# Petition — Kuhn v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1611%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 916 ## Text 8 0 sre ] 4 ] 5 Office-Supreme Court, U.S. FILED f 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 7. 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 ii Pages 15 19 20 7% 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 i 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, 18 7% 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. 7. 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: 7s - « » 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: 18 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. 7 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 ry >" —— — == 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 7% ‘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: 10 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. 11 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) 13 SS 14 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 i ‘ 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 16 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- yo ’ 17 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 18 19 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. y i 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 20 21 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. 2 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. 3 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. 4 - 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. 5 7% ‘ 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. 6 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. 7 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 a 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. 9 : 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 1l “ta w ae Hi _- 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 i 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- 7% 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. 17 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. 18 °°. 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 20 —s 7% ~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. 21 7% 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 Ne ’ 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 4 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. 24 7y 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. — eo "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. 27 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. 28 -~* = 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 . 29 ‘ 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. 34 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 35 | ll 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). 37 "3 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. 38 a 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 i 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 7s 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. 41 - 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- 4 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 2 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 7% 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. 47 a a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1611%3A1. Public record. Not legal advice.