U.S. v. Richardson

Decision Date11 March 1983
Docket NumberNo. 81-2029,81-2029
Citation702 F.2d 1079,226 U.S.App.D.C. 342
PartiesUNITED STATES of America v. Robert D.H. RICHARDSON, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 81-00104).

Allan M. Palmer, Washington, D.C., for appellant.

Marc Tucker, Asst. U.S. Atty., Washington, D.C., for appellee. Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, John R. Fisher, William J. O'Malley, Jr., and Kathleen E. Voelker, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before TAMM, WILKEY and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge SCALIA.

WILKEY, Circuit Judge:

This case highlights the tension created by the intersection of a criminal defendant's double jeopardy right to avoid the rigors and embarrassment of an unnecessary second trial and the long-standing rule that a criminal defendant has no constitutional right to an appeal. Because the present appeal does not fit within the scope of our appellate jurisdiction, we hold that the defendant cannot appeal the trial court's double jeopardy ruling at this time even though he may be required needlessly to endure the strains of a second trial.


Appellant, Robert D.H. Richardson, was indicted for conspiracy to distribute a controlled substance 1 and for two counts of distribution of a controlled substance. 2 His motion for a judgment of acquittal on the ground that the government had failed to produce legally sufficient evidence was denied both at the close of the government's evidence and immediately before submission of the case to the jury. The jury acquitted on one of the two distribution counts but was unable to reach a verdict on the conspiracy and remaining distribution counts. The court declared a mistrial and scheduled retrial, whereupon appellant renewed his motion for judgment of acquittal, and in addition moved to bar retrial on the basis of former jeopardy. This appeal was taken from the denial of those motions.

It is important at the outset to understand the nature of Richardson's double jeopardy claim. Contrary to the dissent's implication, 3 Richardson does not claim that the jury's failure to reach a verdict bars retrial. Instead, citing Burks v. United States, 4 in which the Supreme Court held that a criminal defendant could not be retried after an appellate court determined that the evidence presented at his first trial was legally insufficient, he contends that "no matter what the jury did [he] cannot be retried since the evidence was insufficient to submit to the jury in the first instance." 5 Thus, Richardson's double jeopardy claim is based entirely on his contention that the evidence at the first trial was legally insufficient. Since the trial court ruled that the evidence presented at the first trial was sufficient, Richardson's double jeopardy claim has meaning only if that ruling can be overturned. Our ability to rule on Richardson's double jeopardy claim in any meaningful manner therefore depends on the appealability of the trial court's ruling on the sufficiency of the evidence. Because the sufficiency issue cannot now be reviewed, we hold that Richardson is not entitled to appellate review of his double jeopardy claim at this time.


In determining the appealability of an issue arising in a federal criminal proceeding, it is important to remember that in a criminal case "there is no constitutional right to an appeal." 6 Thus, it is not possible for Richardson to argue that the double jeopardy clause requires us to entertain the present appeal. The appealability of Richardson's claims depends solely on whether Congress authorized such appeals under 28 U.S.C. Sec. 1291. 7 Since a final judgment has not been reached by the court below, 8 appeal under section 1291 in turn depends on Richardson's ability to bring his claims within the collateral order exception to the final judgment rule. This rule was first recognized in Cohen v. Beneficial Industrial Loan Corp. 9 and was reiterated in the context of a criminal case in Abney v. United States. 10

To come within the reach of the Cohen exception, the decision in question must meet three tests. First, it must fully dispose of the controverted issue; in no sense may it "leave the matter 'open, unfinished or inconclusive.' " 11 Second, it must not be "simply a 'step toward final disposition of the merits of the case' "; it must resolve "an issue completely collateral to the cause of action asserted." 12 Finally, the decision must involve "an important right which would be 'lost, probably irreparably,' " if review awaited final judgment. 13

We have little difficulty in applying this test to the district court's ruling on Richardson's insufficiency claim. That ruling fails to meet the second and third requirements of Cohen. As two other circuits have noted, the legal sufficiency of the evidence presented is "a completely non-collateral issue." 14 This is because the ultimate question in a criminal trial is whether the defendant is guilty of the crime charged. A defendant who chooses to go to trial is not guilty unless the prosecution is able to prove beyond a reasonable doubt that the defendant committed the crime. 15 If the evidence presented at the first trial was legally insufficient, Richardson is automatically not guilty. Thus, the sufficiency of the evidence is anything but collateral to the merits of the upcoming trial (i.e., the question of defendant's guilt, for this is determined by the sufficiency of the evidence); rather, it is a "step toward final disposition of the merits of the case [which will] be merged in the final judgment," the type of issue which is not covered by the collateral order exception. 16

Further, the right to appellate review of the issue will not necessarily be lost if we refuse review at this time. Three circuits have held that a criminal defendant can challenge the sufficiency of the evidence presented at his first trial (which resulted in a hung jury) when appealing his conviction at the second trial. 17 Indeed, in the present case the government concedes that Richardson's insufficiency claim will not be lost if it is not reviewed at this time, noting that "in the event he is convicted, [Richardson] can raise [the insufficiency claim] on appeal from that conviction." 18 Therefore, because the insufficiency claim does not meet either the second or third Cohen requirements, we cannot review that claim until after a final judgment is entered.

The appealability of the trial court's ruling on the double jeopardy claim is not as clear. Two circuits have held that the trial court's denial of a double jeopardy claim based on the insufficiency of the evidence is not immediately appealable under Cohen. 19 One circuit has held to the contrary. 20 We agree with the former view, 21 although for reasons slightly different from those advanced by the Fourth and Fifth Circuits.

As noted earlier, 22 Richardson's double jeopardy claim is premised entirely on the assumption that the trial court's ruling on the sufficiency issue was erroneous. As also noted earlier, 23 the propriety of the trial court's ruling on that issue cannot be reviewed by an appellate court at this time. Therefore, since Richardson's double jeopardy claim exists at the appellate level 24 only if the district court's sufficiency of the evidence ruling is overturned, our refusal to review that ruling precludes any meaningful review of his double jeopardy claim at this time. In other words, because this court is unable to address the sufficiency issue at this time and because that issue is the only basis for Richardson's double jeopardy claim, Richardson has failed to make at this time any double jeopardy claim which can be reviewed by an appellate court. 25

The analysis outlined above may be self-explanatory. However, lest the simplicity of that analysis camouflage the complexity and importance of the issue being decided, we undertake to state our reasoning in another manner. Despite the fact that Richardson's underlying claims are constitutional, the jurisdictional issue in this case concerns only the timing and scope of appeal, a question of statutory interpretation. That jurisdictional issue is not an easy one, however, because of the nature of the legal issue underlying both claims--the sufficiency of the evidence--a legal issue which requires full review of the entire record created at the trial level. In resolving that issue, there appear to be at least four alternatives available to us. First, we could read section 1291 so as to permit full review of both the double jeopardy and the insufficiency claim at this time. Second, we could interpret the statute so as to authorize immediate appeal of the double jeopardy claim, but not of the insufficiency claim. Third, we could deny immediate review of the present claims and wipe the slate clean, thereby precluding review. Finally, we could, as we do, conclude that the finality requirement of section 1291 precludes immediate appeal of any claim involving the sufficiency of the evidence, but that full review of both claims could be had after a final judgment is entered in the second trial.

The first alternative is unacceptable. The entire purpose of the finality requirement of section 1291 is to "discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases." 26 That purpose would be greatly undermined if a criminal defendant could interrupt the trial proceedings to seek appellate review of the trial court's...

To continue reading

Request your trial
7 cases
  • Richardson v. United States
    • United States
    • U.S. Supreme Court
    • June 29, 1984
    ...the original jeopardy. Like the defendant, the Government is entitled to resolution of the case by the jury. Pp. 322-326. 226 U.S.App.D.C. 342, 702 F.2d 1079 (1983), Allan M. Palmer, Washington, D.C., for petitioner. Michael W. McConnell, Washington, D.C., for respondent, pro hac vice, by s......
  • U.S. v. Miller
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 23, 1992
    ...will not be available as a ground for challenging any subsequent conviction that may result. See United States v. Richardson, 702 F.2d 1079, 1092-94 (D.C.Cir.1983) (Scalia, J., dissenting), rev'd sub nom. Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). 7 We......
  • U.S. v. Glover, 83-2088
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 6, 1984
    ...interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury"); United States v. Richardson, 702 F.2d 1079, 1085 (D.C.Cir.), cert. granted, --- U.S. ----, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983). The standard by which a court's declaration of ......
  • U.S. v. Sneed
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 23, 1983
    ...673 F.2d 681, 686 n. 7 (3d Cir.1982). Two circuits have taken positions consistent with Becton and Rey. See United States v. Richardson, 702 F.2d 1079 (D.C.Cir.1983); United States v. Ellis, 646 F.2d 132 (4th Cir.1981).5 Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26, 93 L.Ed.2d at 1536.6 Tibb......
  • Request a trial to view additional results
2 books & journal articles
  • Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1983 - 1984
    • United States
    • Colorado Bar Association Colorado Lawyer No. 13-9, September 1984
    • Invalid date
    ...the motions. The court of appeals dismissed Richardson's interlocutory appeal for lack of jurisdiction. Richardson v. United States, 702 F.2d 1079 (D.C. Cir. 1983). The denial of Richardson's motion for acquittal based on insufficient evidence was not a final order under 28 U.S.C. 1291. Mor......
  • Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State
    • United States
    • Sage Political Research Quarterly No. 44-4, December 1991
    • December 1, 1991
    ...(1990). Director, Office of Workers’ Compensation Programs v. Belcher Erectors, 770 F.2d 1226 (D.C. Cir 1985). Dozier v. Ford Motor Co., 702 F.2d 1079 (D.C. Cir. 1983).Dunn v. Blumstein, 405 U.S. 330 (1972).Edwards v. Aguillard, 107 S. Ct. 2573 (1987).Electrical District No. 1 v. Federal En......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT