Opposition — Naifeh v. United States

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Nos. 79-52 and 79-53 SEP «'% 9879

~~

In the Supreme Court of the United States

OCTOBER TERM, 1978

ROBERT Z. NAIFEH, PETITIONER

Vv.

UNITED STATES OF AMERICA

LouIs ABRAHAM, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCreE, JR.

Solicitor General

JOHN H. SHENEFIELD

Assistant Attorney General

BARRY GROSSMAN

Peter L. De LA Cruz

Attorneys

Department of Justice

Washington, D.C. 20530

oo re ee

INDEX

Page

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CITATIONS

Cases:

Abney v. United States, 431 U.S.

ad esneoaselidio’ ee

Jeffers v. United States, 432 U.S.

RECENT SG a RE Ay = Ge ROT Te EN 6, 9

Launius vy. United States, 575 . 2d

TSE STERIC aE 7, 8

Menna v. New York, 423 U.S. 61 .........cccceeeeees 8

North Carolina v. Pearce, 395 U.S.

i (* Iapea tate iia sala ar iitlatd isitakacapbannononnconeesnbsciir

Serfass v. United States, 420 U.S.

EER SRE LEE Sete SPSL aT ae OP )

United States v. A & P Trucking Co., 358

RRS HSRC TRA Re CSBY ae Se eae ne ERO 6

United States v. Martinez, 562 . 2d

(RP aS SO Seu CRE Se 4,7

Western Laundry and Linen Rental Co. v.

United States, 424 k. 2d 441, cert.

I I I I i a aca nskcvnnconnicet 6, 8

Page

Constitution and statutes:

Constitution of the United States of America.

Fifth Amendment, Double Jeopardy

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Sherman Act, Section I, 15 U.S.C,

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28 U.S.C.

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 79-52

~ Ropert Z. NAIFEH, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 79-53

Louis ABRAHAM, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A3)!

is unreported. The opinion of the district court (Pet. App.

AS-A6) is unreported.

“Pet. App.” refers to the appendix to the petition in No, 79-52.

(1)

ty

JURISDICTION

The judgment of the court of appeals was entered on

May 15, 1979. The judgment of the court of appeals was

amended and a petition for rehearing was denied on June

15, 1979 (Pet. App. A4). The petitions for a writ of

certiorari were filed on July 12, 1979. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether an order denying a motion to dismiss an

indictment on double jeopardy grounds is final and

appealable where petitioners have never been subject to

former jeopardy.

2. If the order is appealable, whether petitioners’ claims

are ripe for review.

STATEMENT

On December 7, 1978, a grand jury in the Western

District of Oklahoma returned a one-count indictment

charging the defendants with price-fixing, in violation of

Section | of the Sherman Act, 15 U.S.C. | (Pet. App.

A2). The indictment named as defendants Central Liquor

Company, Jarboe Sales Company, petitioner Naifeh, and

petitioner Abraham. Petitioners Naileh and Abraham are

partners in Central Liquor and Jarboe Sales, respectively.

All defendants pleaded not guilty.

Petitioners moved to dismiss the indictment against

them as individuals, alleging that their prosecution would

violate the Double Jeopardy Clause of the Fifth

Amendment (Pet. App. AS). They contended that the

indictment of a partnership and one of the partners

therein places the partner in “jeopardy” of double

punishment, because the criminal proceedings may result

in the imposition of fines on both the partnership and the

individual partner (Pet. App. A2). The district court

denied the motions to dismiss (Pet. App. A5-A6), and

petitioners sought immediate review.

The court of appeals dismissed the appeals (Pet. App.

A4).? It observed that petitioners “have yet to be put in

jeopardy for the first time,” and concluded that the right

to immediate appeal of double jeopardy claims arises only

when a defendant has been subject to one prosecution and

his motion to dismiss a subsequent prosecution is denied

(Pet. App. A3).

ARGUMENT

We note at the outset that it ts not entirely clear

whether the court of appeals held that the district court's

denial of the motion to dismiss was not an appealable

order, or whether it assumed that the order was

uppealable and held that petitioners’ claim on the merits

was not ripe for review. The court of appeals’ opinion

suggests that it followed the latter path. It begins, “[t]hese

appeals present double jeopardy questions which are not

ripe for reivew” (Pet. App. A2). After discussing the

various contentions, the opinion states, “[sJince the

defendant must first be put in jeopardy before a claim can

be made that the double jeopardy clause ts violated, these

[petitioners], who have yet to be put in jeopardy for the

first time, cannot advance a double jeopardy challenge”

(Pet. App. A3). And after distinguishing Abney v. United

States, 431 U.S. 651 (1977), the court originally

concluded, “[w]e affirm the district court's overruling of

the [petitioners’] motion to dismiss the indictment” (Pet.

App. A3).

—-

‘The court of appeals initially affirmed the district court's order

(Pet. App. A3), but the judgment was amended to state that the

appeals were dismissed (Pet. App. A4).

However, in response to petitioners’ motions for

rehearing, the court of appeals amended the judgment to

state, “[t]he appeal is dismissed” (Pet. App. A4), thus

implying that the appeal itself was improper, presumably

because the district court's order was not appealable.

Petitioners have assumed that the court of appeals’

dismissed their appeals as not “final” under 28 U.S.C,

1291, and contend that it erred in doing so (Naileh Pet. 8-

14; Abraham Pet. 6-12). Petitioners suggest that this

Court grant certiorari, vacate the judgment of the court of

appeals, and remand the cases to that court for

consideration of the merits of their double jeopardy claim

(Naifeh Pet. 15; Abraham Pet. 12).

Assuming for present purposes that the court of appeals

dismissed petitioners’ appeal on these grounds, we believe

that it was correct in doing so. Moreover, the court's

conclusion that petitioners’ claim under the Double

Jeopardy Clause was not ripe for review is correct.

|. The court of appeals had jurisdiction only if the

district’ court’s order denying petitioner's motions to

dismiss the indictment was a “final decision[] of the

district court{]” under 28 U.S.C. 1291.' The district court

believed its order was final under that section, relying on

Abney vy. United States, supra, and United States vy.

Martinez, 562 F. 2d 633 (10th Cir. 1977) (Pet. App. A6).

That belief was erroneous,

‘Petitioners did not seek certification of the district court's order

under 28 U.S.C. 1292(b) and the district court did not certify its

ruling under that section.

Abney held that a denial of a defendant's motion to

dismiss the indictment on the ground of former jeopardy

was a “final decision” appealable under Section 1291. But

the primary reason for that conclusion was that the

Double Jeopardy Clause “assures an individual that,

among other things, he will not be forced * * * to endure

the personal strain, public embarrassment, and expense of

a criminal trial more than once for the same offense.”

Abney vy. United States, supra, 431 U.S. at O61.

“Obviously,” said thts Court, “these aspects of the

guarantee’s protection would be lost if the accused were

forced to ‘run the gauntlet’ a second time betore an appeal

could be taken; even if the accused ts acquitted, or, if

convicted, has his conviction ultimately reversed on

double jeopardy grounds, he has still been forced to

endure a trial that the Double Jeopardy Clause was

designed to prohibit.” /d. at 662 (lootnote omitted). It

followed that a defendant's double jeopardy challenge to a

second prosecution “must be reviewable before that

subsequent exposure occurs.” /bid.

But the Court also noted that the Double Jeopardy

Clause’s protection “against being (wice convicted tor the

same crime * * * can be fully vindicated on an appeal

following final judgment * * *” (Abney v. United States,

supra, 431 U.S. at 660; emphasis added), and thus the

“special considerations * * * which justify a departure

from the normal rule of finality * * * do not extend

beyond the claim of former jeopardy * * *.” /d. at 663.

Here, petitioners’ claim is not one of lormer jeopardy.

Ihey have yet to be tried even once, Rather, their claim

under the Double Jeopardy Clause implicates the quite

distinct protection against multiple punishment, See

North Carolina v. Pearce, 995 U.S. 711, 717 (1969), Their

contention is essentially that, if they are tried. together

with their respective partnerships, and if both the

individual and the partnership are convicted,! and if the

trial court imposes a separate puimshment on each, then

the individual will have been twice punished — once in his

individual capacity and once as a member of the

partnership.

Regardless of the merits of such a theory (see note 7,

infra), there is no reason to extend the rule of Abney to

such claims. If petitioners and thetr partnerships are

convicted, and if they are punished separately, they will be

entitled to full appellate review of their double jeopardy

claim and any other claim they might wish to raise.

Unlike Abney, where review following trial would be an

empty remedy because the second trial itself is the evil the

Double Jeopardy Clause was meant to preclude, appellate

review of petitioners’ convictions can adequately protect

them against double punishment, if such protection is due

them, because the court of appeals —or this Court —can

eliminate that portion of the punishment that violates the

Double Jeopardy Clause. See Je//ers v. United States, 432

U.S. 137, 157-158 (1977) (plurality opinion), 160 (con-

curring Opinion). Thus petitioners do not come within the

“former jeopardy” rule announced in Abney, and there is

no reason to extend Abney’s limited holding to them.>

‘A partnership may be indicted and convicted for a violation of the

Sherman Act. Western Laundry and Linen Rental Co. vy. United

States, 424 F. 2d 441, 443 (9th Cir.), cert. denied, 400 U.S, 849 (1970).

But “* * * the conviction of a partnership cannot be used to punish

the individual partners, who might be completely free of personal

guilt.” United States v. A & P Trucking Co., 358 U.S. 121, 127

(1958).

‘There is thus no substance to petitioners’ claim (Naifeh Pet. 13-14;

Abraham Pet. 8) that the court of appeals’ ruling introduces a “fact-

specific focus on each particular appeal” (Naiteh Pet. 13) to

determine whether it is allowable under 28 U.S.C. 1291 and Abney.

Courts will be quite able to determine whether a motion to dismiss an

indictment under the Double Jeopardy Clause is based on a claim of

successive prosecutions or of multiple punishments. If this ts a “fact-

specific” inquiry, it is not a difficult or uncertain one.

United States v. Martinez, supra, on which the district

court also relied in stating that its order was tinal and

appealable, provides no further support. The defendants

in Martinez moved to dismiss an indictment on grounds

of former jeopardy, 4e., that they had previously been

acquitted of the same offense, and thus the Double

Jeopardy Clause barred the second prosecution. [he

Tenth Circuit, correctly relying on Abney, held that the

district court’s denial of defendants’ motion was final and

appealable under Section 1291. United States v. Martinez,

supra, 562 b. 2d at 634 nt.

Petitioners contend (Nailfeh Pet. 13; Abraham Pet. 8)

that the trial itself is what they are seeking to prevent. But

there is nothing in the Double Jeopardy Clause that aids a

defendant facing trial for the first time.” See North

Carolina vy. Pearce, supra, 395 U.S. at 717.) Thus

petitioners have no right under the Double Jeopardy

Clause to avoid trial simply because the partnerships of

which they are members are also on trial. Whether they

have a right to avoid or reduce their punishment

following conviction if the partnerships are also punished

is a question that can be reviewed and decided if and

When it arises, with no infringement of petitioners’ right

under the Double Jeopardy Clause to be tree of multiple

punishments for the same olfense.

*Launius vy. United States, 575 b, 2d 770 (9th Cir, 1978), on which

petitioners rely (Naifeh Pet. 9: Abraham Pet. 10), is not in point. In

that case, the defendants pleaded guilty to an information that

charged two counts-—a conspiracy to smuggle heroin and a conpiracy

to smuggle amphetamines. They were sentenced consecutively on the

two counts, But there was only one conspiracy, and hence only one

offense. 575 b. 2d at 771. On a motion challenging their sentences

under 28 U.S.C. 2255, the district court denied reliel, reasoning that

there was a distinction, for double jeopardy purposes, between

“sequential double punishment” that ts. punishment imposed in a

second trial after punishment imposed ina first and “double

2. The court of appeals thus was correct in holding that

petitioners’ double jeopardy claims are not ripe for

review. kor the reasons we have discussed, petitioners’

only colorable claim under the Double Jeopardy Clause

the right to be free from multiple punishments for the

same offense —-can be fully reviewed if and when

petitioners and their respective partnerships are both

convicted and separately punished. Review at that time

will not prejudice any right under the Double Jeopardy

Clause because the punishment can be modified, if

appropriate, before it is exacted.’

punishment imposed simultaneously” that is, two punishments

imposed at one trial. 575 F. 2d at 771; see Menna v. New York, 423

U.S. 61 (1975). The Ninth Circuit, reversing the district court, found

“no basis for such a distinction.” 575 bk. 2d at 771.

That decision is of no help to petitioners. It certainly does not

stand for the proposition that there is no distinction between the

Double Jeopardy Clause’s protection against successive prosecutions

and its protection against multiple punishments, or that decisions

such as Abney that construe the former can be uncritically applied to

the latter.

’Nothing we say in this brief in opposition should be taken as

implying that petitioners’ claims have merit, even when properly

raised. See Western Laundry and Linen Rental Co. v. United States,

supra, 424 F. 2d at 443-445,

Judge Hufstedler, specially concurring in Western Laundry, stated

that the defendant's double jeopardy claim in that case which is

similar to petitioners’ claim here was waived because the defendant

pleaded guilty to the indictment and did not raise his multiple-

punishment claim until after separate punishments had actually been

imposed on the defendant and his partnership. But this Court

subsequently held in Menna vy. New York, 423 U.S. 61 (1975), that a

guilty plea is not a waiver to a claim of former jeopardy. See id. at 62

n.2. And see Launius v. United States, supra. Vhus, even if petitioners

were to withdraw their not guilty pleas and plead guilty, they

arguably would not have waived their claim that the Double

Jeopardy Clause precludes separate punishment of a partner and his

partnership.

3. Petitioners appear to read the court of appeals’

decision as holding that their double jeopardy claims will

become ripe for review when jeopardy attaches in their

upcoming trial. krom this reading, they contend (Naifeh

Pet. 10-14, Abraham Pet. 11-12) that the court of appeals’

decision will encourage disruptions of trials because

defendants in petitioners’ shoes must present their double

jeopardy motions to the district court and appeal any

adverse rulings only alter a jury has been sworn.

The court of appeals’ decision cannot reasonably be

read to encourage such results. It is true that the court

quoted from Serfass v. United States, 420 U.S. 377, 388

(1975) that “jeopardy does not attach, and the con-

stitutional prohibition can have no application, until a

defendant is ‘put to trial before the trier of the facts

***” (Pet. App. A3; emphasis by court of appeals). But

the question in Serfass was whether the government could

appeal dismissal of an indictment prior to trial. This

Court held that 18 U.S.C. 3731 allowed the government

to appeal whenever further prosecution would not be

prohibited by the Double Jeopardy Clause (420 U.S. at

387), and that jeopardy had not attached in that case

because the jury had not yet been sworn (id. at 389).

Perhaps the court of appeals could have found a more apt

case in support of its conclusion that petitioners’ claims

were premature, e.g., Jeffers v. United States, supra. But

nothing in the court of appeals’ opinion implies that

petitioners will have a ripe claim, and a right of appeal, if

they renew their motions alter the jury is sworn and

jeopardy attaches in their trial. As noted, their claim will

be ripe for adjudication only alter the trial court imposes

separate sentences on them and their partnerships, if that

is in fact what happens.

10

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCree, JR.

Solicitor General

JouN H. SHENEFIELD

Assistant Attorney General

BARRY GROSSMAN

Peter L. De LA Cruz

Attorneys

SEPTEMBER 1979