U.S. v. Martin Linen Supply Co., 75-2322

• Citation: 534 F.2d 585
• Decision Date: 21 June 1976
• Docket Number: No. 75-2322,75-2322
• Parties: 1976-2 Trade Cases 60,987 UNITED STATES of America, Plaintiff-Appellant, v. MARTIN LINEN SUPPLY CO., and Texas Sanitary Towel Supply Corp., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 585

534 F.2d 585

1976-2 Trade Cases 60,987

UNITED STATES of America, Plaintiff-Appellant, v. MARTIN LINEN SUPPLY CO., and Texas Sanitary Towel Supply Corp., Defendants-Appellees.

No. 75-2322.

United States Court of Appeals Fifth Circuit.

June 21, 1976.

Carl D. Lawson, Dept. of Justice, Antitrust Div., Washington, D. C., for plaintiff-appellant.

Roy R. Barrera, J. Burleson Smith, San Antonio, Tex., Mervin C. Pollak, New York City, for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge.

The United States appeals to this Court under the provisions of18 U.S.C. § 3731 ¹ from the district court's order granting directed verdicts of acquittal to defendant-appellees Martin Linen Supply Company (Martin Linen) and Texas Sanitary Towel Supply Corporation (Texas Sanitary Towel), after a trial by jury on criminal contempt charges that resulted in a hung jury. ² Section 3731 allows the Government to appeal from any decision dismissing an indictment or information except where the double jeopardy clause of the Constitution prohibits further prosecution. ³ Because we find that the double jeopardy clause would bar further prosecution in this case, we dismiss the appeal for lack of appellate jurisdiction.

Appellees' contempt trial began on February 18, 1975. Three days later, on February 21, 1975, the jury returned a verdict of not guilty as to William B. Troy, an individual defendant whose case is not before us. At the same time, the jury informed the court that it was unable to agree on a verdict as to Martin Linen and Texas Sanitary Towel. The court then excused the jurors and declared a mistrial.

After the jurors had departed, the court indicated that it would entertain a motion for directed verdict of acquittal as to Martin Linen and Texas Sanitary Towel, making the following observations:

I'll be frank with you, gentlemen. I almost instructed a verdict for all Defendants in this case. I almost granted a judgment for the Defendants. I think this is one of the weakest I'm saying you did a very creditable job with what you had, Mr. Sonnett (Government attorney). I have seen some contempt cases, but this is without a doubt the weakest I've ever seen.

The judge's next comments revealed his opinion that certain parts of the consent decree were undesirable, in that they placed the companies at a competitive disadvantage. Responding to the court's invitation, the two corporate defendants filed motions for judgments of acquittal on February 27, 1975. The Government filed a memorandum in opposition to the motions. On April 22, 1975, the court granted the motions and entered judgments of acquittal for both defendants. ⁴ From the order the Government noticed its appeal.

Federal Rule of Criminal Procedure 29(c) permits the court to entertain a timely motion for acquittal after the jury is discharged:

If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury. (Emphasis added.)

The procedure followed in the case before us comported with the requirements of Rule 29(c). The jury was discharged without having returned a verdict; defendants filed their motions for judgments of acquittal within 7 days after the discharge of the jury; and the court entered judgments of acquittal. For the purposes of appellate review, therefore, this is not a case in which the standard governing retrial after a mistrial governs, ⁵ despite the Government's efforts to make it so. ⁶ As the Supreme Court said in United States v. Jenkins, 1975, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250, 256 n. 7:

(W)e think it is of critical importance whether the proceedings in the trial court terminate in a mistrial as they did in the Somerville line of cases (Illinois v. Somerville, 410 U.S. 458 (1973)), or in the defendant's favor, as they did here.

Cf. United States v. Wilson, 1975, 420 U.S. 332, 348, 95 S.Ct. 1013, 1024, 43 L.Ed.2d 232, 244 (although retrial after mistrial sometimes permissible if no verdict or judgment entered, verdict of acquittal forecloses retrial and thus bars appellate review). Since the proceedings here terminated in the defendant's favor, we must decide whether this is a case in which the Government may appeal after a directed verdict of acquittal.

The language of section 3731 makes appealability dependent on another question: would the double jeopardy clause of the Constitution bar further proceedings under these circumstances? Congress deliberately chose to make the Government's right to appeal as broad as the Constitution would permit when it passed Title III of the Omnibus Crime Control Act of 1970, Pub.L. 91-644, in which the present version of 18 U.S.C. § 3731 appeared. Recently the Supreme Court discussed the scope of amended section 3731 in three cases: Serfass v. United States, 1975, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265; United States v. Jenkins, 1975, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250; and United States v. Wilson, 1975, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232. Serfass stressed the necessity of a finding that jeopardy has attached as a prerequisite to the applicability of the double jeopardy clause. That requirement is certainly satisfied in the case before us; not only was a jury empaneled and sworn, but it actually heard all the evidence both sides had to offer.

Jenkins stated the general rule for appealability as follows:

But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U.S.C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand.

420 U.S. at 370, 95 S.Ct. at 1013, 43 L.Ed.2d at 259 (per Rehnquist, J.). If such additional proceedings would be required, then the double jeopardy clause forbids appeal by the Government. In the case of a mistrial followed by a timely motion for acquittal under Rule 29(c), F.R.Crim.P., which motion is granted, further proceedings devoted to the resolution of factual issues would necessarily follow a successful appeal by the Government. This distinguishes the situation where an acquittal follows a mistrial from the situation presented in Wilson where an acquittal came after a guilty verdict, since in the latter case no further proceedings would follow a successful appeal. The Jenkins standard thus leads inescapably to the conclusion that no appeal lies from the directed verdict ordered by the court below.

The Government's last effort to avoid dismissal of the appeal relies on the Supreme Court's action in relation to United States v. Sanford, 9 Cir. 1974, 503 F.2d 291. In that case, an indictment had been returned against the defendants and the case was tried in February 1973. That trial resulted in a hung jury and a mistrial. Prior to the retrial, defendants moved to dismiss the indictment. Relying on the evidence adduced at the first trial, the district judge granted the motion. The Ninth Circuit dismissed the Government's appeal, but its decision was vacated and remanded by the Supreme Court for further consideration in light of Serfass. United States v. Sanford, 1975, 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 663.

The Supreme Court's remand of Sanford can be reconciled easily with our conclusion that Jenkins requires us to dismiss the instant appeal. Prior to Serfass, cases such as United States v. Sisson, 1970, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608, had indicated that appeals from acquittals based on facts external to the indictment might be barred by the double jeopardy clause. The Wilson court, however, read Sisson as narrowly as possible, and indicated that the result might...