Petition — Kuhn v. United States

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8 0 sre ] 4 ] 5 Office-Supreme Court, U.S.

FILED

APR 18 \9@1

ALEXANDER L. STEVAS,

NO. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

ROBERT J. KUHN,

JOSE C. DAVILA, AND

DOYLE D. HUCKABEE,

PETITIONERS

vs.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

2 ae

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT J. KUHN ALBERT A. PENA, III

Kuhn & Collins Padre Savinys Bldg.

A Professional Corp. 4466 S. Staples St.

507 West 10th St. - Corpus Christi, TX

Austin, TX 78701 512/992-8061

512/472-7241 Counsel for

Pro Se Jose C. Davila

WARREN L. COLLINS, UR.

Kuhn & Collins

A Professional Corp.

507 West 10th St.

Austin, TX 78701

512/472-7241

Counsel for

Doyle D. Huckabee

QUESTION PRESENTED

WHETHER THE FIFTH CIRCUIT COURT OF

APPEALS' HOLDING THAT IT LACKS JURISDIC-

TION TO CONSIDER A DOUBLE JEOPARDY

APPEAL, BASED UPON THE INSUFFICIENCY OF

THE EVIDENCE AT PETITIONERS' FIRST TRIAL

WHICH ENDED WITH A HUNG JURY, IS IN

CONFLICT WITH THIS COURT'S DECISION IN

ABNEY V. UNITED STATES.

TABLE OF CONTENTS

Subject Index

Opinions Below ....++-«e.

PUREMGLCCLOR. . sc is: 0 0 Ue

Constitution and Statutory

Provisions Involved... .

Statement of the Case. ....

Reasons for Granting the Writ.

A. The decision below con-

flicts with this Court's

decision in Abney v.

United States in that it

denies petitioners their

Double Jeopardy Clause

protections, by forcing

them to undergo a second

trial before receiving

appellate review of their

double jeopardy claims. .

B. No adverse policy impli-

cations arise from a full

and complete enforcement

of the Double Jeopardy

Clause protections. ...

ES Per eae er ee es

meet Of Gervice - »« « «e266

Pages

Appendix A:

Appendix B:

Appendix C:

Appendix Index

District Court

Memorandum

Opinion and

GEeen 4 es & 0 « ABs... 1

Opinion Of The

United States

Court Of Appeals

For The Fifth

CAR@GLE cs os « « App. 36

Opinion Of The

United States

Court Of Appeals

For The Fifth

Circuit in United

States v. Becton,

mn 6°) oh. « «¢ ae. 3

iii

TABLE OF AUTHORITIES

Cases

Abney v. United States, 431 U.S.

Se STE oY be me eee He ehe ee

Aetna Casualty Co. v. Flowers,

sae Doms BOF CLISTT 66 «2 oe 8

Ashe v. Swenson, 397 U.S. 436,

(1970) e . > o > - s . * a ao 14

Burks v. United States, 437 U.S.

l (1978) > - 2 - ~ 7 + . . - 7 8,

Carr v. Zaja,283 U.S. 52 (1931). . 3

Cohen v. Beneficial Industrial

Loan Corporation, 337 U.S.

541 (1949) . a ° 7 ° os 7 ° + 10,

Kuhn v. United States, No. 80-

1207 (5th Cir. Feb. 23,

1981) (per curiam)... « « « « . &

United States v. Becton, 632

F.24 1294 . (Sth Cig. 19660)... Ge

‘iv

10,

United States v. Dunbar, 61ll

F.2d 985 (5th Cir. 1980)

[i ene io Ge ae ee be « ed

United States v. Kuhn, No. SA-

79-CR-18-1, (W.D. Tex.

Feb. 14, 1980) (memorandum

oe) ER a ae ee ee

United States v. Wilkinson, 601

7.420 791. (th Cac. 1979). =. « 30

Constitutional Provisions

And Statutes

United States Code, Title 18

q 371 e e * e . . . e . >? a 4,

£1662 . . . + 7 . . . . > . . 4,

- United States Code, Title 28

$1254(1). - . e «a * ° . 2

United States Constitution,

Paton Amenmement 1. 6 «© se oe SB

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

ROBERT J. KUHN,

JOSE C. DAVILA, AND

DOYLE D. HUCKABEE,

PETITIONERS

VS.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Robert J. Kuhn, Jose

C. Davila, and Doyle D. Huckabee, re-

spectfully pray that a Writ of Certiorari

issue to review the jvigment and opinion

of the United States Court of Appeals

for the Fifth Circuit, entered in this

proceeding on February 23, 1981.

OPINIONS BELOW

The opinion of the United States

District Court for the Western District

of Texas is an unpublished Memorandum

Opinion rendered February 14, 1980. A

copy of the opinion is included in the

Appendix as Exhibit A.

The opinion of the United States

Court of Appeals for the Fifth Circuit

is an unpublished per curiam opinion

rendered February 23, 1981. A copy of

the opinion in included in the Appendix

as Exhipit B.

JURISDICTION

Jurisdiction in this cause is

premised upon 28 U.S.C. $ 1254(1) for

‘review by certiorari of the judgment and

opinion of the United States Court of

Appeals for the Fifth Circuit. A

written per curiam opinion was issued by

that court on February 23, 1981.

7’.

The petitioners' request for stay

of the mandate in this cause pending

review by certiorari to the United

States Supreme Court was denied by

Circuit Judge Gee on March 18, 1981.

The record in this cause was then lodged

with the Clerk of the United States

District Court for the Western District

of Texas, Austin Division. Although the

mandate has issued, the United States

Supreme Court has jurisdiction to review

the decision of the United States Court

of Appeals for the Fifth Circuit regard-

‘less of the status of the mandate.

Carr v. Zaja, 283 U.S. 52, 53 (1931);

Aetna Casualty Co. v. Flowers, 330 U.S.

464, 468 (1947).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment to the United States

Constitution:

- « » nor shall any person be

subject for the same offense

to be twice put in jeopardy of

life or limb...

18 U.S.C. §$ 371:

If two or more persons con-

spire either to commit any of-

fense against the United States,

or to defraud the United States,

or any agency thereof in any

manner or for any purpose, and

one or more of such persons do

any act to effect the object of

the conspiracy, each shall be

fined not more than $10,000 or

imprisoned not more than five

years, or both.

If, however, the offense,

the commission of whici is the

object of the conspiracy, is a

misdemeanor only, the punish-

ment for such conspiracy shall

not exceed the maximum punish-

ment provided for such misde-

meanor.

U.S.C. 8 1622:

Whoever procures another to com-

mit any perjury is guilty of

subornation of perjury, and

shall be fined not more than

$2,000 or imprisoned not more

than five years, or both.

STATEMENT OF THE CASE

On January 30, 1979, petitioners

were indicted by a United States Grand

Jury and charged with one count of

conspiracy to suborn perjury in viola-

tion of 18 U.S.C. 88 371 and 1622.

Between August 28, 1979, and September

6, 1979, trial before a jury was had in

the United States District Court for the

Western District of Texas. At the end

of the government's case-in-chief, and

then again at the close of all evidence,

all petitioners made motions for judg-

ment of acquittal based on the insuffi-

ciency of the evidence against them.

Each time these motions were denied. On

September 8, 1979, the jury announced

that it was deadlocked. The jury was

then given a modified Allen charge, but

later that day again announced that it

was hopelessly deadlocked at six to six

SF Gey

tte

**.

as to all petitioners. The district

judge at that time declared a mistrial.

On November 13, 1979, after the

case was set for retrial, petitioners

filed a Motion To Dismiss The Indictment

For Prior Jeopardy, claiming, among

other things, that the evidence produced

against them at the first trial was so

insufficient that their motions for

acquittal should have been granted. The

district court denied said motion in a

Memorandum Opinion and Order on February

14, 1980. (Appendix, Exhibit A).

Petitioners timely made an inter-

locutory appeal to the United States

Court of Appeals for the Fifth Circuit,

based upon the fact that the Double

Jeopardy Clause of the Fifth Amendment

to the United States Constitution barred

a second trial because the evidence at

the first trial was insufficient to

>" ——

— ==

44>

warrant submission to the jury.

On February 23, 1981, in an unpub-

lished per curiam opinion, the Court of

Appeals for the Fifth Circuit dismissed

the appeal, holding that it was without

jurisdiction to consider the issues

raised. Over petitioners’ objections,

the mandate was returned to the District

Court pursuant to Circuit Judge, Gee's

order entered on March 18, 1981.

REASONS FOR GRANTING THE WRIT

A. The decision below conflicts

with this Court': decision in

Abney v. United States in that

it denies petitioners their

Double Jeopardy Clause protec-

tions, by forcing them to

undergo a second trial before

receiving appellate review of

their double jeopardy claims.

This Court has clearly established

that the Double Jeopardy Clause "is a

guarantee against twice being put to

trial for the same offense." Abney v.

United States, 431 U.S. 651, 661, 97

S.Ct. 2034, 52 L.Ed.2d 651 (1977) (em-

phasis in original). As subsequently

explained in Burks v. United States, 437

U.S. 1, 98 S.Ct. 2141, 57 L.Ed. 24 1

(1978), the “Double Jeopardy Clause

forbids a second trial for the purpose

of affording the prosecution another

oportunity to supply evidence which it

failed to muster in the first proceed-

ing." 437 U.S. at ll. Yet the decision

below fails to recognize that the full

double jeopardy right is lost when one

is put to trial a second time after the

prosecution failed to introduce suffi-

cient evidence to convict in the first

proceeding.

The Fifth Circuit Court of Appeals

tees

dismissed this appeal for lack of juris-

diction, citing its holding in United

States v. Becton, 632 F.2d 1294 (5th

Cir. 1980, motion for rehearing now

pending). (A copy of the Becton

opinion is reproduced in the Appendix as

Exhibit C.) Becton addresses a fact

situation which is procedurally identi-

cal in all respects to that in this

case. In the first trial, a motion for

judgment of acquittal based on insuffi-

ciency of the evidence was denied and

followed by a mistrial which resulted

from a hung jury. At the outset of the

second trial, a motion to dismiss on

grounds on former jeopardy due to the

insufficiency of the evidence at the

first trial was denied, and an inter-

locutory appeal was taken. 632 F.2d at

1295.

Significantly, the Becton Court

‘agrees that the insufficiency argument

advanced there and in this case is a

double jeopardy question.

It should be borne in mind

that we do not confront the

issue of reviewability; it

is not an open question in

this circuit that precisely

this issue is subject to re-

view on appeal from a second

conviction, should one occur.

United States v. Wilkinson,

60L F.2d 791 (5th Cir. 1979).

632 F.2d at 1296.

The Becton Court also agreed that

such appeals are to be governed by this

Court's decisions in Burks v. United

States, supra; Abney v. United States,

supra; and Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 69 S.Ct. 1221,

93 L.Ed. 1528 (1949). 632 F.2d at 1295-

6. However, the Court held that juris-

diction was lacking as to this type of

appeal because one of the requirements

set forth in Cohen was not met, to wit:

7’.

that the decision sought to

be appealed "was not simply

a ‘step toward final disposi-

tion of the merits of the

case [which would] be merged

in final judgment’...

(citations omitted)

632 F.2d at 1296.

It is at this point that the Court

of Appeals erred, because this Court has

already definitively established in

Abney that double jeopardy challenges

are immediately appealable, due to the

nature of the protections involved

therein.

The Court of Appeals erred in

classifying the question of the applica-

tion of Cohen to double jeopardy appeals

as one of first impression. The court

below simply failed to recognize that

this Court has already held in Abney

that double jeopardy appeals are in-

cluded within the Cohen exception to the

final judgment requirement.

As this Court so clearly explained

in its unanimous decision in Abney,

Although it is true that a

pretrial order denying a

motion to dismiss an indict-

ment on double jeopardy

grounds lacks the finality

traditionally considered in-

dispensable to appellate re-

view, we conclude that such

orders fall within the "small

class of cases" that Cohen

has placed beyond the con-

fines of the final judgment

rule. In the first place,

there can be no doubt that

such orders constitute a com-

plete, formal and in the

trial court, a final rejec-

tion of a criminal defendant's

double jeopardy claim. ...

Hence, Cohen's threshold re-

quirement of a fully consum-

mated decision is satisfied.

Moreover, the very nature of

a double jeopardy claim is

such that it is collateral to,

and separable from, the princi-

pal issue at the accused's im-

pending criminal trial, i.e.,

whether or not the accused is

guilty of the offense charged.

431 U.S. at 659.

When one concedes, as the Court of

Appeals did in Becton, that this type of

claim is a true double jeopardy appeal,

the above iba excerpts from Chief

Justice Burger's opinion in Abney leave

no doubt that jurisdiction lies for

immediate appellate review.

The logic behind this Court's

decision in Abney, and the illogical

result of the conflicting Becton

opinion, are clear when one considers

the procedural implications of these

decisions. Three possible procedural

situations can result when the govern-

ment's evidence at the first of two

criminal trials is insufficient:

Situation l:

- Conviction at first trial

- Reversal of conviction for

insufficiency

- Second trial barred (Burks v.

United States, supra)

Situation 2:

- Acquittal at first trial

- Second trial barred (Ashe v.

Swenson, 397 U.S. 436, 90

S.Ct. 1189, 25 L.Ed.2d 469

(1970) )

Situation 3:

x Hung jury at first trial

In all three of these situations,

the prosecution has had its chance to

present sufficient evidence and has

failed to do so. Yet the Court below

has decided that double jeopardy protec-

tion will be provided to those defen-

dants "lucky" enough to be wrongly

convicted (Situation 1), but not those

who have a jury which refuses to wrongly

convict and hangs (Situation 3).

B. No adverse policy implications

arise from a full and complete en-

forcement of the Double Jeopardy

‘

Clause protections.

Policy considerations mandate

reversal of the circuit court in this

instance, if the Double Jeopardy Clause

is to retain its significance. This

Court in Abney v. United States, supra,

clearly specified what is necessary to

ensure protection against double jeo-

pardy:

These aspects of the guaran-

tee's protections would be

lost if the accused were

forced to "run the gauntlet"

a second time before an ap-

peal could be taken even if

the accused is acquitted, or

if convicted, has his convic-

tion ultimately reversed on

double jeopardy grounds he

has still been forced to en-

dure a trial that the Double

Jeopardy Clause was designed

to prohibit. Consequently,

if a criminal defendant is

to avoid exposure to double

jeopardy and thereby enjoy

the full protection of the

Clause, his double jepoardy

challenge .. . must be re-

viewable before that subse-

quent exposure occurs.

431 U.S. at 662. When one balances the

fact that interlocutory appeal is the

only means for those in petitioners'

situation to receive these protections

against the arguments advanced in the

Becton decision, the only constitutional

recourse is the position advanced by

petitioners,

| The dire results foreseen by the

Becton Court should this type of appeal

be allowed are completely illusory. The

Becton panel asserted that should juris-

diction exist for this type of appeal,

interlocutory appeals could be had from

"all criminal trials in which a motion

to acquit for insufficiency of evidence

is made and denied." 632 F.2d at 1297.

This conclusion is based on the same

basic fallacy in analysis discussed

previously. In the vast majority of

criminal prosecutions which are disposed

of with one actual trial, the suffi-

’

ciency of the prosecution's evidence is

just “a step toward final disposition of

the merits of the case," and is clearly —

not collateral under Abney and Cohen.

Both this case and Becton however,

belong to that relatively tiny class of

cases where a first trial is fully

litigated, ends in a mistrial, and is

followed by a second, separate trial

proceeding.

The other concern of the Becton

court was that the appellate floodgates

would open

"if it is possible to take an

interlocutory appeal by means

of making a double-jeopardy

claim grounded on any trial

error or errors which it can

be asserted should have re-

sulted in an acquittal at the

first trial - erroneous ad-

mission of a great body of

severely damaging evidence,

for example..."

632 F.2d at 1296. This argument is

totally inapplicable to the question

here presented. The only jurisdictional

question presented when Burks is applied

to Abney and Cohen's holdings is that of

evidentiary sufficiency at a former

trial. Should this Court reverse the

Fifth Circuit's decisions in this case

and overrule Becton, such a holding

would in no way affect the other types

of appeals which so concern the court

below.

Moreover, the result petitioners

seek would cause little change or dis-

ruption at the trial court level.

Present law provides adequate safeguards

against frivolous double jeopardy claims

which seek only to delay trial proceed-

ings. In the Fifth Circuit, for exam-

ple, if the trial court makes a written

finding that an interlocutory double

jeopardy appeal is "frivolous," the

second trial need not be stayed during

the pendency of the interlocutory ap-

peal. United States v. Dunbar, 611 F.2d

985 (5th Cir. 1980, en banc).2

CONCLUSION

For the afofesaid reasons, peti-

tioners respectfully pray that a Writ of

Certiovari issue to review the judgment

and optettn of the United States Court

of Appeals for the Fifth Circuit.

petitioners’ appeal to the Fifth

Circuit predated the Dunbar decision,

but, as the trial court's LIengthy Memor-

andum Order (Exhibit B) shows, the trial

judge in this case certainly did not .™

consider this appeal “frivolous" in any »

way.

Respectfully submitted,

ROBERT J. KUHN

Kuhn & Collins

A Professional Corp.

507 West Tenth Street

Austin, TX 78701

512/472-7241

Pro Se

WARREN L. COLLINS, JR.

Kuhn & Collins

A Professional Corp.

507 West Tenth Street

Austin, TX 78701

512/472-7241

Counsel for Petitioner

Doyle -D. Huckabee

ALBERT A. PENA, III

Padre Savings Bldg.

4466 S. Staples St.

Corpus Christi, TX

512/992-8061

Counsel for Petitioner

Jose C. Davila

BY: bee

N L. COLLINS, JR.

PROOF OF SERVICE

The undersigned counsel for peti-

tioners certifies by his signature below

that three copies of the above and

foregoing Petition for Writ of Certiorari

have been served on Mr. Wade Hampton

McCree, Jr., Solicitor General, Depart-

ment of Justice, Washington, D.C.,

20530, by depositing same in a United

States mailbox, with first-class postage

prepaid, addressed as above.

APPENDIX

App *

APPENDIX

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

NO. SA-79-CR-18

UNITED STATES OF AMERICA,

Plaintiff

vs.

ROBERT J. KUHN,

JOSE C. DAVILA, AND

DOYLE D. HUCKABEE,

Defendants

MEMORANDUM OPINION AND ORDER

On January 30, 1979, an indictment

charging a conspiracy to suborn perjury

in violation of 18 U.S.C. 8 371, was

returned against Defendants KUHN,

HUCKABEE, and DAVILA. A trial in the

cause was commenced on August 27, 1979,

and on September 8, 1979, a mistrial was

declared because of the inability of the

°%

jury to reach a verdict.

On November 13, 1979, the Defen-

dants, in the above-styled and numbered

cause, filed a Motion to Dismiss the

Indictment Due to Double Jeopardy: The

basis of their Motion is that their

Motion For Judgment of Acquittal urged

both, at the close of the Government's

case-in-chief during the first trial of

chis cause and at the end of the presen-

tation of all of the evidence in the

case, should have been granted. The

Defendants contend that a second trial

of this cause under the same indictment

would violate the Double Jeopardy Clause

of the Fifth Amendment of the Constitu-

tion of the United States.

On February 8, 1980, the day set

for oral arguments on this Motion,

Defendants filed a Supplemental Memoran-

dum in Support of their Motion to

App.

Dismiss the Indictment Due to Double

Jeopardy.

The Court, having heard oral argu-

ments and having carefully considered

the transcripts of the proceedings

conducted during the first trial as well

as any relevant pleadings, is ready to

make a determination.

CONTENTIONS OF DEFENDANTS

In their Motion to Dismiss the

Indictment Due to Double Jeopardy filed

on November 13, 1979, the Defendants

urged the following grounds as a basis

for granting their Motion:

1. That the evidence is insuffi-

cient to support a finding of guilt in

this cause as to each of the Defendants.

2. That the Government has failed

to establish beyond a reasonable doubt

sufficient evidence to show that the

Defendants were not acting in good faith

App.

and did not have reasonable grounds to

believe the evidence they sought to

obtain from Florencio H. Rendon was

true.

Ze That the Government has wholly

failed to prove beyond a reasonable

doubt that the Defendants did not have

reasonable grounds to believe and were

not acting in good faith as to the

belief as to the true facts of the

testimony given by Rendon in the 1972

trial.

4. That the Government has wholly

failed to establish beyond a reasonable

doubt that the change of testimony of

Florencio H. Rendon was anything more

than a good faith attempt on the part of

an attorney, representing a client, to

investigate and determine what the truth

or falsity of the original testimony

was.

App.

- That the Government has wholly

failed to prove that the offense of

subornation of perjury has been com-

pleted.

6. That the Government has wholly

failed to establish that there would

actually be a forthcoming judicial

proceeding which would receive the

alleged perjurious testimony for which

the Defendants are indicted for conspir-

ing to suborn.

ur That the indictment in this

cause is wholly insufficient to support

a finding of guilt because it fails to

specify or establish the necessary

elements of the offense of subornation

of perjury, and therefore, is insuffi-

cient as a matter of law to support any

finding of guilt.

8. That the Government has wholly

failed to prove that the Defendants knew

App.

‘

or intended that the change in the .

testimony of the witness Rendon was

induced or procured with the knowledge

or belief of its falsity.

9. That there is a fatal variance

between the indictment and the evidence

in that the indictment alleges that the

Defendants conspired to procure Florencio

H. Rendon to give false material testi-

mony in a case styled United States v.

Frasier Jules Brignon, but the evidence

indicates that the case of United States

v. Frasier Jules Brignon was closed and

finally adjudicated prior to the alleged

commission of the present offense.

In their Supplemental Memorandum in

Support of their Motion to Dismiss the

Indictment Due to Double Jeopardy filed

on February 8, 1980, the Defendants

basically present two additional argu-

ments. First, the Defendants contend

App.

that they could not have conspired to

commit subornation of perjury since

during the entire life of the alleged

conspiracy there was not a case or

proceeding presently pending within

which the Defendants could use the

alleged suborned perjury, nor does the

indictment allege, or the evidence

prove, that they conspired to bring one.

Secondly, Defendants contend that since

there was not a case or proceeding

pending, the Defendants lacked the

specific intent to commit the alleged

offense since the specific intent to

procure another who will testify falsély

cannot exist apart from the perjurer's

ability or capacity to, in fact, testi-

fy.

RESPONSE OF THE GOVERNMENT

The Government's evidence in the

case consists mainly of tape recordings

App.

of conversations between the Defendants

and Mr. Rendon. The Government contends

that examining the evidence in a light

most favorable to the Government, there

is more than sufficient evidence to

Sustain any verdict of guilty. [In

support of their contention, the Govern-

ment refers the Court to specific page

citations of the transcript of the tapes

which the Government had introduced into

evidence in the first trial cf this

cause.

APPLICABLE LAW

In United States v. Long, 578 F.2d

579 (5th Cir. 1978), the United States

Court of Appeals for the Fifth Circuit

set out the standard of review for

denial of a Defendant's motion for a

judgment of acquittal. The Court stated

that on appeal:

", . . The denial of a judgment

of acquittal will be upheld if

r 7%

the Court is satisfied that a

reasonably minded jury, consid-

ering the evidence in a view

most favorable to the Govern-

ment, could have concluded that

the evidence was consistent

with guilt, and, in circumstan-

tial evidence cases, inconsis-

tent with every reasonable hypo-

thesis of innocence." See also

United States v. Edwards, 488

F. - t r. 1974);

United States v. Marable, 574

F.2d 224, 229 (5th Cir. 1978).

A trial judge should not permit a

case to go to the jury if the evidence

is so scant that the jury could only

speculate or conjecture as to the defen-

dant's guilt, and a motion for acquittal

must be granted when the evidence,

viewed in the light most favorable to

the Government, is such that a reason-

ably minded jury must have a reasonable

doubt as to the existence of any of the

essential elements of the crime charged. .-

United States v. Lonsdale, 577 F.2d 9023

(Sth Cir. 1978).

The essential elements of a con-

App.

: vy

spiracy pursuant to 18 U.S.C. §$ 371 are

as follows:

bs That two or more persons in

some way Or manner, positively or

tacitly, came to a mutual understanding

to try to accomplish a common end and

unlawful plan, as charged in the indict-

ment;

2> That the defendant willfully

became a member of such conspiracy;

3. That one of the conspirators

during the existence of the conspiracy

knowingly committed at least one of the

means or methods described in the in-

dictment; and

4. That such overt act was know-

ingly committed at or about the time

alleged in an effort to effect or accom-

plish some object or purpose of the

conspiracy. United States v. Romeros,

600 F.2d 1104 (5th Cir. 1979); United

App .

10 —

’ 7%

App o

States v. White, 569 F.2d 263 (5th Cir.

1978); United States v. Gutierrez, 559

F.2d 1278 (Sth Cir. 1977); Fifth Circuit

Pattern Jury Instructions.

The essential elements of the

offense of subornation of perjury are as

follows: :

1. .The testimony of the witness

suborned “nust be material.

r The testimony of the witness

suborned must be false. |

Su It must be given willfully and

corruptly by the witness, knowing it to

be false.

4. The suborner must know or

believe or have good reason to believe

that the testimony of the witness given,

or about to be given will be false.

5. The suborner must know or

believe that the witness will willfully

and corruptly testify to facts which he

“ta w

knows to be false.

6. The suborner must have knowing-

ly and willfully induced’or procured the

witness to give such false testimony.

See. United States v. Brumley, 560 F.2d

1268 (Sth Cir. 1977), citing with

approval Petite v. United States, 262

F.2d 788 (4th Cir. 1959), remanded on

other grounds 361 U.S. 529, 80 S.Ct.

450, 4 L.Ed. 2d 400 (1960).

ANALYSIS OF DEFENDANTS' CONTENTIONS

The Court will first discuss the

arguments raised by the Defendants in

their Supplemental Memorandum in Support

of their Motion to Dismiss the Indict-

ment Due to Double Jeopardy filed on

February 8, 1980, since those arguments,

if meritful, would preclude any further

consideration of the sufficiency of the

evidence to support a finding of guilt

in this cause.

App. 13

As stated earlier, Defendants, in

their Memorandum filed February 8, 1980,

present two additional arguments.

First, Defendants argue that they could

not have conspired to commit subornation

of perjury since during the entire life

of the conspiracy there was not a case

or proceeding pending within which the

Defendants could use ‘the alleged suborn-

ed perjury, nor does the indictment

allege or the evidence prove that Defen-

dants conspired to bring one. Defendants

start with the proposition that a con-

spiracy to commit a particular substan-

tive offense requires at least that the

commission of the substantive offense

come within the scope of the agreement

so that the agreement encompasses an

agreement to commit every element of the

substantive offense. Defendants assert

that an essential element of the sub-

a me SD ate ow see ated Co).

stantive offense of subornation of

perjury is the existence of a case or

proceeding in which the perjury was

committed, and, that, hence, it is

essential to a conspiracy to suborn

perjury that a case or proceeding in

which the perjury could be consummated

be pending during the life of-the con-

spiracy or that evidence exists that

Defendants agree to bring one.

Defendants further assert that

there was not a case or proceeding

pending during the life of the alleged

conspiracy involved in this cause.

Defendants reason that in order to bring

about a case or proceeding in which Mr.

Rendon's perjury could be consummated,

it was necessary that Frasier Brignon,

the one to benefit, surrender, since his

status was that of a fugitive. The

Defendants contend, however, that the

App. 13\A

App. 14

Government has failed to allege in the

indictment or prove in any of its evi-

dence that any part of the alleged

conspiratorial agreement involved the

surrender of Frasier Brignon. Because

neither the indictment alleges, nor the

evidence presented at trial proves, that

the scope of the alleged conspiratorial

agreement involves the surrender of

Frasier Brignon, a factor necessary in

bringing about a case or proceeding, the

conspiracy as alleged in the indictment,

even if completed, could not constitute

the crime of subornation of perjury.

It is true, as Defendants contend,

that in order to sustain a conviction

for conspiracy to commit a particular

substantive offense, the commission of

that substantive offense must come

within the scope of the conspiracy so

that the conspiratorial agreement em-

Dans’?

App. 15

braces an agreement to commit every

essential element of that offense. See

United States v. Conroy, 589 F.2d 1258,

1270 (5th Cir.) reh. denied, 594 F.2d

241 (1979). It is also true, as con-

tended by Defendants, that there was not

an actual case or proceeding pending

during the life of the alleged con-

spiracy within which the alleged sub-

orned perjury could be consummated.

However, it is the opinion of this

Court, that the scope of the alleged

conspiratorial agreement in this case

can be found to encompass the intention

that the suborned perjury be used in a

case or proceeding involving Frasier

Brignon. It appears to this Court that

the evidence, when viewed in the light

most favorable to Government is suffi-

cient to support a finding that the

Defendants agreed to suborn perjury in

App. 16

an attempt to obtain a new trial for

Frasier Brignon. (See the Court's

subsequent discussion concerning the

sufficiency of the evidence). Although

the exact case or proceeding in which

this testimony would be used may not

have been agreed to by the conspirators,

the evidence viewed in the light most

favorable to the Government does support

a finding that the Defendants contem-

plated that such testimony would be used

in some Court proceeding pertaining to

Frasier Brignon. (TR. p. 81, 132, 139,

192). Further, the evidence also sup-

ports an inference that the scope of the

agreement would necessarily encompass

the surrender of Frasier Brignon since

any Court proceeding without that sur-

render would be useless. The fact that

the exact means by which the surrender

of Frasier Brignon was to be accomplish-

ed was not explicitly discussed by the

conspirators does not render their

agreement to suborn perjury for his

benefit outside the confines of con-

spiracy. Further, the possibility that

Frasier Brignon may decide not to sur-

render himself, thus making it impossible

to actually use the suborned perjury in

a case or proceeding, would not free

Defendants from any liability for con-

Spiracy since the scope of the alleged

conspiratorial agreement encompasses the

intention to use the suborned perjury in

a case or proceeding involving Frasier

Brignon and can be found to implicitly

contemplate the surrender of Frasier

Brignon, and, since impossibility of

accomplishing the conspiratorial object

is not a defense to a charge of con-

spiracy. U. S. v. Evans, 552 F.2d 455

(Sth Cir. 1978); U. S. v. Winter, 509

Pad

App.

F.2d 975 (5th Cir.) cert. denied sub.

nom., Parks v. United States, 423 U.S.

825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975);

United States v. Meyers, 529 F.2d 1033

(7th Cir. 1976).

As to the Defendants' contention

that the indictment itself is defective

since the indictment does not allege

that any part of the alleged conspira-

torial agreement involved the surrender

of Frazier Brignon so that standing

would exist to bring a case or proceed-

ing in which Mr. Rendon could commit

perjury, this Court notes that, unlike

Defendants' contention, the surrender of

Frazier Brignon is not an essential

element which the Government must allege

and prove (see Supplemental Memorandum

in Support,of Defendants' Motion to

Dismiss Indictment for Prior Jeopardy,

pp. 2, 3-4), in order to properly charge

App.

°°.

App. 19

the crime of conspiracy to suborn per-

jury. Rather, it is a detail necessary

to the accomplishment of the substantive

offense of subornation of perjury.

As to Defendants' contention that

the indictment is deficient and that it

does not allege what, if any, judicial

proceeding was planned in which the

alleged suborned perjury would be used,

this Court notes that in a conspiracy

indictment, conspiracy is the gist of

the offense, and, every element of the

substantive offense need not be alleged

within the conspiracy count, nor is it

necessary that the object of the con-

Spiracy be described in the detail

necessary in the indictment for the

substantive offense. United States v.

Fischetti, 450 F.2d 34 (5th Cir.),

cert. denied, 405 U.S. 1016, 92 S.Ct.

- 1290, 31 L.Ed.2d 478 (1972). This Court

App °

reaffirms its previous ruling made on

November 7, 1979, after oral arguments

were presented, that the indictment in

the case is sufficient to charge the

offense of conspiracy to suborn perjury.

Defendants' second argument pre-

sented in their Memorandum filed Febru-

ary 8, 1980, is to the effect that since

a case or proceeding did not actually

exist at any point during the alleged

conspiracy, Defendants could not have

the specific intent that the alleged

suborner, Mr. Rendon, testified falsely.

This is because the specific intent to

procure another who will testify falsely

Cannot exist apart from the perjurer's

ability or capacity to, in fact, testify.

Defendants’ arguments may have some

validity if Defendants were charged with

the substantive offense of subornation

| of perjury. But Defendants are charged

—s

with the offense of conspiracy to suborn

perjury, wherein the gist of the crime

is the agreement to suborn perjury. It

is true, as Defendants contend, that

conspiracy to commit a particular sub-

stantive offense requires at least that

the commission of the substantive of-

fense come within the scope of the

agreement and that the conspiracy incor-

porate at least the same level and

character of intent as the substantive

offense. United States v. Davis, 583

F.2d 190 (5th Cir. 1978). However, as

stated earlier, the evidence viewed in

the light most favorable to the Govern-

ment, supports a conclusion that the

Defendants agree to suborn perjury and

that they contemplated that the suborned

perjury would be used in some Court

proceeding concerning Frasier Brignon.

Thus, that the suborned testimony would

App.

App. 22

be used in Court, was within the scope

of the conspiratorial agreement, thus

supporting the conclusion that the

Defendants possessed the necessary

specific intent required to commit the

substantive offense.

In their Memorandum filed February

8, 1980, as well as in their Original

Motion to Dismiss the Indictment Due to

Double Jeopardy, the Defendants raise

the general issue as to the sufficiency

of the evidence to support a finding of

guilt. In this regard, Defendants

basically contend that the Government

has failed to establish beyond a reason-

able doubt sufficient evidence to show

the following:

1. That the Defendants were not

acting in good faith and did not have

reasonable grounds to believe the evi-

dence they sought to obtain from Rendon

booed

’ vy

"SS

App. 23

was true;

y That the Defendants did not

have reasonable grounds to believe and

were not acting in good faith as to the

belief as to the true facts of the

testimony given by Mr. Rendon in the

1972 trial; and,

3. That the Defendants knew or

intended that the change in the testi-

mony of the witness Mr. Rendon was

induced or procured with the knowledge

or belief of its falsity. Defendants

further contend that the evidence shows

‘a lack of agreement or concerted action

to suborn perjury and that, at most, the

evidence supports no more than an agree-

ment to investigate.

Although the evidence may very well

support a finding that no more was

involved than an agreement to investi-

gate, it may, when viewed in the light

be o

most favorable to the Government, just

as well support a finding that the

Defendants had, in fact, agreed to

suborn perjury and were attempting to

work out the least suspicious manner of

doing so. Although the gist of the

first meeting between all three Defen-

dants and Mr. Rendon may well indicate

an investigative inquiry (see e.g. TR.

pp. 51-56, 59, 63, 66, 80-81), the

discussion about money and the reference

to the payoff arrangements between Mr.

Rendon and Defendant DAVILA would tend

to favor the Government's position that

more was about than just an investiga-

tive inquiry. (TR. pp. 53, 57, 61, 62,

65, 68-74, 77).

The Government's position is fur-

ther strengthened by the. occurrences

during the second meeting between Defen-

dants KUHN, HUCKABEE and Mr. Rendon.

App.

App. 25

the conversation starts with KUHN express-

ing his exasperation at not being able

cor beau out "any other way of doin'

it. Well, they, when we walk in what-

ever we say they're going’ to Look at

it. Because somebody's gonna, you know,

.gomebody's gonna. The Justice Depart- “

ment, I mean, they ain't gonna just

stand there, you know..." (TR. p.

125). A discussion then follows concern-

ing how testimony by Mr. Rendon may be

presented so that a change of testimony

would not be so suspicious, (see e.g.

TR. pp. 125-133) even though earlier Mr.

Rendon had insisted that his prior

testimony was truthful. (TR. pp. 52,

54-56). As the conversation proceeds,

Defendant KUHN tells Mr. Rendon to burn

any evidence that might exist which

would show that Defendant KUHN and Mr.

Rendon have these discussions. (TR. pp.

—

"i.

132, 138, 141). A discussion on how the

money should be handled so as not to

draw suspicion toward Rendon also fol-

lows. (TR. p. 135). Later on in the

conversation, after discussing possible

testimony, Defendant KUHN states that he

does not want any mistakes and that if

it is going to be done, it should be

done right. (TR. p. 136). There is a

further discussion concerning the money.

(TR. pp. 140-142).

A third meeting between all three

Defendants and Mr. Rendon begins with

Defendant KUHN telling Mr. Rendon “they”

will want you to take a polygraph or PSE

test. (TR. p. 171). Defendant KUHN

then states that he would like to ask

Mr. Rendon the questions, record the

answers, and, play the recording on

Defendant KUHN's PSE machine so he can

analyze the voice stress. (TR. pp. 171,

App. 26

189). Defendant KUHN runs through the

questions with Mr. Rendon, among which

are whether or not Mr. Rendon is wearing

a body bug and, whether or not Mr.

Rendon had discussed the case with law

enforcement people over the last two

years. ((TR. p. 190-191). After hear-

ing the questions that Defendant KUHN

wishes to ask of him, Mr. Rendon replies

to the effect that Defendant KUHN is

trying to disprove Mr. Rendon's prior

testimony. (TR. p. 192). Defendant

KUHN replies, in effect, that all he is

trying to do is get a reading to the

answers to the questions because some-

where along the line somebody is going

to ask them of Mr. Rendon. (TR. p. :

192). Mr. Rendon, however, continues to

object and finally leaves the room with

Defendant DAVILA. (TR. p. 193). Short-

ly after that, the arrest of Defendants

App.

7’.

KUHN, HUCKABEE and DAVILA is effected.

Viewing the evidence in a light

most favorable to the Government, it

appears that the evidence is sufficient

to support a finding of guilt as to each

of the Defendants. “Although, as stated

earlier, the gist of the first meeting

may well indicate an investigative

inquiry, the continual discussion con-

cerning money and payoffs coupled with

the events of the second meeting are

such that a reasonably minded jury could

conclude that an agreement to suborn

perjury existed. Although Defendants

never tell Mr. Rendon that they believe

Mr. Rendon's testimony at the first

trial was truthful, the conversation

about covering their tracks and destroy-

ing incriminating evidence, can be taken

as implici’ evidence that the Defendants

did in fact believe that the original

App.

-~* =

testimony by Mr. Rendon was truthful and

would now have to be falsified in order

to obtain a new trial. It should be

pointed out that during the third meet-

ing, Defendant KUHN again relates to Mr.

Rendon his belief in the innocence of

his client. However, taking the evi-

dence as a whole, it appears that a

reasonably minded jury could conclude

that such a statement was made to cover

himself, especially since, at that

point, Defendant KUHN was obviously

suspicious that Mr. Rendon was wearing a

body bug. Thus, it appears to this

Court, that a reasonably minded jury

could very well conclude that the evi-

dence, viewed as a whole in the light

most favorable to the Government, is

consistent with guilt and inconsistent

with every reasonable hypothesis of

innocence.

App .

‘ v¥

The remaining grounds urged by the

Defendants, in their Motion to Dismiss

Due to Double Jeopardy, are as follows:

1.f That the indictment should be

dismissed because the Government has

wholly failed to prove that the offense

of subornation of perjury has been

completed;

y = That the indictment in this

cause is wholly insufficient to support

a finding of guilt because it fails to

specify or establish the necessary

elements of the offense of subornation

of perjury, and, therefore, is insuffi-

cient as a matter of law to support any

finding of guilt;

3. That there is a fatal variance

between the indictment and the evidence

in that the indictment alleges that the

Defendants conspired to procure Mr.

Rendon to give false material testimony

App. 30

App. 3l

in a case styled United States v.

Frasier Jules Brignon, but the evidence

indicates that the case of United States

v. Frasier Jules Brignon was closed and

finally adjudicated prior to the alleged

commission of the present offense.

As to the first remaining conten-

tion, it is well settled that success is

not an essential element for a conspir-

acy conviction and, conspiracy is pun-

ishable even though the contemplated

crime may never be consummated. ‘United

States v. Villarreal, 546 F.2d 1145 (5th

Cir.), reh. denied, 55 F.2d 242, cert.

denied, 431 U.S. 917, 53 L.Ed.2d 228, 97

S.Ct. 2181 (1978); Beitel v. United

States, 306 F.2d 665 (5th Cir. 1962).

Thus, in a conspiracy to suborn perjury

indictment, the Government need not

prove that the substantive offense of

subornation of perjury was actually

App. 32

completed by the Defendants, but only

that the Defendants agreed to the com-

mission of such an offense.

As to the Defendants' contention

concerning the sufficiency of the indict-

ment, as stated earlier, this Court has

previously ruled on that issue at a

separate hearing held November 7, 1979.

Finally, Defendants urge that their

Motion should be granted since there is

a fatal variance between the indictment

and the evidence presented at the trial.

It is the Defendants' contention that

the indictment alleges that the Defen-

dants conspired to procure Mr. Rendon to

give false material testimony in a case

styled United States v. Frasier Jules

Brignon, but that the evidence indicates

that the case of United States v. Frasier

Jules Brignon was closed and finally

adjudicated prior to the alleged commis-

sion of the present offense.

The indictment charges as follows:

It was part of the object and

purpose of said conspiracy that

Defendants would induce and

procure false material testi-

mony in exchange for money from

Florencio H. Rendon, a witness

in United States District Court

in the case of United States v.

Frasier Jules Brignon.

The evidence produced at trial

showed that Mr. Rendon was a witness in

such a case, (TR. p. 51), and also, when

viewed in the light most favorable to

the Government, that Defendants conteri-

plated that he would subsequently appear

to testify in some future Court proceed-

ing involving the same case. (TR. p.

81, 132, 139, 192).

This Court, in an earlier hearing

on the sufficiency of the indictment

held on November 7, 1979, expressed its

concern over the uncertainty with which

the indictment was drawn, especially as

App.

7’

to this particular clause in the indict-

ment. (See Transcript of hearing on all

pending Motions held Nov., 7, 1979, p.

59-60). Although troubled by the uncer-

tainty as to whether the indictment

charges that Mr. Rendon is, was, or will

be, a witness, this Court held that the

logical import of the language in the

indictment, determined from a reading of

the indictment as a whole, was such that

the indictment was sufficient to charge

a conspiracy to suborn perjury. Because

the evidence shows that Mr. Rendon

was a witness in the case, and, that it

was contemplated that he would subse-

quently be a witness in the same case,

this Court now finds that there was not

a fatal variance between what was

alleged in the indictment and the evi-

dence produced at trial.

In light of the above discussion,

App.

v 7s

App.

IT IS HEREBY ORDERED that the Motion of

the Defendants in the above-styled and

numbered cause to Dismiss the Indictment

Due to Double Jeopardy be hereby DENIED.

February 17, 1980, at 5:30 p.m.

WILLIAM S. SESSIONS

United States District Judge

App. 36

EXHIBIT B

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs.

ROBERT J. KUHN,

JOSE C. DAVILA, AND

DOYLE D. HUCKABEE,

Defendants~-Appellants

NO. 80-1207

SUMMARY CALENDAR

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

UNIT A

FEBRUARY 23, 1981

APPEALS FROM THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

WILLIAM S. SESSIONS, JUDGE

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC ‘

(Opinion Nov. 5, 1980, 5th Cir.,

629 F.2d 1087)

BEFORE GEE, RUBIN, AND RANDALL,

CIRCUIT JUDGES

PER CURIAM:

App.

In our original opinion, we decided

the merits of this attempted Abney!-type

appeal on the assumption that had juris-

diction to do so, expressly reserving

that question. Since then it has been

determined that we lack such jurisdic-

tion. United States v. Becton, 632 F.2d

1294 (5th Cir. 1980). What we earlier

wrote on the merits is therefore of no

effect. We withdraw it. The appeal is

DISMISSED.

FOOTNOTE :

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

651, 97 S.Ct. 2034, 52 L.Ed.2d 651

(1977).

EXHIBIT C

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs.

MAJOR BECTON,

STANLEY BECTON,

ROBERT JONES,

ROBERT POLLACK,

VINCENT DAMIEN, AND

BARRY MIROJNICK,

Defendants-Appellants

NO. 80-1630

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

DEC. 18, 1980

BEFORE THORNBERRY, GEE AND

REAVLEY, CIRCUIT JUDGES

GEE, Circuit Judge:

This expedited appeal presents two

issues, a jurisdictional one of broad

interest and importance, and an eviden-

tiary one of interest to the appellants

only. Since the need for us to consider

the latter depends on how we resolve the

App.

former, we discuss it first.

Appellants' trial on drug charges

resulted ina thoroughly hung jury and

the consequent declaration of a mis-

trial. Motions for judgment of acquit-

tal at the close of the prosecution's

case, renewed after the jury's dis-

charge, were partly granted but in main

denied. When the remaining counts were

set for retrial, appellants renewed

their motions for acquittal and further

moved to dismiss on grounds of former

jeopardy, asserting that the evidence

produced against them at their prior

trial had been insufficient to warrant

submission of the case to the jury. It

is the denial of these motions that they

bring to us.

Appellants’ argument -- and an

appealing one it is -- runs that had

they been convicted, and had their

App.

convictions been reversed on appeal for

insufficiency of supporting evidence,

they could not have been again put to

trial. This is correct. Burks v.

United States, 437 U.S. l, 98 S.Ct.

2121, 57 L.Ed.2d 1 (1978). How then,

they assert, can it be that where, as

here, the evidence was so entirely

insufficient as to produce a hung jury

rather than a conviction, a retrial is

yet permissible? When the prosecution's

case is on, and the evidence is insuffi-

cient, why should a defendant be worse

off if the jury hangs than if it im-

properly convicts? Stated as an ab-

stract proposition, the argument by

analogy seems unanswerable.

There are important differences

between the case presented here, how-

ever, and the proposition stated; and

the two apparent parallels are not

really parallel at all. In the case

posed of a revered conviction, we

contemplate a final decision, entered in

the course of appellate review, that the

prosecution has had its chance to make a

case for the jury and has failed to do

so. Burks, cited above, stands for the

proposition that after such a determina-

tion by the appellate judges, the Fifth

Amendment forbids a second trial, regard-

less of whether the defendant sought

one, just as it would have had the trial

judge made the same determination,

refused to submit the case to the jury,

and therefore necessarily entered judg-

ment of acquittal.

Here there has been no such deter-

mination of insufficiency by any court,

trial or appellate. Instead we contem-

plate a contrary determination by the

first trial court -- that the evidence

App.

App. 42

was sufficient to warrant submission to

the jury -- and a mere refusal by the

jury to convict. Such a refusal is an

action in no wise the necessary equiva-

lent of a decision, even by the jury,

that the evidence is insufficient to

warrant submission. In the first place,

of course, the jury is neither equipped

nor asked to make such a determination.

In the second, it is a commonplace that

juries can refuse to convict even on

substantial evidence of guilt, while to

the contrary judges are not to acquit

unless the government has clearly failed

to produce evidence supporting a convic-

tion when viewed most favorably to the

prosecution. Burks, supra at 16-17, 98

S.Ct. at 2149-2150. What the appellants

seek instead, is a determination by us

now -- on this interlocutory appeal

before their retrial -- that the evi-

dence at the first trial was insuffi-

cient to warrant submission and that the

trial judge erred in denying their

motions for acquittal. This is new

ground.

The procedural vehicle which brings

this appeal before us is Abney v. United

States, 431 U.S. 651, 97 S.Ct. 2034, 52

L.Ed.2d 651 (1977). There the Court

decided that inferior appellate courts

possess jurisdiction, under the rubric

of Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 69 S.Ct. 1221, 93

L.Ed. 3°28 (1949), to entertain appeals

from pretrial orders denying dismissal

on double-jeopardy grounds. The nub of

the decision is that the Double Jeopardy

Clause forbids a second trial, not

merely a second conviction. In addi-

tion, however, the Court held that

another claim for dismissal made in the

a J

App. 44

same motion was not reviewable, one

urging insufficiency of the indictment.

In so holding, the Court laid it down

generally that, to be appealable under

the Cohen rubric, claims for dismissal

other than on double jeopardy grounds

must themselves meet the requirements of

the Cohen exception. Bearing the lessons

of Burks and Abney in mind, we turn

again to our case.

Although in form the question

presented here is that of denial of a

motion asserting former jeopardy, in

reality and substance the appellants

seek review of their motions to acquit

made at the first trial. They argue

that these should have been granted,

since the evidence there was insuffi-~-

cient to support a jury submission, and

that had they not been erroneously

denied, no succeeding trial would have

been permissible. Thus we contemplate

just such a "thinly disguised attempt to

turn this [Abney] appeal into a plenary

review of his first trial" as the Second

Circuit rebuffed in United States v.

Klein, 582 F.2d 186 (1978). We conclude

we must do likewise.

It should be borne in mind that we

do not confront the issue of review-

ability; it is not an open question of

this circuit that precisely this issue

is subject to review on appeal from a

second conviction, should one occur.

United States v. Wilkinson, 601 F.2d 791

(Sth Cir. 1979). Instead the issue is

one of appealability: whether we have

jurisdiction under Cohen and Abney to

review at this time the decision denying

the motions for acquittal at the first

mistrial. And if it is presently

reviewable under Cohen, we see no appar-

App.

Os '9 S &

te ote I ets i Pe “4 > ae

aN g ey

a ee owe 2 were! - wre

a a " \

ent reason why it would not have been

likewise reviewable under Cohen by the

giving of notice of appeal when the

motion was first denied, at the close of

the prosecution's case in the first

trial, thus halting the trial process --

in the absence (perhaps) of a finding of

frivolousness. See United States v.

Dunbar, 611 F.2d 985 (5th Cir. 1980) (en

banc). Moreover, if it is possible to

take an interlocutory appeal by means of

making a double-jeopardy claim grounded

on any trial error or errors which it

can be asserted should have resulted in

an acquittal at the first trial --

erroneous admission of a great body of

severely damaging evidence, for example

~- we view the prospect of piece-meal

appeals with a vengeance. We du not

believe that Cohen and Abney require

such a result. At all events, we do not

believe that we should press those

decisions to such lengths unless they

ineluctably demand it.?

Among the Cohen factors, reiterated

in Abney, is the requirement that the

decision sought to be appealed "was not

simply a ‘step toward the final disposi-

tion of the merits of the case [which

would] be merged in final judgment,"

Abney v. United States, 431 U.S. 65l,

658, 97 S.Ct. 2034, 2039, 52 2.Ed.2d 651

(1977), quoting Cohen, supra, 337 U.S.

at 546, 69 S.Ct. at 1225. A motion for

judgment of acquittal is no more than a

motion for directed verdict. Such

motions are in no sense collateral to

the merits, but are precisely directed

to them. They are in fact just such

steps toward their final disposition as

the Court concluded did not justify a

Cohen appeal in its language quoted

App.

above. In short, though the other Cohen

factors are arguably present here, that

discussed above is not. Cohen is a

narrow exception, applicable to a "small

class" of claims which meet all, not

merely some, of its factors. 337 U.S.

541, at 546, 69 S.Ct. at 1225. The

class which we contemplate here is not a

small one. Rather, it comprises all

criminal trials in which a motion to

acquit for insufficiency of evidence is

made and denied. One of Cohen's factors

is not present here. We therefore lack

jurisdiction to consider this appeal

which, though in form asserting former

jeopardy, in fact raises only the denial

of the motion to acquit.

In view of our disposition of this

issue, we need not consider at this time

the sufficiency of the evidence at the

first trial. The appeal is

App. 48

DISMISSED.

FOOTNOES :

1. To the degree of an Allen charge

and three notes attesting to its

deadlock.

as No complaint is made of the declara-

tion of a mistrial. Nor could one

well be made, the jury having been

hopelessly hung and the Perez

standard of "manifest necessity"

therefore satisfied. United States

v. Perez, 22 U.S. 579, 580, 9

Wheat. 579, 580, 6 L.Ed. 165

(v6.24).

. We recognize that Wilkinson,

supra, Opines in dicta that the

decision is interlocutorily appeal-

able. 601 F.2d 791, at 795. That

panel did not confront the issue as

we do, however, and was not called

App. 50

on to struggle with it as we have.

We are not bound by dicta, even of

our own court. Bruce v. Estelle,

536 F.2d 1051, 1059 n.5 (5th Cir.

1976), cert. denied, 429 U.S. 1053,

97 S.Ct. 767, 50 L.Ed.2d 770

(1977). And though we accord it

the greatest deference and persua-

sive force, mature consideration

has convinced us that we should not

follow it here. Dicta of the

Supreme Court are, of course,

another matter.

whan

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