Abney v. United States, No. 75-6521

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation97 S.Ct. 2034,52 L.Ed.2d 651,431 U.S. 651
Decision Date09 June 1977
Docket NumberNo. 75-6521
PartiesDonald ABNEY, Larry Starks and Alonzo Robinson, Petitioners, v. UNITED STATES

431 U.S. 651
97 S.Ct. 2034
52 L.Ed.2d 651
Donald ABNEY, Larry Starks and Alonzo Robinson, Petitioners,

v.

UNITED STATES.

No. 75-6521.
Argued Jan. 17, 1977.
Decided June 9, 1977.
Syllabus

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. Held:

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, 69 S.Ct. 1221, 93 L.Ed. 1528, 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.

Page 652

(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. 660-662.

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.

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

Ralph David Samuel, Philadelphia, Pa., for petitioners.

Richard L. Thornburgh, Washington, D.C., for respondent.

Page 653

Mr. Chief Justice BURGER delivered the opinion of the Court.

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.

(1)

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

Page 654

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, demands 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 guilty 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. 10-60 (emphasis added).

Page 655

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

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 indictment's duplicitous nature had been corrected by the trial court's instructions to the jury and was thus harmless. Id., at 118. Nonetheless, it directed the Government to elect between the conspiracy and attempt charges on remand in order to avoid any similar problems at the next trial. Id., at 118, 125.

On remand, the Government elected to proceed on the conspiracy charge. Petitioners then moved to dismiss the indictment, arguing: (a) that retrial would expose them to double jeopardy; and (b) that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and the petitioners immediately appealed to the Court of Appeals.

Before addressing the merits of petitioners' claims, the Government challenged the Court of Appeals' jurisdiction to hear the interlocutory appeal and asked that its prior decision in United States v. DiSilvio, 520 F.2d 247 (1975), be overruled; there the court had held that the denial of a pretrial motion to dismiss an indictment on double jeopardy grounds constituted a final decision within the meaning of 28 U.S.C. § 1291, and, as such, was immediately appealable. 520 F.2d, at 248 n. 2a. The Court of Appeals failed to address the Government's argument. Rather, after ordering the case to

Page 656

be submitted on the briefs without oral argument, it affirmed the District Court by a judgment order which explicitly rejected both of the petitioners' attacks on the indictment. We granted certiorari to review the decision of the Court of Appeals.

(2)

(1, 2) We approach the threshold appealability question with two principles in mind. First, it is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 87 (1894). Indeed, for a century...

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1746 practice notes
  • Ramirez-Burgos v. United States, Civil No. 11–2040(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • December 23, 2013
    ...argued double jeopardy alleging that Count Three required the same elements as Counts One and Two. 3.See Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir.1979). 4.Strickland v. Washington, 466 U.S. 668, 10......
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...1528 (1949). 11. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). 12. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977). 13. 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911 p. 470 (19......
  • U.S. v. Rigas, No. 08-3218.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 21, 2009
    ...Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. Abney v. United States, 431 U.S. 651, 661-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Accordingly, pretrial orders denying motions to dismiss an indictment on double jeopardy gro......
  • Hatch v. State of Okl., No. 94-6052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 14, 1995
    ...United States, --- U.S. ----, ----, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (1993) (Rehnquist, C.J., dissenting)); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) ("[I]t is well settled that there is no constitutional right to an appeal."); McKane v. Durs......
  • Request a trial to view additional results
1746 cases
  • Ramirez-Burgos v. United States, Civil No. 11–2040(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • December 23, 2013
    ...argued double jeopardy alleging that Count Three required the same elements as Counts One and Two. 3.See Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir.1979). 4.Strickland v. Washington, 466 U.S. 668, 10......
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...1528 (1949). 11. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). 12. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977). 13. 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911 p. 470 (19......
  • U.S. v. Rigas, No. 08-3218.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 21, 2009
    ...Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. Abney v. United States, 431 U.S. 651, 661-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Accordingly, pretrial orders denying motions to dismiss an indictment on double jeopardy gro......
  • Hatch v. State of Okl., No. 94-6052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 14, 1995
    ...United States, --- U.S. ----, ----, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (1993) (Rehnquist, C.J., dissenting)); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) ("[I]t is well settled that there is no constitutional right to an appeal."); McKane v. Durs......
  • Request a trial to view additional results

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