United States v. Central Liquor Co.,

Jarboe Sales Co.; Louis Abraham, Jr.;

Robert Z. Naifeh; CR: 78-00215-E

Dear Judge Daugherty:

On December 7, 1978, a grand jury investigation in

this district, conducted by attorneys for the Dallas Office

of the Antitrust Division, Department of Justice, returned

a one count indictment under Sherman §1 (15 U.S.C. 1)

against the four above named defendants.

On January 4, 1979, a motion to dismiss, on grounds

of double jeopardy, was one among several motions heard

and decided by Judge Luther B. Eubanks. Following his

denial of that motion, and all other motions to dismiss,

defendants Robert Z. Naifeh and Louis Abraham, Jr. filed

notices to appeal their double jeopardy claims. That is now

before the Tenth Circuit and is in the latter stages of brief-

ing. Estimates for the length of time the matter will re-

main in the apvellate system range from eight to twelve

months, and conceivably more.

The government would strongly prefer to go to trial

now against the two remaining defendants — both partner-