decided: August 9, 1978.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
CHARLES BLASCO AND DONALD JENNINGS, DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 CR 1001 - Frank J. McGarr, Judge.
Before Pell, Tone and Wood, Circuit Judges.
Defendants-appellants, Chicago police officers Blasco and Jennings, were charged in an eight count indictment with engaging in a pattern of solicitation and acceptance of bribes from narcotics dealers. Count I charged both officers with the misprision of a felony, under 18 U.S.C. § 4, in that they concealed from authorities that Sam Johnson, a/k/a "Fat Sam," possessed heroin for distribution. Count II charged both officers and Count III charged only Jennings with the same offense in connection with other individuals. Counts IV and V charged Jennings with knowing and intentional distribution of heroin and cocaine. Count VI charged Blasco and Count VII charged Jennings with racketeering activity, in violation of 18 U.S.C. § 1962, for soliciting and receiving bribes and distributing drugs. Count VIII charged both officers with conspiring, along with other unindicted co-conspirators, to violate the racketeering provisions.
During the three-week trial the government presented this version of the events to the jury: During 1973-74 the defendants were assigned to the Tactical Unit of the 7th District of the Chicago Police Department. Their duties included investigating and arresting narcotics offenders in this district. During approximately six months of this period, Whitelaw Abrams worked as an informant for the defendants. Abrams was familiar with the narcotics trafficking in the district and was himself a heroin addict. Based on information supplied by Abrams, the defendants were able to stop numerous narcotics offenders. On most of these occasions, the defendants would accept money and/or narcotics in return for releasing these offenders without formally arresting and charging them. The defendants would reward Abrams with money and/or narcotics for the information provided by him. Witness Abrams testified naming the narcotics dealers, including Sam Johnson, who had paid bribes to the officers. Testifying in the government's case were past and present drug addicts and persons of varied criminal backgrounds. The defendants testified in their own behalf denying their guilt, as well as calling approximately fifty witnesses to testify to their good character and reputation.
Following two days of deliberation the jury foreman notified the judge that they were "hopelessly deadlocked." The jury was brought back into court and given the charge recommended by this court in United States v. Silvern, 484 F.2d 879 (7th Cir. 1973). The jury deliberated a few hours thereafter and returned a verdict of guilty as to both defendants on Count I and a verdict of not guilty as to both defendants on the remaining counts. After the court entered judgment on the verdicts, both defendants moved for a judgment of acquittal on Count I notwithstanding the verdict. The court entered a judgment of acquittal on Count I, giving as the reason for its action that the evidence on Count I was neither more credible nor more probative than the evidence on the other counts.
The government seeks to appeal pursuant to 18 U.S.C. § 3731.*fn1 The defendants argue that the Double Jeopardy clause's aim of protecting the integrity of a final judgment renders the judgment entered in this case binding and non-reviewable, and asks that the appeal be dismissed.
It has long been the rule that the government cannot appeal in a criminal case without express congressional authorization. In United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), the Supreme Court traced the uneven course of the statutory authority until 1970 when Congress amended the Criminal Appeals Act, and found that when Congress enacted § 3731, it "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." 420 U.S. at 337, 95 S. Ct. at 1019. Therefore, unless barred by the Double Jeopardy clause, the appeal here by the government from the judgment of acquittal is authorized by § 3731.
The Seventh Circuit*fn2 only recently in United States v. Allison, 555 F.2d 1385 (7th Cir. 1977), held that the government may appeal from a judgment of acquittal "where a reversal would not require a retrial or any further proceedings before the entry of a judgment." Id. at 1387. We feel the correctness of our decision in Allison has been reaffirmed by the recent pronouncements of the Supreme Court on 18 U.S.C. § 3731 and the Double Jeopardy clause. See generally Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Sanabria v. United States, 437 U.S. 54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978); and United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978).
In Wilson, supra, later in United States v. Martin Linen Supply Co., 430 U.S. 564, 568-69, 51 L. Ed. 2d 642, 97 S. Ct. 1349, and now just recently in United States v. Scott, supra, -- - U.S. at -- , 98 S. Ct. at 2191, the Court has stated that the "Double Jeopardy clause was primarily "directed at the threat of multiple prosecution,' and pose(s) no bar to Government appeal "where those appeals would not require a new trial.' " The Court in Scott, while overruling its decision in United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975), makes clear that the assumption which the government relies on here from Jenkins, "a judgment of acquittal (can) be appealed where no retrial would be needed on remand," has not been repudiated.*fn3 Scott, supra, -- - U.S. at -- , n. 7, 98 S. Ct. at 2193.
In conclusion we add that we find no support in either Wilson, supra, or the recent cases from the Supreme Court cited above, for the contention that while the government may have the right to appeal where the judge's ruling is based on "purely legal considerations," here the ruling was on "solely evidentiary factual considerations"*fn4 and the government therefore has no right of appeal. The Supreme Court has indicated that the focus of the inquiry in seeking to determine whether the government has the right to appeal where the ruling favorable to the defendant has occurred after a contrary determination by the finder of fact is whether there is any need, if reversed, for further factual findings, i. e., the protection from "multiple prosecutions" purpose of the Double Jeopardy clause. Even the Justices dissenting in Scott, while disagreeing with the majority's definition of "acquittal,"*fn5 note that the government is allowed to appeal, under Wilson, "whether or not the final judgment was an acquittal . . . if reversal would not necessitate a retrial." Scott, supra 437 U.S. 82 at -- , 98 S. Ct. at 2201.
We conclude, therefore, that the government's right to appeal under 18 U.S.C. § 3731 depends in the present case upon whether further proceedings upon reversal would be necessary. Inasmuch as the jury returned a guilty verdict against both defendants on Count I, the ruling by the trial judge acquitting both defendants on Count I can be acted upon by this court without subjecting them to a second trial. If the defendant prevails on appeal, the matter will become final. If the defendants lose, the case will go back to the district court for reinstatement of the verdict and for disposition of any remaining motions. Accordingly, we conclude that the Double Jeopardy clause poses no bar in this case and this court has jurisdiction to entertain the appeal of the government.
In the Memorandum Order granting defendants' motion for acquittal, the district court gave the following reasons for its action:
The assessment of the credibility of the government witnesses, most of whom were persons with criminal backgrounds and past or present drug addicts, was clearly a central issue in this case. It is the opinion of this court that the evidence supportive of the allegations in the only count on which the defendants were found guilty, was neither more nor less probative, nor more nor less credible than the evidence supporting the other counts.
To the extent this statement can be interpreted as indicating that the court based its decision on its own assessment of the credibility of the government witnesses who testified to the incident charged in Count I, the court erred. The rule has long been established that when ruling on a motion for acquittal the test that the court must use is
whether at the time of the motion there was relevant evidence from which the jury could reasonably find (the defendant) guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the Government . . . bear(ing) in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences" . . .. (citations omitted.)
United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977). Our review of the record as to Count I indicates that there was sufficient evidence to convict both the defendants of this charge, if the jury chose to believe the testimony of witnesses, Sam Johnson, Whitelaw Abrams and Gloria de Savieu.*fn6 The jury was properly instructed as to its role in assessing the credibility of witnesses. Under these circumstances even if a judge himself feels a witness is unbelievable, this is not a sufficient basis for granting acquittal.*fn7 The trial judge should not take upon himself this power of the jury, for "under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. The trial judge is deemed to have no special expertise in determining who speaks the truth." (citations and footnote omitted.) United States v. Cravero, 530 F.2d 666, 670 (5th Cir. 1976).
To the extent the statement by the district court can be interpreted as saying that the jury returned inconsistent verdicts, we disagree. As we have already indicated, our review of the record indicates that there was sufficient evidence to support each of the elements of the crime of misprision of a felony. In contrast, as the government points out, its proof as to the other counts of the indictment lacked the same quality and quantity as the evidence in Count I.*fn8 Particularly we note that the crime charged in Count I was testified to by three witnesses, providing corroboration as to some of the essential elements of the charge. On no other count was there corroboration. However, even if we were to view the verdicts as inconsistent, this fact alone cannot serve as the basis for granting an acquittal. United States v. Reicin, 497 F.2d 563, 567 (7th Cir. 1974).*fn9 This is especially true in this case since the purported inconsistency may simply be that the jury believed the government witnesses in certain aspects of their testimony and disbelieved them in others. The jury was instructed that it was entitled to do just that.*fn10
For the foregoing reasons, the ruling of the district court entering a judgment of acquittal as to both defendants on Count I is reversed and the case is remanded with instructions to reinstate the jury's verdict.