516 F.2d 905 (2nd Cir. 1975), 648, United States v. Beckerman
|Docket Nº:||648, Docket 74-2478.|
|Citation:||516 F.2d 905|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Peter BECKERMAN, Defendant-Appellant.|
|Case Date:||May 13, 1975|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Feb. 11, 1975.
Michael Q. Carey, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D. N. Y., Lawrence S. Feld, Asst. U. S. Atty., on the brief), for appellee.
Robert Polstein, New York City (Orans, Elsen & Polstein, New York City), for appellant Beckerman.
Before HAYS and FEINBERG, Circuit Judges, and HOLDEN, [*] District Judge.
HOLDEN, District Judge:
The appellant, Peter Beckerman, was charged in a single count indictment with distributing and possessing with intent to distribute approximately 28 grams of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (1970). On May 10, 1974, after three days of trial before the United States District Court for the Southern District of New York, Constance B. Motley, J., the jury was dismissed without reaching a verdict after the forelady reported a deadlock. On September 9, 1974, the appellant filed a motion to dismiss the indictment
which advanced the contention that retrial would subject the accused to double jeopardy. 1 This appeal is from the order denying the motion to dismiss.
At the outset the Government challenges the court's jurisdiction to review Judge Motley's order on the contention that the ruling is not a final decision, hence not appealable within 28 U.S.C. § 1291 (1970). In general, an order denying a motion to dismiss an indictment is interlocutory and not appealable. See United States v. Garber, 413 F.2d 284, 285 (2d Cir. 1969).
The Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), recognized that there is a "small class" of decisions from which an appeal is properly taken under § 1291, even though final judgments have not been entered. The Court identified the characteristics of that narrow area of cases where an appeal will lie: (1) the order finally determines rights "separable from and collateral to" the main action, (2) the collateral rights so determined are "too important to be denied review," and (3) those rights "will have been lost, probably irreparably" after final judgment is entered. Id. at 546, 69 S.Ct. at 1225. These features mark the denial of a plea of double jeopardy. Although the indictment persists, and a retrial may follow, the order appealed from bears the characteristics defined in Cohen; yet the Government maintains the appeal is premature. Its argument relies heavily on United States v. Kaufman, 311 F.2d 695 (2d Cir. 1963), and United States v. Ford, 237 F.2d 57 (2d Cir. 1956), vacated as moot, 355 U.S. 38, 78 S.Ct. 114, 2 L.Ed.2d 71 (1957).
In Kaufman the question was presented in the context of the sufficiency of the evidence, rather than double jeopardy. The defendants were convicted on two substantive narcotic counts; the jury was unable to reach a verdict on the third count which charged conspiracy. Affirming the convictions on the substantive counts, the Court dismissed, as premature, the appellants' contention that the trial court should have dismissed the conspiracy count for insufficient evidence. The issue of double jeopardy was only obliquely considered in Ford, supra, in an opinion which affirmed convictions on three other counts. More importantly, its precedential authority has been undermined since the opinion was later vacated as moot.
The issue of double jeopardy is collateral to the determination of whether the accused is innocent or guilty of the offense for which he has been indicted. The constitutional protection against being twice put in jeopardy for the same offense is a "valued right," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), that is too important to be denied review. The protection against double jeopardy guards "not against being twice punished, but against being twice put in jeopardy," United States v. Ball,163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). 2 The right will be invaded if an accused, who has properly invoked the Fifth Amendment protection against being twice put in jeopardy, is called upon to suffer the pain of two trials. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
If an accused is to be afforded "the full protection of the double jeopardy clause, a final determination of whether jeopardy has attached to the previous trial must, where possible, be determined prior to any retrial." United States v. Lansdown, 460 F.2d 164, 171 (4th Cir. 1972). Contra, Gilmore v. United States,
264 F.2d 44 (5th Cir. 1959), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959). The reasoning of the opinion in Lansdown is persuasive here. We conclude that we have jurisdiction to review the denial of the defendant's motion to dismiss the indictment on the predicate of the double jeopardy clause. This is a logical extension of the concept of appealability expressed in Cohen. United States v. Lansdown, supra, 460 F.2d at 170. It is in keeping with Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974). 3
We turn now to the problem of double jeopardy, generated by the declaration of a mistrial after the jury has reported a deadlock. Since it is impossible to define all the varying circumstances which would render appellate interference proper, it is essential, on review, to consider the pattern of events which preceded the discharge of the jury. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Glover, 506 F.2d 291, 295 (2d Cir. 1974).
The trial commenced on May 8, 1974, and...
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