# Opposition — Becton v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2356%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 837

## Text

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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 |
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2356%3A2. Public record. Not legal advice.