U.S. v. Rey

• Decision Date: 30 March 1981
• Docket Number: No. 80-1033,80-1033
• Citation: 641 F.2d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. REY, Sr., Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 222

641 F.2d 222

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. REY, Sr., Defendant-Appellant.

No. 80-1033.

United States Court of Appeals, Fifth Circuit.

Unit A

March 30, 1981.

Raymond C. Caballero, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before WISDOM, POLITZ and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Appellant Rey brings this interlocutory appeal from the district court's denial of his motion to dismiss the government's indictment against him on grounds of double jeopardy. This Court dismisses the appeal in part and affirms in part.

Rey and co-defendant Lozano were indicted jointly in Count One under 21 U.S.C.A. §§ 841(a)(1) & 846 for conspiracy to possess heroin with the intent to distribute. Each was charged separately with four and three counts respectively under 21 U.S.C.A. § 843(b) for using a telephone to facilitate the commission of possession of heroin with intent to distribute. After Lozano pleading guilty to one of the telephone facilitation counts, the remaining counts against him were dismissed. Rey then proceeded alone to jury trial on the five counts against him.

At the close of the Government's case, Rey moved for acquittal. The district court denied this motion on all but Count Two, one of the telephone facilitation counts. ¹ After the jury found Rey guilty on the remaining four counts, he moved for acquittal on them. The trial court granted acquittal on Counts Four and Five, two of the telephone facilitation counts, ² and denied the motion on Count Three, the remaining facilitation count, and Count One, the conspiracy count. Because of arguably improper jury instructions, the court also granted Rey's motion for a new trial on Counts One and Three. ³ Rey then filed a plea in bar on Counts One and Three on the ground that, because of insufficient evidence and governmental misconduct, double jeopardy barred retrial on them. The district court denied this motion. It is from this denial that Rey takes this interlocutory appeal.

I. Governmental Misconduct

Rey raises three objections in this appeal. The first charges that misconduct and overreaching from Drug Enforcement Administration involvement in the criminal activity denied Rey his due process right to a fundamentally fair prosecution. ⁴ He then argues that, since the Government's conduct was so outrageous due process should have barred the first trial, he similarly should be able to interpose the due process claim to bar retrial. For the reasons below, this Court holds that this due process claim is outside the scope of review in an interlocutory appeal and instead must be raised on direct appeal from a final judgment.

This appeal is founded on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There the Court held that appellate courts have jurisdiction to entertain appeals from pre-trial orders denying dismissal on double jeopardy grounds. The Court reasoned that since the double jeopardy clause forbids a second trial, such a denial was within the "collateral order" exception in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to the final judgment rule of appellate jurisdiction. The interlocutory appeal that Abney permits is limited to double jeopardy claims and does not include other challenges. Abney, 431 U.S. at 662-63, 97 S.Ct. at 2041-42 (claim for dismissal on ground of insufficiency of the indictment is not within interlocutory appeal). Therefore, this claim of denial of due process is not properly within an Abney appeal, and must independently qualify under Cohen's collateral order exception. Abney, 431 U.S. at 663, 97 S.Ct. at 2042.

Collateral orders within the exception are those that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). In this case, it is clear that the initial requirement is met since the district court denied the motion to dismiss the indictment on its asserted ground of governmental misconduct. This conclusively determined the disputed question. However, the second requirement is not met since the important due process issue is not completely separate from the merits of the action. Rather, it goes to Rey's guilt. This due process claim is similar to the claim of entrapment; in effect Rey argues that but for the governmental misconduct he would not have committed any offense. Finally, the due process claim can be effectively reviewed following judgment on the merits. ⁵ Therefore, this due process claim does not fall within Cohen's collateral order exception to the final judgment rule. Accord, United States v. Wright, 622 F.2d 792, 794 (5th Cir. 1980); United States v. Barham, 608 F.2d 602, 604 (5th Cir. 1979). This Court dismisses the appeal as to this issue.

II. Partial Denial of the Acquittal Motion: Insufficiency of the Evidence

The second objection is that the district court should have granted the acquittal motion, and comprises three claims. Rey initially asserts that the evidence is insufficient to establish a conspiracy between himself and Lozano. Rey next claims that the Government's evidence, in rebuttal to Rey's initial showing of the defense of entrapment, is insufficient to show by a preponderance of the evidence his predisposition to commit the charged crime. His final claim is that there is insufficient evidence as to the underlying offense of possession for the telephone facilitation count. ⁶

These three claims of insufficient evidence as to entrapment, conspiracy, and the underlying possession offense for the facilitation count cannot be resolved in this appeal. "Although in form the question presented here is that of denial of a motion asserting double jeopardy, in reality and substance the appellants seek review of their motions to acquit made at the first trial." United States v. Becton, 632 F.2d 1294, 1296 (5th Cir. 1980). That language accurately describes Rey's second objection.

Denials of motions to acquit are not interlocutorily appealable because, being nothing more than a motion for directed verdict, they are not collateral to the merits but are instead "precisely directed" to them. Becton, 632 F.2d at 1297. The second element of the collateral order test is thus not met. Indeed, by this appeal this Court is asked to decide whether the evidence is sufficient and the denial of the acquittal motion erroneous. Id. at 1296. An appellate determination of the sufficiency of the evidence properly lies in an appeal after final judgment. If, on the other hand, the dismissal motion is founded on the interposition of a prior determination of insufficiency as a bar to retrial, then appeal from denial of that motion presents the appellate court with a double jeopardy claim. Id. Such a prior determination can be a jury finding of not guilty, a trial judge's grant of an acquittal motion, or an earlier appellate court reversal on insufficiency grounds, among others. See id. Put simply, the appellate court must be asked to decide whether there is a prior determination of insufficiency that bars retrial, not whether the evidence was insufficient. ⁷

Here, the district court found the evidence sufficient to submit all but Count Two to the jury. The jury convicted defendant on all the other counts in the indictment. The trial judge then found, in ruling on the acquittal motion, that the evidence was sufficient to support the conviction only on Counts One and Three. The new trial on these counts was granted on procedural grounds. At no point was there a determination that the evidence on Counts One and Three was insufficient. In fact, all decisions throughout this proceeding were that such evidence was sufficient. Therefore, the claimed insufficiency of the evidence at Rey's first trial is properly decided only on appeal after any conviction in his second trial. ⁸ This Court also dismisses the appeal as to this issue.

III. Partial Denial of the Acquittal Motion: Acquittal on Related Counts

Rey's third and final objection is that the district court should have disposed of Count Three of the indictment in the same manner as the other facilitation counts. In effect, Rey argues that the basis for acquittal on Counts Two, Four, and Five applies to Count Three. The assertion that a prior determination of insufficient evidence the acquittal on the other counts applies to the remaining related count properly raises a double jeopardy issue. See United States v. Tammaro, 636 F.2d 100 (5th Cir. 1981). This argument is not unlike that of collateral estoppel: The acquittal on the other facilitation counts necessarily determined a fact essential to Count Three, thereby precluding retrial on Count Three. See, e. g., United States v. Lee, 622 F.2d 787 (5th Cir. 1980); United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979), modified on rehearing, 611 F.2d 585 (5th Cir. 1980), cert. denied, 444 U.S. 939, 100 S.Ct. 2168, 64 L.Ed.2d 793 (1980); United States v. Venable, 585 F.2d 71 (3d Cir. 1978). This Court, therefore, has jurisdiction over this interlocutory appeal from the denial of the motion to dismiss to the extent of this single ground of prior related acquittals. ⁹

Turning to the merits of Rey's double jeopardy argument, this Court finds none. The district court granted acquittal on Counts Two, Four, and Five because the telephone conversation for each count concerned only sham heroin. Since possession of sham substances is not an offense, United States v. Binetti, 552 F.2d 1141 (5th Cir. 1977), the court held that facilitation of such possession is also not an offense. Rey argues that this...