Sanabria v. United States, 76-1040

CourtUnited States Supreme Court
Citation57 L.Ed.2d 43,98 S.Ct. 2170,437 U.S. 54
Docket NumberNo. 76-1040,76-1040
PartiesThomas SANABRIA, Petitioner, v. UNITED STATES
Decision Date14 June 1978

437 U.S. 54
98 S.Ct. 2170
57 L.Ed.2d 43
Thomas SANABRIA, Petitioner,



No. 76-1040.
Argued Nov. 8, 1977.
Decided June 14, 1978.

Title 18 U.S.C. § 1955 (1976 ed.) makes it a federal offense for five or more persons to conduct an "illegal gambling business" in violation of the law of the place where the business is located. Petitioner, along with several others, was indicted for violating § 1955 in a single count charging that the defendants' gambling business involved numbers betting and betting on horse races in violation of a specified Massachusetts statute. The Government's evidence at trial in the District Court showed that the defendants had been engaged in both horse betting and numbers betting. At the close of the Government's case defense counsel argued that the Government had failed to prove a violation of the Massachusetts statute because that statute did not prohibit numbers betting but only horse betting. After the defendants had rested, the trial judge granted their motion to exclude all evidence of numbers betting and then granted a motion to acquit petitioner because of lack of evidence of his connection with the horse-betting business. The case against the remaining defendants went to the jury, and they were all convicted. The Government appealed under 18 U.S.C. § 3731 (1976 ed.) from the order excluding the numbers-betting evidence and from the judgment acquitting petitioner, and sought a new trial on the portion of the indictment relating to numbers betting. The Court of Appeals held that it had jurisdiction of the appeal, taking the view that, although § 3731, by its terms, authorizes the Government to appeal only from orders "dismissing an indictment . . . as to any one or more counts," the word "counts" refers to any discrete basis for imposing criminal liability, that since the horse-betting and numbers allegations were discrete bases for liability duplicitously joined in a single count, the District Court's action constituted a "dismissal" of the numbers "charge" and an acquittal for insufficient evidence on the horse-betting charge, and that therefore § 3731 authorized an appeal from the "dismissal" of the numbers charge. The court went on to hold that the Double Jeopardy Clause of the Fifth Amendment did not bar a retrial, because petitioner had voluntarily terminated the proceedings on the numbers portion of the count by moving, in effect, to dismiss it. The court vacated the judgment of acquittal, and remanded for a new trial on the numbers charge. Held:

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1. A retrial on the numbers theory of liability is barred by the Double Jeopardy Clause. Pp. 63-74.

(a) The Court of Appeals erroneously characterized the District Court's action as a "dismissal" of the numbers theory. There was only one count charged, the District Court did not rder language in the indictment stricken, and the indictment was not amended, but the judgment of acquittal was entered on the entire count and found petitioner not guilty of violating § 1955 without specifying that it did so only with respect to one theory of liability. Pp. 65-68.

(b) To the extent that the District Court found the indictment's description of the offense too narrow to warrant admission of certain evidence, the court's ruling was an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence, and that judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error. Pp. 68-69.

(c) Even if it could be said that the District Court "dismissed" the numbers allegation, a retrial on that theory would subject petitioner to a second trial on the "same offense" of which he was acquitted. Under § 1955 participation in a single gambling business is but a single offense, no matter how many state statutes the enterprise violated, and with regard to this single gambling business petitioner was acquitted. The Government having charged only a single gambling business, the discrete violations of state law that that business may have committed are not severable in order to avoid the Double Jeopardy Clause's bar of retrials for the "same offense." Pp. 69-74.

2. Once the defendant has been acquitted, no matter how "egregiously erroneous" the legal rulings leading to the judgment of acquittal might be, there is no exception to the constitutional rule forbidding successive trials for the same offense. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629. Thus here, while the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80; Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, distinguished. Pp. 75-78.

548 F.2d 1, reversed.

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Francis J. DiMento, Boston, Mass., for petitioner.

Frank H. Easterbrook, Washington, D. C., for respondent, pro hac vice, by special leave of Court.

Mr. Justice MARSHALL delivered the opinion of the Court.*

The issue presented is whether the United States may appeal in a criminal case from a midtrial ruling resulting in the exclusion of certain evidence and from a subsequently entered judgment of acquittal. Resolution of this issue depends on the application of the Double Jeopardy Clause of the Fifth Amendment to the somewhat unusual facts of this case.


Petitioner was indicted, along with several others, for violating 18 U.S.C. § 1955 (1976 ed.), which makes it a federal offense to conduct, finance, manage, supervise, direct, or own all or part of an "illegal gambling business." § 1955(a). Such a business is defined as one that is conducted by five or more persons in violation of the law of the place where the business is located and that operates for at least 30 days or earns at least $2,000 in any one day. § 1955(b)(1).1 The

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single-count indictment here charged in relevant part that the defendants' gambling business involved "accepting, recording and registering bets and wagers on a parimutual [sic ] number pool and on the result of a trial and contest of skill, speed, and endurance of beast," and that the business "was a violation of the laws of the Commonwealth of Massachusetts, to wit, M.G.L.A. Chapter 271, Section 17." 2

The Government's evidence at trial showed the defendants to have been engaged primarily in horse betting and numbers betting. At the close of the Government's case, petitioner's counsel, who represented 8 of the 11 defendants, moved for a judgment of acquittal as to all of his clients. Joined by counsel for other defendants, he argued, inter alia, that the

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Government had failed to prove that there was a violation of the state statutory section as alleged in the indictment, since Mass.Gen.Laws Ann., ch. 271, § 17 (West 1970), as construed by the state courts, did not prohibit numbers betting but applied only to betting on "games of competition" such as horse races. The Government responded that "violation of the State law is a jurisdictional element of [the federal] statute" and that "not every [defendant] must be found to be violating this State law." The District Court accepted the Government's theory and denied the defendants' motion, stating that "a defendant to be convicted must [only] be found to have joined in [the illegal] enterprise in some way."

Petitioner's counsel then sought clarification of whether "the numbers pool allegation [was] still in the case." The court indicated that it was, because counsel had not presented any state-court authority for the proposition that § 17 did not include numbers betting. The court also expressed the view, however, that if petitioner's counsel were correct, "we would have to exclude . . . all of the evidence that has to do with bets o[n] numbers." The Government demurred, arguing that exclusion of the numbers evidence would "not necessarily follow" from acceptance of petitioner's theory.3 Taking his lead from the court, petitioner's counsel next moved "to strike or limit the evidence." The motion was denied.

After the defendants had rested, the trial judge announced that he was reversing his earlier ruling on the motion to exclude evidence, because he had discovered a Massachusetts

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case holding that numbers betting was not prohibited by § 17, but only by § 7 of ch. 271.4 The court then struck all evidence of numbers betting, apparently because it believed such action to be required by the indictment's failure to set forth the proper section.5

At this point counsel moved for a judgment of acquittal as to petitioner alone, arguing that there was no evidence of his connection with horse-betting activities. The Government did not disagree that the evidence was insufficient to show petitioner's involvement with a horse-betting operation, but repeated its earlier argument relating to the "jurisdictional" nature of the state-law violation. The court rejected this contention, stating that the offense had "to be established in the terms that you [the Government] charged it, which was as a violation of § 17" and that petitioner had to be "connected with this operation, and by that I mean a horse operation." The court concluded: "I don't think you've done it." It then granted petitioner's motion for a judgment of acquittal 6 and entered an order embodying this ruling later that day.7

The next day the Government moved the court to reconsider both "its ruling . . . striking . . . evidence concerning the operation of an illegal . . . numbers pool" and "its decision granting defendant Thomas Sanabria's motion for judgement

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[sic ] of acquittal." 8 Prompted by the Government's arguments in support of reconsideration, the court asked defense counsel why he had not raised the objection to the indictment's citation of § 17 earlier and what prejudice resulted to petitioner from the failure to...

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