# Petition — Central Liquor Co. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1022

## Text

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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0571%3A1. Public record. Not legal advice.