Petition — Central Liquor Co. v. United States

Suprerse Court, U. S.

80-556 g FILED

OCT 7 1980

No.

MICHAEL RODAK, JR., CLERK |

Buthe Supreme Court of the Wnited States

OcToBER TERM, 1980

Central Liquor Company, et ai. *

Petitioners

VERSUS

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BERNARD J. ROTHBAUM, Jr.

Counsel of Record for Petitioners

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

(405) 239-6781

of Counsel:

JAMES P. LINN, Esq.

BURCK BAILEY, Esq.

IRVINE E. UNGERMAN, Esq.

JOHN B. JARBOE, Esq.

TOM L. ARMSTRONG, Esq.

October, 1980

QUESTIONS PRESENTED

The questions presented here raise important issues

concerning the proper interpretation of the Double Jeop-

ardy Clause and the procedural remedy created by Abney v.

United States, 431 U.S. 651 (1977), to which this Court has

not spoken and upon which the Courts of Appeals are in

conflict. The Court of Appeals below dismissed these Double

Jeopardy Clause appeals for want of jurisdiction, limiting

Abney to its facts, despite the fact that jeopardy had at-

tached to all petitioners. The substantive Double Jeopardy

Clause question presented here is one of large importance.

The District Court had held ‘.terlocutory appeals were

proper under Abney. The Court of Appeals, nevertheless,

dismissed them.

Thus, the questions presented are:

1. Whether the Court of Appeals had the power to

dismiss these Double Jeopardy Clause appeals, for want of

jurisdiction, despite this Court’s decision in Abney v. United

States, 431 U.S. 651 (1977)? These appeals were taken

after the District Court had denied motions te dismiss the

indictment, and after jeopardy had admittedly attached to

all Petitioners.

2. Whether the Court of Appeals had the power to

enter a jurisdictional dismissal of these Double Jeopardy

Clause appeals, notwithstanding the fact that the jury had

been empaneled, in light of this Court’s repeated holdings

that the protection of the Double Jeopardy Clause attaches

as soon as the jury is sworn, a rule which “serves as the

lynchpin for all double jeopardy jurisprudence.” Crist v.

Bretz, 437 U.S. 28, 34 (1978) (emphasis added). The hold-

ing below is in conflict with Crist; with the controlling

law in the Second Circuit, United States v. Alessi, 536 F.2d

978, 979-981 (2d Cir. 1976), and conflicts in principle with

the controlling law in the Ninth Circuit, see, Launius v.

United States, 575 F.2d 770, 771 (9th Cir. 1978) and, United

States v. Griffin, 617 F.2d 1342, 1343-1346 (9th Cir. 1980).

The conflict between the Second, Ninth and Tenth Cir-

cuits as to when a pretrial appeal is permissible under

Abney and Alessi is made even more explicit by United

States v. Eggert, No. 80-1244, _. F.2d ___, _._. (10th Cir.,

July 24, 1980), not yet officially reported, Slip Op. pp. 3-5,

in which the Court of Appeals expressly declined to follow

Alessi, and, by implication, Griffin. And the conflict be-

tween the jurisdictional dismissal below and the rule of

Crist, supra, is apparent.

3. Whether the course of decisions in the Court of

Appeals for the Tenth Circuit regarding interlocutory ap-

peals in criminal cases under the “collateral order” doctrine

of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S.

541, 545-547 (1949) and Abney v. United States, supra, ex-

emplified by the jurisdictional dismissal of which review

is here sought, the previous dismissal of appeals in these

cases, United States v. Abraham, et al., Nos. 79-1017 and

79-1018 (10th Cir. 1979), cert. denied, __. U.S. ___, 100 S.Ct.

137 (1979); Rumpf v. United States, 576 F.2d 818, 821-823;

cf. id., at 826-827 (McKay, J., dissenting) (10th Cir. 1978)

cert. denied, 439 U.S. 893 (1978); and United States v. Eg-

gert, No. 80-1244, __. F.2d ___. (10th Cir. 1980), as well as

the conflict between these decisions and those in other Cir-

cuits demonstrates a need for review by this Court in order

to clarify the proper scope of the procedural holding of

ae

Abney and the substantive holdings of Crist and Menna v.

New York, 423 U.S. 61, 62, n.2 (1975)?

4. Whether a felony indictment brought under 15

U.S.C. §1 charging a double-felony against both two small

three-person general partnerships, one of them (Central Li-

quor Company) a family partnership, consisting of mother,

father and son, and a partner therein, for identical alleged

act, violates the Double Jeopardy Clause as construed by

this Court in, e.g., Whalen v. United States, _.. U.S. ___,

100 S.Ct. 1432, 1436-1440 (1980); Brown v. Ohio, 423 U.S.

161, 165-166 (1978); Sanabaria v. United States, 437 U.S.

54, 69-70 (1977); North Carolina v. Pearce, 395 U.S. 711, 717

(1969); and, therefore, constitutes a “charge . . . which the

[government] may not constitutionally prosecute.” Menna

v. New York, 423 U.S. 61, 62 and n.2 (1975) (emphasis

added).

This important double jeopardy question has never

been considered here, and the only Court of Appeals to

rule upon it divided 2-1. Western Laundry and Linen

Rental Company v. United States, 424 F.2d 441 (9th Cir.

1970), cf, id., at 424 F.2d, 445 (Hufstedler, J., dissenting

and specially concurring in the judgment only).*

* The following is a list of all parties involved in these cases: Central

Liquor Company, a partnership composed of Zeak T. Naifeh, Rose Nai-

feh and Robert Z. Naifeh; Robert Z. Naifeh, a partner therein; Jarboe

Sales Company, a partnership composed of Joe Jarboe, Mark Carson

and Louis Abraham, Jr.; and Louis Abraham, Jr., 2 partner therein.

omni Youn

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES ._.

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS, STATUTES AND

FEDERAL RULES OF PROCEDURE INVOLVED...

STATEMENT

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE follows Petition.

APPENDICES:

A: Order of the District Court for the Western Dis-

trict of Oklahoma (Thompson, J.) staying trial

pending consideration of Petition for Writ of

Certiorari, filed September 5, 1980

Opinion and Mandate of the Court of Appeals

for the Tenth Circuit filed August 11, 1980 ___

Order of the District Court for the Western Dis-

trict of Oklahoma (Thompson, J.) filed Novem-

ber 20, 1979

- Order of the District Court for the Western Dis-

trict of Oklahoma (Thompson, J.) filed Novem-

ber 1, wie ;

24

A-1

A-3

A-11

A-13

—Yous

TABLE OF CONTENTS CONTINUED PAGE

Opinion of the Court of Appeals for the Tenth

Circuit filed May 15, 1979, as amended, June 15,

1979 A-15

Order of the District Court for the Western Dis-

trict of Oklahoma (Eubanks, J.) filed January

17, 1979 . A-19

B: Constitution of the United States, Amendment

: on B-1

28 U.S.C. §1291 B-1

Rules 12(b) and 12(f), Federal Rules of Crim-

inal Procedure and Rule 4(b), Federal Rules of

Appellate Procedure B-1

wn

TABLE OF AUTHORITIES

ee Cases _. PAGE

Abney v. United’ States, 431 U.S. 651 (1977) _2, 4, 5, 6,

7, 8, 9, 10, 11, 12, 13, 14, 16, 17

Bellis v. United States, 417 U.S. 85 (1974) | | 23

Browder v. Director, Department of Corrections, 434

U.S. 257 (1978) 8, 11, 13,.15, 16, 17

Cohen v. Beneficial Industrial Loan Corporation, 337

U.S. 541 (1949) 3 - 10

Crist v. Bretz, 437 U.S. 28 (1978) 2, 6, 7, 13, 17

Downum v. United States, 372 U.S. 754 (1963) —..13, 17

Edwards v. California, 314 U.S. 160 (1941) ~~... 9

Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1874) _.__.. 9

Francis v. McNeal, 228 U.S. 695 (1913) 18, 20

Gordon v. United States, 347 U.S. 909 (1953) _.. 19, 22

Helstoski v. Meanor, 442 U.S. 500 (1979) — 14, 16

Helvering v. Smith, 90 F.2d 590 (2d Cir. 1937) _..... 18

Landress v. Phoenix Mutual Insurance Company, 291

U.S. 491 (1934) 13

Launius v. United States, 575 F.2d 770 (9th Cir.

1978) . 2, 6,12

Menna v. New York, 423 U.S. 61 (1975) __.3, 6, 7, 12, 15, 16, 24

Moroyoqui v. United States, 570 F.2d 862 (9th Cir.

1977) 8

North Carolina v. Pearce, 395 U.S. 711 (1969) 16, 23

Perlman v. United States, 247 U.S. 7 (1915) — 9,10

Randolph Products Company v. Manning, 176 F.2d 190

(3rd Cir. 1949) 18

Rosenzweig v. General Services Administration, 299

F.2d 22 (Em.App. 1962) cert. denied, 369 U.S. 818

(1963) 18, 20, 21

—Vii—

AUTHORITIES CONTINUED | PAGE

Rumpf v. United States, 576 F.2d 818 (10th Cir. 1978)

cert. denied, 439 U.S. 893 (1978) : 7, 8,14

Sanabaria v. United States, 437 U.S. 54 (1977) 16, 19, 23

Serfass v. United States, 420 U.S. 377 (1975)_.4, 9, 11, 14, 15

Simpson v. United States, 435 U.S. 6 (1979)... a9

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

(1958) 19, 22

United States v. Abraham, et al., Nos. 79-1017 and 79-

1018 (10th Cir. 1979) cert. denied __. U.S. ., 100

S.Ct. 137 (1979) 5, 8,9

United States v. Alessi, 536 F.2d 978 (2d Cir.

1976) 2, 6, 7, 12,14

United States v. American Freightways Co., 352 U.S.

1020 (1957) 19

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

cert. denied, 429 U.S. 917 (1976) 12

United States v. Brookman Company, 229 F.Supp. 862

(N.D.Cal. 1964) 20

United States v. Cerilli, 558 F.2d 697 (3rd Cir. 1977)

cert. denied, 434 U.S. 966 (1977) 11

United States v. Eggert, No. 80-1244, ___. F.2d __.. (10th

Cir., July 24, 1980) 7, 14

United States v. Griffin, 617 F.2d 1342 (9th Cir.

1980) 2, 7,14

United States v. Oppenheimer, 242 U.S. 85 (1916) _10, 14, 15

United States v. Robinson, 361 U.S. 220 (1961) igre,

United States v. Sebastian, 562 F.2d 211 (2d Cir. 1977) 11

United States v. Sisson, 399 U.S. 267 (1970) ___. why £8, 20

United States v. Slutsky, 352 F.Supp. 1100 (S.D.N.Y.

1972) 23

Weingarten v. Universal CIT Credit Corporation, 302

F.2d 1 (2d Cir. 1962) __. 18

Western Laundry and Linen Rental Company v.

United States, 424 F.2d 441 (9th Cir. 1970)__4, 5, 21, 22, 23

Whalen v. United States, USS. ... 100 S.Ct. 1432

ED pied t id ea 16, 19, 23

oa

‘sy

AK

Pa 9

Seti

—viii—

AUTHORITIES CONTINUED PAGE

United States Constitution

Amendment V as 2

Statutes

15 U.S.C. §1 , 3, 19, 20

15 U.S.C. §7 ) 20

28 U.S.C. §1254(1) 2

28 U.S.C. §1291 2, 4, 15, 16

Federal Rules of Procedure

Rule 12(b), Federal Rules of Criminal Procedure... 2

Rule 12(f£), Federal Rules of Criminal Procedure ____ 2

Rule 4(b), Federal Rules of Appellate Procedure... ss 2

Treatises and Miscellaneous

Report of Proceedings of the Committee of Commer-

__ cial Law, Final Draft, Uniform Partnership Act, .

National Commissioners on Uniform State Laws,

- Annual Report, 1911, pp. 32-33 18

15 Wright, Miller & Cooper, Federal Practice and Pro-

cedure, §3918 (1979 Supp.) 14

21 Congressional Record, 51st Cong., 1st Sess., p. 2457

(1890) 19

No.

In the

Supreme Court of the United States

OcToBER TERM, 1980

ROBERT Z. NAIFEH, LOUIS ABRAHAM, JR.,

CENTRAL LIQUOR COMPANY and

JARBOE SALES COMPANY,

Petitioners,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The opinion of the Court of Appeals, not yet officially

published, the unreported order of the District Court stay-

ing proceedings pending consideration of this petition for a

writ of certiorari, the previous unreported opinions of the

District Court (Thompson, J.), the opinion of the Court of

Appeals on the first appeal in this case (which also resulted

in a jurisdictional dismissal) and the unreported opinion

of the District Court from which the first appeal was taken

(Eubanks, J.), are reprinted as Appendix A, hereto.

a

JURISDICTION

This Court’s jurisdiction is invoked to determine

whether the Court’s: decision in Abney v. United States,

431 U.S. 651 (1977), is limited only to “sequential” double

jeopardy cases, arising after one trial has been suffered, or

whether the rule of Abney encompases review of the denial

of a motion to dismiss. an indictment which. shows on its

face that it is vitiated by the Double Jeopardy Clause, so

long as the denial was entered after the jury was sworn

and jeopardy had attached. See,,Crist v. Bretz, 437 U.S.

28, 31-34 (1978), and compare, the decision below with the

conflicting holdings in United States v. Alessi, 536 F.2d 978,

979-981 (2d Cir. 1976); and, in principle, United States v.

Griffin, 617 F.2d 1342, 1344-1346 (9th Cir. 1980), and Laun-

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

The judgment and*mandate of the Court of Appeals

were entered on August 11, 1980. ‘This petition for cer-

tiorari was filed within sixty (60) ‘days of that date. The

Court’s jurisdiction rests upon 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

_ AND FEDERAL RULES OF

PROCEDURE INVOLVED

‘The Double Jeopardy Clause of the Fifth Amendment,

28 U.S.C. §1291, Rules 12(b) and 12(f) of the Federal

Rules of Criminal Procedure and Rule 4(b) of the Federal

Rules of Appellate Procedure appear as a B to

this Petition.

—j—

STATEMENT

This case presents unresolved questions involving both

the substantive protection of the Double Jeopardy Clause,

and the procedural means for vindicating an infringement

of the rights so guaranteed.

The questions arise against the background of a truly

extraordinary indictment.

On December 7, 1978, a felony indictment was returned

charging Central Liquor Company, a family partnership of

mother, father and son; Robert Z. Naifeh, one of the family

member-partners therein (the son) together with one other

three-person partnership and one of the partners therein,

with conspiracy to set and maintain the prices of alcoholic

beverages within the State of Oklahoma in violation of 15

U.S.C. §1. Petitioners promptly moved to dismiss the in-

dictment on the ground that it was apparent on the face

thereof that an indictment of both two small partnerships,

one of them a small family partnership and one of the

member-partners in each for identical alleged acts, was

barred by the Double Jeopardy Clause, and, as this Court

held in Menna v. New York, 423 U.S. 61, 62, n.2, if the

Double Jeopardy Clause necessarily stood in the way of

conviction, “the charge is one which the [government] may

not constitutionally prosecute.” (emphasis added).

The District Court (Eubanks, J.), agreed with peti-

tioners’ Double Jeopardy Clause contention, as a matter of

principle. The court stated that, as an original question,

counsel for petitioners would have “no difficulty persuading

me that we have double jeopardy here.” (Tr. of Hearing,

4.

January 4, 1979, p.19, 1n.22 through p.20, In.1); (emphasis

added).

The District Court, however, noted the existence of an

apparently inconsistent opinion from a divided panel of the

Court of Appeals for the Ninth Circuit, Western Laundry

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

(9th Cir. 1970), cert. denied, 400 U.S. 849; cf, id., at 444-445

(Hufstedler, J., dissenting and concurring specially in the

judgment only). and, out of respect for what Judge Eu-

banks described as the “hierarchy” within the federal ju-

dicial system, deferred to the prevailing opinion in Western

Laundry and.declined to dismiss the indictment, explicitly

noting that this ruling was immediately appealable. See,

Appendix A, p. 20. The government did not question the

District Court's holding regarding the immediate appeal-

ability of its order under Abney v. United States, supra,

Petitioners immediately appealed to the Court of Ap-

peals. The Double Jeopardy Clause question was elabor-

ately briefed on its merits. On the first appeal, the govern-

ment injected into the appeals a question of jurisdiction.

The government ee that Abney was limited to its

precise fac -s.

The Court of Appeals did, not accept the government's

theory on the first appeal. Rather, the court, sua sponte,

observed that this Court had held in Serfass v. United

States, 420 U.S. 377, 392-394 (1975), that the Double Jeop-

ardy Clause did not bar a government appeal prior ‘to the

attachment of: jeopardy and, the-court held, it must follow

that Serfass"also barred an appeal by a defendant under

28 U:S.C.°§1291, at least prior ‘to the time jeopardy had

wneliies

“attached”. Appendix A, p. 16. The court stayed its man-

date pending final disposition of certiorari by this Court.

Appendix A, p. 18. Ultimately, this Court denied petitions

for writs of certiorari. Naifeh v. United States, U.S. sili

100 S.Ct. 137 (1979); Abraham v. United States, __ U.S.

—., 100 S.Ct. 137 (1979).

The cases returned to the District Court. The motions

to dismiss on double jeopardy grounds were renewed. The

District Court (Thompson, J.) reasoned, App. A, p. 4,

that the motions must be denied as “unripe”, in light of

the Court of Appeals opinion, until such time as the jury

was empaneled and sworn. After the jury was sworn, the

motions to dismiss on double jeopardy grounds were re-

newed at the bench. (Tr., November 21, 1979, p.90, In.10-18;

p.91, In.9-13; p.92, In.1 through p.94, In.4.)

The District Court held the motions were now “ripe”

since jeopardy had attached to petitioners through the em-

panelment of the jury. On the merits, the District Court

overruled the motions to dismiss solely on the authority of

Western Laundry, supra. App. A, pp. 13, 14. The District

Court (Thompson, J.) again held that the order overruling

the motions to dismiss on double jeopardy grounds was im-

mediately appealable to the Court of Appeals under this

Court's decision in Abney, and expressly noted the govern-

ment’s contrary argument was unsupported by any author-

ity. Id., pp. 11, 12.

Once again, appeals were taken, On the second appeal,

now before this Court, both the question of appealability

and the merits of the Double Jeopardy Clause violation

were thoroughly briefed.

a oN

On August 11, 1980, a differently constituted panel of

the Court of Appeals,’ again dismissed the appeals for want

of jurisdiction.

The second opinion of the Court of Appeals, now pre-

sented for review, states that Abney allowed a pretrial

appeal only because the defendants in that “particular” case

were seeking to appeal an order to prevent.a second trial.

The opinion flatly holds that the instant Double Jeopardy

Clause question is not immediately appealable under Abney

— the fact that jeopardy has attached to all petitioners.

~The opinion also: holds that all petitioners must suffer

trial before they can receive appellate review of the im-

portant double jeopardy question here presented. There is

no mention in the opinion of this Court’s decisions in Crist

v. Bretz, supra, and Menna v. New York, supra, nor of the

Second Circuit’s holding in United States v. Alessi; supra,

and only a cryptic footnote reference to the Ninth Circuit’s

hoiding in Launius v. United States, supra.

u ‘i Genel whch Nonidet, ih eet gn dans tadolens

was composed of Chief Judge Seth, Judge Holloway and Judge Markey

“of the Court of Customs and Patent Appeals, sitting by designation;

the panel which heard the second appeals, and entered the opinion now

here for review, was composed of Judges McKay and Logan of the

| Tents Ciscalt end Senior Clecale' Judge Peck of the Sixth Cisculs, ie:

ting by designation.

=

REASONS FOR GRANTING THE WRIT

(1) In Abney v. United States, this Court held that

immediate appeal lies from “a pretrial order denying a mo-

tion to dismiss an indictment on double jeopardy grounds”

(431 U.S., at 653; emphasis added). The Court of Appeals

below has now held that a pretrial Double Jeopardy Clause

appeal is allowable only from a pretrial order denying “a

particular” double jeopardy claim, even though jeopardy

has unquestionably attached to petitioners. This holding

simply cannot be reconciled with the unqualified statement

of the issue presented in Abney and the equally unequi-

vocal holdings of Crist v. Bretz, supra, and Menna v. New

York, supra. The limitation on the rule of Abney announced

below is squarely in conflict with United States v. Alessi,

536 F.2d 978, 979-981 (2d Cir. 1976), which would, obvi-

ously, mandate a contrary result. In Alessi, there had been

no previous trial whatsoever. Alessi’s sole contention was

that a pending first trial was barred by a previous plea

agreement. 536 F.2d, at 979. The Court of Appeals for the

Second Circuit held this contention sufficient to support an

immediate pretrial appeal on Due Process Clause grounds

which were analogous to a Double Jeopardy Clause argu-

ment, reasoning that, if Alessi was correct, the trial itself

would be illegal. Accord, United States v. Griffin, 617 F.2d

1342, 1343-1346 (9th Cir. 1980); contra, United States v. Eg-

gert, No. 80-1244, Slip Op. pp. 4-5, _..F.2d _., _._ (10th

Cir. 1980). .

The conflict is not isolated. In Rumpf v. United States,

576 F.2d 818, 821-823 (10th Cir.) cert. denied, 439 U.S. 893

(1978), a sharply divided court refused to apply Abney at

all to a pending Double Jeopardy Clause appeal even though

~

the notice.of appeal had been timely filed. In so holding, the

majority rejected the contrary holding of the Court of Ap-

peals for the Ninth Circuit in Moroyoqui v. United States,

570 F.2d 862, 864 (9th Cir. 1977).

Judge McKay’s warning, dissenting in Rumpf, that al-

ee government to achieve such a fait accompli was

- an open invitation to trial courts [in the Tenth

8 te to disregard Abney . . . secure in the knowl-

_ edge that the Court of Appeals will not [intervene]”,

576 F.2d at 826-827,

does not yet appear to have become a reality.?, But these

deep divisions within the Court of Appeals for the Tenth

Circuit and the sharp conflict between the Tenth Circuit and

ther Circuits on a crucial question of appellate jurisdiction

demonstrate the need for plenary review here. Browder v.

Director, Department ad Corrections, 434 U.S. 257, 266-267

(1978). :

The cases now Diag for review vividly demon-

strate an unsettling course of decisions in the Court of Ap-

peals for the Tenth Circuit both in these appeals, and

closely related ones, which is deeply troubling to the dis-

trict courts and the bar alike.

In its first dismissal of these appeals, United States v.

Abraham, No. 79-1017 and 79-1018 (unpublished; 10th Cir.

1979), cert. denied, ___ U.S. ._.., 100 S.Ct. 137 (1979), the

Court of _— held that the issue of double jeopardy

2 For example, the ‘conscientious district judge below stayed all proceed-

- ings pending appeals herein, and pending disposition of this petition

for a writ of certiorari. App. A, pp. 1, 2, 12.

--9—

was “not ripe for review” because jeopardy had not “at-

tached”, citing, Serfass v. United States, 420 U.S. 377, 388

1975). App. A, p. 16. As the experienced district judge

to whom these cases were assigned on remand correctly

held, the only rational interpretation of the Abraham de-

cision was that the double jeopardy question would become

“ripe for review” upon the attachment of jeopardy through

the empaneling of the jury. App. A, p. 14 (Thompson, J.).

In the second dismissal, now presented for review here,

the Court of Appeals informed the district court that, “We

did not intimate [in Abraham] that interlocutory appeals

would later lie upon attachment of jeopardy”, App. A, pp.

4, 5, and again.entered a jurisdictional dismissal.

Decisions from the time of Ex Parte Lange, 85 U.S.

(18 Wall.) 163, 168 (1874) to Perlman v. United States, 247

U.S. 7 (1918) and Abney itself reflect that meaningful ap-

pellate review of vital decisions in federal felony prosecu-

tions is not a subject to be treated as a game. A defendant

in such a case is not to be denied meaningful review, at a

meaningful time, by contortions which transform the un-

equivocal holding of Abney into “a promise to the ear to

be broken to the hope, a teasing illusion like a munificent

bequest in a pauper’s will.” Edwards v. California, 314 U.S.

160, 186 (1941) (Jackson, J., concurring). Six and one-half

decades ago, this Court rejected out of hand the notion a

citizen facing an unconstitutional criminal charge “was

powerless to avert the mischief . . . but must accept its

incidence and seek a remedy at some other time...” Perl-

man, supra, 247 U.S. 7, 9.

atid

-.. ‘More than sixty years ago, in the related context of a

government attempt to circumscribe a defendant’s rights on

a double jeopardy issue, Mr. Justice Holmes wrote for this

Court:

“It cannot be that the safeguards of the person, so

often and so rightly mentioned with solemn reverence

are less that those which protect from a liability in

debt . .. It cannot be... [that] one [type of ruling]

that a defendant [cannot be prosecuted] as a matter

' of substantive law is not as good as another.” United

States v. Oppenheimer, 242 U.S. 85, 87 (1916) (empha-

sis added).

So here. It cannot be that the guaranty of the Double

Jeopardy Clause is less worthy of appellate protection than

a civil defendant’s right to protection against strike suits.

Compare, the straightforward holdings of Cohen v. Bene-

ficial Industrial Loan Corporation, 337 U.S. 541, 546-547

(1949), Perlman, supra, or Abney, supra, with the gyra-

tions in these appeals.

' The need for review of the quagmire which the de-

cision below will create is, we submit, self-proving.

(2). The court below was persuaded by the govern-

ment to read much into a passing comment in The Chief

Justice’s opinion in Abney. See, 431 U.S., 660. The Chief

Justice there noted that the Solicitor-General suggested a

distinction between the Double J eopardy Clause’s protec-

tion against multiple punishments and its protection against

multiple trials. App, A, pp. 6, 7, citing, 431 U.S., at 660. It

‘is inconceivable that The Chief Justice meant to qualify

the holding of Abney by way of this passing comment.

ona Sia

This is true for several reasons. First, the Solicitor-

General’s lengthy brief in Abney, Brief for the United

States, No. 75-6521, O.T., 1976, does not contain one word

of argument for such a “distinction”. Quite the contrary.

The brief consistently treats the Double J eopardy Clause

as a whole (see especially, Br. pp. 38-44 and n.32). Second,

The Chief Justice surely would not have carved such an

important exception from a jurisdictional holding by way.

of a casual passing comment in light of this Court’s re-

peated holdings as to the “imperative . . . that jurisdictional

requirements be explicit and unambiguous.” Browder v.

Director, Department of Corrections, 434 U.S. 257, 266-267

(1978); see also, Serfass v. United States, 420 U.S. 377, 384

(1975) (Burger, C.J.), quoting, United States v. Sisson, 399

U.S. 267, 307 (1970) (Harlan, J.) (“Clarity is to be desired

in any statute, but in matters of jurisdiction it is especially

important.”). The contrary result reached by the Court of

Appeals below is simply wrong. The morass created by the

opinion below should be reviewed and corrected by this

Court.

(3) The incoherence of the “line” which the court be-

low has attempted to draw is well-illustrated by the court’s

admission that denial of a motion to dismiss a superseding

indictment on double jeopardy grounds is immediately ap-

pealable, and its admission that an order overruling a mo-

tion to dismiss on double jeopardy grounds as to a supersed-

ing indictment, or declaration of a mistrial, is immediately

appealable. App. A, p. 6, n.3, citing, United States v. Sebas-

tian, 562 F.2d 211, 214 (2d Cir. 1977) and United States v.

Cerilli, 558 F.2d 697, 699 (3rd Cir.) cert. denied, 434 U.S.

966 (1977). And, as the court below admits, in United

onti..

States v. Barket, 530 F.2d 181, 185 and n.7 (8th Cir. 1975)

cert. denied, 429 U.S. 917 (1976), a decision cited in Abney,

see, 431 U.S., at 664, the Court of Appeals allowed an im-

mediate pretrial appeal from a district court’s order deny-

ing a motion to dismiss one count in an indictmen* on

double jeopardy grounds. Further, although the court be-

low attempted to “distinguish” the decision of the Court of

Appeals for the Ninth Circuit in Launius v. United States,

575 F.2d 770,771 (9th Cir. 1978), the fact is that there is

no distinction which rises to the level of legal difference.

In Launius, the government argued, and the district court

was persuaded to agree, that this Court’s decision in Menna

v. New York, supra, 423 U.S. 61, 62, n.2, applied only to

“sequential” double punishment, and not to double punish-

ment achieved “simultaneously” through one indictment

which, by its terms, offended the Double Jeopardy Clause.

In reversing, the Court of Appeals squarely held: “We see

no basis for such a distinction.” Id. (emphasis added). The

statement of the Court of Appeals below that “Launius does

not govern these cases”, App. A, p. 6, n.4, is simply a hold-

ing that the Courts of Appeals for the Ninth and Tenth Cir-

cuits are in conflict. .And, as noted, United States v. Alessi,

supra, 536 F.2d at 979-981 (2d Cir. 1976), is flatly contrary

to.the holding below. The conflict is important and should

be resolved by this Court.

Apart from the conflict, the holding below should be

reviewed here. On the reasoning of the court below, if a

mistrial had been granted because of a prejudicial opening

statement by the prosecution, or if a single witness had

been called and during the course of that witness’s testi-

mony, a mistrial had been granted, or if, prior to any testi-

-_ =

mony, a superseding indictment had been returned, the

question of whether the government could still prosecute

would, the court below admits, be an immediately appeal-

able order under Abney, App. A, p. 6, n.3. Yet, accord-

ing to the court below, a district court’s denial of a mo-

tion to dismiss an indictment which shows on its face that

it is vitiated by the Double Jeopardy Clause cannot be

immediately appealed prior to trial under Abney even after

jeopardy has attached to all defendants through the em-

panelment and swearing of a jury, cf, Crist v. Bretz, 437

U.S. 28 (1978); Downum v. United States, 372 U.S. 754

(1963). Appealability under Abney is thus made to turn

on the particular stage of the proceedings which may exist

in each particular district court in each particular case,

even though jeopardy has unquestionably attached. Such

a holding brings to mind the warning of a great Justice of

this Court: “The attempted distinction . . . will plunge this

branch of the law into a Serbonian Bog.” Landress v. Phoe-

nix Mutual Insurance Company, 291 U.S. 491, 499 (1934)

(Cardozo, J.). The holding trivializes the protection against

violation of the Double Jeopardy Clause which Abney was

designed to vindicate in one of its most important contexts,

and has the practical vice of creating great and needless

uncertainty on the part of both the district courts and the

bar as to the precise factual circumstances under which

the rule announced in Abney applies. Such uncertainty

with regard to a jurisdictional issue is intolerable. See,

Browder v. Director, Department of Corrections, 434 U.S.

257, 266-267 (1978). The requirement of intensive scrutiny

of each particular set of facts on each particular appeal

from a motion to dismiss an indictment on Double Jeopardy

Clause grounds in an attempt to decide if it is an appealable

po a

order is senseless. Time and again this Court has empha-

sized, especially in federal criminal cases, that the need for

“clarity ... in matters of jurisdiction” is essential. Ser-

fass v. United States, supra (Burger, C.J.); United States v.

Sisson, supra (Harlan, J.); Browder, supra. Abney itself

was clearly written with a deliberate view toward avoid-

ing such case-by-case, fact-intensive inquiry to determine

whether an immediate appeal lies from any particular order

of a district court overruling any particular motion to dis-

miss an indictment on Double Jeopardy Clause grounds,

so’long as the substantive question presented arises under

the Double Jeopardy ‘Clause. .See, United States.v. Oppen-

heimer, supra. Abney has been so understood. by scholarly

commentators on federal procedure. See, 15 Wright, Mil-

ler & Cooper, Federal Practice and Procedure, §3918 (1979

Supp. ): ale

“The Abney decision is written in terms that appear

- 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 personal strain,

‘public embarrassment, and expense of an er

criminal trial.” (emphasis added).

Accord, Helstoski v. Meanor, 442 U.S. 500, 506-508 (1979);

United States v. Alessi, 536 F.2d 978, 979-981 (2d Cir. 1976);

United States v. Griffin, 617 F.2d 1342, 1344-1346 (9th Cir.

1980) ; ; contra, United States v. Eggert, supra, No. 80-1244,

-—~ F.2d —.. (10th Cir. 1980); and, Rumpf v. United States,

576 F 2d 818 (10th Cir. 1978).

- There: ‘is no need to look to hypotheticals to ascertain

the confusion which the holding below has generated and,

—15—

unless corrected here, will continue to generate. In this

very case, not one, but two, able and experienced district

judges have ruled on the merits of the Double J eopardy

Clause claim. Both have held that their respective orders

adjudicating the merits of the Double Jeopardy Clause claim

were immediately appealable under Abney. See, App. A, pp.

11, 12 (Thompson, J.) and p. 20 (Eubanks, J.). Both have

been reversed. In the cases now here for review, the re-

versal and dismissal of the appeals is made to turn on

shadowy, subtle distinctions. The holding below will cre-

ate rampant confusion with regard to one of this Court’s

most important decisions interpreting 28 U.S.C. §1291. Both

the holdings and the principles announced in this Court’s

decisions condemn such a result. Browder, supra, 434 U.S.,

at 266-267; Serfass, supra, 420 U.S., at 384; Sisson, supra,

399 U.S., at 307.

(4) The fundamental flaw in the reasoning of the

court below is that it confuses the substantive question of

whether there has been a violation of the Double J eopardy

Clause with the procedural means for reviewing that sub-

Stantive question. See, United States v. Oppenheimer, supra;

Menna v. New York, supra. The first question is one of con-

stitutional law; the latter is one involving the proper inter-

pretation of 28 U.S.C. §1291. This Court had occasion to

reiterate the distinction in Browder. There, the Court re-

versed the Court of Appeals because that court had “con-

fuse[d] error with non-finality and had fail[ed] to distin-

guish between [the substantive issue of law presented] and

the procedural means for correcting asserted error... , . %

The same is true here. The substantive question of con-

stitutional law presented by these cases is: does the indict-

“16

ment.on file herein show on its face that it is vitiated by

the Double Jeopardy Clause and is “the charge [therefore]

one which the [government] may not constitutionally pros-

ecute”, Menna v. New York, 423 U.S, 61, 62, n.2? This is a

question to be decided by an interpretation of the Double

Jeopardy Clause. See, e.g., North Carolina v. Pearce, 395

U.S. 711, 717 (1969); Sanabaria v. United States, 437 U.S.

54,.69-70 (1978); and Whalen v. United cima sie Pe &

100 S.Ct. 1432, 1434-1440 (1980).

The procedural question of how and when this consti-

tutional question is to be given appellate review must be

answered by reference to the controlling statute, 28 U.S.C.

§1291, together with its concomitant “collateral order” doc-

trine as announced, for Double Jeopardy Clause claims, in

Abney v. United States, supra.

As this Court emphasized in Browder:

“The confusion that [would result] from litigant’s

divergent views of the completeness of proceedings

({néeded to invoke the rule of appealability] would be

‘wholly at odds with.the imperative that jurisdictional

requirements be explicit and unambiguous.” 434 U.S.,

at 267 (emphasis | added). |

Like the Seventh Circuit in Browder, the Court of Appeals

here has overlooked the “imperative that jurisdictional re-

quirements be explicit and unambiguous.” A “rule” such

as that announced by the court below — by which appellate

jurisdiction ‘turns on subtle nuances of factual distinctions

to be resolved ad hoc on each appeal, despite the fact that

jeopardy has attached — is intolerable in a judicial system

in which great and grave consequences turn on the con-

cept of “finality”.. See, e.g., Helstoski v. Meanor, supra;

a

Browder v. Director, supra; and United States v. Robinson,

361 U.S. 220, 224, 229 (1960).

Indeed, under the first decision on appeal of the court

below in these very cases, United States v. Abraham, et al.,

Nos. 79-1017 and 79-1018 (10th Cir., May 15, 1979, amended,

June 15, 1979) cert, denied, U.S. _, 100 S.Ct. 137 (1979),

the substantive question of Double Jeopardy Clause juris-

prudence became “ripe for review”, App. A, pp. 16, 17, upon

the empaneling and swearing of the jury. See, Crist v.

Bretz, supra; Downum v. United States, supra, The Court

of Appeals at least appeared to so recognize on the first ap-

peal of these cases, and its first opinion was so understood

by the conscientious District Court which interpreted it on

remand. App. A, pp. 11-14. Once the substantive question

of constitutional law became ripe for adjudication, the pro-

cedural mechanism for adjudicating it, i.e., a motion to dis-

miss in the District Court and, if the motion was denied, an

immediate appeal to the Court of Appeals, as authorize by

Abney, were the proper procedural means for vindicating

the substantive Double Jeopardy Clause right. The failure

of the court below to distinguish between these two en-

tirely different concepts led the court into the same error

which this Court was obliged to correct in Browder v. Di-

rector, Department of Corrections: the court below con-

fused the issue of substantive law presented to it with the

procedural means for properly adjudicating that issue. This

fundamental error, with its attendant confusion, should be

corrected by this Court.

In sum, the decision below is in irreconcilable conflict

with controlling decisions of this Court; hopelessly confuses

the substantive issue of constitutional law under the Double

Jeopardy Clause presented with the procedural means for

adjudicating that question in a fashion which this Court

has squarely held to be erroneous, and carves an exception

from the procedural rule of Abney and the substantive

holdings of Crist and Menna which is wholly unjustifiable.

The decision should be reviewed and reversed by this Court.

(5) The double-felony indictment of both two small

three-person partnerships, one of them (Central Liquor

Company) a family partnership of mother, father and son,

and one of the,partners in each, for the identical alleged

acts, offends the Double Jeopardy Clause of the Fifth

Amendment. A small partnership, and especially a family

partnership is, like a sole proprietorship, a mere aggrega-

tion, a name with no separate personal existence. This has

been the law in the federal courts from the inception of

the federal judiciary. See, e.g., Francis v. McNeal, 228 U.S.

695, 698 (1913) (Holmes, J.); Helvering v. Smith, 90 F.2d

590, 591 (2d Cir. 1937) (L.Hand,-J.); Randolph Products

Company v. Manning, 176 F.2d 190, 192 (3rd Cir. 1949);

Weingarten v. Universal CIT Credit Corporation, 302 F.2d

1, 2 (2d Cir. 1962); Rosenzweig v. General Services Ad-

ministration, 299 F.2d 22, 27-29 (Em.App. 1962): cert. denied,

369 U.S: 818 (1963) (Maris, C.J:); see generally, Report of

Proceedings of the Committee on Commercial Law, Final

Draft, Uniform Partnership Act, National Commissioners

on Uniform State Laws, Annual Report, 1911, pp. 32-33.

The power of Congress to adopt a rule by which an

information or indictment may be filed against a partner-

Ship alone, in order to reach the assets of the partnership

by way of a criminal fine, though left in doubt by the af-

—19—

firmance, by an equally divided Court, of the dismissal of

an information filed against a partnership in United States

v. American Freightways Co., 352 U.S. 1020 (1957) was

settled, at least as to regulatory, misdemeanor violations,

by the decision the next Term in United States v. A& P

Trucking Co., 358 U.S. 121 (1958), and is not challenged

here. Rather, the Double J eopardy Clause question pre-

sented here is the question specifically reserved by the

A & P Court, to-wit, whether the Double Jeopardy Clause

forbids a double-felony indictment of both a small family

partnership® and one of the individual partners therein for

identical alleged acts. Compare, United States v. A&P

Trucking Co., supra, 358 U.S., at 126, n.6 with, Gordon v.

United States, 347 U.S. 909 (1953). And, we reiterate, no

question going to power of Congress is presented here. Cf.,

Sanabaria v. United States, 437 U.S. 54, 69-70 (1978); Simp-

son v. United States, 435 U.S. 6, 11-14 (1979); Whalen v.

United States, U.S. ___., 100 S.Ct. 1432, 1436-1440 (1980).

We do note that, with regard to the Sherman Act, there

is not the slightest indication of any Congressional intent

to authorize such an extraordinary double-felony indict-

ment as is here presented. On the contrary, 15 U.S.C. §1

divides all potential offenders into two categories: “a cor-

poration” and “any other person”. Insofar as the legisla-

tive history of the Sherman Act sheds any light on this

question, it indicates that Congress affirmatively intended

not to attempt to equate partnerships and partners with

corporations and officers therein, even assuming such power

8 as well as a sroall, long-extant three-person general partnership of three

close, personal associates.

—20—

exists. See, 21 Cong. Rec., 5lst bias Ist Sess., p. 2457

(1890) :.

“A corporation may be, and usually is, a more

powerful and useful combination than a partnership.

It is an artificial person without fear of _— with-

out a soul to save or a body to punish... .” (Sen.

Sherman),

15 U.S.C. §7 makes reference to “associations”. This

language, presumably, renders a partnership indictable un-

der 15 U.S.C. §1. United States v. Brookman _— 229

F.Supp. 862 (N.D. Cal. 1964). |

But that is a far cry from the question presented here.

The question presented in this case is whether three-person

partnerships, one of them a three-person family partner-

ship composed of mother, father and son and one of the

family member-partners (the son) may both be subject to

a double-felony indictment for identical alleged acts. This,

it will be recalled, is the question Mr. Justice Harlan care-

fully reserved i in United States v. A & P Trucking Company,

supra, even with regard to a regulatory misdemeanor. 328

US. 121,°126, n.6. And it surely cannot be argued that the

innocuous words of 15 U.S.C. §7 have any bearing on the

serious Double Jeopardy Clause question here presented.

See, Francis v. McNeal, 228 U.S. 695, 698 (1913) (Holmes,

J.) and see especially, Rosenzweig v. General Services Ad-

ministration, supra, 299 F.2d 22, 27 (Maris, C.J.).

_ In Rosenzweig, Chief Judge Maris wrote for a unani-

mous court:

. “It is the complainant’s [Rosenzweig’ s] contention

“that the criminal proceedings in which [his partners]

were convicted, did not terminate in the conviction of

a.

[him] since neither he nor Central Packing Company

_ was either indicted nor convicted as a separate entity

in those proceedings. In Support of this proposition

[Mr. Rosenzweig] relies upon United States v. A&P

Trucking Co., 1958, 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d

165,.... However, the rule of the A&P Trucking

Co. case is inapplicable here... .

“The [Government] contends that the conviction o

the individual partners must be considered a conviction

of the partnership. .. . ‘Keagree with this contention.”

299 F.2d at 27. (emphasis added).

If the Government was right in Rosenzweig, it is wrong

here. i | | '

~ Regrettably, one Court of Appeals has overlooked both

Mr. Justice Harlan’s careful reservation of the Double Jeop-

ardy question in A&P, and the other authority above dis-

cussed, especially Rosenzweig. A divided panel of the Court

of Appeals for the Ninth Circuit in Western Laundry &

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

1970) cert. denied, 400 U.S. 849, appeared to hold that

under the Sherman Act, both a partnership and one of the

partners therein could be indicted and convicted for the

identical alleged acts. Whether Western Laundry actually

so held is less than immaculately clear. In that case both

the partnership and the partner had pled nolo contendre

and had been sentenced. Not until substantially after the

date of their sentencing did anyone raise the double jeop-

ardy question, and then only by way of a motion to reduce

sentence. 424 F.2d, at 442. Writing for the majority in

Western Laundry, J udge Madden denied the motion. Judge

Madden appears to have agreed that, if he believed the

question open, he would have held the indictment of both

a, >»

a general partnership and a general partner therein did

violate the Double Jeopardy Clause. 424 F.2d, at 444. How-

ever, overlooking this Court’s careful reservation of the

double jeopardy question in United States v, A & P Truck-

ing Co., supra, 358 U.S. 121, 126, n.6 and the Court’s very

careful distinction therein of Gordon v. United States, 347

U.S. 909 (1953), Judge Madden felt that A & P Trucking

was dispositive, and that he had no choice other than to

reject the double jeopardy claim, saying “[w]hen the ulti-

mate authority has spoken, there is no room for further

debate.” 424 F.2d, at 445.

Of course, “the ultimate authority”, that is, this Court,

had not spoken to this question in A& P—it had been

careful to reserve any intimation upon it. As Judge Huf-

Stedler stated, dissenting on the double jeopardy issue in

Western Laundry, this Court’s decision in A & P involved

only an attempt to file an information against a motor car-

rier partnership alone in order to levy a fine against the

partnership for the improper packaging of high explosives.

Not only was there no question of double jeopardy present

in A&P, there could have been no question of double

jeopardy present in A&P because A&P was a case in

which the individual partners were “completely free of

personal guilt.” 358 U.S. 121, at 126 (emphasis added).

In deference to the Western Laundry majority, how-

ever, both the district judges who ruled on the Double

Jeopardy Clause claim in this case allowed the instant

double-felony indictment of both two small, three-person

partnerships, one of them a small family partnership and

one of the partners in each to remain in court, solely on

the authority of Western Laundry. The first judge to hear

—iitioe

the motions to dismiss, Judge Luther B. Eubanks, expressly

stated that, but for Western Laundry, the defendants would

have “no difficulty persuading me that we have double

jeopardy here.” (Tr., Jan. 4, 1979, p.19, In.23 through p.20,

In.1; emphasis added). The District Court was right. In-

dictment of one member of a small three-person partner-

ship, and indictment of the general partnership is, in legal

effect, an indictment of the partner twice. It impermissably

doubles the quantum of punishment in a manner directly

analogous to that held forbidden in Sanabaria v. United

States, supra, 437 U.S., at 69-70; impermissably imposes

“multiple punishments for the same offense” in a manner

forbidden by North Carolina v. Pearce, 395 U.S. 711, 717

(1969), and impermissably allows the prosecution to double

the punishment for an allegéd offense, a power which “re-

sides wholly with Congress”, Whalen v. United States, ___

US. .—.., 100 S.Ct. 1432, 1436, 1439-1440 (1980). Such an

indictment “seriously offend[s] the principle of the sepa-

ration of governmental powers embodied in the Double

Jeopardy Clause of the Fifth Amendment .. .” Whalen,

supra. Especially is this true with regard to Central, a

small family partnership where there is the pre-existing

relationship of confidentiality found among mother, father

and son. Bellis v. United States, 417 U.S. 85, 101 (1974),

citing, United Statesv. Slutsky, 352 F.Supp. 1100, 1108 (S.D.

N.Y. 1972).

The indictment shows on its face that it is vitiated by

the vice of double jeopardy and, thus, constitutes a “charge

. upon which the [government] may not constitutionally

aati” Menna v. New York, supra, 423 U.S., at 62, n.2

(emphasis added). The indictment should, therefore, be

dismissed.

—

CONCLUSION

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

BERNARD J. ROTHBAUM, Jr.

Counsel of Record for Petitioners

and

BERNARD J. ROTHBAUM, Jr., Esq.

| and

JAMES P. LINN, Esq.

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

(405) 239-6781

Attorneys for Robert Z. Naifeh

BURCK BAILEY, Esq.

2700 First National Center

Oklahoma City, Oklahoma 73102

Attorney for Central Liquor Company

IRVINE E. UNGERMAN, Esq.

1710 Fourth National Bank Building

Tulsa, Oklahoma 74119

JOHN B. JARBOE, Esq.

1210 Mid-Continent Building

Tulsa, Oklahoma 74103

Attorneys for Jarboe Sales Company

TOM L. ARMSTRONG, Esq.

525 S. Main

_ Tulsa, Oklahoma 74119

Attorney for Louis Abraham, Jr.

October, 1980

CERTIFICATE OF SERVICE

The undersigned, a member of the Bar of the Supreme

Court of the United States, hereby certifies that three (3)

true and correct copies of the foregoing Petition for a Writ

of Certiorari were mailed, by certified mail, postage fully

prepaid, to all parties required to be served, to-wit, the

Honorable Wade H. McCree, J r., Solicitor-General, Office

of the Solicitor-General, United States Department of Jus-

tice, Washington, D.C. 20530, this ____ day of

1980.

BERNARD J. ROTHBAUM, Jr.

Appendices

APPENDIX A

[Filed September 5, 1980]

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

Plaintiff,

vs.

NO. CR-78-00215-T

)

)

CENTRAL LIQUOR COMPANY, _)

JARBOE SALES COMPANY, )

LOUIS ABRAHAM, JR. and )

ROBERT Z. NAIFEH, )

)

)

Defendants.

ORDER

Defendants herein have moved to continue the stay of

proceedings entered November 20, 1979, pending the dis-

position of defendants’ Application for Rehearing En Banc

and Petitions for Writs of Certiorari, and briefs have been

received from all parties. A jury was selected to try this

case on November 20, 1979, and it is clear that, should the

case be recommenced, and should either the Court of Ap-

peals or the Supreme Court choose to consider the issues

raised by defendants on appeal, the trial would have to in-

terrupted again and the jury again sent home to await re-

call for another resumption of trial. Recalling the jury for

trial prior to final resolution of the issues being appealed,

when further delays may be forthcoming, is a potentially

expensive and inconvenient procedure not only for the

jurors, but for the parties and the Court. In light of the

already Jengthy postponement of trial, any interest in ex-

pediting the trial of this case does not balance heavily

enough to outweigh the inconvenience, expense and inter-

A-2

(APPENDIX)

ruption in the presentation of complex testimony should

further delay be required after the jury is recalled.

IT IS THEREFORE ORDERED that the stay of trial,

entered November 20, 1979, is hereby continued, until fur-

ther order of the Court.

Plaintiff’s Motion for Trial Conference is granted, but

said conference shall be postponed until a trial date can

be set.

IT IS SO ORDERED this 5th day of September, 1980.

(s) Ralph G. Thompson

UNITED STATES DISTRICT JUDGE

A-3

(APPENDIX)

PUBLISH

[Filed August 11, 1980]

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ) |

vs. ) Nos. 79-2204

) 79-2205

CENTRAL LIQUOR COMPANY, ) - 79-2206

JARBOE SALES COMPANY, ) 79-2207

LOUIS ABRAHAM, JR. and )

ROBERT Z. NAIFEH, )

Defendants-Appellants )

APPEAL FROM THE UNITep States District Court

For THE WESTERN District of OKLAHOMA

(D.C. No. Cr. 78-00215-T)

Burck Bailey of Fellers, Snider, Blankenship, Bailey and

Tippens, Oklahoma City, Oklahoma, for Appellant Central

Liquor Company.

B. J. Rothbaum, Jr. (with James P. Linn on the brief) of

Linn, Helms, Kirk & Burkett, Oklahoma City, Oklahoma,

for Appellant Robert Z. Naifeh.

John B, Jarboe (with Irvine E. Ungerman on the brief),

Tulsa, Oklahoma, for Appellant Jarboe Sales Company.

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

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

ham, Jr.

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

ington, D.C. (with John H. Shenefield, Assistant Attorney

A-4

{APPENDIX}

General, and Barry Grossman, Attorney, Department of

Justice, Washington, D.C.; and Charles R. McConachie and

Leonard A. Senerote, Jr., Attorney, Department of Justice,

Dallas, Texas, on the brief), for Appellee.

Before McKAY and LOGAN, Circuit Judges, and PECK,

Senior Circuit Judge.*

MCKAY, Circuit Judge.

The government has invoked the Sherman Act felony

provision, 15 U.S.C, § 1, to indict both two small partner-

ships' and the most active partner of each. After a jury

was empaneled, the district court denied motions to dis-

miss the indictments and stayed the proceedings pending

prosecution of these appeals. Defendants argue that indict-

ment of both a small partnership and an individual partner

for the same activity is precluded by the double jeopardy

clause, and they seek immediate review of the district

court's actions under the doctrine of Abney v. United States,

431 U.S. 651 (1977).

These cases have previously been presented to this

court. When defendants sought to raise the double jeop-

ardy issue before a jury had been empanelled, we dismissed

the appeals, holding that the issue was “not ripe for re-

view.” United States v. Abraham, No. 79-1017, slip op. at 2

(10th Cir. May 15, 1979, amended, June 15, 1979), cert. de-

nied, 100 S.Ct. 137 (1979). We noted that, before a double

jeopardy claim may be raised, a defendant must first have

Been put in jeopardy. Slip op. at 3. We did not intimate

*Honorable John W. Peck, Senior United States Circuit Judge, Sixth Cir-

cuit Court of Appeals, Cincinnati, Ohio, sitting by designation.

? One of the partnerships is composed of three family members —

son, father and mother. The other consists of three unrelated persons.

A-5

[APPENDIX)

that interlocutory appeals would later lie upon attachment

of jeopardy.

After the Abraham decision, the district court em-

panelled a jury, denied renewed dismissal motions, and

Stayed the proceedings. These appeals followed.? The dis-

trict court exercised commendable caution to insure that

no constitutional rights of the defendants would be vio-

lated by a precipitate move toward an unwarranted trial.

The court recognized that, although Abney may be distin-

guishable from the instant cases, no extant authority spe-

cifically precluded interlocutory appeal. See Record, vol.

2, at 515,

Under the circumstances of these cases, appellate juris-

diction must be found, if at all, under 28 U.S.C. § 1291. The

statutory phrase “final decisions” has been defined to in-

clude those decisions falling within the “collateral order”

doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 546-47 (1949). See also Helstoski v. Meanor, 99

S.Ct. 2445, 2449 (1979). In Abney v. United States, 431 U.S.

651 (1977), the Supreme Court held that a district court’s

denial of a particular double jeopardy claim was a collat-

eral order and thus immediately appealable.

The Abney petitioners had undergone one trial. Had

they not been permitted to appeal prior to a retrial, a sig-

nificant protection of the double jeopardy clause would have

been irretrievably lost: “(T]he guarantee against double

jeopardy assures an individual that, among other things, he

will not be forced, with certain exceptions, to endure the

* After these appeals were filed, the government moved to dismiss

on jurisdictional grounds. By order of March 4, 1980, this court denied

the motion. Although the jurisdictional issue was briefed at that time, no

res judicata effect attaches to our previous denial. As a court of limited

jurisdiction, we are bound to review jurisdictional issues at all stages of

the proceedings. Denial without opinion of a routine pre-argument mo-

tion to dismiss connotes at most this court's desire for further argument.

A-6

(APPENDIX)

personal strain, public embarrassment, and expense of a

criminal trial more than once for the same offense.” 431

U.S. at 661 (emphasis added).* See United States v. Ritter,

587 F.2d 41, 43 (10th Cir. 1978). Although defendants here

are not facing a second trial, they suggest that the Abney

rationale extends to all charges which, on double jeopardy

grounds, the government may not constitutionally prose-

cute. In the alternative, they maintain that, “[i]n every

practical sense,” they face the specter of two trials. Ap-

pellants’ Memorandum on Appealability at 8.

The right not to be tried more than once and the right

not to receive multiple convictions and punishments for the

same offense are both protected by the double jeopardy

clause, but they are conceptually distinct rights.‘ In Abney,

the Court sought to protect through interlocutory appeal

only the prohibition against multiple prosecutions — i.e.,

“repeated attempts to convict an individual for the same

offense.” 431 U.S. at 661 (quoting Green v. United States,

355 U.S. 184, 187 (1957)). As the Court stressed, “[T]he

Double Jeopardy Clause [also] protects an individual

against being twice convicted for the same crime, and that

aspect of the right can be fully vindicated on an appeal

8 “Trial” should, of course, be read expansively. Cf. United States v.

Sebastion, 562 F.2d 211, 214 (2d Cir. 1977) (denial of double jeopardy

motion to dismiss superseding indictment appealable); United States v.

Cerilli, 558 F.2d 697, 699 (3d Cir.) (interlouctory double jeopardy ap-

peal following mistrial), cert. denied, 434 US. 966 (1977).

* Defendants, relying on Launius v. United States, 575 F.2d 770

(9th Cir. 1978), argue that there is no basis for a distinction between

sequential double jeopardy and the double jeopardy resulting from one

multiplicitous indictment. Lawnius does not govern these cases. The Lawn-

ius Court was not concerned. with the distinction between multiple trials

and multiple punishments. It considered only whether there is a substan-

tive difference between multiple punishments imposed through one trial

and those resulting from many trials. Id. at 771, Clearly that distinction

is irrelevant for double jeopardy purposes.

A-7

[APPENDIX)

following final judgment.” . 431. U.S. at 650.5 See United

States v. Padilla, 589 F.2d 481, 483 (10th Cir. 1978).

Should both the individual partners and the partner-

ships be convicted in these cases, this court would be pre-

sented with a pure double jeopardy question, unsullied by

a need to reconsider the jury’s factual findings. Any pos-

sible juror prejudice from an unjustified pyramiding of

charges would be irrelevant to our double jeopardy review.

Thus, post-conviction appeals would be totally effective in

protecting defendants’ rights not to be twice convicted for

the same offense. :

Of course, the defendants’ concern is not limited to the

danger of dual convictions. The probability of a conviction

on one count increases as more charges are included in a.

particular trial. However, except in the multiple prosecu-

tions context, the double jeopardy clause does not protect

against a single conviction. If indeed the trial results in

conviction of only the individual partners or only the part-

nerships, our review on appeal would follow a due process

analysis, directed to the prejudicial effects of the multiple

charges. This court must often undertake such analysis on

post-conviction review. Interlocutory appeal from unsuc-

cessful challenges to criminal indictments is, in other con- -

texts, generally not permitted precisely because the danger

of delay is not counterbalanced by any irreparable threat

to a defendant’s constitutional rights. See, e.g., Parr v.

United States, 351 U.S. 513, 518-21 (1956); Cobbledick v.

United States, 309 U.S. 323, 324-25 (1940). This time-

honored policy should also govern here.

5 United States v. Barket, 530 F.2d 181 (8th Cir. 1975), cert. denied,

429 US. 917 (1976), relied on heavily by defendants, and cited in Ab-

ney, is quite consistent with this analysis. In Barket, it is true that there

was but one indictment with two counts. The Eighth Circuit permitted aa

interlocutory appeal of the denial of a motion to dismiss one count. How-

ever, the appeal was taken only after trial on the other count had pro-

ceeded to judgment. Id. at 184.

A-8

[APPENDIX]

As an alternative argument, defendants seek to fit the

particulars of their cases within the multiple prosecutions

doctrine. Because all defendants have retained their own

attorneys to avoid any possible conflicts-of-interest, the ex-

pense and strategic complexity of a trial have been multi-

plied. |

Standing alone, the additional expense for attorneys

does not create a multiple prosecutions situation. Further-

more, defendants’ assertion that the trial will become ex-

cessively complex, thereby increasing the “ordeal” they

must suffer, is inconsistent with their theory of appeal-

ability. If it is true that each partnership and its con-

trolling partner are one-and-the-same for Sherman Act

purposes — as defendants argue — the complexity of the

trial will be only superficially increased. The core of the

government’s case will necessarily be evidence applicable

to both the partnership and the individual. Any trial is an

ordeal, but defendants may not escape a single trial through

application of the double jeopardy clause.

APPEALS DISMISSED.

A-9.

CAPPENDIX]

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OFFICE OF THE CLERK

469 UNITED STATES COURTHOUSE

DENVER, COLORADO 80202

HOWARD K. PHILLIPS TELEPHONE

CLERK 303-837-3157

August 11, 1980

Mr. Herbert T. Hope, Clerk

United States District Court for

the Western District of Oklahoma

Room 3210 U.S. Courthouse

Oklahoma City, OK 73102

-Re: No. 79-2204, U.S.A. vs. Central Liquir Company

No. 79-2205, U.S.A. vs. Robert Z. Naifeh

No. 79-2206, U.S.A. vs. Louis Abraham, Jr.

No. 79-2207, U.S.A. vs. Jarboe Sales Company

Dear Mr. Hope:

Pursuant to Rule 41 of the Federal Rules of Appellate

Procedure, effective July 1, 1968, as amended, I am enclos-

ing a certified copy of the judgment, and a copy of the

opinion, which shall constitute the mandate of this Court.

You will please file this mandate in the records of your

court immediately upon receipt of it by direction of this

Court. I am also enclosing a form of receipt for you to sign

and return to this office.

The original record on appeal will be returned to you

under separate cover.

Sincerely yours,

HOWARD K. PHILLIPS, Clerk

(s) Howard K. Phillips

HKP:sm

A-10

{APPENDIX}

Enclosures

cc: Mr.

Mr.

Mr.

Burck Bailey, Fellers, Snider, Blankenship, Bailey

& Tippens, 2700 First National Center, Oklahoma

City, OK 73102

B. J. Rothbaum, Jr., Linn, Helms, Kirk & Burkett,

Suite 410 Fidelity Plaza, Oklahoma City, OK 73102

Peter L. de la Cruz, Department of J ustice, Wash-

ington, D.C. 20530

. Charles R. McConachie, & Mr. Leonard A. Sene-

rote, Jr., Department of Justice, Dallas, TX 75242

. Irvine E. Ungerman, 1710 4th National Bank Bldg.,

Tulsa, OK 74119

John P. Jarboe, 1210 Mid-Continent Bldg., Tulsa,

OK 74103

A-11.

(APPENDIX)

_' [Filed November‘ 20, 1979]:

IN THE UNITED STATES DISTRICT COURT FOR THE

.. WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, ° §)

Plaintiff )

vs. ) ais.

‘bd ) No. CR-78-00215-T

CENTRAL LIQUOR COMPANY, ) |

JARBOE SALES COMPANY, )

LOUIS ABRAHAM, JR., )

and ROBERT Z. NAIFEH, )

‘Defendants _)

ORDER

Upon renewal of defendants’ Motion to Dismiss on

double jeopardy grounds following the empaneling of a

jury, the Court overruled said motion and granted a stay

of proceedings pending appeal. Western Laundry & Linen

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

cert. denied 400 U.S. 849, provides the only authority di-

rectly relevant to the issue before the Court. In that case,

the Ninth Circuit. held that an indictment charging both

an individual and a partnership of which he was a partner,

for violations of the Sherman Act, did not violate the double

jeopardy clause. The opinion is well reasoned and convinc-

ing and no better authority can be found. Based upon

Western Laundry, therefore, the Court hereby overrules

defendants’ Motion to Dismiss.

The government argues that defendants are not en-

titled to immediate appeal upon renewal of the motion

following the empaneling of a jury, or a stay of proceed-

ings pending appeal, because the question raised by defen-

dants is one of dual punishment for one offense, rather

than a second trial on the same offense. Plaintiff argues

that the right of immediate appeal announced in Abney v.

United States, 431 U.S. 651 (1977), does not apply to this

A-12

[APPEND!IX)}

fact situation. The Court is unable to agree with plaintiff

that defendants have no right to a stay of trial pending

appellate review, if sought. The distinction between multi-

ple punishment and multiple trial, drawn by the govern-

ment, may have validity. However, absent a clear pro-

nouncement either in the Tenth Circuit or the Supreme

Court on this issue, this Court will not speculate on what

the law may turn out to be. The question for review in

Abney, as stated by the Supreme Court, was “whether a

pretrial order denying a motion to dismiss an indictment

on double jeopardy grounds is a final decision . . . and thus

immediately appealable.” 431 U.S. 651, 653. The question

was answered in the affirmative. While the facts in Abney

are distinguishable from those of the double jeopardy ques-

tion before this Court, the right of immediate appeal an-

nounced in Abney has not been modified or limited as

Suggested by the government and thus the Court is obliged

to and will apply Abney to allow these defendants, under

the facts of this case, the right of immediate appeal of the

denial of a motion to dismiss based on ‘double jeopardy

grounds.

In accordance with the foregoing, defendants’ Motion

to Dismiss is denied. These proceedings are stayed pending

appeal.

It is so ordered this 20th day of November, 1979.

(s) Ralph G. Thompson

UNITED STATES DISTRICT JUDGE

A-13

(APPENDIX)

_ [Filed November 1, 1979]

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

Plaintiff

vs.

JARBOE SALES COMPANY,

LOUIS ABRAHAM, JR.,

and ROBERT Z. NAIFEH, ;

Defendants

ORDER

This case is before the Court on the motion of defen-

dants Naifeh and Abraham for reconsideration of their

earlier Motion to Dismiss the Indictment on double jeop-

ardy grounds. The issue has been fully briefed by the

parties. The indictment in this case was returned in De-

cember, 1978, and charged a conspiracy to violate the Sher-

man Act against the two moving defendants and two part-

nerships of which each is a partner. The moving defendants

moved to dismiss on double jeopardy grounds, claiming that

charging the two partnerships and two individual partners

for the identical acts violates the double jeopardy clause of

the Fifth Amendment. The motion was denied by the Hon-

orable Luther B. Eubanks of this Court in January, 1979,

and defendants took an immediate appeal, pursuant to Ab-

ney Vv. United States, 431 U.S. 651 (1977). The Tenth Cir-

cuit stated that the double jeopardy claims were not ripe

for review and dismissed the appeal. United States v. Abra-

ham and Naifeh, Nos. 79-1017 and 79-1018 (10th Cir. May

15, 1979, as modified June 15, 1979). The United States

Supreme Court denied certiorari, _.. U.S. ___., 48 U.S.L.W.

3221, and upon remand, defendants again raise their double

jeopardy claim. It is this renewal, styled Motion for Re-

consideration, which is presently before the Court.

)

)

CENTRAL LIQUOR COMPANY, ) No. CR-78-00215-T

) | ,

)

)

)

A-14

(APPENDIX)

Although the parties disagree as to the precise ruling

of the Tenth Circuit in its opinion, it is clearly stated that

the issue “is not ripe for review” (slip op. p. 1) and ap-

parently will not become so until a jury is empaneled. The

Court must therefore deny defendants’ motion at this time

as being unripe; however, under the reasoning employed by

the Tenth Circuit in its opinion on appeal, the issue will

become ripe upon the empaneling of a jury in this case.

Defendants’ motion is therefore denied.

It is so ordered this Ist day of November, 1979.

(s) Ralph G. Thompson

UNITED STATES DISTRICT JUDGE

A-15

CAPPEND#IX)

NOT FOR ROUTINE PUBLICATION

_ [Filed May 15, 1979)

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

LOUIS ABRAHAM, JR. and ) of Oklahoma

ROBERT Z. NAIFEH, ) (D.C. # CR-78-

) 00215-E)

Appellants. )

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

strong, Tulsa, Oklahoma, for Appellant, Louis Abraham, 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

Weston, Attorneys, Department of Justice, sities —

with him on the Brief), for Appellee.

Before SETH, Chief Judge, MARKEY* and HOLLOWAY,

Circuit Judges. |

*Honorable Howard T. Markey, Chief Judge, United States Court of Cus-

toms and Patent Appeals, sitting by designation.

A-16

(APPENDIX)

PER CURIAM.

These appeals 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

order 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

US. 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:

“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 .(émpha-

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

A-17

CA.*P Hew DIX)

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-

triatorder 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 immediately

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.

A-18

[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.

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

vs. ) No. 79-1017

) 79-1018

LOUIS ABRAHAM, JR., and )

ROBERT Z. NAIFEH, )

Defendants-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

Chief Deputy Clerk men

*Sitting by Designation.

A-19

(APPENDIX)

[Filed January 17, 1979]

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

Plaintiff, )

v. )

) 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 offense 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 Defen-

dants’ Motions and the Government’s response thereto.

Based upon the Court’s understanding of the holding

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

S.Ct. 203, 3 L.Ed.2d 165 (1958), 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

A-20

sAPPENDIX)

(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 over-

ruled. 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 Appeals

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, appealable

to the Court of Appeals for the Tenth Circuit.

(s) Luther B, Eubanks

LUTHER B. EUBANKS

UNITED STATES DISTRICT JUDGE

APPENDIX B

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 Rules 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, .. .”

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.”