Florence Umbriaco v. United States of America, United States of America v. Florence Umbriaco

258 F.2d 625 Florence UMBRIACO, Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America, Appellant, v. Florence UMBRIACO, Appellee. No. 15812. United States Court of Appeals Ninth Circuit. July 22, 1958. John V. Evich, Seattle, Wash., for appellant. Charles P. Moriarty, U.S. Atty., Jeremiah M. Long, Asst. U.S. Atty., Seattle, Wash., for appellee. Before ORR, POPE and FEE, Circuit Judges. ORR, Circuit Judge. 1 Florence Umbriaco was convicted on two counts of an indictment charging a violation of section 1621, 18 U.S.C.A. (perjury). The trial court set aside the conviction under Count I and the Government has attempted to appeal from that judgment. Florence Umbriaco has appealed from her conviction on Count II. 2 We have considered the Government's attempted appeal and conclude it should be dismissed because this Court lacks jurisdiction to entertain it. The Government urges that its appeal is authorized by section 1291, 28 U.S.C.A. We are not so persuaded. The grant to the Government of the right to appeal is exclusively contained in 18 U.S.C.A. 3731. United States v. Nardolillo, 1 Cir., 1958, 252 F.2d 755 . The action of the trial court was neither an order…

Florence Umbriaco was convicted on two counts of an indictment charging a violation of section 1621, 18 U.S.C.A. (perjury). The trial court set aside the conviction under Count I and the Government has attempted to appeal from that judgment. Florence Umbriaco has appealed from her conviction on Count II.

We have considered the Government’s attempted appeal and conclude it should be dismissed because this Court lacks jurisdiction to entertain it. The Government urges that its appeal is authorized by section 1291, 28 U.S.C.A. We are not so persuaded. The grant to the Government of the right to appeal is exclusively contained in 18 U.S.C.A. § 3731 . United States v. Nardolillo, 1 Cir., 1958, 252 F.2d 755 . The action of the trial court was neither an order setting aside or dismissing an indictment nor an arrest of judgment 1 within the meaning of § 3731, but was an acquittal of the charge made in the indictment, as is authorized by Rule 29(a), Fed.R.Crim.P., 18 U.S.C.A. An appeal from a judgment of the trial court acquitting a defendant because of the insufficiency of the evidence has never been permitted in Federal Courts. It seemed so elementary that we are surprised to find such…

(concurring).

I agree with all that is said in the court’s opinion. I wish to add further that in my view it is hardly necessary to deal with one of the problems ably discussed in Judge ORR’s opinion. It is there said, “Oral, unsworn statements without further corroborating evidence have always been held insufficient.” With that statement I thoroughly agree; but I wish to add that in my view the oral unsworn statements referred to in the foregoing opinion are not only wholly insufficient but under the issues in this case they were irrelevant and immaterial.

For instance, Agent Gunn testified that on the evening of November 3, 1956, he interviewed appellant at his office and that she told him that immediately after she arrived with her husband in Seattle in June, 1952, the husband made arrangements with various bellhops for her to work as a prostitute and that she did so work while she and her husband lived at the Stewart Hotel. What influences my special view of this case is the language of the indictment,— Count 2. That count charges her with wilfully and contrary to her oath, stating what she did not believe to be true, to-wit, “did state and subscribe that during the period…