# Opposition — United States v. Scott > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1741%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 889 ## Text = — oe ute. avandia cattelllty © 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. - _ _~—e — _* . —_— - S *-« eer ® - fe a . 2 ®ey eer "es 8 —* 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 = ee 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 i ; 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- ’ 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 , ; 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 4 , 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. @-]2- 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 menathert — -15- ORDERED that: ls EE — CC aa 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. ~~ el Dated: November 20, 1975. woEL P. FOX Chief Judge, United States District Court CERTIFIED AS A TRUE copy (BEST oP AL | age wh Aros OO E—SE * 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. 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 — ’ ‘ —s can explain the differences in the Defendant's ability to +3— T «= 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 - 3F- 3a * th .- . - 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 * . 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 --ee- 4a —_ °* ampe<-@eee ¥ << * + ——_—_—e - + ss 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 aaa" - Sa i +—+ + ye . p— 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. ~s --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1741%3A4. Public record. Not legal advice.