Sanabria v. United States, 437 U.S. 54 (1978)

Sanabria v. United States

No. 76-1040

Argued November 8, 1977
Decided June 14, 1978
437 U.S. 54

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

Title 18 U.S.C. § 1955 (1976 ed.) makes it a federal offense for five or more persons to conduct an "illegal gambling business" in violation of the law of the place where the business is located. Petitioner, along with several others, was indicted for violating § 1955 in a single count charging that the defendants’ gambling business involved numbers betting and betting on horse races in violation of a specified Massachusetts statute. The Government’s evidence at trial in the District Court showed that the defendants had been engaged in both horse betting and numbers betting. At the close of the Government’s case, defense counsel argued that the Government had failed to prove a violation of the Massachusetts statute because that statute did not prohibit numbers betting, but only horse betting. After the defendants had rested, the trial judge granted their motion to exclude all evidence of numbers betting, and then granted a motion to acquit petitioner because of lack of evidence of his connection with the horse betting business. The case against the remaining defendants went to the jury, and they were all convicted. The Government appealed under 18 U.S.C. § 3731 (1976 ed.) from the order excluding the numbers betting evidence and from the judgment acquitting petitioner, and sought a new trial on the portion of the indictment relating to numbers betting. The Court of Appeals held that it had jurisdiction of the appeal, taking the view that, although § 3731, by its terms, authorizes the Government to appeal only from orders "dismissing an indictment . . . as to any one or more counts," the word "counts" refers to any discrete basis for imposing criminal liability, that, since the horse betting and numbers allegations were discrete bases for liability duplicitously joined in a single count, the District Court’s action constituted a "dismissal" of the numbers "charge" and an acquittal for insufficient evidence on the horse betting charge, and that therefore § 3731 authorized an appeal from the "dismissal" of the numbers charge. The court went on to hold that the Double Jeopardy Clause of the Fifth Amendment did not bar a retrial, because petitioner had voluntarily terminated the proceedings on the numbers portion of the count by moving, in effect, to dismiss it. The court vacated the judgment of acquittal, and remanded for a new trial on the numbers charge.

Held:

1. A retrial on the numbers theory of liability is barred by the Double Jeopardy Clause. Pp. 63-74.

(a) The Court of Appeals erroneously characterized the District Court’s action as a "dismissal" of the numbers theory. There was only one count charged, the District Court did not order language in the indictment stricken, and the indictment was not amended, but the judgment of acquittal was entered on the entire count, and found petitioner not guilty of violating § 1955 without specifying that it did so only with respect to one theory of liability. Pp. 65-68.

(b) To the extent that the District Court found the indictment’s description of the offense too narrow to warrant admission of certain evidence, the court’s ruling was an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence, and that judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count, and hence bars appellate review of the trial court’s error. Pp. 68-69.

(c) Even if it could be said that the District Court "dismissed" the numbers allegation, a retrial on that theory would subject petitioner to a second trial on the "same offense" of which he was acquitted. Under § 1955 participation in a single gambling business is but a single offense, no matter how many state statutes the enterprise violated, and, with regard to this single gambling business, petitioner was acquitted. The Government having charged only a single gambling business, the discrete violations of state law that that business may have committed are not severable in order to avoid the Double Jeopardy Clause’s bar of retrials for the "same offense." Pp. 69-74.

2. Once the defendant has been acquitted, no matter how "egregiously erroneous" the legal rulings leading to the judgment of acquittal might be, there is no exception to the constitutional rule forbidding successive trials for the same offense. Fong Foo v. United States, 369 U.S. 141. Thus, here, while the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable. Lee v. United States, 432 U.S. 23; Jeffers v. United States, 432 U.S. 137, distinguished. Pp. 75-78.

548 F.2d 1, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, and POWELL, JJ., joined; in all but n. 23 of which STEVENS, J., joined; and in Parts I, II-A, and III of which WHITE, J., joined. STEVENS, J., filed a concurring opinion, post, p. 78. BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 80.