U.S. v. Barket

• Decision Date: 09 February 1976
• Docket Number: 75--1569,Nos. 75--1568,s. 75--1568
• Citation: 530 F.2d 181
• Parties: UNITED STATES of America, Appellee, v. Alexander J. BARKET, Appellant. Alexander J. BARKET, Petitioner, v. The Honorable John W. OLIVER, United States District Judge, and United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 181

530 F.2d 181

UNITED STATES of America, Appellee, v. Alexander J. BARKET, Appellant.

Alexander J. BARKET, Petitioner, v. The Honorable John W. OLIVER, United States District Judge, and United States of America, Respondents.

Nos. 75--1568, 75--1569.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1975.

Decided Dec. 9, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 9, 1976.

Rehearing Denied in No. 1568

Thomas C. Walsh, St. Louis, Mo., for appellant.

Anthony Nugent, U.S. Asst. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, LAY and STEPHENSON, Circuit Judges.

MATTHES, Senior Circuit Judge.

Alexander J. Barket has appealed from the order of the district court ^* denying his motion to dismiss Count I of a two-count indictment (our Appeal No. 75--1568). Alternatively, Barket filed a petition for writ of mandamus in this court (No. 75--1569) to compel the district court to dismiss Count I and discharge appellant. The appeal and petition for mandamus have been consolidated for briefing, argument, and opinion.

Count I of the indictment charged that appellant, an officer of Civic Plaza National Bank, Kansas City, Missouri, consented to the expenditure of the bank's moneys in connection with the 1968 presidential election, in violation of 18 U.S.C. § 610. ¹

Before proceeding to an examination of the merits of the issues presented, a resume of the history of this case in the district court will serve to explain why this litigation is before us.

The two-count indictment was filed on May 9, 1974. ² Count I charged that appellant violated 18 U.S.C. § 610 by consenting to the contribution of $7,500 of Civic Plaza's money in connection with the 1968 election for presidential and vice presidential electors. Count II charged that, in violation of 18 U.S.C. § 656, appellant knowingly and without authorization misapplied $9,144 of the bank's funds by paying the money to Rudolph Zatezalo, for the purpose of making an unlawful political contribution. ³

Both counts were based on the same transactions: an alleged payment of $9,144 from the bank to Zatezalo, as a bonus salary, and a contribution by Zatezalo of $7,500 to the presidential campaign of then Vice President Hubert Humphrey. ⁴ The government's theory is that appellant approved this payment to Zatezalo, without proper authorization, and so violated both § 656, by misapplying the bank's funds, and § 610 by consenting to an expenditure of bank funds for a presidential election.

At a conference on January 28, 1975, the court ordered that the two counts be tried separately. It is unclear at whose instance this order was made. ⁵

In any event, after waiver of a jury trial, the case proceeded on Count II alone, the § 656 misapplication charge. At the close of the evidence, the trial judge granted appellant's motion for judgment of acquittal. In granting the motion, he discussed at length the strength of the government's evidence. Particularly, he said:

The greatest difficulty, it seems to me, is proof and evidence to support any sort of finding that whatever the defendant may have done, he did for the purpose as alleged by the government 'to injure and defraud his bank' * * *.

It is my judgment, and I find, that there was an equal failure of proof on the part of the government that the purpose of the defendant's action was the making of an 'illegal' political contribution.

The court then entered a 'not guilty' verdict.

Count I of the indictment, the § 610 charge, remained pending. Thereafter, appellant moved to dismiss this count on several grounds. He asserted first that to try him on Count I would violate the fifth amendment's proscription of double jeopardy, because the offense charged in Count I is identical to the offense charged in Count II. In his motion to dismiss appellant relied in part at least on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) to support this double jeopardy claim. ⁶ He asserted also that Count I fails to state an offense, and that § 610 is unconstitutional.

The court denied appellant's motion to dismiss Count I and this appeal followed. In denying the motion, the judge filed a written memorandum and order in which he stated inter alia:

In connection with the Section 656 charge contained in Count II of the indictment, the government was obligated to establish beyond reasonable doubt that the defendant, with intent to injure and defraud the bank of which he was an officer and director, willfully and knowingly misapplied $9,144.00 for the purpose of making an unlawful political contribution. The Section 610 charge alleged in Count I does not require proof of any factual data essential to a Section 656 conviction under Count II. The charge in Count I requires that the government prove beyond reasonable doubt that the defendant 'consented' to a $7,500 contribution made by the bank in violation of Section 610. That is an entirely different charge than Count II which alleged that the defendant had made an unidentified unlawful political contribution with money which he had converted from funds formerly owned by the bank.

Initially, we consider the question whether the order complained of is a 'final decision' appealable under 28 U.S.C. § 1291.

The parties disagree on this vital question. The appellant relies on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and cases cited below from four courts of appeals in support of his contention that even though the order denying the motion to dismiss is collateral in nature, it should be treated as final and appealable. The government argues that the order does not fall within the ambit of the Cohen doctrine and submits that the four cases relied upon by the appellant the distinguishable. The government argues also that the double jeopardy and collateral estoppel issues can be determined after another trial and entry of a final judgment under 28 U.S.C. § 1291.

Ordinarily, absent compelling reasons, an interlocutory order, such as an order denying a motion to dismiss an indictment, is non-appealable. Cohen v. Beneficial Industrial Loan Corp., supra; Snodgrass v. United States, 326 F.2d 409 (8th Cir. 1964). However, where, as here, the appellant in good faith contends that another trial is barred by former jeopardy, this general rule does not apply. Rather, denial of the motion to dismiss is deemed appealable as a collateral order, within the doctrine of Cohen v. Beneficial Industrial Loan Corp., supra. United States v. DeSilvio, 520 F.2d 247 (3d Cir. 1975); United States v. Beckerman, 516 F.2d 905 (2d Cir. 1975); United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972); see also Thomas v. Beasley, 491 F.2d 507 (6th Cir. 1974); contra, United States v. Bailey, 512 F.2d 833 (5th Cir. 1975). ⁷

The denial of the motion to dismiss in this case has all the characteristics of a collateral order. These characteritics are enumerated by Professor Moore:

(1) (T)he order must be a final determination of a claim of right 'separable from, and collateral to,' rights asserted in the action;

(2) it must be 'too important to be denied review,' in the sense that it 'presents a serious and unsettled question'; and

(3) its review cannot, in the nature of the question that it presents, await final judgment because 'when that time comes, it will be too late effectively to review the * * * order and rights conferred * * * will have been lost, probably irreparably.'

9 J. Moore, Federal Practice P110.10, quoted in Roach v. Churchman, 457 F.2d 1101 (8th Cir. 1972).

The order denying the motion to dismiss here is the trial court's final determination of appellant's double jeopardy claim. It is separable from the merits of the case. See United States v. Lansdown, supra, 460 F.2d at 171. As a question of constitutional right, it is too important to be denied review. Id.

Most importantly, review of the double jeopardy claim cannot await final judgment. The double jeopardy prohibition is meant to spare a once-jeopardized defendant not only a subsequent conviction, but also a subsequent trial. It is designed to prevent the government from 'subjected (a defendant) to embarrassment, expense and orderal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187--88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Accord United States v. Lansdown, supra, 460 F.2d at 171; United States v. Brown, 481 F.2d 1035, 1041 (8th Cir. 1973); see also Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

If this appeal is not heard now, appellant will lose his claimed right to be free from a second trial. ⁸ Review thus cannot await final judgment. We hold that the order is appealable, and in so holding, we emphasize that our conclusion is limited to double jeopardy cases.

Also, the other grounds for dismissal of the indictment advanced by appellant (failure to charge an offense and the unconstitutionality of § 610) can be heard, if necessary, on appeal from final judgment in the event there is another trial and conviction. Accordingly, we do not consider them now. We limit our consideration to appellant's double jeopardy and collateral estoppel claims.

And because we find the order appealable, we need not consider whether mandamus is appropriate.

Appellant in fact makes two separate double jeopardy arguments. First, he contends that the § 610 violation charged in Count I and the § 656 violation charged in Count II are the 'same offense,' so that his acquittal for the latter bars prosecution for the former. Secondly, he argues that the second prosecution is barred by the 'collateral estoppel' rule of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). We consider each argument in turn.

Two statutes charge the same offense, for double jeopardy...