United States v. Daryls Foster Steed

JAMES DICKSON PHILLIPS, Circuit Judge,

dissenting:

With all the deference due from one occupying so outmanned a position, I respectfully dissent. The issue upon which I disagree with the court is of sufficient importance in the administration of criminal justice that it should at least be recognized as one not yet definitively addressed and resolved by the Supreme Court as that Court continues its exploration of the “relatively uncharted ground,” see Comment, Double Jeopardy and Government Appeals in Criminal-Cases, 12 Colum.J.L. & Soc.Prob. 295, 302 (1976), opened by the Criminal Appeals Act of 1970 (the Act or 1970 Act).

As more fully developed in the superseded panel opinion of the court, 646 F.2d 136, I believe that our review of a post-verdict judgment of acquittal should be limited to correcting errors of “pure” law1 and should not extend to reexamining a district judge’s determination made under correctly understood legal principles that the evidence was “factually” insufficient to convict.

The majority opinion simply assumes, in its Part II, that our review must necessarily extend as well to a determination that the evidence was insufficient to convict, and that the standard of review is necessarily the traditional standard for reviewing, at a criminal defendant’s behest, a trial judge’s unfavorable determination that the evidence was sufficient to convict. This assumption is not elaborated nor justified by the majority here, as it has not been by the other circuit courts that have made it. See 646 F.2d at 139 n.5. Implicit in it of course is the more fundamental assumption that by enacting the 1970 Act which allowed for the first time government appeals from post-verdict judgments of acquittal the Congress must have intended that this should be the standard of review. I do not think that assumption must or should be made.

*291Although in conjunction with the conferral of jurisdiction upon particular courts Congress may of course impose particular standards of review, e.g., 5 U.S.C. § 706 (review of administrative agency determinations), it has not traditionally sought to do so in respect of criminal appeals, whether by defendants or the government.2 Where no standards of review have been legislatively imposed, their definition is necessarily left to the appellate courts which— so far as I know — have laid down all extant standards in criminal appeals. My view therefore is that in expanding the scope of jurisdiction to review government appeals, the Criminal Appeals Act of 1970 simply does not speak to the nature of this (or any) standard of review, so that its definition is necessarily left to the courts for ordering under developed principles pertaining to the appropriate relationship between federal appellate and trial courts in the administration of criminal justice.

As the superseded panel opinion pointed out, 646 F.2d at 139-40, before the Criminal Appeals Act of 1970 there was no developed judicial standard for reviewing trial court determinations of evidence insufficiency. Operating under predecessor jurisdictional grants respecting both defendant and government appeals the courts had developed — without reference to the relevant jurisdictional grants — various standards for reviewing pure legal determinations both favoring and disfavoring defendants,3 discretionary determinations running both ways,4 and evidence sufficiency determinations disfavoring defendants.5 But until the Criminal Appeals Act of 1970 first made possible any government appeals from post-verdict judgments of acquittal, no need or opportunity for developing or applying a standard by which to review the evidence sufficiency components of either pre- or post-verdict judgments of acquittal had been presented to the courts.

With both need and opportunity newly presented by the 1970 Act, I think the courts may and should now properly find the appropriate standard in the traditional principle of finality which has attended fact-based judgments of acquittal by trial judges. While it is apparently now settled that except as it protects against retrial this finality principle is not derived from the Double Jeopardy Clause,6 I would hold that it remains a fundamental right of criminal defendants that exists independently of double jeopardy considerations and that was not affected by the Criminal Appeals Act of 1970. I find in the various post-1970 Act Supreme Court decisions exploring the previously “uncharted ground” opened by *292the 1970 Act no outright or implicit rejection of that position.

Absolute finality is still insured for pre-verdict fact-based acquittals by their continued absolute jurisdictional insulation from any appellate review under the 1970 Act. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). As more fully developed in the superseded panel opinion, the failure to accord comparable finality to comparable post-verdict acquittals results in so great an anomaly and so severe a curtailment of the unique, traditional function of federal trial judges of unilaterally “filtering out deficient prosecutions,” United States v. Martin Linen Supply Co., 430 U.S. 564, 575, 97 S.Ct. 1349, 1356, 51 L.Ed.2d 642 (1977), that I think it improper to ascribe such an unexpressed intention to Congress. See id. at 576-81, 97 S.Ct. at 1357-59 (Stevens, J., concurring). I would instead, simply exercising the traditional power of appellate courts to determine the proper standards of review where they are not legislatively imposed, apply here a standard of absolute deference to purely fact-based post-verdict judgments of acquittal in order to continue unimpaired that traditional, unilateral protective power and the concomitant historical right of criminal defendants to have that particular nisi prius determination accorded absolute finality.7

On that basis, I would affirm the fact-based judgment of acquittal entered here by the district judge.

WIDENER, Circuit Judge, joins in this dissent.

. See 646 F.2d 142 at & n.12.

. There are no legislative prescriptions of review standards either external to or within the current statutory grants of appellate jurisdiction over defendant, 28 U.S.C. § 1291, or government, 18 U.S.C. § 3731, appeals in criminal cases.

. The standard for reviewing legal determinations, whether favorable or unfavorable to defendants, is of course free review. See, e.g., United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977) (no legal error in post-verdict judgment of acquittal).

. The standard for reviewing discretionary rulings, whether favorable or unfavorable to defendants, is the traditional one of abuse. See, e.g., United States v. Wechsler, 406 F.2d 1032 (4th Cir. 1969) (per curiam).

. The standard for reviewing evidence sufficiency rulings unfavorable to defendants is whether there is “substantial evidence, taking the view most favorable to the government.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

. This much is implicit in the expressed view of a clear majority — perhaps the whole — of the Supreme Court that because the double jeopardy clause protects only against retrials after jeopardy has attached, post-verdict acquittals are not absolutely immunized from appellate review by the double jeopardy limitations built into the jurisdictional grant of the 1970 Act. See, e.g., United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975) (post-verdict acquittal for pre-indictment delay appealable); but cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 576-81, 97 S.Ct. 1349, 1357-59, 51 L.Ed.2d 642 (1977) (Stevens, J., concurring: Congress did not intend by 1970 Act to allow appeals from acquittals, “and believed such appeals would be unconstitutional”; constitutionality of allowing such appeals not questioned).

. Fixing the appropriate standard of review is simply an incident of the broader power necessarily had and traditionally exercised by appellate courts ultimately to order — to the extent the legislature has not — the functional relationship between appellate and trial courts in their combined efforts to reach at last proper judgments in particular cases. This power extends not only to defining by “standards” the intensity with which particular trial court actions are reviewed but to fixing through the use of such purely judicial concepts as “plain error” the scope or ambit of those actions that are properly subject to review. Critical to the exercise of that judicial power in both its intensity and scope dimensions is a determination of the appropriate locus of finality for deciding particular legal or factual issues. In making that determination, appellate courts have always properly considered such diverse factors as maintenance of the adversary system, relative vantage points of the different levels of courts, ultimate importance of the determination, and the nature of the substantive interests affected. Many of the resulting standards and scope rules accord substantial or total finality to trial court actions that lie within the jurisdictional reach and corrective power of appellate courts on a perception that — for any number of these reasons — a particular trial court determination should be final even if “wrong.” There is, in consequence, nothing conceptually unsound nor at odds with traditional practice in according, through the device of different standards of review, finality to trial court determinations that evidence is insufficient to convict while according, by the same judicial process, non-finality to trial court determinations that it is sufficient. The ordering principle is that ancient one which at many points slants — and at this very point has always slanted — the system in ways calculated to favor the criminal defendant in matters pertaining to factual proof of his guilt. See 646 F.2d at 140-142 & nn.8, 9. Certainly the possibility that different standards might be appropriate here is not so untoward that a legislative intent to deny that possibility should be simply assumed. That, I submit, is nevertheless the majority’s sole rationale on this decisive issue. The assumption is that our traditional power in this realm has been denied by a jurisdictional grant that does not speak to it.

See 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction and Related Matters, § 3919, at 356 (1981 Pocket Part), where it is suggested that such a standard of review might appropriately be adopted by the courts notwithstanding the government’s right to appeal such post-verdict judgments under the 1970 Act.