431 U.S. 651 (1977), 75-6521, Abney v. United States

Docket Nº:No. 75-6521
Citation:431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651
Party Name:Abney v. United States
Case Date:June 09, 1977
Court:United States Supreme Court

Page 651

431 U.S. 651 (1977)

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



United States

No. 75-6521

United States Supreme Court

June 9, 1977

Argued January 17, 1977




Petitioners and others were charged in a single-count indictment with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act. Petitioners challenged the indictment as duplicitous, contending that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. The District Court refused to dismiss the indictment but required the prosecution to prove all the elements of both offenses charged in the indictment, and instructed the jury to that effect. The jury returned a guilty verdict against each petitioner. The Court of Appeals reversed and ordered a new trial on certain evidentiary grounds, at the same time directing the Government to elect between the conspiracy and attempt charges on remand. After the Government elected to proceed on the conspiracy charge, petitioners moved to dismiss the indictment on grounds that the retrial would expose them to double jeopardy and that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and petitioners immediately appealed. The Court of Appeals affirmed, but did not address the Government's argument that the court had no jurisdiction to hear the appeal since the denial of petitioners' motion to dismiss the indictment was not a "final decision" within the meaning of 28 U.S.C. § 1291, which grants courts of appeals jurisdiction to review "all final decisions" of the district courts, both civil and criminal.


1. The District Court's pretrial order denying petitioners' motion to dismiss the indictment on double jeopardy grounds was a "final decision" within the meaning of § 1291, and thus was immediately appealable. Pp. 656-662.

(a) Although lacking the finality traditionally considered indispensable to appellate review, such an order falls within the "collateral order" exception to the final judgment rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, since it constitutes a complete, formal, and, in the trial court, final rejection of an accused's double jeopardy claim, the very nature of which is such that it is collateral to, and separable from, the principal issue of whether or not the accused is guilty of the offense charged. Pp. 657-660.

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(b) Moreover, the rights conferred on an accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence, since that Clause not only protects an individual against being subjected to double punishments, but also is a guarantee against being twice put to trial for the same offense. Pp. 66662.

2. The Court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners' challenge to the sufficiency of the indictment, since the District Court's rejection of such challenge does not come within the Cohen exception. That rejection is not "collateral" in any sense of that term, but rather goes to the very heart of the issues to be resolved at the upcoming trial. Moreover, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. Pp. 662-663.

3. The Double Jeopardy Clause does not preclude petitioners' retrial on the conspiracy charge. It cannot be assumed that the jury disregarded the District Court's instructions at the initial trial that it could not return a guilty verdict unless the Government proved beyond a reasonable doubt all of the elements of both offenses charged in the indictment, and therefore it would appear that the jury did not acquit petitioners of the conspiracy charge, while convicting them on the attempt charge, as petitioners urge was a possibility in view of the general verdict. Pp. 663-665.

530 F.2d 963, affirmed in part, reversed in part, and remanded.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., concurred in the judgment.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

[97 S.Ct. 2037] We granted certiorari to determine whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291,1 and thus immediately appealable. If it is a final decision, we must also decide: (a) whether the Double Jeopardy Clause bars the instant prosecution; (b) whether the courts of appeals have jurisdiction to consider non-double jeopardy claims presented pendent to such appeals; and, if so, (c) whether the Court of Appeals erred in refusing to dismiss the indictment on the alternative grounds asserted by the petitioners.


In March, 1974, a single-count indictment was returned in the United States District Court for the Eastern District of Pennsylvania charging petitioners, Donald Abney, Larry Starks, and Alonzo Robinson, and two others, with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951.2 The Government's case was based upon the testimony of one Ulysses Rice, the alleged victim of the conspiracy. Rice was

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the owner and operator of a Philadelphia, Pa. tavern selling liquor that was distilled and bottled outside of the State. According to Rice, petitioners had engaged in a pattern of extortionate practices against him. Initially, such activities had been thinly veiled under the pretense of solicitations for subscriptions to Black Muslim newspapers, sales of various food items, and appeals for contributions for a Black Muslim holiday. Eventually, however, demand for larger sums of money, including $200 in weekly "taxes" accompanied by threats, were made upon Rice at his place of business. These threats led Rice to contact the Federal Bureau of Investigation, which provided him with "marked money" and a body tape recorder in anticipation of future demands by the petitioners. When such a demand was made, Rice paid it with the marked currency and recorded the transaction on the body recorder. Petitioners were arrested despite their claims that all of the contributions by Rice had been bona fide gifts for Muslim religious causes. The tape recording of the last transaction was later introduced at petitioners' trial and, not surprisingly, it proved useful in refuting this claim of innocent purpose.

Both prior to, and during, the ensuing trial, the petitioners challenged the indictment on grounds of duplicity of offenses, claiming that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. Although the District Court apparently agreed with this contention, it refused either to dismiss the indictment or require the prosecutor to elect between theories. Rather, it required the Government to establish both offenses, as the prosecutor represented that he would do, and instructed the jury to that effect:

I would also point out that, in the indictment, it is charged that the defendants were guilt of both conspiracy and attempt and the essential elements of both of these offenses must be proved before any defendant could be found guilty.

Tr. 160 (emphasis added).

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The jury returned a guilty verdict against each petitioner, but acquitted two others charged in the indictment.

[97 S.Ct. 2038] On appeal, the United States Court of Appeals for the Third Circuit reversed petitioners' convictions and ordered a new trial on the ground that the key tape recording had been admitted into evidence without proper authentication. United States v. Starks, 515 F.2d 112 (1975). The Court of Appeals also agreed with the petitioners' claim that the indictment was duplicitous. Id. at 115-118. However, since the admission of the unauthenticated tape recording necessitated a new trial in any event, the court found it unnecessary to pass on the Government's argument that the...

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