Petitioners and others were charged in a single-count indictment
with conspiracy and an attempt to obstruct interstate commerce by
means of extortion, in violation of the Hobbs Act. Petitioners
challenged the indictment as duplicitous, contending that its
single count improperly charged both a conspiracy and an attempt to
violate the Hobbs Act. The District Court refused to dismiss the
indictment but required the prosecution to prove all the elements
of both offenses charged in the indictment, and instructed the jury
to that effect. The jury returned a guilty verdict against each
petitioner. The Court of Appeals reversed and ordered a new trial
on certain evidentiary grounds, at the same time directing the
Government to elect between the conspiracy and attempt charges on
remand. After the Government elected to proceed on the conspiracy
charge, petitioners moved to dismiss the indictment on grounds that
the retrial would expose them to double jeopardy and that the
indictment, as modified by the election, failed to charge an
offense. The District Court denied the motion, and petitioners
immediately appealed. The Court of Appeals affirmed, but did not
address the Government's argument that the court had no
jurisdiction to hear the appeal since the denial of petitioners'
motion to dismiss the indictment was not a "final decision" within
the meaning of 28 U.S.C. § 1291, which grants courts of appeals
jurisdiction to review "all final decisions" of the district
courts, both civil and criminal.
Held:
1. The District Court's pretrial order denying petitioners'
motion to dismiss the indictment on double jeopardy grounds was a
"final decision" within the meaning of § 1291, and thus was
immediately appealable. Pp.
431 U. S.
656-662.
(a) Although lacking the finality traditionally considered
indispensable to appellate review, such an order falls within the
"collateral order" exception to the final judgment rule announced
in
Cohen v. Beneficial Industrial Loan Corp., 337 U.
S. 541, since it constitutes a complete, formal, and, in
the trial court, final rejection of an accused's double jeopardy
claim, the very nature of which is such that it is collateral to,
and separable from, the principal issue of whether or not the
accused is guilty of the offense charged. Pp.
431 U. S.
657-660.
Page 431 U. S. 652
(b) Moreover, the rights conferred on an accused by the Double
Jeopardy Clause would be significantly undermined if appellate
review of double jeopardy claims were postponed until after
conviction and sentence, since that Clause not only protects an
individual against being subjected to double punishments, but also
is a guarantee against being twice put to trial for the same
offense. Pp. 66662.
2. The Court of Appeals had no jurisdiction under § 1291 to pass
on the merits of petitioners' challenge to the sufficiency of the
indictment, since the District Court's rejection of such challenge
does not come within the
Cohen exception. That rejection
is not "collateral" in any sense of that term, but rather goes to
the very heart of the issues to be resolved at the upcoming trial.
Moreover, the issue resolved adversely to petitioners is such that
it may be reviewed effectively, and, if necessary, corrected if and
when a final judgment results. Pp.
431 U. S.
662-663.
3. The Double Jeopardy Clause does not preclude petitioners'
retrial on the conspiracy charge. It cannot be assumed that the
jury disregarded the District Court's instructions at the initial
trial that it could not return a guilty verdict unless the
Government proved beyond a reasonable doubt all of the elements of
both offenses charged in the indictment, and therefore it would
appear that the jury did not acquit petitioners of the conspiracy
charge, while convicting them on the attempt charge, as petitioners
urge was a possibility in view of the general verdict. Pp.
431 U. S.
663-665.
530 F.2d 963, affirmed in part, reversed in part, and
remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and
STEVENS, JJ., joined. WHITE, J., concurred in the judgment.
Page 431 U. S. 653
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to determine whether a pretrial order
denying a motion to dismiss an indictment on double jeopardy
grounds is a final decision within the meaning of 28 U.S.C. § 1291,
[
Footnote 1] and thus
immediately appealable. If it is a final decision, we must also
decide: (a) whether the Double Jeopardy Clause bars the instant
prosecution; (b) whether the courts of appeals have jurisdiction to
consider non-double jeopardy claims presented pendent to such
appeals; and, if so, (c) whether the Court of Appeals erred in
refusing to dismiss the indictment on the alternative grounds
asserted by the petitioners.
(1)
In March, 1974, a single-count indictment was returned in the
United States District Court for the Eastern District of
Pennsylvania charging petitioners, Donald Abney, Larry Starks, and
Alonzo Robinson, and two others, with conspiracy and an attempt to
obstruct interstate commerce by means of extortion, in violation of
the Hobbs Act, 18 U.S.C. § 1951. [
Footnote 2] The Government's case was based upon the
testimony of one Ulysses Rice, the alleged victim of the
conspiracy. Rice was
Page 431 U. S. 654
the owner and operator of a Philadelphia, Pa. tavern selling
liquor that was distilled and bottled outside of the State.
According to Rice, petitioners had engaged in a pattern of
extortionate practices against him. Initially, such activities had
been thinly veiled under the pretense of solicitations for
subscriptions to Black Muslim newspapers, sales of various food
items, and appeals for contributions for a Black Muslim holiday.
Eventually, however, demand for larger sums of money, including
$200 in weekly "taxes" accompanied by threats, were made upon Rice
at his place of business. These threats led Rice to contact the
Federal Bureau of Investigation, which provided him with "marked
money" and a body tape recorder in anticipation of future demands
by the petitioners. When such a demand was made, Rice paid it with
the marked currency and recorded the transaction on the body
recorder. Petitioners were arrested despite their claims that all
of the contributions by Rice had been
bona fide gifts for
Muslim religious causes. The tape recording of the last transaction
was later introduced at petitioners' trial and, not surprisingly,
it proved useful in refuting this claim of innocent purpose.
Both prior to, and during, the ensuing trial, the petitioners
challenged the indictment on grounds of duplicity of offenses,
claiming that its single count improperly charged both a conspiracy
and an attempt to violate the Hobbs Act. Although the District
Court apparently agreed with this contention, it refused either to
dismiss the indictment or require the prosecutor to elect between
theories. Rather, it required the Government to establish both
offenses, as the prosecutor represented that he would do, and
instructed the jury to that effect:
"I would also point out that, in the indictment, it is charged
that the defendants were guilt of both conspiracy and attempt and
the
essential elements of both of these offenses must be proved
before any defendant could be found guilty."
Tr. 160 (emphasis added).
Page 431 U. S. 655
The jury returned a guilty verdict against each petitioner, but
acquitted two others charged in the indictment.
On appeal, the United States Court of Appeals for the Third
Circuit reversed petitioners' convictions and ordered a new trial
on the ground that the key tape recording had been admitted into
evidence without proper authentication.
United States v.
Starks, 515 F.2d 112 (1975). The Court of Appeals also agreed
with the petitioners' claim that the indictment was duplicitous.
Id. at 115-118. However, since the admission of the
unauthenticated tape recording necessitated a new trial in any
event, the court found it unnecessary to pass on the Government's
argument that the indictment's duplicitous nature had been
corrected by the trial court's instructions to the jury, and was
thus harmless.
Id. at 118. Nonetheless, it directed the
Government to elect between the conspiracy and attempt charges on
remand in order to avoid any similar problems at the next trial.
Id. at 118, 125.
On remand, the Government elected to proceed on the conspiracy
charge. Petitioners then moved to dismiss the indictment, arguing:
(a) that retrial would expose them to double jeopardy; and (b) that
the indictment, as modified by the election, failed to charge an
offense. The District Court denied the motion, and the petitioners
immediately appealed to the Court of Appeals.
Before addressing the merits of petitioners' claims, the
Government challenged the Court of Appeals' jurisdiction to hear
the interlocutory appeal, and asked that its prior decision in
United States v. DiSilvio, 520 F.2d 247 (1975), be
overruled; there, the court had held that the denial of a pretrial
motion to dismiss an indictment on double jeopardy grounds
constituted a final decision within the meaning of 28 U.S.C. §
1291, and, as such, was immediately appealable. 520 F.2d at 248 n.
2a. The Court of Appeals failed to address the Government's
argument. Rather, after ordering the case to
Page 431 U. S. 656
be submitted on the briefs without oral argument, it affirmed
the District Court by a judgment order which explicitly rejected
both of the petitioners' attacks on the indictment. We granted
certiorari to review the decision of the Court of Appeals.
(2)
We approach the threshold appealability question with two
principles in mind. First, it is well settled that there is no
constitutional right to an appeal.
McKane v. Durston,
153 U. S. 684
(1894). Indeed, for a century after this Court was established, no
appeal as of right existed in criminal cases, and, as a result,
appellate review of criminal convictions was rarely allowed.
[
Footnote 3] As the Court
described this period in
Reetz v. Michigan, 188 U.
S. 505 (1903):
"[T]rials under the Federal practice for even the gravest
offences ended in the trial court, except in cases where two judges
were present and certified a question of law to this court."
Id. at
188 U. S. 508.
The right of appeal, as we presently know it in criminal cases, is
purely a creature of statute; in order to exercise that statutory
right of appeal, one must come within the terms of the applicable
statute -- in this case, 28 U.S.C. § 1291.
Second, since appeals of right have been authorized by Congress
in criminal cases, as in civil cases, there has been a firm
congressional policy against interlocutory or "piecemeal" appeals,
and courts have consistently given effect to that policy. Finality
of judgment has been required as a predicate for federal appellate
jurisdiction.
"The general principle of federal appellate jurisdiction,
derived from the common law and enacted by the First
Page 431 U. S. 657
Congress, requires that review of
nisi prius
proceedings await their termination by final judgment."
DiBella v. United States, 369 U.
S. 121,
369 U. S. 124
(1962).
Accord, Cobbledick v. United States, 309 U.
S. 323,
309 U. S.
324-326 (1940). This principle is currently embodied in
28 U.S.C. § 1291, which grants the federal courts of appeals
jurisdiction to review "all final decisions of the district
courts," both civil and criminal. Adherence to this rule of
finality has been particularly stringent in criminal prosecutions
because "the delays and disruptions attendant upon intermediate
appeal," which the rule is designed to avoid, "are especially
inimical to the effective and fair administration of the criminal
law."
DiBella, supra at
369 U. S. 126.
Accord, Cobbledick, supra at
309 U. S.
324-326.
The pretrial denial of a motion to dismiss an indictment on
double jeopardy grounds is obviously not "final" in the sense that
it terminates the criminal proceedings in the district court.
Nonetheless, a number of the Courts of Appeals have held that §
1291 does not bar an immediate appeal from such a pretrial order.
United States v. Barket, 530 F.2d 181 (CA8 1975),
cert. denied, 429 U.S. 917 (1976);
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 pretrial orders fall
within the so-called "collateral order" exception to the final
judgment rule first announced in
Cohen v. Beneficial Industrial
Loan Corp., 337 U. S. 541
(1949), and are thus "final decisions" within the meaning of §
1291.
Cohen was a shareholder's derivative civil action in
which federal jurisdiction rested on the diverse citizenship of the
parties. Prior to trial, a question arose over whether a state
statute requiring the plaintiff shareholder to post security for
the costs of litigation applied in the federal court. After the
District Court denied its motion to require such security, the
Page 431 U. S. 658
corporate defendant sought immediate appellate review of the
ruling in the Court of Appeals. That court reversed and ordered
that security be posted. Thereafter, this Court held that the Court
of Appeals had jurisdiction under § 1291 to entertain an appeal
from the District Court's pretrial order.
In holding that the pretrial order was a "final decision" for
purposes of § 1291, the Court recognized that § 1291 did not
uniformly limit appellate jurisdiction to "those final judgments
which terminate an action." 337 U.S. at
337 U. S. 545;
Eisen v. Carlisle & Jacquelin, 417 U.
S. 156,
417 U. S. 171
(1974). Rather as Mr. Justice Jackson, the author of
Cohen, later pointed out:
"[I]t is a final
decision that Congress has made
reviewable. . . . While a final judgment always is a final
decision, there are instances in which a final decision is not a
final judgment."
Stack v. Boyle, 342 U. S. 1,
342 U. S. 12
(1951) (separate opinion). That term, the Court held, was to be
given a "practical, rather than a technical, construction."
Cohen, supra at
337 U. S. 546.
In giving it such a construction, the Court identified several
factors which, in its view, rendered the District Court's order a
"final decision" within the statute's meaning. First, the District
Court's order had fully disposed of the question of the state
security statute's applicability in federal court; in no sense, did
it leave the matter "open, unfinished or inconclusive."
Ibid. Second, the decision was not simply a "step toward
final disposition of the merits of the case [which would] be merged
in final judgment"; rather, it resolved an issue completely
collateral to the cause of action asserted.
Ibid. Finally,
the decision had involved an important right which would be "lost,
probably irreparably," if review had to await final judgment;
hence, to be effective, appellate review in that special, limited
setting had to be immediate.
Ibid. The Court
concluded:
"This decision appears to fall in that small class which finally
determine claims of right separable from, and
Page 431 U. S. 659
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."
Id. at
337 U. S.
546.
Although it is true that a pretrial order denying a motion to
dismiss an indictment on double jeopardy grounds lacks the finality
traditionally considered indispensable to appellate review, we
conclude that such orders fall within the "small class of cases"
that
Cohen has placed beyond the confines of the final
judgment rule. [
Footnote 4] In
the first place, there can be no doubt that such orders constitute
a complete, formal, and, in the trial court, final rejection of a
criminal defendant's double jeopardy claim. There are simply no
further steps that can be taken in the District Court to avoid the
trial the defendant maintains is barred by the Fifth Amendment's
guarantee. Hence,
Cohen's threshold requirement of a fully
consummated decision is satisfied.
Moreover, the very nature of a double jeopardy claim is such
that it is collateral to, and separable from, the principal issue
at the accused's impending criminal trial,
i.e., whether
or not the accused is guilty of the offense charged. In arguing
that the Double Jeopardy Clause of the Fifth Amendment bars his
prosecution, the defendant makes no challenge whatsoever to the
merits of the charge against him. Nor does he seek suppression of
evidence which the Government plans to use in obtaining a
conviction.
See DiBella v. United States, supra; Cogen v.
United States, 278 U. S. 221
(1929). Rather, he is contesting the very authority of the
Government to hale him into court to face trial on the charge
against him.
Menna v.
Page 431 U. S. 660
New York, 423 U. S. 61
(1975);
Blackledge v. Perry, 417 U. S.
21,
417 U. S. 30
(1974);
Robinson v. Neil, 409 U.
S. 505,
409 U. S. 509
(1973). The elements of that claim are completely independent of
his guilt or innocence. Indeed, we explicitly recognized that fact
in
Harris v. Washington, 404 U. S. 55
(1971), where we held that a State Supreme Court's rejection of an
accused's pretrial plea of former jeopardy constituted a "final"
order for purposes of our appellate jurisdiction under 28 U.S.C. §
1257. [
Footnote 5]
"Since the state courts have finally rejected a claim that the
Constitution forbids a second
trial of the petitioner, a
claim separate and apart from the question whether the petitioner
may constitutionally be
convicted of the crimes with which
he is charged, our jurisdiction is properly invoked under 28 U.S.C.
§ 1257."
404 U.S. at
404 U. S. 56.
Accord, Turner v. Arkansas, 407 U.
S. 366 (1972);
Colombo v. New York,
405 U. S. 9 (1972).
Thus, the matters embraced in the trial court's pretrial order here
are truly collateral to the criminal prosecution itself in the
sense that they will not "affect, or . . . be affected by, decision
of the merits of this case."
Cohen, 337 U.S. at
337 U. S.
546.
Finally, the rights conferred on a criminal accused by the
Double Jeopardy Clause would be significantly undermined if
appellate review of double jeopardy claims were postponed until
after conviction and sentence. To be sure, the Double Jeopardy
Clause protects an individual against being twice convicted for the
same crime, and that aspect of the right can be fully vindicated on
an appeal following final judgment, as the Government suggests.
However, this Court has long recognized that the Double Jeopardy
Clause protects an individual against more than being subjected to
double punishments.
Page 431 U. S. 661
It is a guarantee against being twice put to trial for the same
offense. [
Footnote 6]
""The Constitution of the United States, in the Fifth Amendment,
declares,
nor shall any person be subject [for the same
offense] to be twice put in jeopardy of life or limb.' The
prohibition is not against being twice punished, but against being
twice put in jeopardy. . . ." . . . The "twice put in
jeopardy" language of the Constitution thus relates to a potential,
i.e., the risk that an accused for a second time will be
convicted of the "same offense" for which he was initially
tried."
Price v. Georgia, 398 U. S. 323,
398 U. S. 326
(1970).
See also United States v. Jorn, 400 U.
S. 470,
400 U. S. 479
(1971);
Green v. United States, 355 U.
S. 184,
355 U. S.
187-188 (1957);
United States v. Ball,
163 U. S. 662,
163 U. S. 669
(1896). Because of this focus on the "risk" of conviction, the
guarantee against double jeopardy assures an individual that, among
other things, he will not be forced, with certain exceptions, to
endure the personal strain, public embarrassment, and expense of a
criminal trial more than once for the same offense. It thus
protects interests wholly unrelated to the propriety of any
subsequent conviction. Mr. Justice Black aptly described the
purpose of the Clause:
"The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State, with
all its resources and power, should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling
him
Page 431 U. S. 662
to live in a continuing state of anxiety and insecurity, as well
as enhancing the possibility that, even though innocent, he may be
found guilty."
Green, supra at
335 U. S.
187-188.
Accord, Breed v. Jones, 421 U.
S. 519,
421 U. S.
529-530 (1975);
Serfass v. United States,
420 U. S. 377,
420 U. S.
387-388 (1975);
Jorn, supra at
400 U. S. 479.
Obviously, these aspects of the guarantee's protections would be
lost if the accused were forced to "run the gauntlet" a second time
before an appeal could be taken; even if the accused is acquitted,
or, if convicted, has his conviction ultimately reversed on double
jeopardy grounds, he has still been forced to endure a trial that
the Double Jeopardy Clause was designed to prohibit. [
Footnote 7] Consequently, if a criminal
defendant is to avoid exposure to double jeopardy, and thereby
enjoy the full protection of the Clause, his double jeopardy
challenge to the indictment must be reviewable before that
subsequent exposure occurs.
We therefore hold that pretrial orders rejecting claims of
former jeopardy, such a that presently before us, constitute "final
decisions," and thus satisfy the jurisdictional prerequisites of §
1291. [
Footnote 8]
(3)
In determining that the courts of appeals may exercise
jurisdiction over an appeal from a pretrial order denying a motion
to dismiss an indictment on double jeopardy grounds,
Page 431 U. S. 663
we, of course, do not hold that other claims contained in the
motion to dismiss are immediately appealable as well.
United
States v. Barket, 530 F.2d 181 (CA8 1975),
cert.
denied, 429 U.S. 917 (1976). Our conclusion that a defendant
may seek immediate appellate review of a district court's rejection
of his double jeopardy claim is based on the special considerations
permeating claims of that nature which justify a departure from the
normal rule of finality. Quite obviously, such considerations do
not extend beyond the claim of former jeopardy and encompass other
claims presented to, and rejected by, the district court in passing
on the accused's motion to dismiss. Rather, such claims are
appealable if, and only if, they too fall within
Cohen's
collateral order exception to the final judgment rule. Any other
rule would encourage criminal defendants to seek review of, or
assert, frivolous double jeopardy claims in order to bring more
serious, but otherwise nonappealable, questions to the attention of
the courts of appeals prior to conviction and sentence.
Here, we think it clear that the District Court's rejection of
petitioners' challenge to the sufficiency of the indictment does
not come within the
Cohen exception. First, an order
denying a motion to dismiss an indictment for failure to state an
offense is plainly not "collateral" in any sense of that term;
rather, it goes to the very heart of the issues to be resolved at
the upcoming trial. Secondly, the issue resolved adversely to
petitioners is such that it may be reviewed effectively, and, if
necessary, corrected if and when a final judgment results. We
therefore conclude that the Court of Appeals had no jurisdiction
under § 1291 to pass on the merits of petitioners' challenge to the
sufficiency of the indictment at this juncture in the
proceedings.
(4)
We turn finally to the merits of petitioners' claim that their
retrial, following the prosecutor's election to proceed on the
single conspiracy charge, is barred by the Double Jeopardy
Page 431 U. S. 664
Clause. Their argument focuses on both the duplicitous
indictment under which they were charged and the general verdict of
guilty returned by the jury at their first trial. They maintain
that, because the indictment's single count charged them with both
a conspiracy and an attempt to violate the Hobbs Act, it is
impossible to determine the basis of the general verdict of guilt
returned against them. Hence, they suggest that the jury might have
convicted them on the attempt charge, but acquitted them of the
charged conspiracy. This possibility, they conclude, prohibits
their retrial on the conspiracy charge.
Whatever the merits of such an argument in another setting, we
find no factual predicate for it here. [
Footnote 9] As we noted in our description of the
petitioners' initial trial, the prosecutor, rather than electing
between the attempt and conspiracy charges, represented to the
court that he would establish both offenses. The court held him to
his word, and instructed the jury that it would have to find that
the Government had established all of the elements of both crimes
before it could return a verdict of guilty against the petitioners.
[
Footnote 10] Indeed,
Page 431 U. S. 665
it emphasized this fact to the jury immediately before it
retired.
Supra at
431 U. S. 654. We cannot assume that the jury
disregarded these clear and unambiguous instructions and returned a
guilty verdict without first finding that the Government had proved
both crimes charged in the indictment beyond a reasonable doubt.
E.g., Shotwell Mfg. Co. v. United States, 371 U.
S. 341,
371 U. S. 367
(1963). W e are therefore satisfied that the jury did not acquit
petitioners of the conspiracy charge; consequently, the Double
Jeopardy Clause does not preclude their retrial for that crime.
E.g., North Carolina v. Pearce, 395 U.
S. 711,
395 U. S.
719-720 (1969);
United States v. Tateo,
377 U. S. 463
(1964).
Accordingly, the judgment of the Court of Appeals is
affirmed in part, reversed in part, and remanded.
It is so ordered.
MR. JUSTICE WHITE concurs in the judgment.
[
Footnote 1]
Section 1291 provides as follows:
"The courts of appeals shall have jurisdiction of appeals from
all final decisions of the district courts of the United States,
the United States District Court for the District of the Canal
Zone, the District Court of Guam, and the District Court of the
Virginia Islands, except where a direct review may be had in the
Supreme Court."
[
Footnote 2]
Section 1951 provides in pertinent part:
"Whoever . . . obstructs, delays, or affects commerce . . . by
robbery or extortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section shall be fined not more than $10,000 or imprisoned not
more than twenty years, or both."
[
Footnote 3]
Appeals as of right in criminal cases were first permitted in
1889, when Congress enacted a statute allowing such appeals "in all
cases of conviction of crime the punishment of which provided by
law is death." Act of Feb. 6, 189, 5 Stat. 656. A general right of
appeal in criminal cases was not created until 1911. Act of Mar. 3,
1911, 36 Stat. 1133.
[
Footnote 4]
Of course,
Cohen's collateral order exception is
equally applicable in both civil and criminal proceedings. While
Cohen itself was a civil case, the Court's decision was
based on its construction of 28 U.S.C. § 1291. As previously noted,
that provision gives the courts of appeals jurisdiction to review
"final decisions" of the district courts in both civil and criminal
cases.
See Stack v. Bole, 342 U. S.
1 (1951).
[
Footnote 5]
Section 1257 provides in pertinent part:
"Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court. . . ."
[
Footnote 6]
See also Ex parte
Lange, 18 Wall. 163,
85 U. S. 169
(1874):
"The common law not only prohibited a second punishment for the
same offence,
but it went further and [forbade] a second trial
for the same offence, whether the accused had suffered
punishment or not, and whether, in the former trial, he had been
acquitted or convicted."
(Emphasis added.)
[
Footnote 7]
A cogent analogy can be drawn to the
Cohen decision.
There, the corporate defendant claimed that the state security
statute, if applicable, conferred on it a right not to face trial
at all unless the dissatisfied shareholder fist posted security for
the costs of the litigation. By permitting an immediate appeal
under those circumstances, this Court made sure that the benefits
of the statute were not "canceled out."
[
Footnote 8]
Admittedly, our holding may encourage some defendants to engage
in dilatory appeals as the Solicitor General fears. However, we
believe that such problems of delay can be obviated by rules or
policies giving such appeals expedited treatment. It is well within
the supervisory powers of the courts of appeals to establish
summary procedures and calendars to weed out frivolous claims of
former jeopardy.
[
Footnote 9]
In view of our determination that no factual predicate exists
for petitioners' claim that the jury rendered an ambiguous verdict
at their original trial, we find it unnecessary to reach the
question of whether, assuming such ambiguity, their retrial would
have been nonetheless permissible.
See United States v.
Tateo, 377 U. S. 463
(1964).
[
Footnote 10]
In addition to the portion of the charge set out
supra
at
431 U. S. 654,
the trial court gave the following instructions to the jury:
"[T]he defendants are charged not with the so-called substantive
offense itself, but rather with a conspiracy and attempt to
obstruct, delay and affect interstate commerce by extortion. If the
jury should find beyond a reasonable doubt that there was a
conspiracy and an attempt to extort money from Mr. Rice, the
natural and probable consequences of which conspiracy and attempt,
if successfully carried out, would be to obstruct, delay and
adversely affect interstate commerce in any way or degree, the
offense charged in the indictment of conspiracy and attempt would
be complete, and the jury could properly convict all defendants
found beyond a reasonable doubt to be members of the conspiracy and
attempt."
Tr. 125.
"[I]t becomes necessary for me to define both 'conspiracy' and
'attempt,' since the defendants are charged not with the
substantive offense itself of obstructing, delaying or adversely
affecting interstate commerce by extortion, but rather a conspiracy
and attempt so to do."
"Therefore, I shall define to you all of the requisites of both
a conspiracy and an attempt, because all of these requisites must
be found before the jury could find any defendant guilty."
Id. at 10-25 - 10-26.
"In this case, the defendants are charged with a conspiracy and
attempt, both as integral and essential parts of the single
charge."
Id. at 10-35.
"[T]his charge being a single conspiracy and attempt to
obstruct, delay and adversely or harmfully affect interstate
commerce by extortion does not require proof that the conspiracy
was successful, or that its unlawful objectives were obtained. The
offense charged may be proved even though the conspiracy and
attempt failed because the extortion was not successfully carried
out."
Id. at 10-39.