United States v. John Barker
558 F.2d 899
8th Cir.
1977
Check Treatment

*1 hazardous potentially invitees warn v. Ben M. Ho Ferguson conditions. design (W.D.Ark. F.Supp. 658 Company,

gan Insurance Co. Fidelity-Phenix 455 S.W.2d 248 Ark.

Lynch, acknowledge the decisions these

Because plaintiff’s on principles general

same plaintiff’s theo and because is based

theory jurisdic in other widely recognized

ry the Arkansas

tions, are satisfied we it if with our adopt

courts situation.

fact above, outlined we re- the reasons

For the District Court and decision of

verse the jury verdict.

reinstate

ROSS, dissenting. Judge, Circuit of the trial

I would affirm expressed to the view Contrary

court. pictures majority, I believe that a conclusive evidence should not pedestrian

reasonably careful scheme and by the color been deceived steps. area of the

design in the

UNITED STATES BARKER, Appellant.

John 76-2093.

No. Jr., Altergott, H. City, Kansas Mo. appellant; (argued), James W. McMa- March 1977. nus, Mo., City, Kansas on brief. Josephson, Kenneth Asst. U. Atty., S. City, (argued), Mo. for appellee;

Kansas Hurn, Bert C. U. S. Atty., on brief. HENLEY, Before WEBSTER Judges, and Judge.* Meredith, *TheHonorable James H. Chief United States District Court for the Eastern Missouri, sitting by designation. District of *2 WEBSTER, By mandate, Judge. this Court’s the case was to the “remanded district court for further of en- appeals his conviction Barker proceedings opin- inconsistent with this dealing in fire- in the business gaging 542 F.2d at 486. ion.” license, in violation of 18 without a arms (2). This was Bark- 922(a)(1) and U.S.C. §§ remand, Immediately upon Barker moved charge; a convic- trial on this second er’s of acquittal, contending by first trial was reversed after the tion that retrial reversal for insufficient Barker, Court in United States this place jeopardy evidence him in We conclude that F.2d 479 time. The second District Court denied the by the Fifth Amendment barred retrial was motion, and the proceeded case to trial. jeopardy, of double and there- proscription Evidence that the principals were unli- fore vacate introduced; was censed Barker was convicted, appeals. and he theory at both trials Barker committed the offense was that Appellant brings to our attention that he aiding abetting three charged by and oth- did not move a new trial at the close of Neal, Fullerton, ers, Raymond Richard and argues trial. He that retrial Kinnaird, Jr., to conduct an unli- James D. barred under Sapir therefore firearms business. At the close of censed 99 L.Ed. the defendant’s evidence at the first (1955). Under the holding Sapir, proof noticed that there had been no was Supreme interpreted Court in For Neal, Fullerton, and were not that Kinnaird man v. United to deal in firearms. The licensed District applied by reopened the case and allowed the in United this Court States v. to introduce certificates show- compelled F.2d 509 we are ing that three men were in fact unli- agree. censed. certificates were admitted In Sapir, the Tenth Circuit reversed a chambers; by the District Court in how- for conspiracy conviction to defraud the ever, they were never in any placed manner States, finding the evidence insuffi- before to establish that knew appeal, argued Barker On that failure party the United States the trans- the certificates to the was The Tenth Circuit first directed the action. proof fatal to the was indictment; District Court dismiss the lacking aiding essential element of an then, government, of the on motion modi- abetting principal offense: that opinion to allow a new fied its charged. the crime committed Court, in a one paragraph per agreed A this Court with Barker vacated the opinion, modification curiam saying, the former''opinion, saying, reinstated a verdict transparently It is obvious that the judgment that “We believe on “evidence” which the cannot be based Appeals of October [the quite does not see or hear. Barker is reversing and judgment] remanding this contending correct in that there was no instructions cause with to dismiss the in- jury’s ver- direct evidence was correct.” dictment on this essential element. dict concurring opinion, Justice Douglas In a suggested retrial would violate the accordingly have no choice other We stated, clause. He how- holding that there was insufficient ever, petitioner had asked for a “[i]f convict on which a could different considerations would charged. of the crime Barker play, for then the come into Barker, supra, 542 F.2d at whole record for opens disposition omitted). just.” 348 (footnote distinguished L.Ed. 335 States v. Douglas also 423.1 Justice which reversal cases grounds of error that infect- was “on 1973); Wright, Federal Practice & Pro- Id. trial”. cedure, Criminal,

ed the 470, pp. 268-273. in the concluding While sentence of his Douglas’ Sapir concurrence is of Justice counsel for brief the defendant asks for a importance apparent because of its central relief, trial as *3 new alternative it in Forman by the full does not adoption States, that he moved appear for a new trial in 361 80 S.Ct. United court, There, district and in the Ninth the 481, circum- 4 L.Ed.2d conviction because of stances we feel constrained first vacated a to reverse the judg- and ordered a improper judgment instruction of court and an remand the acquittal. On the ment of case with directions for the entry of a its mandate to motion, amended then judgment of The Court affirmed allow retrial. Koonce, and United States v. both retrial. The Court found the allowance (1) Sapir distinguishable because is thus the settled law of this Forman, improper resulted from an reversal that, when a Circuit2 conviction is reversed

instruction, insufficiency of the rather than evidence, for insufficient and no motion for Forman, evidence; (2) in trial was made in court, new the district a new trial. “That moved for had dismissal indictment rather than a at Sapir’s case.” 361 U.S. factor decisive proper trial is the disposition. We are 426, at S.Ct. See United States holding. not alone in so v. 527 F.2d 509 In Musquiz, 963, (5th 445 F.2d 1971). Cir. 1975), certain admissions the Wiley, also United States v. See 170 U.S. properly excluded at trial defendant 382, 1212, 517 F.2d App.D.C. 1217 n. 23 prior to they had not been disclosed Snider, (1975); United States v. 502 F.2d As trial, order. required 645, (4th Buatte v. 656 n. Cir. was insuffi- result, the evidence introduced States, 331 F.2d 1964) In revers- noting, resolve, but (all declining to the conviction, Judge Henley, speaking ing the issue); Wright, 2 C. Federal Practice and Court, said: the for Moore, 8 J. Procedure Federal again, the the case be tried Should (2d Practice ed. 129.09[2] to im- government well be able government argues, as the Dis proving evidentiary position by prove its held, that the trict Court defect at the first and admissions that the statements the mere “trial error” the rather court excluded in course district evidence, insufficiency the And the so that retrial original trial. had the permissible. is This misconstrues new trial as an alternative to the na moved for a of the defect in judgment acquittal, ture the first prayer his Sapir had government order a new trial. opportunity we would States, 422, all the evidence disposal 348 U.S. at its (1955); Bryan v. United through its jury; 99 L.Ed. 426 own inadvertence it Absent proof 338 U.S. failed to do so.3 of an essen- Douglas sought distinguish controlling Eighth thus 1. Justice Circuit case on this However, Bryan point. appellant v. United in Koonce the had question 94 L.Ed. 335 in which the Court so the moved for a new involved may squarely presented. order a new held that here was not Not until acquittal, alternative to did this Court address trial as an alternatively appellant presented for moved where trial in the district court. and for new 3. The rather than the District accept responsibility cites United States must failure to submit the crucial documents to the at the offense, tial element of the should those cases where insufficient evidence is no guilty; presented found had it motion has been made for a new trial and plainly done so “there would be double only a motion for a judg- acquittal has ment of been give Government another filed. The de- fendant cannot tried Sapir at this citizen.” go supra, at at 423 J.,

(Douglas, concurring). In the instant case there was sufficient go” simply is not entitled to “another to the Court to warrant produce it did not sufficient evidence cause part but of it present- was not through trial its own mistake.4 ed to the found defendant guilty. This is not like case where evidence to the defendant is admitted prejudicial I consider this a trial error and would and a conviction obtained. affirm the of conviction entered case, retrial permissible In such a after retrial.

the conviction is for very *4 strong policy reasons. See United Tateo, reasons are ab- here.5

sent of the District Court the cause remanded with di- UNITED STATES rections to enter Gary CHEYENNE, Appellant. Manuel dis- senting: No. 77-1025. respectfully I majority dissent from the States Court of opinion my colleagues. learned are not like

facts this case those in the May requiring cases cited instead of a new trial because of Forman v. United disagreement have no holdings I with the high price first trial. At the conference in the close of the first were chambers at society be a indeed for to when the certificates pay granted immunity accused produced, counsel, the District Court told punishment any from defect suffi- going not to read “We are these to the pro- to constitute reversible error in the you want to. unless The reference can be ceedings leading to conviction. From the open govern- made to them.” This left it defendant, standpoint of a it is at least doubt- that the ment counsel to see certificates were ful that courts would be as zealous jury’s attention, brought to the but this was not they protecting against now are in done. improprieties effects of at the trial or also contends that certain stage if knew that reversal of a convic- language to the the ure of first opinion, adverting in this Court’s first put irrevocably tion would yond the accused retrial, possibility necessarily decided prosecution. the reach of further fact, question presented In the fail- case, appellant In this is entitled to dismissal to move for new trial after the error,” not because of mere “reversible brought this Court’s atten- appeal tion in the so that the because of failure of the problem decided the case was not aware this prima paying facie case to the It is not language arise. The of this for further would date, ings Court’s man- price high grant immunity prose- too from proceed- “remanded ... against cution to a defendant whom the opinion,” not inconsistent with this left unsuccessfully has once tried undecided whether retrial would case, opened make a and who has not permissible, by moving whole record for new trial. Tateo, supra, 5. In United States v. 377 U.S. at Court said: