Opposition — Becton v. United States

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TABLE OF AUTHORITIES

Page

Cases:

Abney v. United States, 431 U.S.

DEAS cade GR ce S00 Ce RERUN AR ae wie bielee 2, 3,4, 5

Burks v. United States, 437 U.S.1 .....ceeeeees 3

Cobbledick v. United States, 309 U.S. 323 ...... 4

Cohen v. Beneficial Industrial Loan Corp.,

SSP MURS cc UPR AMM eee CUED ROTA DABS eee 4

Firestone Tire & Rubber Co. v. Risjord,

No. 79-1420 (Jan. 13, 1981) .......ceeeeees 4,5

Hanigan v. United States, cert. denied,

No. 80-1165 (Mar. 9, 1981) ........0ceeeeeees 6

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

Kuhn v. United States, cert. denied,

No. 80-1715 (June 8, 1981) ........ceeeeeees 6

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

cert. denied, 447 U.S. 929 2... ... cece ec eeeees 5

United States v. Ellis, 646 F.2d 132 ........... 5

United States v. United States Gypsum Co.,

GOO F. 20 414 noc cececccccccercceccccsccces 5

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

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

United States v. Rey, 641 F. 2d 222 .........55. 4

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

cert. denied, 429 U.S. 1024 ........ cc cee eeees 5

Page

Statutes:

21 U.S.C. 841(aXii) ........ » Sgihin healer ee Mone l

BER, BAG sian ds Ueescccesccccccccncuseess |

l

21 U.S.C. 960

Iu the Supreme Court of the Hnited States

OcToBER TERM, 1980

No. 80-2189

MAJOR BECTON, 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

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners claim that they should be allowed 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.

1. Petitioners were named in a three-count indictment

charging them with conspiracy to import marijuana, in

violation of 21 U.S.C. 960 (count one); conspiracy to pos-

sess marijuana with intent to distribute it, in violation of 21

U.S.C, 846 (count two); and possession of marijuanz with

intent to distribute it, in violation of 21 U.S.C. 841(a)(1)

(count three). At the close of the government's case, the

district court granted petitioners’ motion for a judgment of

acquittal on count one, but denied the motion as to the

other two counts. When the jury was unable to reach a

2

verdict, the district court granted a mistrial. The court

subsequently denied petitioners’ renewed motions for a

judgment of acquittal (Pet. 2-3).

When the case was set for retrial, petitioners moved to

dismiss the indictment on double jeopardy grounds, claim-

ing that the evidence adducetl by the government was

legally insufficient and that the district court erred when it

denied their motions for a judgment of acquittal. The dis-

trict court concluded that the evidence was sufficient and

denied petitioners’ motions. After the dismissal motions

were denied, petitioners attempted to take an interlocutory

appeal to the court of appeals (Pet. App. A-2 to A-3).

The court of appeals dismissed the appeal (Pet. App. A-1

to A-6). The court noted that, when a mistrial is ordered and

the case is set for retrial, the evidence presented to the jury

has not been found to be legally insufficient by the district

court. Accordingly, there is no determination of evidentiary

insufficiency that would bar a retrial. The court of appeals

also observed that petitioners’ appeals were in substance

appeals from the denial of their motions to acquit during

their first trial (Pet. App. A-3 to A-4). Such a denial, the

court noted, is not immediately appealable under Abney v.

United States, 431 U.S. 651 (1977). Instead, motions to

acquit are “just * * * steps toward [the] final disposition” of

the case and denials of such’ motions do not satisfy the

requirements for interlocutory review (Pet. App. A-6).

2. Petitioners contend (Pet. 4-12) that, under Abney v.

United States, supra, they were entitled to immediate appel-

late review of the district court’s pretrial ruling denying

their motion to dismiss the indictment. According to 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

3

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

U.S. 1 (1978). For the reasons set forth in the opinion of the

court of appeals (Pet. App. A-2 to A-6), on which we

generally rely, petitioners’ claim is without merit.

In Abney, this Court determined that a double jeopardy

claim was reviewable on an interlocutory basis. The defend-

ants 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 issue of guilt or

innocence, and since effective relief could not be afforded

on review following final judgment after retrial, the Court

approved immediate review.

Abney also held, however, that other claims asserted by

the defendant could not be appealed on an interlocutory

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 (id. at

663):

4

[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, is a classic example of a pretrial order that

“goes to the very heart of the issues to be resolved at * * *

trial.” Rather than being “completely independent of [the

issue of] guilt or innocence,” 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 (1981):

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

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

second element of the collateral order test is thus not

met.

' 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, ¢.g., United

States v. Mac Donald, 435 U.S. 850, 860 & n.7 (1978); Heike v. United

States, 217 U.S. 423, 430-431 (1910); Cobbledick vy. United States, 309

U.S. 323, 325-326 (1940). 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.

5

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, 646 F. 2d 132, 134-135 (4th Cir.

1981); 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 denial of their motions to

dismiss the indictment.”

Petitioners rely on two cases that allowed interlocutory appeals

following reversals of convictions. 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). Those cases, however, did not address the

mistrial situation presented here. In both cases, the appeals followed

closely in the wake of a remand from the court of appeals and after a

final judgment of conviction in the district court. Although we question

whether those cases were correctly decided, we note that, in those cases,

the courts of appeals were ina position to limit the disruption caused by

interlocutory review by considering the sufficiency of evidence issue

during the first appeal. In the mistrial setting, by contrast, the suffi-

ciency issue will never arise before the court of appeals in conjunction

with an appeal from a final judgment. Recognizing a right to interlocu-

tory review of the sufficiency issue in the mistrial context would thus

lead to “piece-meal appeals with a vengeance,” as the court of appeals

warned (Pet. App. A-5). See also Firestone Tire & Rubber Co. v.

Risjord, supra, slip op. 6, noting that the collateral order doctrine

applies only to a “small class” of interlocutory orders, and is a “narrow

exception” to the final judgment rule.

If interlocutory appeals were permitted in cases of this kind, the delay

introduced in criminal prosecutions would be substantial. In the present

case, thirteen months already have elapsed since ihe district court

declared a mistrial and set the case for retrial. Still more time will elapse

before this Court can act on the petition for certiorari. Petitioners’

attempted interlocutory appeal has thus resulted in substantial disrup-

tion of the proceedings in the district court.

6

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.’

LAWRENCE G. WALLACE

Acting Solicitor General

JuLy 1981

IThis Court recently has denied certiorari in two cases raising the

same issue. See Kuhn v. United States, cert. denied, No. 80-1715 (June

8, 1981); Hanigan v. United States, cert. denied, No. 80-1165 (Mar. 9,

1981).

DOJ-1981-07