U.S. v. Gulledge

• Decision Date: 21 August 1984
• Docket Number: No. 83-7118,83-7118
• Citation: 739 F.2d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert I. GULLEDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 582

739 F.2d 582

UNITED STATES of America, Plaintiff-Appellee, v. Robert I. GULLEDGE, Defendant-Appellant.

No. 83-7118.

United States Court of Appeals Eleventh Circuit.

Aug. 21, 1984.

Thomas M. Haas, Christopher Knight, Mobile, Ala., for defendant-appellant.

J.B. Sessions, III, U.S. Atty., Mobile, Ala., Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before RONEY and KRAVITCH, Circuit Judges, and ALLGOOD ^*, District Judge.

KRAVITCH, Circuit Judge:

A grand jury returned a seventeen count indictment against appellant Robert I. Gulledge and two codefendants ¹ for their activities allegedly violating federal false statement statutes and laws regulating the conduct of Federal Land Bank employees. Gulledge was named as a defendant in only Count One (conspiracy to violate false statement statutes and to misapply bank funds, 18 U.S.C. Sec. 371), Count Two (unlawful sharing of Federal Land Bank funds, 18 U.S.C. Secs. 1006 and 2), and Count Sixteen (knowingly making materially false statements on loan applications, 18 U.S.C. Sec. 1014).

The three defendants pleaded not guilty, and the case proceeded to trial. At the close of the government's case, the defendants each moved for judgment of acquittal, maintaining that the prosecution failed to present sufficient evidence to support a conviction. After hearing oral argument, the district court entered a judgment of acquittal for appellant Gulledge as to Count Two, but denied the motions as to all other counts. At the conclusion of all testimony, the three defendants renewed their motions for judgment of acquittal, which the district court denied.

With the exception of Count Fifteen, the jury found Gulledge's codefendants guilty on all counts for which they were charged. After resuming further deliberations, however, the jury advised the court that they were unable to reach a verdict on Count Fifteen as to one of Gulledge's codefendants and on Counts One and Sixteen as to appellant Gulledge. The court declared a mistrial as to those counts, and dismissed the jury.

After the mistrial was declared, Gulledge moved to bar retrial, claiming that a second trial would violate his rights under the double jeopardy clause of the fifth amendment. Gulledge also filed a motion in limine to prohibit the government from presenting additional evidence at the second trial that it did not introduce during the first proceeding. The district court denied both motions, and Gulledge appealed.

Appellant raises three issues: (1) whether the evidence was sufficient to convict him under Counts One and Sixteen, (2) whether retrial of Counts One and Sixteen is barred under the double jeopardy clause of the fifth amendment when the district court has declared a mistrial after the jury was unable to reach a verdict, and (3) assuming retrial is constitutional, whether the double jeopardy clause is violated by the prosecution's use of evidence at the second trial that was not introduced at the first. Preliminarily, however, we must decide whether these issues are appealable at this stage of the proceeding. We hold that they are not and therefore dismiss the appeal for lack of jurisdiction.

The general principle of federal appellate jurisdiction requires that review of civil and criminal proceedings await their termination by final judgment. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). This principle currently is embodied in 28 U.S.C. Sec. 1291, which grants the federal courts of appeals jurisdiction to review "all final decisions of the district courts." The rule of finality has been stringently applied in criminal prosecutions because the delays of intermediate appeal have the potential to disrupt the effective administration of the criminal law. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

Appellant's first issue may be dismissed summarily. His challenge to the sufficiency of the evidence is no more than an appeal from the denial of his motions for judgment of acquittal. The denial of a motion for a judgment of acquittal is neither a final decision nor an interlocutory order and is not appealable until a final decision has been rendered. United States v. Rey, 641 F.2d 222, 225-26 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981); United States v. Wilkinson, 601 F.2d 791, 794 (5th Cir.1979). ² Because the purported insufficiency of the evidence in the first trial is reviewable by this court only on appeal from a conviction after a second trial, id., we have no jurisdiction over appellant's first claim of error.

Appellant next claims that the double jeopardy clause would be violated by retrying him after the jury was unable to reach a verdict in the first trial. Because no court or jury has found that the evidence against Gulledge was legally insufficient to support a conviction, this issue is controlled by the Supreme Court's recent decision in Richardson v. United States, --- U.S. ----, 104 S.Ct. 3081, 81 L.Ed.2d ---- (1984). Richardson brought the same claim Gulledge raises here. The jury was unable to reach a verdict on two of the charges against him. The district court declared a mistrial as to the two remaining counts and scheduled a new trial, at which point Richardson renewed an earlier motion for judgment of acquittal based on the legal insufficiency of the evidence. At the same time, he argued that retrial was barred by the double jeopardy clause. The Supreme Court disagreed. Reasoning from the generally recognized principle that the double jeopardy clause by its terms applies only if there has been some event which terminates the original jeopardy, the Court held that retrial of Richardson was not barred:

[A] trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial.

104 S.Ct. at 3086. Cf. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (once a defendant obtains unreversed appellate ruling that the government failed to introduce sufficient evidence to convict, second trial is barred by double jeopardy clause).

Although the Court held as a preliminary matter that the court of appeals had jurisdiction over the appeal because Richardson's double jeopardy argument presented a properly appealable "colorable" claim, 104 S.Ct. at 3084, the effect of the decision is that henceforth such claims may not be appealed before final judgment. The Court has recognized an exception to the rule of finality for a pretrial motion to dismiss an indictment on double jeopardy grounds when the motion to dismiss has at least "colorable" validity. 104 S.Ct. at 3084; United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 1554, 56 L.Ed.2d 18 (1978). The exception is justified by the need to protect a defendant's right not to be tried twice for the same offense, but applies only when the double jeopardy claim is not frivolous. Abney, 97 S.Ct. at 2041, 2042 n. 8. After the Supreme Court's holding that Richardson's claim ultimately had no validity, however, double jeopardy claims following a mistrial resulting from a hung jury are, as a matter of law, no longer colorable. ³ Although the Court initially deemed the claim colorable because the issue was unsettled in the lower courts, Richardson conclusively has ended the debate. In a footnote, the Court expressly so held:

It follows logically from our holding today that claims of double jeopardy such as petitioner's are no longer "colorable" double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim.... Since no set of facts will support the assertion of a claim of double jeopardy like petitioner's in the future, there is no possibility that a defendant's double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin.

104 S.Ct. at 3086 n. 6 (citations omitted) (emphasis added). Because Gulledge's second ground of appeal does not raise a colorable claim, we must dismiss it for lack of jurisdiction.

Appellant's third claim asserts error in the district court's denial of his motion in limine to limit the evidence in his second trial to substantially the same evidence introduced in the first, on the ground that the double jeopardy clause bars the...