Opposition — Kuhn v. United States

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No. 80-1715

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1980

Ropert J. KUHN, ET AL,, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wave H. McCree, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Joun F, DePve

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioners are entitled to take an immediate

appeal from the district court's denial of their motion to

dismiss the indictment on double jeopardy grounds after

the jury at their first trial was unable to reach a verdict.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S.

Es, ioao ails ihe & a Slate Ralls: dese ora 48 0 6.0 wkio's 2, 3,4

Burks v. United States, 437 U.S. 1 oc. ccc cece 3

Cohen v. Beneficial Industrial Loan Corp..,

Rg NRE SEES a 4

Firestone Tire & Rubber Co. v. Risjord,

No. 79-1420 (Jan. 13, 1981) oo... cee eee eee eee 4

Heike v. United States, 217 U.S. 423 ....ceevees 4

United States v. Becton, 632 F. 2d

Sie PN Ee ok a eee y

United States v. Carnes, 618 F. 2d 68, td

Gert, Gems, SE7 U.S. Fae hdc iaveseccccccccss 5

United States v. Ellis, No. 80-5069

GS STs FG. Di ET Welbinin.e 6 oWnie bbs Hoes cees 5

United States v. Jelsma, 630 F.2d 778 ......... 5

United States v. MacDonald, 435 U.S. 850 ..... 4

United States v. Rev, 641 F. 2d 222 ........005: 4

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IV

Page

Cases-—(Continued):

United States v. United States Gypsum Co..,

SU ICI NO, 6 a0 fon C0 Geo aoe GA oso ois hd 60 5

United States v. Young, 544 F. 2d 415,

Sort. Gomes, 429 US. BOTA oie cic ccc dcesases 5

Statutes:

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Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1980

o

No. 80-1715

ROBERT J. KUHN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals dismissing petitioners

appeal (Pet. App. 36-37) is unreported. The prior opinion of

the court of appeals is reported at 629 F. 2d 1087. The

opinion of the district court (Pet. App. 1-35) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 23, 1981. The petition for a writ of certiorari was

filed on April 13, 1981. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners were indicted and tried in the United States

District Court for the Western District of Texas on one

count of conspiracy to suborn perjury, in violation of 18

U.S.C. 371 and 1622. When the jury was unable to reach a

verdict, the district court declared a mistrial. After the case

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_ was set for retrial, petitioners filed a motion to dismiss the

indictment and to bar retrial, claiming that the evidence

presented by the government during the first trial was

legally insufficient to support a finding of guilt. The district

court denied the motion (Pet. App. 1-35). Following an

exhaustive review of the evidence, the district court found

that, “[v]iewing 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” (Pet.

App. 28).

Petitioners then filed an appeal to the court of appeals,

again contending that the evidence adduced by the govern-

ment during the first trial was legally insufficient. The court

of appeals “assume[d] without deciding” that jurisdiction to

entertain an interlocutory appeal existed (629 F. 2d 1087

(1980)). Turning to the merits of petitioners’ claim, the

court ruled as follows (id. at 1087-1088): “We have surveyed

the record * * * and conclude that the judge correctly

denied appellants’ motion for acquittal insofar as it was

based on an insufficiency of inculpatory evidence.” The

court added (id. at 1088) that the evidence was “clearly

susceptible to the interpretation” that petitioners engaged

in a conspiracy to suborn perjury.

Follewing this ruling, a different panel of the court of

appeals held that there is no appellate jurisdiction under 28

U.S.C. 1291 to review an interlocutory order of a district

court rejecting a claim of evidentiary insufficiency follow-

ing a mistrial. United States v. Becton, 632 F. 2d 1294 (Sth

. Cir. 1980). On the basis of the Becton decision, the court

below withdrew its earlier opinion deciding the merits of

petitioners’ claim and issued an order dismissing the appeal

for lack of jurisdiction (Pet. App. 36-37).

ARGUMENT

Petitioners contend (Pet. 7-14) that under Abney v.

United States, 431 U.S. 651 (1977), they were entitled to

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immediate appellate review of the district court’s pretrial

ruling denying their motion to dismiss the indictment. In

their submission, Abney requires the court of appeals to

decide, before any retrial, whether the evidence presented

by the government during the first trial was legally sufficient

to sustain a conviction. In the absence of such a determina-

tion, petitioners claim, they may not be retried consistent

with this Court’s decision in Burks v. United States, 437

U.S. 1 (1978). That contention is without merit.

1. In Abney, this Court determined that a Double Jeo-

pardy claim was reviewable on an interlocutory basis. The

defendants in Abney asserted that, because the original

indictment against them had been “duplicitous” and the

jury had returned a general verdict of guilty, the jury may

have acquitted them on one of the charges contained in the

duplicitous indictment while convicting them on the other.

They contended that the Double Jeopardy Clause barred

their retrial following reversal of their conviction on appeal,

in light of this possible “acquittal” by the jury. 431 U.S. at

664.

Abney concluded that this Double Jeopardy claim was

“collateral to, and separable from, the principal issue at the

accused’s impending criminal trial, i.e., whether or not the

accused is guilty of the offense charged.” 431 U.S. at 659.

The Court emphasized that the “defendant makes no chal-

lenge whatsoever to the merits of the charge against him”

(ibid.). It also observed that the “elements of [the Double

Jeopardy] claim are completely independent of his guilt or

innocence” (id. at 660). Since the order challenged on

appeal was completely “collateral” to the merits of the

controversy, and since it could not effectively be reviewed

following final judgment after retrial, the Court granted

immediate review.

Abney also held, however, that other claims asserted by

the defendant could not be appealed on an interlocutory

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basis. In particular, this Court rejected the assertion that a

defendant in a criminal case is entitled to interlocutory

review of a pretrial order sustaining the indictment (431

U.S. at 663):

[A]n order denying a motion to dismiss an indictment

for failure to state an offense is plainly not “collateral”

in any sense of that term; rather it goes to the very heart

of the issues to be resolved at the upcoming trial.[']

The decision of the district court in this case, ruling that

the government had presented sufficient evidence to justify

a finding of guilt, isa classicexample of a pretrial order that

“goes to the very heart of the issues” to be resolved at trial.

Rather than being “collateral,” the challenged order relates

directly and exclusively to the merits of the prosecution. As

the Fifth Circuit recently explained in United States v.

Rey, 641 F. 2d 222, 225 (1980):

These * * * claims of insufficient evidence * * *

cannot be resolved in this appeal. “Although in form

the question presented here is that of denial of a motion

asserting double jeopardy, in reality and substance the

appellants seek review of their motions to acquit made

at the first trial.” * * *

Denials of motions to acquit are not interlocutorily

appealable because, being nothing more than a motion

for directed verdict, they are not collateral to the merits

' Abney thus reaffirmed the well established rule that a pretrial order

that does not meet the standards of a “collateral order,” as prescribed in

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is not

subject to an immediate appeal. This is true even though reversal of the

order on appeal would obviate the need for a trial. See, e.g., United

States v. Mac Donald, 435 U.S. 850 (1978); Heike v. United States,21\7

U.S. 423 (1910). Immediate review is not available to test claims that are

“enmeshed in the factual and legal issues” to be resolved during the trial

on the merits. Firestone Tire & Rubber Co. v. Risjord. No. 79-1420

(Jan. 13, 1981), slip op. 9.

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but are instead “precisely directed” to them. * * * The

second element of the collateral order test is thus not

met.

On this basis, the courts of appeals repeatedly have con-

cluded that a “denial of a motion for acquittal is not a final,

appealable decision [under Abney] even when made after a

hung jury mistrial.” United States v. Carnes, 618 F. 2d 68,

70 (9th Cir.), cert. denied, 447 U.S. 929 (1980); accord,

United States v. Ellis, No. 80-5069 (4th Cir. Apr. 8, 1981);

United States v. Becton, 632 F. 2d 1294, 1295-1296 (Sth

Cir. 1980); United States v. Young, 544 F. 2d 415,416 (9th

Cir.), cert. denied, 429 U.S. 1024 (1976). In light of these

precedents, the court below correctly dismissed petitioners’

appeal from the district court’s ruling on the sufficiency of

the evidence.

2. In any event, whatever the merits of petitioners’ claim

that immediate appeliate review of the sufficiency of the

government’s evidence is required before a defendant can be

retried following a hung jury,? this case is an inappropriate

vehicle to decide the issue. Both the district court and the

court of appeals expressly found that the evidence adduced

at petitioners’ first trial was sufficient to support a convic-

tion (see 629 F. 2d 1087-1088). Although the court of

appeals later withdrew its original decision on jurisdictional

grounds, it reaffirmed that “{iJn our original opinion, we

decided the merits of this attempted Abney-type appeal

* * *” (Pet. App. 37). Accordingly, even if petitioners were

to persuade this Court that the court of appeals had juris-

diction to review their claims, they would be entitled to no

?In cases in which defendants successfully have appealed an initial

conviction, and have claimed on remand that retrial is barred by the

government's failure to adduce sufficient evidence during the originai

trial, two courts of appeals have granted immediate appellate review.

See United States v. United States Gypsum Co., 600 F. 2d 414 (3d Cir.

1979); United States v. Jelsma, 630 F. 2d 778 (10th Cir. 1980).

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relief. In these circumstances, a ruling on the jurisdictional

issue raised by petitioners would be equivalent to an advi-

sory opinion that could confer no practical benefit on them,

but would serve only to further delay the retrial of the

charge against them.3

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WabDE H. McCRrEE, JR.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

JOHN F. DEPUE

Attorney

May 1981

3The first trial ended in a mistrial in September 1979. The district

court decided petitioners’ dismissal motion in January 1980.

DOJ-1981-05