U.S. v. Young, No. 75-3102

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHOY and WALLACE; MARY ANNE RICHEY
Citation544 F.2d 415
Decision Date19 October 1976
Docket NumberNo. 75-3102
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald Dennis YOUNG, Defendant-Appellant.

Page 415

544 F.2d 415
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Dennis YOUNG, Defendant-Appellant.
No. 75-3102.
United States Court of Appeals,
Ninth Circuit.
Oct. 19, 1976.
Certiorari Denied Dec. 13, 1976.
See 97 S.Ct. 643

Philip A. DeMassa (argued), San Diego, Cal., for defendant-appellant.

John J. Robinson, Asst. U.S. Atty. (argued), Terry J. Knoepp, U.S. Atty., John J. Robinson, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Page 416

Before CHOY and WALLACE, Circuit Judges, and RICHEY, * District judge.

MARY ANNE RICHEY, District Judge:

The question presented on this appeal is whether a district court's denial of a motion to dismiss an indictment is a final and appealable order within the meaning of 28 U.S.C. § 1291 where the challenge to the indictment is founded on a claim of double jeopardy. Because we answer in the negative, we dismiss the appeal for lack of jurisdiction and do not reach the merits of appellant's constitutional claim.

In 1974 appellant was convicted in federal district court of conspiracy to possess with intent to distribute, and possession with intent to distribute, cocaine under 21 U.S.C. §§ 841(a)(1) and 846. In June 1975 appellant filed a motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The motion was granted after an evidentiary hearing at which a former co-defendant testified in a manner tending to exonerate appellant. Appellant's second trial commenced on July 29, 1975. During the retrial, appellant filed two motions for judgment of acquittal. Both were denied. The case was submitted to the jury August 1. After the jury had deliberated for almost two days, the court polled the jurors as to the likelihood of reaching a unanimous verdict. The jurors responded that there was no reasonable probability of reaching a verdict if given additional time. Without objection from counsel, the court declared a mistrial. Retrial was scheduled for August 20. On August 12, appellant moved to dismiss the indictment on the ground that further prosecution of the case would constitute a violation of his fifth amendment guarantee against double jeopardy. After consideration of appellant's arguments, the district court denied the motion. Appellant thereafter filed notice of appeal from the orders of the district court denying the motions for acquittal and the motion to dismiss the indictment. He alleges jurisdiction in this Court pursuant to 28 U.S.C. § 1291.

Title 28 U.S.C. § 1291 provides for jurisdiction "of appeals from all final decisions of the district courts of the United States." In the context of a mistrial, the denial of a motion for acquittal is not a final order. United States v. Carey, 475 F.2d 1019, 1021 (9th Cir. 1975); United States v. Kaufman, 311 F.2d 695, 698-699 (2d Cir. 1963). Therefore this Court is without jurisdiction to review the district court's denial of the motions for acquittal until final judgment is rendered. Similarly, as a general rule the denial of a motion to dismiss an indictment is not a final order within the meaning of the statute People of Territory of Guam v. Lefever,454 F.2d 270 (9th Cir. 1972); Kyle v. United States, 211 F.2d 912 (9th Cir. 1954). Thus, were it not for appellant's claim of double jeopardy, this case could be disposed of by memorandum. However, several circuits recently have carved out an exception to the general rule of finality where a claim of former jeopardy is raised. Since the issue is one of first impression in this Circuit, we examine the question at some length.

Appellate review is not a constitutional entitlement. It is a purely statutory right, and to avail oneself of that right, one must satisfy the terms of the statute. Under 28 U.S.C. § 1291, the essential condition of review is that there be a "final decision" in the case. This prerequisite of finality is founded on the long-standing policy of avoidance of piecemeal review: "Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all. Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition

Page 417

on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration." Cobbledick v. United States,309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). See also Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962).

The district court's denial of appellant's motion to dismiss was not final in the sense of terminating the litigation, for "(f)inal judgment in a criminal case means sentence. The sentence is the judgment." Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937). Appellant, however, argues that his claim of double jeopardy removes the case from the general rule of finality. Relying on the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its adaptation in United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972), he contends that the motion to dismiss the indictment involved issues collateral to the main action and that to deny appeal at this time will preclude effective review of his constitutional claim. For reasons stated below, we find Cohen inapplicable to the instant situation.

In Cohen the Supreme Court recognized an exception to the rule of "finality" for orders made during the course of litigation which related to matters outside the main cause of action and which would not be subject to effective review as part of final judgment in the action. There the district court had denied defendants' request that plaintiffs file an expense bond in a shareholders' derivative suit as required under state law. In effect, the district court order had finally determined the rights at...

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13 practice notes
  • U.S. v. Rumpf, Nos. 76-1891
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Junio 1978
    ...based on double jeopardy are appealable only as part of an appeal from the trial court's ultimate conviction. United States v. Young, 544 F.2d 415 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed,......
  • U.S. v. Richardson, No. 81-2029
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 11 Marzo 1983
    ...v. Becton, 632 F.2d 1294, 1296 (5th Cir.1980), cert. denied, 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981); United States v. Young, 544 F.2d 415, 418 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Kaufman, 311 F.2d 695, 698-99 (2d Cir.196......
  • Adamson v. Ricketts, No. 84-2069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 9 Mayo 1986
    ...must acknowledge the "unique nature of the double jeopardy guarantee as compared to other constitutional rights." United States v. Young, 544 F.2d 415, 418 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976). A double jeopardy claim implicates the "very power of the......
  • Abney v. United States, No. 75-6521
    • United States
    • United States Supreme Court
    • 9 Junio 1977
    ...United States v. Beckerman, 516 F.2d 905 (CA2 1975); United States v. Lansdown, 460 F.2d 164 (CA4 1972). Contra, United States v. Young, 544 F.2d 415 (CA9 1976); United States v. Bailey, 512 F.2d 833 (CA5 1975). In reaching this conclusion, those courts have taken the position that such pre......
  • Request a trial to view additional results
13 cases
  • U.S. v. Rumpf, Nos. 76-1891
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Junio 1978
    ...based on double jeopardy are appealable only as part of an appeal from the trial court's ultimate conviction. United States v. Young, 544 F.2d 415 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed,......
  • U.S. v. Richardson, No. 81-2029
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 11 Marzo 1983
    ...v. Becton, 632 F.2d 1294, 1296 (5th Cir.1980), cert. denied, 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981); United States v. Young, 544 F.2d 415, 418 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Kaufman, 311 F.2d 695, 698-99 (2d Cir.196......
  • Adamson v. Ricketts, No. 84-2069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 9 Mayo 1986
    ...must acknowledge the "unique nature of the double jeopardy guarantee as compared to other constitutional rights." United States v. Young, 544 F.2d 415, 418 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976). A double jeopardy claim implicates the "very power of the......
  • Abney v. United States, No. 75-6521
    • United States
    • United States Supreme Court
    • 9 Junio 1977
    ...United States v. Beckerman, 516 F.2d 905 (CA2 1975); United States v. Lansdown, 460 F.2d 164 (CA4 1972). Contra, United States v. Young, 544 F.2d 415 (CA9 1976); United States v. Bailey, 512 F.2d 833 (CA5 1975). In reaching this conclusion, those courts have taken the position that such pre......
  • Request a trial to view additional results

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