Richardson v. United States

PETITIONER: Richardson
RESPONDENT: United States
LOCATION: Clifford Residence

DOCKET NO.: 82-2113
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 468 US 317 (1984)
ARGUED: Mar 20, 1984
DECIDED: Jun 29, 1984

Allan M. Palmer - on behalf of petitioner
Michael W. McConnell - on behalf of the respondent

Facts of the case


Media for Richardson v. United States

Audio Transcription for Oral Argument - March 20, 1984 in Richardson v. United States

Warren E. Burger:

We'll hear arguments next in Richardson against United States.

We'll just wait until the gallery clears, Counsel.

Mr. Palmer, I think you may proceed when you're ready.

Allan M. Palmer:

Mr. Chief Justice, and may it please the Court:

We're going to first direct our attention to the appealability issue and for... in discussing that I am going to assume for the moment, but only the moment, that we have raised a valid double jeopardy claim.

Now the government disputes the appealability of this claim under Abney on the theory that the so-called second prong of the Cohen test is not met.

The government suggests that because we address the merits of the claim it's not collateral.

Now realistically it would appear to us that we have both been circling the issue and it was only recently that... in the Flanagan case that Justice O'Conner brought us back, I believe, to the original understanding of the matter, and it is this: In the Flanagan case the Court said it is not collateral if it's not independent of the issues to be tried.

Its validity cannot be adequately reviewed until the trial is complete.

And again in MacDonald, discussing the speedy trial claim, the Court said

"there needs to be a divorce between the claim and the events at trial. "

To us this boils down to the following: that if there be no need to look at the events of trial to determine the claim, it is indeed collateral.

And in this case the trial, of course, is something we seek to avoid.

We have an extant record of the first trial, which, we say, shows clear insufficiency of the evidence, and that is why the Chief Justice in Abney said that the very nature of a double jeopardy claim such that it is collateral and independent to the principal issues to be tried, and we think in that light there is no question but all three prongs of the Cohen test have been met.


William H. Rehnquist:

Now Abney came up in a somewhat different posture than this case, didn't it?

Allan M. Palmer:

--Yes, sir.

Your Honor, unquestionably, but the posture in which it arose does not change the operable principles as to the Cohen factors.

We still have... we're assuming now a double jeopardy violation.

If it's a double jeopardy violation--

William H. Rehnquist:

But why do you have to assume the validity of your claim in order to determine its appealability?

Allan M. Palmer:

--Well, because if it's not a double jeopardy violation, we're out of court.

There's no interlocutory appeal.

William H. Rehnquist:

Yes, but presumably you'll never know whether there is a double jeopardy violation until you get a determination on the merits on appeal.

Allan M. Palmer:


William H. Rehnquist:

I mean, there's a circularity about it, I suppose, from both sides.

Allan M. Palmer:

--Well, as we indicated, it's a self-determining claim.

When you say the insufficiency of the evidence, when the government fails at a criminal trial to prove enough to go to the jury, we say that raises a collateral bar, that it has no right to a second bite of the apple.

Now indeed in determining that, the same claim of insufficiency, you must look at the record, the evidence adduced, to determine whether or not the violation has occurred, but that is separate.

William H. Rehnquist:

But that assumes a view of the law of double jeopardy that is certainly not necessarily represented by any of this Court's opinions.