U.S. v. Sneed

• Decision Date: 23 May 1983
• Docket Number: No. 82-2088,82-2088
• Citation: 705 F.2d 745
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Marion SNEED, Jr., Defendant-Appellant.

Page 745

705 F.2d 745

UNITED STATES of America, Plaintiff-Appellee, v. Martin Marion SNEED, Jr., Defendant-Appellant.

No. 82-2088.

United States Court of Appeals, Fifth Circuit.

May 23, 1983.

Stephen M. Rienstra, Port Arthur, Tex., for defendant-appellant.

Robert J. Wortham, U.S. Atty., Tyler, Tex., Carolyn Gaines, Dept. of Justice, Appellate Section, Crim. Div., Washington, D.C., for plaintiff-appellee.

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

Before RUBIN, GARZA and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In an earlier appeal, we reversed Martin Sneed, Jr.'s conviction for possessing marijuana with intent to distribute it ¹ because of errors in the jury selection at his trial. ² We declined to address his alternative claim that the evidence was insufficient to sustain the jury's verdict. The case is again before us on his interlocutory appeal from the trial court's refusal to halt a pending retrial as barred by the fifth amendment's double jeopardy clause. We conclude that we have jurisdiction to hear the appeal and, because the evidence against Sneed was insufficient, we reverse.

I.

In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court held that pretrial orders rejecting claims of former jeopardy constitute appealable final decisions under the collateral-order doctrine because they finally resolve the claimed defense and are collateral to, and separable from, the ultimate issue of guilt. Id. at 662-63, 97 S.Ct. at 2042, 52 L.Ed.2d at 662. ³ Notwithstanding Abney, the government suggests that two of our recent decisions require a finding that Sneed's appeal is premature.

In the first, United States v. Becton, 632 F.2d 1294 (5th Cir.1980), cert. denied, 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981), the trial judge granted a mistrial because the jury failed to agree. We refused to hear an Abney appeal from the trial court's refusal to block a retrial on double jeopardy grounds. Similarly, in United States v. Rey, 641 F.2d 222 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981), the jury returned a guilty verdict but the judge granted a new trial because of "arguably erroneous" jury instructions. 641 F.2d at 223. We refused to hear the appeal from the denial of the defendant's double-jeopardy-based motion to dismiss. Id. at 224.

Our premise in both Becton and Rey was that those appeals did not really present double jeopardy claims. "Although in form the question presented [was] that of a denial of a motion asserting former jeopardy, in reality and substance the appellants [sought] review of their motions to acquit made at the first trial." Becton, 632 F.2d at 1296. Once we had characterized the appeals as seeking review of acquittal motions rather than double jeopardy claims, it was clear that Abney did not authorize interlocutory review. Becton, 632 F.2d at 1296; Rey, 641 F.2d at 225-26. ⁴

If we disregard the rationale of those two cases and look only at their result, the difference between them and the present case is slight: the difference then could be viewed as turning on whether the sufficiency issue was first decided by the trial court or presented to, and pretermitted by, us. However, the rationale of Rey and Becton is the reason for their result: in both we considered the appeals efforts to obtain review of the actions taken on motions to acquit made in earlier trials. Sneed is not seeking review of the action on such a motion. He presented that question in his first appeal and obtained no response from us. We could not, and do not, now reconsider our refusal to address the issue. What we must consider is whether our failure to rule on the question previously bars Sneed from making the straightforward double jeopardy claim he now urges: because the evidence was insufficient to sustain a conviction in the first trial, further proceedings against him are barred.

Sneed does not claim that the evidence against him will be insufficient on retrial. He contends, instead, that the evidence at the last trial was insufficient to sustain guilt, and the prosecution should not be given an opportunity in a new trial to adduce the additional evidence that might support a conviction. It is on this basis, he contends, that the earlier proceeding bars his further prosecution. The order appealed from, therefore, "appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." ⁵

In Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1, 14 (1978), the Court held that the double jeopardy clause prevents a retrial "once the reviewing court has found the evidence [at the first trial] legally insufficient...." No court has determined that the evidence at Sneed's first trial was insufficient to sustain a conviction. Nevertheless, if the government did fail to carry its burden at that proceeding, the double jeopardy clause prohibits his retrial.

The Supreme Court recently noted that, when acquittal "was the only proper verdict" in an earlier trial, the double jeopardy clause "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." ⁶ If the evidence was insufficient in Sneed's first trial, then acquittal was the only proper verdict. Our refusal to address the sufficiency issue in the first appeal is not a license for the government to "make repeated attempts to convict [Sneed] for [the] alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though he is innocent he may be found guilty." ⁷ Whether or not the issue is addressed on appeal, "the government must present sufficient evidence the first time to get a second chance." ⁸

Other circuits have ruled that the double jeopardy clause bars retrial when there was insufficient evidence at the first trial, notwithstanding the fact that the conviction was reversed on other grounds. Thus, in United States v. Marolda, 648 F.2d 623 (9th Cir.1981), the Ninth Circuit considered a case exactly like this one. The defendant had been convicted. On his first appeal, he asserted both trial error and insufficiency of the evidence supporting his conviction. The court of appeals reversed on the trial error but did not address the sufficiency issue. On remand, the defendant moved to dismiss the indictment on double jeopardy grounds. The motion was denied, and he brought an Abney appeal. The court, noting that it was "not a case in which the trial error leading to [the first] reversal may have prejudiced the prosecution," held that double jeopardy barred the defendant's retrial. Id. at 624. Accord United States v. United States Gypsum Co., 600 F.2d 414, 416 (3d Cir.) (recognizing principle but finding evidence at first trial sufficient), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979); see also United States v. Jelsma, 630 F.2d 778 (10th Cir.1980) (same).

The Eleventh Circuit may differ. In United States v. Bizzard, 674 F.2d 1382, 1386 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982), the defendant had been convicted of aggravated bank robbery. His conviction was reversed by the Fifth Circuit because of trial error. See 615 F.2d 1080 (5th Cir.1980). Apparently, he briefed and argued in his first appeal the insufficiency of the evidence to sustain his conviction. See 674 F.2d at 1386. However, the Fifth Circuit opinion reversing did not mention his insufficiency claim. 615 F.2d at 1081-82. Indeed, the court expressly noted that, "since we reverse on the issue of trial error, appellant may be retried without any violation of the double jeopardy clause." Id. at 1082. Bizzard then urged us to hear his insufficiency claim on rehearing, but we refused. See 674 F.2d at 1386. On remand Bizzard was convicted in one of the states that had, by then, become part of the Eleventh Circuit. He appealed to that court, asserting that the double jeopardy clause should have barred his retrial. That court rejected the challenge:

Since the issue [of insufficiency] was argued in the main brief and specifically asserted on petition for rehearing, however, the panel must have determined there was sufficient evidence to support the verdict in order to remand the case for retrial. We are bound by the prior panel decision.

674 F.2d at 1386. The court went on, however, to note that the evidence had in fact been sufficient in the first trial. Id. To the extent that Bizzard purports to establish a presumption that, if the issue of insufficiency was raised but not addressed in the first appeal, the panel must have considered and rejected it, we consider the decision incorrect.

We adopt the position of the Third, Ninth, and Tenth Circuits. Sneed's appeal is properly before us under Abney. If the evidence at his first trial was legally insufficient to sustain his conviction, the fifth amendment bars his retrial.

II.

Our review is limited to determining whether "there is substantial evidence, taking the view most favorable to the government," to sustain the verdict. ⁹ "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find guilt beyond a reasonable doubt." ¹⁰

Sneed was charged with possessing a controlled substance with intent to distribute it. To convict him, the government was required to prove: "(a) possession, (b) knowledge and (c) intent to distribute." ¹¹ The evidence at trial showed...