U.S. v. Becton, 80-1630

• Decision Date: 18 December 1980
• Docket Number: No. 80-1630,80-1630
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Major BECTON, Stanley Becton, Robert Jones, Robert Pollack, Vincent Damien and Barry Mirojnick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1294

632 F.2d 1294

UNITED STATES of America, Plaintiff-Appellee, v. Major BECTON, Stanley Becton, Robert Jones, Robert Pollack Vincent Damien and Barry Mirojnick, Defendants-Appellants.

No. 80-1630.

United States Court of Appeals Fifth Circuit.

Dec. 18, 1980.

Dan Marlow, Oakland, Cal. for Major and Stanley Becton.

Robert Turner, Deborah Gottlieb, Houston, Tex., for Robert Jones.

Richard Thornton, Galveston, Tex., for Robert Pollack.

Nelson & Mallett, Edward A. Mallett, J. Patrick Wiseman, Houston, Tex., for Vincent Damien.

Levey & Goldstein, Gerald H. Goldstein, San Antonio, Tex., for Barry Mirojnick.

J. A. Canales, U.S. Atty., John M. Potter, Asst. U.S. Atty, Houston, Tex., for plaintiff-appellee.

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

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

GEE, Circuit Judge:

This expedited appeal presents two issues, a jurisdictional one of broad interest and importance and an evidentiary one of interest to the appellants only. Since the need for us to consider the latter depends on how we resolve the former, we discuss it first.

Appellants' trial on drug charges resulted in a thoroughly ¹ hung jury and the consequent declaration of a mistrial. Motions for judgment of acquittal at the close of the prosecution's case, renewed after the jury's discharge, were partly granted but in main denied. When the remaining counts were set for retrial, appellants renewed their motions for acquittal and further moved to dismiss on grounds of former jeopardy, asserting that the evidence produced against them at their prior trial had been insufficient to warrant submission of the case to the jury. It is the denial of these motions that they bring to us.

Appellants' argument-and an appealing one it is-runs that had they been convicted, and had their convictions been reversed on appeal for insufficiency of supporting evidence, they could not have been again put to trial. This is correct. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). How then, they assert, can it be that where, as here, the evidence was so entirely insufficient as to produce a hung jury rather than a conviction, a retrial is yet permissible? When the prosecution's case is on, and the evidence is insufficient, why should a defendant be worse off if the jury hangs than if it improperly convicts? Stated as an abstract proposition, the argument by analogy seems unanswerable.

There are important differences between the case presented here, however, and the proposition stated; and the two apparent parallels are not really parallel at all. In the case posed of a reversed conviction, we contemplate a final decision, entered in the course of appellate review, that the prosecution has had its chance to make a case for the jury and has failed to do so. Burks, cited above, stands for the proposition that after such a determination by the appellate judges, the Fifth Amendment forbids a second trial, regardless of whether the defendant sought one, just as it would have had the trial judge made the same determination, refused to submit the case to the jury, and therefore necessarily entered judgment of acquittal.

Here there has been no such determination of insufficiency by any court, trial or appellate. Instead we contemplate a contrary determination by the first trial court-that the evidence was sufficient to warrant submission to the jury-and a mere refusal by the jury to convict. Such a refusal is an action in no wise the necessary equivalent of a decision, even by the jury, that the evidence is insufficient to warrant submission. In the first place, of course, the jury is neither equipped nor asked to make such a determination. In the second, it is a commonplace that juries can refuse to convict even on substantial evidence of guilt, while, to the contrary, judges are not to acquit unless the government has clearly failed to produce evidence supporting a conviction when viewed most favorably to the prosecution. Burks, 437 U.S. at 16-17, 98 S.Ct. at 2149-2150. What the appellants seek, instead, is a determination by us now- on this interlocutory appeal before their retrial-that the evidence at the first trial was insufficient to warrant submission and that the trial judge erred in denying their motions for acquittal. This is new ground.

The procedural vehicle that brings this appeal before us is Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There the Court decided that inferior appellate courts possess jurisdiction, under the rubric of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to entertain appeals from pretrial orders denying dismissal on double-jeopardy grounds. The nub of the decision is that the Double Jeopardy Clause forbids a second trial, not merely a second conviction. In addition, however, the Court held that another claim for dismissal made in the same motion was not reviewable, one urging insufficiency of the indictment. In so holding, the Court laid it down generally that, to be appealable under the Cohen rubric, claims for dismissal other than on double jeopardy grounds must themselves meet the requirements of the Cohen exception. Bearing the lessons of Burks and Abney in mind, we turn again to our case.

Although in form the question presented here is that of denial of a motion asserting former jeopardy, in reality and substance the appellants seek review of their motions to acquit made at the first trial. They argue that these should have been granted, since the evidence there was insufficient to support a jury submission, and that had they not been erroneously denied, no succeeding trial would have been permissible. Thus, we contemplate just such a "thinly disguised attempt to turn this (Abney) appeal into a plenary review of his first trial" as the Second Circuit rebuffed in United States v. Klein, 582 F.2d 186, 196 (2d Cir. 1978), ...