Reply Brief — Abney v. United States

ROR ARGUMENT

IN THE

Supreme Court of the Anited

OCTOBER TERM, 1976

No. 75-6521

DONALD ABNEY, LARRY STARKS and

ALONZO ROBINSON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS VOR THE THIRD CIRCUIT

REPLY BRIEF FOR PETITIONERS

RALPH DAVID SAMUEL, ESQUIRE

Attorney for Larry Starks

4013 Chestnut Street

Philadelphia, Pa. 19104

215-EV7-5535

THOMAS C. CARROLL, ESQUIRE

MARK D. SCHAFFER, ESQUIRE

Attorneys for Alonzo Robinson

Defender Association of Phila.

Federal Court Division

Room 904, 21 South 12th Street

Philadelphia, Pa. 19107

215-568-5200

JOEL HARVEY SLOMSKY, ESQUIRE

Attorney for Donald Abney

2616 Girard Plaza

Philadelphia, Pa. 19102

215-LO8-6188

Sa EE ITE eS aE a ED

Washington OC ©¢ CLS PUBLISHERS © LAW PRINTING CO. © (202) 393-0525

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—

(i)

TABLE OF CONTENTS

Page

1. QUSRBTOCRGS PRESENTED 2c cic cc cccccccecs l

Il. SUMMARY OF ARGUMENT ................-. 2

iil. ARGUMENT:

A. The Order of The District Court Dismissing

Petitioners’ Plea of Double Jeopardy is a

“Final Decision” and Appealable Before

| es Pe re re 4

B. Absent The Right of Appeal, The Court

Below Had Jurisdiction Pursuant To Its

ED. 6 685 0666 eee een seweeee 9

C. Tix Sufficiency of Pctitioners’ Indictment is

Properly Before This Court ................. 12

PE «yeh ncee sens ceb0bs64 e600 490% 15

Dns: oc os a 65 6 ce eee ee 6 ee ees 16

TABLE OF AUTHORITIES

Cases:

Alligator Co. v. LaChemise Lacoste, 421 U.S. 938

Pe an e¢cetaksvaannksdeeawkan eae creekes 14

A. Olnick & Sons v. Dempster Bros., Inc., 365 F.2d

Pr wee sss. cee ewe E wes Oe eet ek eee se 19

Bankers Life & Casualty Co. v. Holland, 346 U.S.

PPE bk beewcceweddeneeeeee cee eenves. 18

Benton v. Maryland, 395 U.S. 784 (1969) ............ 17

Beacon Theatres v. Westover, 359 U.S. 500 (1959) ...... 11

Blay v. Young, 509 F.2d 650 (6th Cir. 1974) .......... 18

Carter v. Seamans, 411 F.2d 767 (Sth Cir. 1969),

cert. denied, 397 US. 941 (1970) ow. ccc ccc 11

Chicago, Rock Island & Pacific R. Co. v. Stude, 346

Se UD 6 onl tS ws EN oeaeebGesdedee 13,14

(ii)

Page

Cobbledick v. United States, 309 U.S. 323 (1940) ..... 3,6,17

Cogen v. United States, 278 U.S. 221 (1929) .......... 18

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

PPT PTT Tere eT eT ToC 3,7.16

Colombo v. New York, 405 U.S. 9 (1972) ......... 5,16,17

Deckert v. Independence Shares Corp., 311 U.S.

GEE 6406644600 RS eae beet a teed 4,12,13

DiBeila v. United States, 369 U.S. 121 (1962) ........ 8,18

Dombrowski v. Pfister, 380 U.S. 479 (1965) ........... 17

Donnelly v. Parker, 486 F.2d 402 (D.C. Cir. 1973) ...... 1]

Flora Construction Co. v. Fireman’s Fund Insurance

Co., 307 F.2d 413 (10th Cir. 1962), cert.

Gente, SFE UB FGPG ccc cet wccceeceacece 18

F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966) ........ 9

General Tire & Rubber Co. v. Watkins, 363 F.2d 87

(4th Cir. ), cert. denied,385 U.S. 899 (1966) ........ 19

Green v. United States, 355 U.S. 184 (1957) .......... 6

Hackett v. General Host Corp., 455 F.2d 618 (3d

Cir.), cert. denied, 407 U.S. 925 (1972) ............ 18

Harris v. Washington, 404 U.S. 55 (1971) ...... 2,5,8,9, 16,17

Hartley Pen Co. v. United States District Court, 287

F.2d 324 (Sth Cis. 1961) 0... ccc c cee ercccees 12

Heike v. United States, 217 U.S. 423 (1910) ......... 17

Hoffman v. Blaski, 363 U.S. 335 (1960) ............. 1

International Nickel Co. v. Martin J. Barry, Inc.,

204 F.2d 583 (4th Cir. 1953)... eee ee ee ee 18

Johnston v. Marsh, 227 F.2d 528 (3d. Cir. 1955) ....... 11

LaBuy v. Howes Leather Co., 352 U.S. 249 (1957) .... 3,9,11

Lange, Ex parte, 85 U.S. (18 Wall) 163 (Oct. 1873

a ee Par ee ae er age ee eee eee 6,8

Local No. 438, Construction Laborers Union v.

16

Cusy, 371 US. $42 (1963) ........ cece cc eeee

(iii)

Page

Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co.,

173 F.2d 866 (2d Cir. 1950) (L. Hand, J.) ......... 3,9

Meccano, Ltd. v. John Wanamaker, N.Y., 253 U.S.

EE cu ic oie, cons de odbade duxvks oa 12

Mills v. Alabama, 384 U.S. 214 (1966) .............. 8

Perlman v. United States, 247 U.S. 7(1918) ........ 6 .7,8,17

Peru, Ex parte, 318 U.S. 578 (1943) ............00-. 1]

Peterson, Ex parte, 253 U.S. 300 (1920) ............. 1]

Rankin v. The State, (11 Wall) (78 U.S.) 380 (Dec.

DE) + acess 066k 504 ON Ok 62 hah Cen 16

Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965) ...... 18-19

Rex v. Barker, 3 Burr. 1265, 97 Eng. Rep. 823

«6 ob 644406 ba chk eees oe bee Noh ees 3,11

Roche v. Evaporated Milk Association, 319 U.S. 21

PPT TT Tere TT oT Te errr Te TT 3,11

Schlagenhauf v. Holder, 279 U.S. 104 (1964) ...-.. 4,12,13,14

Shapiro v. Bonanza Hotel Co., 185 F.2d 777 (9th

Sk Se |) Mine eeedee Wee ob ee hae e en eee ees 18

Simons, Ex parte, 247 U.S. 231 (1918) .............. 11

Stack v. Boyes, 342 US. 1 CIGSE) 2. cc cccvccscccce 3,7,8,17

Texaco Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967) ...... 19

Thomas v. Beasly, 491 F.2d 507 (6th Cir.), cert.

CE, Ge See SU OED on coc ees ccaveesecées 16

Turner v. Arkansas, 407 U.S. 366 (1972) ......... 5,9,16,17

United Mine Workers v. Gibbs, 383 U.S. 715 (1966)...... 19

United States v. Alessi, No. 76-1189 (2d Cir. July 7,

1976), petition for cert. filed, (No. 76-176)

aa a a ee eee ee 16

United States v. Bailey, 512 F.2d 833 (Sth Cir.),

cert. dismissed,423 U.S. 1039 (1975) ............. 16

United States v. Ball, 163 U.S. 622 (1896) ............ 3,5

(iv)

Page

United States v. Barket, 530 F.2d 181 (8th Cir.

1975), cert. denied, (No. 75-1280) (November 1,

Ry Se er eee ae 16,19

United States v. Bartemio, No. 76-1039 (7th Cir.

April 5, 1976), cert. filed, No. 75-6657 ........... 16

United States v. Beard, 414 F.2d 1014 (3d Cir.

en” 20506 sawewebhedes bes eeks bbceues Sa 14

United States v. Beckerman, 516 F.2d 905 (2d Cir.

CPSC ET ET Cee Teer Metabo neeeke ences 16

United States v. Briggs, 514 F.2d 794 (Sth Cir.

Py Udevintivsleceutdedueeeeueuseeseeus 18

United States v. Dinitz, 96 S. Ct. 1075 (1976) ......... 5.8

United States v. DiSilvio, 520 F.2d 247 (3d Cir.),

cert. denied, 423 U.S. 1015 (1975) ............ 10,16

United States v. Jorn, 400 U.S. 470 (1971) ........... 6

United States v. Lansdown, 460 F.2d 164 (4th Cir.

SE bbc ebasebenGenbereceecessnsese wen 8,16

United States v. MacDonald, 531 F.2d 196 (4th

Cir.), petition for cert. filed, (June 27, 1976)

(He. 75-1602) 43 UBL... SRS ccc cccccccccs l

United States v. Seuss, 474 F.2d 385 (lst Cir.),

ome. Gamied, Gis US. FRO CIS) ccc ccc cicesses

United States v. Starks, 515 F.2d 112 (3d Cir.

Ey ee eee ere rr eee

United States v. Young, No. 75-3102 (9th Cir.

DC ED nods ctbeeeseeedaneemee sees

Western Geophysical Co. of America, Inc. v. Bolt

Associates, Inc., 400 F.2d 765 (2d Cir. 1971)

STC caeese se une 6 060k 0 Gee see Rnnens

Woodcock v. Donnelly, 470 F.2d 93 (Ist Cir. 1972)

Ge PPT Tee Tee Te TE eee eT ee

Younger v. Harris, 401 U.S. 37 (1971) ..........0000e-

(v)

Page

C. astitution and Statutes:

United States Constitution:

PR EE ccc ch cccecersneceessseness 17

EE ns cobs coves cenesevevabees Passim

PU Ss onk cc cccéccccseveneuccsas 17

Pe EY cto weusvderecocnccansans 17

A, A ere ee 5,9,16,17

Sees UE 6c 5 bu se Oasbeeeesees 2,5,8,16,17

ae Ss ED Sekt w dee ebu dee senwae ea 18

See, ED oc i wachbaduane eee eae 18

EE ee ee ee rt 17

Rule of Court:

Federal Rule of Criminal Procedure, Rule 12(b)(2)........ 14

Miscellaneous:

Blackstone’s Commentaries, Vol. 4,315 .............. 6

Mandamus Proceedings In The Federal Courts of

Appeals: A Compromise With F... sity, 52 Cal.

= F | Barro eee ee 19

J. Moore Federal Practice - Volume 9 ............ 7,18,19

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 75-6521

DONALD ABNEY, LARRY STARKS and

ALONZO ROBINSON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

REPLY BRIEF FOR PETITIONERS

I.

QUESTIONS PRESENTED

1. Whether the double jeopardy clause of the Fifth

Amendment provides to defendants who claim that

retrial will subject them to double jeopardy, a right to

have that claim considered on its merits prior to the

second trial?

2. Whether the Court of Appeals properly reviewed

the District Court’s denial of petitioners’ motions to

2

dismiss the indictment on grounds of double jeopardy

where:

a. The District Court’s denial finally disposed of

petitioners’ claims that a second trial would

subject them to Double Jeopardy in violation of

their Constitutional Rights?

b. Tne District Court’s incorrect assumption that it

was without power to decide the Double

Jeopardy claim, could have been reviewed by

the Circuit Court of. Appeals under its

Mandamus powers?

3. Whether this Court should review the sufficiency

of the indictment in this case where the Rules provide

for review and to do so will not delay the proceedings

and may avoid further unnecessary litigation?

II.

SUMMARY OF ARGUMENT

The Government has challenged the jurisdiction of

the Court of Appeals to pass on petitioners’ claims that

(1) re-trial would violate the Double Jeopardy Clause of

the Federal Constitution, and (2) their indictments

should be dismissed for failure to state a claim.

Petitioners’ believe the Third Circuit properly heard this

case, and that this Court therefore should consider the

merits previously briefed.

A. This Court has thrice held denials of double

jeopardy claims final and reviewable before re-trial. F.g.,

Harris v. Washington, 404 U.S. 55, 56 (1971). Such

final decisions are of course reviewable by the

appropriate Circuit Court of Appeals. 28 U.S.C. §1291.

Claims founded on the Double Jeopardy Clause can be

vindicated only if made, and, if necessary, reviewed

3

before re-trial, for the Clause protects against the

second, illegal trial itself. E.g., United States v. Ball,

163 U.S. 662, 669 (1896). As Mr. Justice Frankfurter

pointed out, an order entered before conviction and

sentencing which, if erroneous, would destroy the

constitutional right, must be considered final and

appealable. Cobbledick v. United States, 309 U.S. 323,

328-29 (1940). Accord, Stack v. Boyle, 342 U.S. 1, 6-7

(1951). Application of this doctrine to allow an appeal

here preserves intact prior restrictions on appealability.

The propriety of an appeal also follows from the

Satisfaction of the criteria for finality set forth ia

Cohen v. Beneficial Industrial Loan Corporation, 337

U.S. 541, 546 (1949),

B. Even if an appeal should be held unavailable to

petitioners, this Court’s jurisdiction remains unimpaired,

for the Third Circuit could have properly heard the

merits uuder its mandamus powers.

A court of appeals has the “naked power” to issue

such a writ, where it could entertain an appeal at some

stage of the proceedings. E.g., LaBuy v. Howes Leather

Co., 352 U.S. 249, 255 (1957). And when presented

with an improperly filed appeal, courts of appeals have

commonly acted as though mandamus were requested.

E.g., Magnetic Engineering & Mfg. Co. v. Dings Mfg.

Co., 178 F.2d 866, 869 (2d Cir. 1950) (L. Hand, J.).

Petitioners’ case easily meets the traditional criteria

for invoking the mandamus power. The trial judge here

believed that petitioners had a “serious” double

jeopardy claim, but refused to consider it because he

erroneously assumed the Third Circuit had pre-empted

his doing so. Such an abdication of jurisdiction is

correctable by mandamus. E.g., Roche yv. Evaporated

Milk Association, 319 U.S. 21, 31 (1943). Further,

mandamus traditionally lies where there is no other

adequate means of correcting a “‘failure of justice.”’ Rex

v. Barker, 3 Burr. 1265, 1267, 97 Eng. Rep. 823, 824

4 ‘

(1762). As with actions unconstitutionally removed

from a jury’s scrutiny, the unconstitutional imposition

of a second criminal trial, absent a right of appeal, can

be cured only through mandamus. To wait upon final

judgement here would offer petitioners no more that

the vindication of a right already dead.

C. Once this Court has assumed jurisdiction of

petitioners’ double joepardy claim, it should also

consider the sufficiency of petitioners’ indictment.

A federal appellate court with jurisdiction of an

appeal on one question may consider another issue if it

would result in dismissing the complaint and termi-

nating the litigation. Deckert v. Independence Shares

Corporation, 311 U.S. 282, 287 (1940). Here, if

petitioners’ indictment is insu/ficient, it must be

dismissed. In Schlagenhauf v. Holder, 379 U.S. 104,

111 (1964), this Court considered an independently

unreviewable question together with a question properly

before it—even though the resolution of the former

issue could not completely terminate the litigation.

Where the decision of crucial “pendent” issues could

materially advance the litigation—and here the litigation

would terminate—the policy against piecemeal appeals

requires their review.

ARGUMENT

A.The Orver of The District Court Dismissing

Petitioners’ Plea of Double Jeopardy is a

“Final Decision” and Appealable Before

Re-trial.

The jurisdictional question raised by respondent is

whether the order of the trial judge overruling

5

petitioners’ pleas of double jeopardy was a “final

decision” and hence appealable to the Court of Appeals

before petitioners’ allegedly illegal second trial. 28

U.S... §1291. The Third Circuit below followed its

own case and those of three other circuits in allowing

the appeal.' Two circuits disagree.”

This Court has thrice held that denials of claims of

former jeopardy are final before the second trial. Harris

v. Washington, 404 U.S. 55, 56 (1971); Colombo vy.

New York, 405 U.S. 9 (1972); Turner v. Arkansas, 407

U.S. 366 (1972). In all three cases this Court

considered the merits of doubie jeopardy claims

brought here before trial under 28 U.S.C. §1257, which

permits review only of “final judgments or decrees” of

state courts.* In Harris this Court stated:

Since the state courts have finally rejected a

claim that the Constitution forbids a second trial

of the petitioner, a claim separate and apart from

the question of whether the petitioner may

constitutionally be convicted of the crimes with

which he is charged, our jurisdiction is properly

invoked under 28 U.S.C. §1257.

404 U.S. at 56 (emphasis in original).*

This statement recognizes the obvious: The right of

citizens not to be twice jeopardized can only be

protected by allowing claims upon it to be made and, if

necessary, reviewed before retrial. If petitioners must

wait until after trial to obtain review of their double

jeopardy plea, this right will have been forfeited.

Of course, the Double Jeopardy Clause protects not

only against double conviction and punishment, or

conviction and punishment after acquittal, but against

the second, illegal trial itself: “The prohibition is not

against being twice punished, but against being twice

put in jeopardy.” United States v. Ball, 163 U.S. 662,

669 (1896). Accord, United States v. Dinitz, 96 S. Ct.

6

1075, 1079 (1976): United States v. Jorn, 400 US.

470, 479 (1971) (plurality opinion of Harlan, J.); Green

v. United States, 355 U.S. 184, 187-88 (i957). The

citizen’s freedom from trial twice imposed was deeply

rooted in the Anglo-American tradition long before

Ball:

The common law not only prohibited a second

punishment for the same offense, but it went

further and forbid a second trial for the same

offense, whether the accused had suffered

punishment or not, and whether in the former

trial he had been acquitted or convicted.

Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (Oct. 1873

term), citing* Blackstone’s Commentaries 315; see

Lange, supra at 178.

Mr. Justice Frankfurter. in Cobbledick v. United

States, 309 U.S. 373, 328-29 (1940) decisively

demonstrated that an order which, if erroneous, would

destroy a constitutional right of a party before that

party has been convicted and sentenced must be

considered final and appealable. The Justice discussed

Perlman vy. United States, 247 U.S. 7 (1918):

There, exhibits owned by Perlman and im-

pounded in court during a patent suite were... di-

rected to be produced before a grand jury.

Perlman petitioned the district court to prohibit

this use, invoking a constitutional privilege. The

petition was denied and Perlman sought review

here. The United States claimed that the action of

the district court was “not final” but merely

interlocutory and therefore not reviewable by this

Court. We rejected the Government’s contention.

To have held otherwise would have rendered

Perlman “powerless to avert the mischief of the

order...” 247 U.S. at 13....To have denied him

opportunity for review on the theory that the

district court’s order was interlocutory would have

7

made the doctrine of finality a means of denying

Perlman any appellate review of his constitutional

claim. Due regard for efficiency in litigation must

not be carried so far as to deny ail opportunity for

the appeal contemplated by the statutes.

309 U.S. at 328-29 (footnote omitted emphasis

supplied). Similarly, in Stack v. Boyle, 342 U.S. 1, 6-7

(1951), denial of a motion to reduce unconstitutionally

high bail was held appealable before trial. Otherwise the

right to reasonable bail would have been lost forever.

Cf. 9 J. Moore Federal Practice 9110.10 at 134 (an

order which “effectively end[s] ...the whole federal

claim or right asserted” should be appealable, citing

Stack).$

The rule urged by petitioners is a direct application,

not an extension, of prior appealability doctrine.

Perlman, Stack, and the case at bar are unusual in that

the basic right to be protected is threatened with

extinction before final conviction. Other cases, however,

will remain unappealable.®

The government argues that denial of a right asserted

under the Double Jeopardy Clause is not final under

the doctrine of Cohen vy. Beneficial Industrial Loan

Corporation, 337 U.S. 541, 546 (1949). Under Cohen,

a decision which does not completely dispose of a case

is final if it appears to fall in that small class [of

orders} which finally determine claims of right

separable from, and collateral to, rights asserted in the

action, too important to be denied review and too

independent of the cause of action itself to require that

appellate consideration be deferred until the whole case

is adjudicated. The government asserts that a double

jeopardy claim is not collateral to the main cause of

conviction: the defendant can protect his right not to

be doubly punished under the Clause by post-conviction

appeal.

8

To hold this, however, would be to overrule the

entire line of cases from Ex parte Lange and United

States y. Dinitz, all supra, and to hold that the Double

Jeopardy Clause does not protect against being twice

tried for the same offense. The assertion of this right

cannot merge into a judgment upon retrial: the retrial

destroys it. That petitioners’ claim under the clause is

collateral to the main cause of action here was

demonstrated both in Harris, quoted supra, and United

States v. Lansdown, 460 F.2d 164, 171 (4th Cir.

1972):

First, defendant’s right is under the fifth

amendment and it is separable from, and collateral

to, the main cause of action which is whether he is

innocent or guilty of the crimes charged. Second,

the right claimed is a constitutional one and, as

such, it is too important to be denied review.

Finaliy, if review is not had now, the right

claimed—to be free from being twice forced to

stand trial for the same offense—will be irreparably

lost.

Of course, the final judgment rule generally governs

appeals in the federal courts, particularly in criminal

prosecutions. DiBella v. United States, 369 U.S. 121.

126 (1962). Yet the statement, “Every statutory

exception [to finalty] is addressed either in terms or by

necessary operation solely to civil actions,” id., does

not mean that no order in a criminal case can ever be

appealed before judgment of conviction and sentence.

As demonstrated above, petitioners here in fact meet

the finality requirement for appeal under §1291, and

need not fit themselves into any statutory exception.’

Were the DiBella \Janguage read to forbid all presentence

appeals in criminal cases, review could not have been

had in either Perlman vy. United States, supra, or Stack

v. Boyle, supra, which was specifically approved in

DiBella, 369 U.S. at 126. Cf. Mills v. Alabama, 384

ese

9

U.S. 214, 217-18 (1966) (appeal of controlling

constitutional question answered by state court before

trial taken as final under § i257); Harris v. Washington,

Colombo v. New York, and Turner v. Arkansas, all

supra (double jeopardy cases).

B. Absent The Right of Appeal, The Court

Below Had Jurisdiction Pursuant to its

Mandamus Powers

The Government challenges this Court’s jurisdiction

to hear petitioners’ claim of double jeopardy. arguing

that an appeal to the Court of Appeals was not an

available remedy. As noted above, we disagree. But even

if the Government were correct in its contention that

an appeal did not lie, its conclusion that this Court

lacks power to grant relief does not follow.

Assuming arguendo the unavailability of appeal, the

Third Circuit should have reached the merits of the

constitutional claim (as it did) by treating petitioners’

notice of appeal as an application for a writ of

mandamus. The conditions upon which the availability

of the extraordinary writ depend are satisfied in this

case if this Court finds petitioners’ appeal inappropriate.

It is, of course, plain under the All Writs Act that a

court of appeals has the “naked power” to issue such a

writ where it could “at some stage of the... pro-

ceedings” entertain an appeal. LaBuy v. Howes Leather

Co., 352 U.S. 249, 255 (1957). See FTC v. Dean J Lods

Co., 384 U.S. 597, 603-04 (1966).

Moreover, as Judge Learned Hand observed in

Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 178

F.2d 866, 869 (2d Cir. 1950),

{I1}f we should have jurisdiction to issue the

writ, had the plaintiff applied for it at the time

10

when it appealed, we think that we ought to grant

it now, ignoring what is at best only a matter of

form; and for that reason we hold we are free to

treat the appeal as a petition for mandamus.'°

The point has particular force where, as _ here,

petitioners, in seeking relief by way of interlocutory

appeal rather than mandamus, were simply following

the law of the circuit as expressed in United States v.

DiSilvio, 520 F.2d 247 (3d Cir.), cert. denied, 423 U.S.

1015 (1975)."!

Petitioners’ case easily meets the accepted criteria for

invoking the mandamus power. First, the district judge’s

order denying petitioners’ double jeopardy motion

rested on his conclusion that he was without authority

to consider its merit. Thus, his decision was based

solely on the previous Third Circuit opinion involving

petitioners, United States v. Starks, 515 F.2d 112 (3d

Cir. 1975), in which double jeopardy was neither

briefed, argued, nor decided. Although he considered

the claim deserving of “‘very serious consideration,” the

trial judge erroneously assumed that he was precluded

from deciding it “in the first instance” (Appendix 49)

because the Third Circuit, after reversing the first trial

for an erroneous evidentiary ruling, had remanded for a

new trial. To be sure, that opinion contained “certain

rather explicit suggestions and __ instructions”

(Appendix 44) for the anticipated retrial—suggestions

prompted by the host of errors and _ near-errors

committed at the first trial, Starks, supra, 515 F.2d at

118, 123-24, 125. It should not have been construed,

however, to support the extraordinary proposition that,

irrespective of any motions, change in circumstance or

additional errors, a second trial was unconditionally

mandated.

The short of the matter is that petitioners never had

a chance to have the district court consider the motion

~~

———~*

é&—_ —

1]

on its merits. The trial judge, in taking the Circuit

Court’s pro forma order of a new trial (in essence a

ruling that the original trial was tainted by error) as a

ruling upon the double jeopardy claim never before the

appellate court, clearly abdicated his nisi prius juris-

diction to decide the issue. Such an abdication is

subject to review by mandamus. Roche vy. Evaporated

Milk Association, 319 U.S. 21, 31 (1943); See Johnston

v. Marsh, 227 F.2d 528 (3d Cir. 1955). Thus the Third

Circuit appropriately decided the case, irrespective of

whether its decision had the practical effect of

affirming the refusal below to pass on the merits.

Secondly, and no less importantly, we rely on the

principle, dating back to Rex vy. Barker, 3 Burr. 1265,

1267, 97 Eng. Rep. 823, 824 (k.B. 1762), that

mandamus lies where there is no other adequate means

of correcting “‘a failure of justice.” See Ex parte Peru,

318 U.S. 578. 586-87 (1943); Donnelly v. Parker, 486

F.2d 402, 408 (D.C. Cir. 1973); Carier v. Seamans, 411

F.2d 767, 773 (Sth Cir. 1969), cert. denied, 397 U.S.

941 (1970). Surely, the harrassment of a second, illegal

criminal trial is no less unjust than the burden of being

required to undergo a civil trial improperly referred to a

master, LaBuy v. Howes Leather Co., 352 U.S. 249

(1957), a civil trial improperly transferred to another

district, Hoffman vy. Blaski, 363 U.S. 335, 340-41n.9

(1960), or a civil trial in contravention of the right to a

jury, Beacon Theatres v. Westover, 359 U.S. 500, 511

(1959); Ex parte Peterson, 253 U.S. 300, 305-06

(1920); Ex parte Simons, 247 U.S. 231, 239-40

(1918). As we have indicated above, it is the vital

function of the double jeopardy clause of the

Constitution to save the defendant from being imper-

missibly forced to run the gauntlet of prosecution a

second time. A_ victory for petitioners on final

judgment, should relief be denied here, would indeed

12

“be a barren one.” Hartly Pen Co. v. United States

District Court, 287 F.2d 324, 330 (9th Cir. 1961).

It remains only to point out that, if this Court deems

mandamus rather than appeal the appropriate remedy in

the instant case, no useful purpose would be served by

dismissing the writ of certiorari and inviting petitioners

to proceed anew by filing an application for mandamus

in the Court of Appeals. That court has already

addressed the merits of the double jeopardy claim. This

Court has granted certiorari and the merits have been

fully briefed. The matter is accordingly ripe for review

now.

C. The Sufficiency of Petitioners’ Indictment is

Properly Before This Court.

One this Court has assumed jurisdiction of petition-

ers’ double jeopardy claim (whether on the “appellate”

or “mandamus” theory), it should also consider the

sufficiency of petitioners’ indictment. The court below

properly exercised its jurisdiction by addressing this

claim on the merits.

A federal appellate court which has jurisidction of an

appeal on one question involved in a case, here the

double jeopardy question, need not confine itself to the

original order appealed; “If insuperable objection to

maintaining the bill clearly appears, it may be dismissed

and the litigation terminated.” Deckert v. Independence

Shares Corporation, 311 U.S. 282, 287 (1940) (and

cases cited therein), quoting Meccano, Ltd v. John

Wanamaker, N.Y., 253 U.S. 136, 141 (1920). Since

petitioners’ bill of indictment is insufficient, there is

such an “insuperable objection: requiring its dismissal.

And in Schlagenhauf v. Holder, 379 U.S. 104, 111

(1964), a question not suitable for mandamus when

considered by itself was considered by this Court along

13

with a question that was appropriate, because such

consideration promoted the efficient litigation of that

case. In Schlagenhauf, answering the “‘pendent’’ ques-

tion might have speeded the litigation, but could not

formally end it; thus the justification for considering

petitioners’ claim on their indictment is even stronger

than required by precedent.

The question of the sufficiency of petitioners’

indictment may be considered now even though,

standing alone, it could not be addressed until after

conviction. Chicago, Rock Island & Pacific R. Co. v.

Stude, 346 U.S. 574, 578 (1954); Schlagenhauf ».

Holder, supra. In Stude, an original action in a federal

district court and an action removed from a state court

had been treated together by both the litigants and the

district court. The district court dismissed the original

action but refused to remand the removed action to the

state court. This court allowed appeal of the refusal to

remand because it

may be considered as assigned in a case involving

an appealable order, the order dismissing the

{original} complaint and the action. This is true

despite the fact that the order denying the motion

to remand standing alone would not be appealable.

Id. at 578, citing Deckert v. Independence Shares

Corporation, supra. See United States v. MacDonald,

531 F.2d 196, 199 (4th Cir.), petition for cert. filed

(June 29, 1976) (No. 75-1892) 43 U.S.L.W. 3005. (case

dismissed on speedy trial ground, not independently

appealable before trial, when “pendent” to double

jeopardy plea).'?

Note that in Stude, the consideration of the motion

to remand could take the case out of federal court, but

could not terminate the litigation altogether. Holding

petitioners’ indictment insufficient will end the litiga-

tion against them; thus efficiency requires examining

14

petitioners’ claim now even more clearly than it

required examining the claim in Stude. See Schlagen-

hauf v. Holder, supra.

The policy against piecemeal appeals ordinarily

suggests that an appellate court wait for completion of

all litigation below before considering questions; here,

by contrast, it requires consideration of petitioners’

indictment pendent to an appealable question. Consider-

ation of the indictment does not slow up this litigation

now, for the double jeopardy claim is on appeal; but

refusal to consider it virtually assures that if petitioners

are convicted an appeal will follow. This consideration

has led three Justices to suggest that in some

circumstances “pendent” appeals should be considered

mandatory, not merely acceptable. ““Otherwise wasteful

litigation is invited, and the losing party on the merits

is given another bite at the apple.’ Alligator Co. v. La

Chemise Lacoste, 421 U.S. 937, 938-39 (1975) (White,

Blackmun, and Powell, JJ., dissenting from denial of

certiorari).

It is no objection to jurisdiction here that petitioners

challenged the sufficiency of the indictment for the

first time in the Court of Appeals. Federal Rule of

Criminal Procedure 12(b)(2) allows claims that an

indictment fails to state an offense to be raised at any

time during the proceeding. This has consistently been

held to allow the question to be raised for the first

time on appeal. F.g United States v. Seuss, 474 F.2d

385 (list Cir.), cert. denied, 412 U.S. 928 (1973);

United States v. Beard, 414 F.2d 1014 (3d Cir. 1969).

Finally, failure to raise the question in the trial court

has nothing to do with the issue of this Court’s

jurisdiction. The case is properly in this Court and, as

emphasized above, disposition of the merits of both

issues presented will expedite the entire case.*

et ee Pe

15

IV.

CONCLUSION

The Court of Appeals for the Third Circuit properly

exercised its power of appellate review when it took

jurisdiction of petiiuoners’ claims that the Double

Jeopardy Clause and the insufficiency of the indictment

bar their re-trial. This Court should therefore now

decide petitioners’ claims, and reverse the decision

below on the merits.

Respectfully submitted,

RALPH DAVID SAMUEL

oh? Warue

L HARVEY SLO.

SG

16

FOOTNOTES

'The leading Third Circuit case is United States v. DiSilvio,

520 F.2d 247 (3d Cir.), cert. denied, 423 U.S. 1015 (1975).

The first case to allow such an appeal was United States v.

Lansdown, 460 F.2d 164 (4th Cir. 1972). Accord, United States

v. Beckerman, 516 F.2d 905 (2d Cir. 1975); United States v.

Alessi, No. 76-1189 (2d Cir. July 7, 1976), petition for cert.

filed, 45 U.S.L.W. 3133 (Aug. 6, 1976), (No. 76-176)

(dubitante): United States v. Barket, 530 F.2d 181 (8th Cir.

1975), cert. denied, (November 1, 1976), (No. 75-1280). Cf

Thomas v. Beasly, 491 F.2d 507 (6th Cir.), cert. denied, 417

U.S. 955 (1974) (petitioner allowed to invoke federal Habeas

before retrial, claiming double jeopardy, because he had

exhausted all state remedies to protect his right not to be twice

jeopardized),

2United States v. Bailey, 512 F.2d 833 (Sth Cir.), cert

dismissed, 423 U.S. 1039 (1975); United States v. Young, No.

75-3102 (9th Cir. October 19, 1976).

Cf. United States v. Bartemio, No. 76-1039 (7th Cir. April

5, 1976), petition for cert. filed, No. 75-6657 (dismissing double

jeopardy appeal without opinion) (as cited in Government brief).

3The same basic principles of finality govern both 28 U.S.C.

§§1291 (‘final decisions” of U.S. District Courts appealable) &

1257 (“final judgments or decrees’ of highest state courts

reviewable by U.S. Supreme Court). See Local No. 438,

Construction Laborers Union yv. Curry, 371 U.S. 542, 549

(1963), sustaining review under §1257 for precisely the same

reasons earlier stated in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949) (construing §1291).

‘Harris, Colombo, and Turner do not by name overrule

Rankin v. The State, 78 U.S. (11 Wall.) 389 (Dec. 1870 term)

(plea of double jeopardy denied in state system not reviewable

by Supreme Court before second trial). All four cases, however,

can be reconciled. In 1870, the double jeopardy clause had not

been applied to the states. Thus a citizen had no recognized

federal right not to be tried a second time in the state courts,

and his right not to be deprived of life, liberty or property

without due process of law could be protected by review after

conviction. Now the citizen has the right not to be twice

jeopardized in state court. Cases cited in text immediately infra

17

define the double jeopardy right and Benton v. Maryland, 395

U.S. 784 (1969), applies it to the states. Thus the recent cases

allow Supreme Court review to protect that right.

The double jeopardy dictum in Heike v. United States, 217

U.S. 423, 432-33 (1910) can be similarly explained. To the

extent that it says that “the overruling of a plea of former

conviction or acquittal has never been held... to give a right of

review before final judgment [of conviction].” It has clearly

been rejected by Harris, Colombo, and Turner. ;

SCertain rights which citizens must enforce before trial may

be protected in ways other than the appeals provision of §1291.

For example, where a citizen alleges that a prosecution is

brought against him in bad faith, and that his state trial would

harrass him in violation of his first and fourteenth amendment

rights, his remedy is not appeal through the state system to the

Supreme Court (under §1257) before trial, but a separate action

under 42 U.S.C. §1983. Compare, e.g., Dombrowski v. Pfister,

380 U.S. 479 (1965), with Younger v. Harris, 401 U.S. 37

(1971). Similarly, all questions of federal bail, one type of which

was held appealable under §1291 in Stack v. Boyle, 342 U.S. 1,

6 (1951), are today reviewed under 15 U.S.C. §3147 (enacted

1966).

Thus the doctrine of appealability under §1291 which

petitioners urge is limited even further than Justice Frankfurter’s

Cobbledick opinion requires. Not all motions to protect rights

which will be destroyed before post-judgment appeal need be

appealable before trial, but only those which, as here, Congress

has not provided with another means of protection.

For example, while the facts of Cobbledick are similar to

those of Perlman, Cobbledick, unlike Perlman, could protect

himself from giving the evidence by refusing to turn it over and

appealing a citation for contempt. Thus this Court properly

refused to allow him an interlocutory appeal.

Similarly, in Heike v. United States, 217 U.S. 423 (1910),

the plaintiff in error had been granted immunity and had been

compelled to testify as to certain matters. He was then indicted,

he claimed, for a crime of which he could not be convicted

because of the immunity. This Court refused jurisdiction of his

pretrial appeal. Heike had already testified under compulsion, so

that the only violation of his fifth amendment rights which could

occur at the time was his conviction and punishment “out of his

own mouth.” Appeal after conviction was adequate security

18

against that possibility. (note 2 supra explains the double

jeopardy dictum in this case.)

In the typical case of a defendant moving to exclude

illegally seized evidence or a coerced confession from a trial,

appeal will also remain unavailable. Cogen v. United States, 278

U.S. 211 (1929) (illegally seized evidence); DiBella v. United

States, 369 U.S. 121 (1962) (same). A defendant’s right to be

punished only on the basis of constitutionally obtained evidence

can be vindicated on post-conviction appeal. His right not to be

coerced, no: to have his privacy invaded, cannot be protected by

pretrial appeal, for this violation has already occurred.

7An example of such a statutory exception is 28 U.S.C.

§1292(b), allowing certain interlocutory appeals in civil cases.

8The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. §1651(a) (1970).

°Compare Blay v. Young, 509 F.2d 650 (6th Cir. 1974)

(statute required United States Supreme Court to hear all appeals

from the three-judge court, thus available to Circuit court as “in

aid” of that court’s jurisdiction).

'04ccord, Western Geophysical Co. of America, Inc. v. Bolt

Associates, Inc., 440 F.2d 765, 769 (2d Cir. 1971) (Friendly, J.);

Woodcock v. Donnelly, 470 F.2d 93, 94 (Ist Cir. 1972) (per

curiam), Hackett v. General Host Corp., 455 F.2d 618, 626 (3d

Cir.), cert. denied, 407 U.S. 925 (1972), International Nickle Co.

vy. Martin J. Barry, Inc, 204 F.2d 583, 585 (4th Cir. 1953);

United States v. Briggs, 514 F.2d 794, 808 (Sih Cir. 1975);

Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 779 (9th Cir.

1950); Flora Construction Co, v. Fireman's Fund Insurance Co.,

307 F.2d 413 (10th Cir. 1962), cert. denied, 371 U.S. 950

(1963); see generally 9 J. MOORE, FEDERAL PRACTICE

q 110.26 at 316 & n.73 (2d ed. 1975).

"It is true that there is a difference in form between the

mandamus and appeal procedures, in that the former is usually

brought against the judge who issued the challenged order. That

can hardly be deemed a difference in substance. This Court's

discomfort with the mandamus procedure, expressed in Bankers

Life & Casualty Co. vy. Holland, 346 U.S. 379, 38485 (1953), to

the effect that the district judge ought not lightly be made a

litigant has been mooted by the Third Circuit in Rapp v. Van

19

Dusen, 350 F.2d 806, 810-13 (3d Cir. 1965); Texaco Inc. v.

Borda, 383 F.2d 607 (3d Cir. 1967) and by Fed. R. App. P.

21(b). The current practice is to make the district judge but a

nominal respondent, with no obligation to take part in the

proceedings. See General Tire & Rubber Co. v. Watkins, 363

F.2d 87, 89 (4th Cir.), cert. denied, 385 U.S. 899 (1966); A.

Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 442 (2d

Cir. 1966); 9 J. Moore, Federal Practice 4 221.03 at 3405 (2d ed.

1975). An apt analogue to the present case is the common

situation in which this Court treats an improperly filed appeal as

a petition for a writ of certiorari.

12See generally, Note, Mandamus Proceedings In The Federal

Courts of Appeals: A Compromise With Finality, 52 Cal L. Rev.

1036, 1046-47 (1964). The Government in this case acknowl

edges mandamus to be a proper remedy, specifically endorsing its

use where a district court has “refused to exercise the authority

with which it is endowed” or where the trial judge rejects

“seemingly meritorious double jeopardy claims without giving

them serious consideration.” Brief for the United States at 54,

55. The Governme.at has described precisely the facts of this

case, aS we point out, supra.

'31n MacDonald the court stated that the speedy trial claim

was considered because of the “extraordinary”’ nature of the

case. In United States v. Barket, 530 F.2d 181, 186 (8th Cir.

1975), cert. denied, (November |, 1976), (No. 75-1280), the

court of appeals refused to consider a claim that the indictment

of appellant was insufficient or that he was charged under an

unconstitutional statute. The court did not hold itself without

power to consider the claim if it had felt that justice would have

been speeded thereby. The Barket court may well have

concluded that the constitutional question would turn upon the

particular application of the statute to the facts of Barket’s case,

which would only become clear through trial testimony. See note

7 infra, These cases indicate at most that a court of appeals has

discretion not to consider “pendent” appellate claims. Cf. United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (district judge

has discretion whether or not to consider state claims pendent to

federal claims). Because of the efficiency in considering the

sufficiency of petitioners’ indictment now, the court below

exercised its discretion wisely in agreeing to consider it, and it is

properly before this Court.

20

4Obviously, the class of questions which can be brought up

for review in this manner should be limited to those that can be

intelligently decided on the record before the appellate court.

Here the record is complete — the indictment either does or does

not state a federal offense in proper form and the court below

has already registered its opinion on the question.