Opposition — United States v. Scott

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a RECEIVED

No. 76-1382 sun 4 74977

OFFicr cc “1PA

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1976

UNITED STATES OF AMERICA, PETITIONER

JOHN ARTHUR SCOTT

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR JOHN ARTHUR SCOTT

William C. Marietti

820 Terrace at Clay

Muskegon, Michigan 49440

Alexis J. Rogoski

710 Hackley Bank Building

Muskegon, Michigan 49440

Attorneys for Respondent

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INDEX

Opinion below

Jurisdiction

Question presented

Constitutional provision, statute

and rule involved

Statement of case

Reasons for denying petition

Conclusion

Appendix A

Appendix B

Page

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CITATIONS

Cases:

Lee v United States, No. 76-5187,

cert. granted, January 10, 1977

Green v United States, 355 U.S. 184

Serfass v United States, 420 U.S. 377

United States v Covington, 395 U.S. 57

United States v Lovasco, No. 75-1844

United States v Martin-Linen Supply Co.,

No. 76-120, decided April 4, 1977

United States v Sisson, 399 U.S. 267

United States v Wilson, 420 U.S. 322

Constitution and statutes:

United States Constitution, Fifth

Amendment

Page

ll, 12, 13, 15

10

5, 7

8

13

5, 8, 9

8, 12

5, 6, 7

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IN THE SUPI.EME COURT OF THE UNITED STATES

October Term, 1976

No. 76-1382

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN ARTHUR SCOTT

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR JOHN ARTHUR SCOTT

OPINION BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit in this cause is reported at 544 F.2d 903.

JURISDICTION

The Petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. 1254(1).

STION PRESENTED

Should the Government be permitted to subject the respondent

to another trial on one count of a three count indictment when that

count was dismissed by the court at the conclusion of presentation

of all of the evidence at trial and the jury found the defendant

not guilty of another count charged in the same indictment?

CONSTITUTIONAL PROVISION, STATUTE

“~~ AND RULE INVOLVED

The respondent accepts the statement of the petitioner as

to the relevant laws and rule.

STATEMENT OF CASE

On January 22, 1975, John Arthur Scott was arrested on

two complaints authorized by the United States Attorney charging

him with distribution of codeine on September 24, 1974, and heroin

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on January 22, 1975. A preliminary examination was conducted on

February 18, 1975, as to both charges. On March 5, 1975, the

grand jury returned an indictment with counts covering the charges

contained in the complaints. In addition, another charge was

added referred to as Count I. That count alleged distribution of

cocaine on September 20, 1974. Count I is the subject of the pe-

tition herein.

On April 8, 1975, respondent filed a timely motion to dis-

miss Counts I and II, the September 20 and 24 allegations, due to

pre-indictment delay. Counsel for the respective parties sub-

mitted briefs on the motion and oral argument was presented. The

court denied the petition without prejudicing the respondent from

renewing the motion after evidence was presented at trial.

The government's case as to Count I consisted of the tes-

timony of a paid informant that he had received cocaine from the

respondent while the two were alone in his residence on September 20,

1974.

Mr. Scott testified that he was an undercover officer for

the Central Narcotics Unit of Muskegon County, Michigan. He in-

dicated that he knew the informant because he had conducted an

investigation which had culminated in the informant's arrest on a

charge of possession of heroin in May, 1974.

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The respondent testified in detail regarding the allega-

tions of January 22, 1975. His testimony was corroborated by

several other witnesses who confirmed that the informant had been

boasting about the fact that he had “set up" Officer Scott.

As to the September 24, 1974 incident, the respondent

was the only witness on his behalf. He related the facts sur-

rounding that allegation with less specificity than the January 22

incident.

As for the allegations in Count I, again, Officer Scott

was the only witness on his own behalf. However, unlike the other

counts, he was unable to recall any of his activities on September

20, 1974. He did deny ever delivering drugs to the paid informant.

At the conclusion of the presentation of the government's case,

the respondent renewed the motion for dismissal based on pre-

indictment delay. The court, again, denied the motion wichout

prejudice to renew it at the conclusion of all of the proofs.

Consequently, after Officer Scott testified he had no rec-

ellection of the September 20, 1974, events and all of the evidence

from both sides was presented, the motion to dismiss was renewed.

After hearing all of the evidence presented to the jury, the judge

-uled on the motion and dismissed Counts I and II. The jury

thereafter acquitted the respondent as to Count III.

After receiving an extension of time for filing notice of

Claim of appeal, the government appealed the court's decision re-

garding Counts I and II. The Sixth Circuit Court of Appeals dis-

missed the appeal and affirmed the judgment of the district court.

A petition for rehearing was denied.

REASONS FOR DENYING PETITION

The apparent basis for the petition by the government that

review would be appropriate in this case is that it is the precise

issue reserved by the court in Serfass v United States, 420 U.S. 377,

394. (Br. 6). Im addition, the petitioner claims that the court has

not adequately considered this issue in the only other decision in-

volving remotely similar facts, United States v Wilson, 420 U.S. 322.

Finally, the government contends that the circumstances of United

States v Martin-Linen Supply Co., No. 76-120, decided April 4, 1977

are so dissimilar that the court's opinion in that case is not ap-

plicable. (Br. 6).

Without extensive elaboration on the lack of merit in the

government's petition, the respondent submits that the aforesaid rea-

sons for review are invalid. The petitioner's interpretation of the

applicability of Wilson is essentially correct. The case is clearly

distinguishable because of one significant point. In Wilson, the

dismissal of the charge by the court occurred after the jury had

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returned a guilty verdict. A reversal of the trial judge's ruling

on appeal would not have subjected the defendant to another trial

since the jury verdicc would have prevailed. In the instant case,

any reversal of the judgment of the trial court would necessarily

require a second trial.

The respondent submits that the opinion in Wilson permitting

appeal hinged upon this significant distinction in facts. The

court was mindful that the thrust of the Double Jeopardy Clause

was to block a second trial with all of the attendant anxiety and

expense which befalls the defendant. The opinion concluded that

appellate review was appropriate in Wilson because it would not

raise the possibility of these undesirable consequences to the de-

fendant nor would it afford the government any tactical advantages

in its prosecution. But for the fact the second trial was not

necessary, the Wilson court would have denied appellate jurisdiction.

This conclusion is implicit in the court's reasoning underlying its

decision. Id.at 352.

Applying the implications of Wilson to the instant case, it

is clear that appellate review is inappropriate. Should a reviewing

court determine to set aside the trial judge's ruling, the respondent

would be forced to stand trial once again on Count I. This is pre-

cisely the result that the Double Jeopardy Clause shields against

since Officer Scott has already faced the expense and anxiety of a

trial on Count I. All evidence was presented by both sides in

the first trial of this case, and a retrial would provide the

government with an opportunity to re-examine the weakness ?s in

its first presentation. This is condemned by Wilson. Id.

As for the contention that Serfass reserved the issue at

bar in this case, respondent submits the government has seriously

misinterpreted the opinion therein. The issue not decided in

Serfass was whether government appeal is permitted where a defen-

dant is afforded the chance to have a pretrial ruling of a legal

defense and deliberately defers raising the issue until after he

has been placed in jeopardy. 420 at 394. That hypothetical

is inapposite to the facts herein. The respondent filed a timely

motion to dismiss Count I for pre-indictment delay several months

prior to trial. There was no deliberate effort to defer the issue

until after jeopardy attached. The motion afforded the govern-

ment and the judge ample opportunity to resolve the issue prior

to commencement of trial. Furthermore, the respondent renewed the

motion before he introduced any proofs, and the court denied the

motion again without prejudice to renew at the conclusion of all

proofs. It is difficult to imagine what respondent could have done

to more diligently and appropriately pursue the issue. The problem

was raised at every opportunity and does not involve the deliberate

delay situation reserved in Serfass.

The respondent submits that the court has given the bench

and bar adequate guidelines to dispose of the questions herein through

its recent decision in United States v Martin-Linen Supply, No. 76-120,

decided April 4, 1977. The petitioner erroneously seeks to dis-

tinguish Martin-Linen by noting that it involved an “acquittal”.

(Br. 6, n.2). Assuming, arguendo that this case did not involve an

acquittal and Martin-Linen did, that is not a distinction of any

consequence. This court has ruled that the particular nomenclature

attached to the action taken by the lower court has no relevance to

deciding the applicability of the Double Jeopardy Clause. United

States v Sisson, 399 U.S. 267. Rather, a reviewing court must ex~

amine the basis for the decision in the lower court in order to de-~-

termine whether the action was, in fact, an acquittal which would

bar further prosecution. The test developed by Sisson is that the

trial court's action must not be based on any matters not apparent

on the face of the indictment itself. Id. In orde= to avoid ap~

plication of the Double Jeopardy Clause, the issue raised by the

defense must be capable of determination without trial of the

general issue and litigating the facts surrounding the commission

of the alleged offense must be of no assistance in determining the

validity of the defense. United States v Covington, 395 U.S. 57.

The facts in the instant case should be analyzed with

Sisson in mind. It is clear that the trial judge wanted to hear the

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evidence in the case to assist in deciding whether to dismiss or

acguit the respondent. The order denying the pretrial order in-

dicated,

"the defendant may reassert it if he chooses

after all evidence has been presented."

(App. A, infra).

In fact, the court considered evidence presented by both sides at

trial concerning the nature of Officer Scott's work, the circur-

stances surrounding his assignment to the narcotics squad, the

demeanor of the witnesses testifying, the impairment of recall of

events by both the respondent and the informant and based his

decision “solely out of the peculiar circumstances of this case”.

(App. B, infra). This type of amalysis by the trial court had

all of the incidences of an acquittal. Thus, Martin-Linen prin-

ciples would apply in this case.

Petitioner's brief refers to several factors which are con-

sidered by appellate courts in evaluating the applicability of the

Double Jeopardy Clause. These considerations, in the instant case,

are decisively resolved in favor of shielding Officer Scott from a

second trial. (Br. 8) The motion was diligently presented before

trial. The court's decision was obviously based upon evidence pre-

sented at trial. The cases cited in the government's brief indicate

that the factual situation herein prohibits a retrial of the

respondent.

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The petitioner seeks to have this court reverse its pre-

vious position as to the purpose of the Double Jeopardy clause

which is,

"The constitutional prohibition against ‘double

jeopardy’ was designed to protect an individual

from being subjected to the hazards of trial and

possible conviction more than once for an alleged

offense .. . The underlying idea, one that is

deeply ingrained in at least, the Anglo-American

system of jurisprudence, is that the State with

all its resources and power should not be allowed

to make repeated attempts to convict an individual

for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and

insecurity as well as enhancing the possibility

that even though innocent he may be found guilty.”

Green v United States, 355 U.S. 184, 187-88 (1957).

The government argues that the court should abandon its position

in Green and adopt the viewpoint that the primary purpose of the

Double Jeopardy clause is to secure to a defendant the right to

have a verdict from a particular factfinder. (Br. 8). This is

contrary to the above-cited quotation from Green. Moreover, what-

ever validity this argument may have as it relates to a mistrial

situation, such is not the case here. The ruling of the judge

in this cause was not based upon misconduct or error arising dur-

ing the course of the trial. The fatal error in this case actually

eccurred long before commencement of the trial with the unreason-

able delay before indictment. In that sense, the issue of obtain-

ing a verdict from a particular factfinder is not relevant. There

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was no error at trial which so contaminated the particular jury in- more attractive where he has deliberately deferred a motion more

volved as to require a mistrial. The facts which led to dismissal appropriately raised before trial. The defendant in Lee was able

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in this case were legitimately presented to the jury. If there to control his own destiny. That type of legal defense, a defective

were a retrial, the same facts could be properly injected into the charge, can be considered by looking at the face of the indictment

case before a different petit jury. Thus, the premise of the alone. Under those circumstances, the opinion in Sisson would sug-

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government's contention as to the purpose of the Double Jeopardy gest that a retrial would not be barred since it was not necessary

Clause is not relevant to the circumstances of this case. to go beyond the face of the pleadings to rule on the motion. The

Petitioner requests this court to change its position in issue could have been raised and decided at any time, and the ac-

Green and hinge the applicability of double jeopardy on one factor cused’s tactics in ise are vulnerable to a

stated in the government's brief in support of its petition in Lee However, in the instant case, the respondent proceeded with

v United States, No. 76-5187: whether the accused surrendered his diligence in pursuing his defense of unreasonable pre-indictment

right to receive the empaneled jury's verdict by request or agreement. delay. The accused presented a motion for dismissal based on this

(Br. 8). This proposition initially fails because, as noted in the defense prior to trial and requested a hearing thereon. In Lee,

previous paragraph, it misinterprets the rights protected by the Dou~ the government acknowledged there would have been merit to the

ble Jeopardy Clause as stated in Green. Moreover, the facts in Lee accused's claim of double jeopardy if he had filed a pretrial

are significantly different from the instant case. Lee actually ad- motion. (Lee, Br. 32). Pursuant to respondent's request herein,

dresses itself to the question reserved in Serfass -- the effect of a pretrial hearing was held and the motion was denied, but the

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the accused's deliberate delay in raising a legal defense until court did not prejudice his right to renew the motion after all

after jecperdy hes attached. In jee, the defendant elected aot to evidence was presented. Officer Scott did not ask that the ruling

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raise the motion for dismissal based on a defective indictment on his motion wait until after jeopardy had attached by completing

until after the trial had commenced and was chided by the trial court presentation of evidence to the bench and jury. He asked the judge

Situs (So. Gey eS oe to rule before trial. The court refused the request. At that point,

tention that the accused should not couplain of double jeopardy is the respondent relinquished control over his destiny to the court.

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Thus, the government cannot seriously contend that the accused

elected to have a ruling at the time the court chose to dismiss

Count I. The respondent was actually forced to undergo the trial

before his motion would be ruled upon. The only alternative to

renewing the motion after all evidence was presented would have

been to abandon this constitutional due process defense entirely.

Certainly, the government would not suggest that the accused

should have been required to elect to forfeit his constitutional

right to due process of law.

In fact, the government's suggestion in its brief that

respondent elected the course of action followed by the trial

judge is scmewhat inconsistent with its position in United States

v Lovasco, No. 75-1844. In its brief supporting its petition in

Lovasco, the government admits that a motion for pre-indictment

delay cannot properly be heard until all evidence has been pre-

sented at trial due to the peculiar nature of that legal defense.

(Lovasco, Br. 40). This position, that the motion cannot be

heard until after proofs are concluded, directly refutes the

notion that the respondent chose to defer ruling on his motion

untjl that point. If the government relies on Lovasco in sup-

port of its petition herein, it has, thereby, distinguished the

case from Lee which did involve facts affording the accused an

option in timing his motion. The petitioner cannot rely on

Lavasco and look to Lee for support with any semblance of logic or

consistency.

The government suggests that tne respondent forfeited the

protection of the Double Jeopardy Clause by not deferring ruling on

the motion until after a verdict had been rendered. Initially,

this proposition assumes that the onus is on the accused to orches-

trate the case in such a fashion as to preserve the government's

privilege to appeal. The petitioner cites no authority for that

assumption and, indeed, there is none. The government was repre-

sented at the pretrial hearing and the trial. Thus, the United

States attorney had opportunities equal to those of the respondent

to request that the judge defer his ruling on the motion until

after a verdict. Certainly the accused does not bear the burden

of safeguarding the government's interests as well as preserving

his own rights. If any party had the responsibility to avoid

the application of the Double Jeopardy Clause, this obligation clearly

rested with the government.

The other aspect of the government's position that is not

realistic is the notion that either party had the option to defer

ruling on the motion until after the verdict. This is a preroga-

tive which is reserved to the trial court. F.R.C.P. 12. Neither

party can control that aspect of the case. One can only request.

This was done by the accused when he presented the motion for a

ruling before commencement of trial. The court made it abundantly

clear to both parties that any renewal of the motion was to be

made “after all evidence has been presented". (App. A. infra).

When the respondent attempted to renew the motion at the conclusion

of the prosecution's case, the judge, again, denied the motion

while reserving the accused's right to renew it after all evidence

was presented. The order did not say the motion could be presented

after a verdict, but rather after all evidence was presented.

(App. A, infra). The accused acted with diligence in presenting

his motion as early as possible and at every possible opportunity

thereafter. Surely, he should not run the risk of denial of the

motion for lack of timeliness by delaying until the last moment.

It is, indeed, ironic that the government should contend that the

accused's failure to bring a motion before trial in Lee should

warrant a second trial and, at the same time, argue that the respon-

dent should be stripped of the protection of the Double Jeopardy

Clause when he made his motion before trial.

CONCLUSION

The petition for writ of certiorari is without merit and

should be denied. oa

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ORDERED that:

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THE DIS ?RICT court ¢ :

FOR TR 4ESTERN DISTRICT or’ MICeE «WN

_cornmee DIVIS10N

NEE

UNITED STATES OF AMERICA,

Plaintiff,

. G75-54 Cr.

ORDER 2

A hearing having been held on the motions to dismiss

‘Counts I and II, and to sever all counts to be tried, IT IS HEREBY

1. “The motion for severance is denied, and

2. The motion to dismiss is denied without prejudice,

so that the defendant may reassert it if he chooses

after all evidence has been presented.

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Dated: November 20, 1975.

woEL P. FOX

Chief Judge, United States District Court

CERTIFIED AS A TRUE copy

(BEST oP AL | age wh Aros

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and the time he was charged.

COURT'S OPINION FROM THE BENCH

THE COURT: ' The Défendant has renewed

his motion to dismiss Counts I and II based on the delay

between the date the offenses are alleged to have occurred

I hereby grant the motion to dismiss with

respect to Count I. at sa §

The Defendant testified with a good deal of ss

specificity as to the occurrence on September 24, 1974, that

is, the alleged offense in Count It.

<a ‘In the Count with respect to Count I involv

an alleged offense of September 20, 1974, the Defendant was

able to give only a general éenisi. Be could not recall

specifics of what happened on that date. [f find ene preju-

aice shown with respect to Count I caused by the preindict~

ment delay was sufficient to result in the dismissal of that

Count.

I note that the Defendant's testimony was given

before the jury considering his guilt ox innocence anf not

simply presented in separate hearing before me. <>

In addition, it is not insignificant that

Bobby Jordan also had some difficulty remembering the

details of the September events, even though he had the

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can explain the differences in the Defendant's ability to

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Furthermore, the difference in the Defendant’

ability to recall events of September 20th and events of

September 24th is not withowt reason. When the Defendant

was arrested on January 22, 1975, a Complaint chenget hin

with the offense alleged that occurred -~ alleged to have

cécurred on January 22, 1975 and September 24, 1974. The *}

in@ictment returned by the Grand Jury on the Sth of March; *

1975, added the September 20th offense. This additional delay

recall.

The Government is correct in stating that the

issue of preindictment delay is one of balancing of interes

However, as stated above, in this case a taiénse of those —

interests results in the dismissal of Count I.

The problem is to determine how much, if any,

prejudice need be shown, based on the Government's reason

for the delay. The quantum of prejudice which need be s

will vary with the circumstances. U.S. versus Marion, cit

in 404 U.S. Supreme Court,307, 1971. For delay which is

completely unintentional a defendant will have to show at

least substantial actual prejudice.

On the other hand, if the delay is caused by

the Government, intending to prejudice the Defendant's

opportunity to present a defense, only a minimal amount of

prejudice, if any, may be required. In between these two

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extremes will be a variety of instances of int«....onal but

legitimate delay. See, for example, United States versus

King, 521 Fed. 2d 356, 6th Circuit case. Each case must be

considered on the basis of the totality of the ctssmstancid

versus Marion, supra. ; al

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peculiar to it. U.S.

ios Bere the reason for the delay was principally~

to gain tactical advantage over this Defendant -- to gather

more evidence of alleged offenses by him. Obviously the

more charges which can be brought eantast one defendant in

one proceeding the nore likely the jury will not believe an

innocent explanation of a single count or a single charge.

Prejudice to the Defendant's ability to present his defense

was not intended, but such was the result of Count I.

I want to repeat’and emphasize the delay here

was the result of the Governmént’s intentional choice, with

the principal motive being to gather evidence of further

crimes, further alleged crimes by the Defendant in entes to

gain a tactical advantage at the trial. In such a situation

the Defendant may show a lesser degree of prejudice to Sent

dismissal than where the reason for delay is neutral as root

respects the particular defendant charged. ae

z do not decide whether the degree of prejudice

shown here would be sufficient for dismissal if the reason

for delay was neutral. I! hold only that since the delay

—sssulted primarily from an attempt to gain a tactical

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advantage, this Defendant has presented sufficient proof

of peojetics with respect to Count I.

However, evidence of the charge involved in

Count I is admissible to the same extent as evidence of any

other alleged oxininal estice by the Defendant. See 0.8. |

versus Jones - the vederal Rules of Evidence for the United

States in the United States | Courts 405.

. ' The Defendant's denial of ever having :

distributed narcotics tempers the delay-induced prejudice

sufficiently to allow evidence to be received as relevant

to the other charges.

I am still a little concerned about September

24th because of some of the totalities of the circumstances

in this case. Here is a black officer, the only black

officer ever to serve in the unit. Be ves denied help wes

again and again he asked for help. That is a jungle out

there. The Defendant's theory is that he was left alone,

and being left alone he had to devise his own means of

surviving in that jungle, and that he was in the process of

trying to eliminate what he contended was @ big operator,

the Government's informant Jordan. : :

| There is evidence in the record from which

jury can conclude that the Defendant's evidence was oounest.

One of the problems is, in this case, as I

see it, is the very heavy burden which the Defendant had to

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carry when he was in that jungle. And what -- here was an

officer. He was brought up from the patrol and tossed into

the thicket of a highly sophisticated area of activities.

And of all of the things he had to try to remember in that”

Kind of a circumstance he may have forgotten crucial

testimony essential to his defense.

I am going to dismiss Count II, as well.

I am not setting a precedent in that regard.

I am doing it solely out of the peculiar circumstances of

this case. The Defendant in this case should not have been

out there in that jungle alone. And what I am concerned

about is a compromise verdict which may result if he were

to be -- had to stand trial all the way on the three counts.

And it is so ordered.

REPORTER'S CURTIFICATE

I hereby certify that the foregoing is a true

and accurate transcript of the proceedings in the afore-

mentioned case.

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