468 U.S. 317 (1984), 82-2113, Richardson v. U.s.

Docket Nº:No. 82-2113.
Citation:468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242
Party Name:Robert D.H. RICHARDSON, Petitioner v. UNITED STATES.
Case Date:June 29, 1984
Court:United States Supreme Court
 
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Page 317

468 U.S. 317 (1984)

104 S.Ct. 3081, 82 L.Ed.2d 242

Robert D.H. RICHARDSON, Petitioner

v.

UNITED STATES.

No. 82-2113.

United States Supreme Court.

June 29, 1984

Argued March 20, 1984.

Defendant charged with drug offenses appealed from orders of the United States District Court for the District of Columbia, Norma Holloway Johnson, J., denying his motion for judgment of acquittal and his motion to dismiss on grounds of former jeopardy. The Court of Appeals, 702 F.2d 1079, dismissed appeal for lack of jurisdiction. Certiorari was granted. The Supreme Court, Justice Rehnquist, held that: (1) claim that second trial after acquittal of one count of federal narcotics violations and after mistrial was declared on remaining counts because jury was unable to agree was barred on double jeopardy grounds because Government failed to introduce legally sufficient evidence to go to jury at first trial raised colorable double jeopardy claim appealable under final judgment rule, and (2) neither failure of jury to reach verdict nor trial court's declaration of a mistrial following a hung jury was an event that terminated original jeopardy which attached when jury was sworn, so that defendant had no valid double jeopardy claim that second trial was barred because of failure to introduce legally sufficient evidence to go to jury, regardless of sufficiency of evidence at first trial.

Reversed.

Justice Brennan concurred in part, dissented in part, and filed an opinion in which Justice Marshall joined.

Justice Stevens filed a dissenting opinion.

Syllabus a1

SYLLABUS

Petitioner was indicted on three counts of federal narcotics violations. At his trial, the jury acquitted him on one count but [104 S.Ct. 3082] was unable to agree on the others. The District Court declared a mistrial as to the remaining counts and scheduled a retrial. Petitioner then moved to bar a retrial, claiming that it would violate the Double Jeopardy Clause of the Fifth Amendment. The District Court denied the motion, and the Court of Appeals dismissed petitioner's appeal from that ruling for lack of jurisdiction under 28 U.S.C. § 1291.

Held:

1. Petitioner raised a colorable double jeopardy claim appealable under 28 U.S.C. § 1291. While consideration of this claim would require the Court of Appeals to canvas the sufficiency of the evidence at the first trial, this fact alone does not prevent the District Court's order denying the claim from being appealable. Pp. 3083-3084.

2. On the merits, however, regardless of the sufficiency of the evidence at his first trial, petitioner has no valid double jeopardy claim. The protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, that terminates the original jeopardy. Neither the failure of the jury to reach a verdict nor a trial court's declaration of a mistrial following a hung jury is an event that terminates the original jeopardy. Like the defendant, the Government is entitled to resolution of the case by the jury. Pp. 3084-3086.

226 U.S.App.D.C. 342, 702 F.2d 1079 (1983), reversed.

COUNSEL

Allan M. Palmer argued the cause and filed briefs for petitioner.

Michael W. McConnell argued the cause pro hac vice for the United States. With him on the brief were Solicitor

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General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Kathleen A. Felton.

Allan M. Palmer, Washington, D.C., for petitioner.

Michael W. McConnell, Washington, D.C., for respondent, pro hac vice, by special leave of Court.

OPINION

Justice REHNQUIST delivered the opinion of the Court.

The jury trying petitioner acquitted him of one of several counts, but was unable to agree as to the others. The District Court declared a mistrial as to these counts of the indictment and set them down for retrial. Petitioner moved to bar his retrial, claiming that a second trial would violate the Double Jeopardy Clause of the Fifth Amendment because evidence sufficient to convict on the remaining counts had not been presented by the Government at the first trial. The District Court denied this motion, and the Court of Appeals dismissed petitioner's appeal from that ruling for lack of jurisdiction under 28 U.S.C. § 1291. We now reverse that jurisdictional determination and proceed to address the merits of petitioner's double jeopardy claim. We find the claim unavailing, since it lacks its necessary predicate, there having been no termination of original jeopardy.

Petitioner was indicted in the United States District Court for the District of Columbia on two counts of distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiring to distribute a controlled substance, in violation of 21 U.S.C. § 846. Twice--at the close of the Government's case in chief and before submission of the case to the jury--he moved unsuccessfully for judgment of acquittal on the ground that the Government had failed to introduce sufficient evidence to warrant a finding of guilt beyond a reasonable doubt. 1 The jury acquitted petitioner of

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one substantive narcotics violation, but was unable to reach a verdict on the two remaining counts. The District Court declared a mistrial as to these two remaining counts and scheduled a retrial, at which point petitioner renewed his motion [104 S.Ct. 3083] for judgment of acquittal based on the legal insufficiency of the evidence. In addition, petitioner argued at this time that retrial was barred by the Double Jeopardy Clause of the Fifth Amendment. 2 The District Court denied both motions and petitioner appealed.

The Court of Appeals for the District of Columbia Circuit dismissed petitioner's appeal for want of jurisdiction. 226 U.S.App.D.C. 342, 702 F.2d 1079 (1983). The Court of Appeals reasoned that its jurisdiction to review petitioner's double jeopardy claim depended upon the appealability of the District Court's ruling on petitioner's motion for judgment of acquittal based on the insufficiency of the evidence. Because the District Court's ruling on the latter motion was not a final judgment appealable under 28 U.S.C. § 1291, that ruling could only be reviewed if it fell within the collateral order doctrine enunciated by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The court held that the ruling on the legal sufficiency of the evidence was "anything but collateral," and thus it lacked appellate jurisdiction to review that claim. 226 U.S.App.D.C., at 344-345, 702 F.2d, at 1081-1082. Since the merits of petitioner's double jeopardy claim depended entirely on reviewing the legal sufficiency of the evidence, the court concluded that petitioner had failed to present a double jeopardy claim

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which could be reviewed at that point. 3 We granted certiorari to review the decision of the Court of Appeals, 464 U.S. 890, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983), because of a conflict with the decision reached by the Third Circuit in United States v. McQuilkin, 673 F.2d 681 (1982),4 and because of the implications of the decision below for the administration of criminal justice.

Petitioner contends that under our decisions in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), he is entitled to an interlocutory review of his claim that a second trial is barred by the Double Jeopardy Clause because the Government failed to introduce legally sufficient evidence to go to the jury at the first trial. Burks, however, involved no issue of interlocutory review, since it was an appeal from a final judgment of conviction. But Abney arose in the context of an interlocutory appeal. There we held that denial of a defendant's pretrial motion to dismiss an indictment on double jeopardy grounds was appealable as a "collateral order" under 28 U.S.C. § 1291. Despite the strong congressional policy embodied in § 1291 against interlocutory appeals in criminal cases, DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962), we held that the claim in Abney met the three-part test established in Cohen v. Beneficial Industrial Loan Corp., supra, because a double jeopardy claim contested the very power of the Government to bring a person to trial, and the right would be significantly impaired if review were deferred until after the trial. We said:

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"Obviously, [this] aspec[t] of the guarantee's protections would be lost if the accused were forced to 'run the gauntlet' a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy [104 S.Ct. 3084] grounds, he has been forced to endure 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 jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." 431 U.S., at 662, 97 S.Ct., at 2041 (footnote omitted) (emphasis in original).

The Government contends, and the Court of Appeals agreed, that the double jeopardy claim raised by petitioner in this case does not meet the three-party test of the Cohen case. It argues that resolution of the double jeopardy claim inevitably involves evaluation of the sufficiency of the evidence against petitioner at the first trial, and therefore the claim is not completely collateral to the merits of the charge against petitioner. Cf. Abney, supra, 431 U.S., at 660, 97 S.Ct. at 2040. To dispose of...

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