Respondents Brief — United States v. Scott

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No. 76-1382

UNITED STATES OF AMERICA,

Petitioner,

JOHN ARTHUR SCOTT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

WILLIAM C. MARIETTI

820 Terrace at Clay

Muskegon, Michigan 44440

ALEXIS J. ROGOSKI

704 Hackley Bank Building

Muskegon, Michigan 49440

Counsel for Respondent

SSS

————————————

Wer nqron OC eo CLO PUGLIGHERS ¢ LAW PRINTING CO ¢ (207) 936

TABLE OF CONTENTS

Page

EEE cedeocccsccoccoocdestesecesseoesce l

PEED sacscccccccsceccsececeoccense 2

CONSTITUTIONAL SECTION, STATUTE AND

FE 2

PEE dubndasededdcobceoseccoocccccoescoueces 2

SUREGARY OF ATGURGENT .nn nce c ccc ccc cccccccees 3

GREE = Keeeesocneddooccsoesoececcoecoacecoces 6

THE DOUBLE JEOPARDY CLAUSE BARS AN

APPEAL BY THE GOVERNMENT OF A

DECISION BY THE TRIAL JUDGE

RENDERED AFTER ALL PROOFS ARE

SUBMITTED THAT THE DEFENDANT

CANNOT BE CONVICTED OF THE OFFENSE

CHARGED, WHERE, IF SUCCESSFUL, THE

APPEAL WOULD RESULT IN A SECOND

GEE Conedecensoucssoceesésooosooonscocces 6

A.The protection of the Double Jeopardy

Clause extends beyond mere acquittals to

include any final decision in a defendant's

favor that he cannot be convicted of the

GPG ccbcccccccoscccccccccscccecess 6

B. Respondent’s motion to dismiss the

indictment did not bar subsequent objection

to being twice placed in jeopardy for the same

GD cocccbbcesoesescooscceceesseoceeoccs 19

1.A motion to dismiss made during trial,

after having been denied without prejudice

prior to commencement of trial, does not

ee

the Double Jeopardy Clause . . : senses

2 Gecnaniiiiedinnianens

19

--

(ii)

TABLE OF AUTHORITIES

Cases: Page

Downum v. United States, 373 U.S. 734 ...... 0.665665. 3,13

Illinois v. Somerville, 410 US. 458 = 6... eens 3.789

Finch v. United States, _... U.S. ___. , 53 L.Ed2d

Deca, seecenesseoescoescecesesoess 5,12

Green v. United States, 355 U.S. 184 oe ». 924

Lee v. United States, _.. US. ____., 53 L.Ed2d 80 |

PTT TT TTTTT TTT TTT TTTT TTT Tee . passim

Serfass v. United States, 420 U.S.377 ........5555.5. 17.22.23

United States v. Ball, 163 U.S.662 2.0.0.0... 666 c ccc e eens 7

United States v. Covington, 395 US.57 ..........55.. 10,11

United States v. Dinitz, 424 U.S.600 ............ 19.20.2122

United States v. Jaramillo, S10 F.2d 808 ........ 06.666 un, 18

United States v. Jenkins, 420 U.S. 358 .............55. passim

United States v. Sisson, 399 U.S. 267 ......... 7,10,11,12,14,15

United States v. Wilson, 420 US. 332 ..........5545. passim

Constitution, statutes and rules:

United States Constitution:

i ican cs ote dagaésesenseunes 26,12

Double Jeopardy Clause ... 6.6.6 une Passim

Criminal Appeals Act, 18 US.C.3731 ........600005, 6,15,16

Federal Rules of Criminai Procedure 12(e) ............ § 24.25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1382

UNITED STATES OF AMERICA,

Petitioner,

JOHN ARTHUR SCOTT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

Petitioner has cited the relevant opinions in its brief

and accompanying appendix.

tv

QUESTION PRESENTED

Does the Fifth Amendment prohibit the United States

from subjecting the Respondent to a second trial when

the judge, at the conclusion of all the proofs in the first

trial by jury, dismissed the indictment with prejudice?

CONSTITUTIONAL SECTION, STATUTE

AND RULE INVOLVED

The petitioner has cited the relevant sections of the

Constitution, United States Code and Federal Rules of

Criminal Procedure.

STATEMENT

Respondent accepts the petitioner's statement subject

to the following modifications. After the government had

submitted its proofs and rested, the respondent renewed

his motion to dismiss Counts I and II due to the

pre-accusation delay occasioned by the government. The

judge denied the motion at that stage for the reason that

he needed to hear more evidence, and the trial proceeded

until both sides had concluded their proofs.

The petitioner's characterization of the respondent's

theory is inaccurate. The respondent presented ample

evidence to establish that the informant’s motive for

testifying was to prevent respondent from testifying

against the informant in a charge pending against him.

At the conclusion of all of the proofs from both

parties, the judge dismissed Counts | and II with

prejudice, reserving Count III for the jury which

acquitted respondent.

SUMMARY OF ARGUMENT

The ultimate issue to resolve in this case is whether or

not the Double Jeopardy Clause precludes the appellate

courts from reviewing the dismissal of Count I of the

indictment. At the stage in the lower court proceedings

where Count I was dismissed, jeopardy had attached. The

trial by jury had commenced and both sides had

completed submission of their proofs through several

days of testimony and exhibits. Downum vy. United

States, 372 U.S. 734.

Given the fact that jeopardy had attached, an appeal

by the government, absent a showing of an exception to

the Double Jeopardy Clause, would be barred. One of the

commonly recognized exceptions is the situation of a

mistrial that is declared due to manifest necessity. //linois

v. Somerville, 410 U.S. 458. Clearly, this case did not

involve a mistrial. Nor was this a situation where there

was a verdict of guilt rendered which could simply be

reinstated should the government prevail on appeal.

Rather, the order dismissing Count I with prejudice was a

final decision favorable to the defendant that he could

not, under any circumstances, be convicted of the crime

charged.

The fact that the respondent moved and requested the

final order of the court does not waive his constitutional

right to be free from being placed in double jeopardy. To

hold otherwise would ignore the fact that the focus of

concern in the area of double jeopardy is to preclude

multiple trials. United States v. Martin Linen Supply Co.,

U.S. , 51 L.Ed2d 642, 97 S.Ct.

Furthermore, in this case, the respondent did not

deliberately defer his request for dismissal until after

4

jeopardy attached in order to frustrate any attempt at

appeal by the government. The defendant moved for

dismissal prior to commencement of the trial and it was

the decision of the judge to deny the motion without

prejudice until after the evidence had been presented

from both sides. The judge did not simply reserve

decision on the motion until after trial. Rather, the

motion failed and was denied without prejudice. It was

only after the respondent had been subjected to a lengthy

trial, that the judge reversed his earlier ruling and

dismissed Count | of the indictment.

The most recent decisions of this court considering the

applicability of the Double Jeopardy Clause govern the

existing situation. The judge granted the dismissal on the

ground that the respondent could not, under any

circumstances, be convicted of the crime charged. Thus,

the order contemplated an end to all prosecution and did

not involve a mistake by the government that could be

corrected. See, Lee v. United States, US. , 53

L.Ed.2d 80, 97 S.Ct. . The nature of a finding that

due process was denied because of pre-indictment delay

precludes a restoration of that due process on a retrial.

The basis for such a ruling involved a finding that the

respondent was prejudiced by loss of memory. How can

that loss possibly be restored prior to a second trial? To

the contrary, as more time elapses, the memory

deteriorates further and the original error is magnified.

The fact that the trial judge did not make a finding of

guilt or innocence is not a critical factor. Certainly, had

there been a finding of guilt, the appeal would be

permitted as in United States v. Wilson, 420 U.S. 332.

However, where as here, there was no such formal

finding. a successful government appeal would result in

retrial as opposed to mere reinstatement of a verdict.

Under these circumstances, the Double Jeopardy Clause

deprives the appellate courts of jurisdiction to review the

lower court decision. Finch v. United States, US.

, 53 L.Ed2d 1048, 97 S.Ct. ;

This conclusion is not altered by Federal Rule of

Criminal Procedure 12(e). The order denying the motion

to dismiss was entered before Rule 12(e) became

effective. The judge did not defer decision on the motion

until trial, but, rather, denied it due to a failure of proof.

The decision to hear the motion was made by the court

after it refused to reconsider its decision until all evidence

had been presented. The respondent had acted diligently

and properly in attempting to obtain a pre-jeopardy

motion. Any alleged error by the court in regard to Rule

12(e) does not render the Double Jeopardy Clause

inapplicable. Such an error cannot be considered unless

there is jurisdiction for review. The Double Jeopardy

Clause bars any such review because the trial court

rendered a final decision at the conclusion of the

presentation of all evidence that the respondent could

not be convicted of the offense charge.

ARGUMENT

THE DOUBLE JEOPARDY CLAUSE BARS

AN APPEAL BY THE GOVERNMENT OF A

DECISION BY THE TRIAL JUDGE

RENDERED AFTER ALL PROOFS ARE

SUBMITTED THAT THE DEFENDANT

CANNOT BE CONVICTED OF THE

OFFENSE CHARGED. WHERE. IF

SUCCESSFUL, THE APPEAL WOULD

RESULT IN A SECOND TRIAL.

A.The protection of the Double Jeopardy Clause

extends beyond mere acquittals to include any

final decision in a defendant's favor that he

cannot be convicted of the crime charged.

The Government has invoked the jurisdiction of the

Sixth Circuit under the purported authority of 18 U.S.C.

§ 3731. which provides as follows:

In a cfiminal case an appeal by the United States

shall lie to a court of appeals from a decision,

judgment, or order of a district court dismissing an

indictment or information as to any One Or more

counts, except that no appeal shall lie where the

double jeopardy clause of the United States

Constitution prohibits further prosecution.

While historically the Government's right to appeal a

decision in a criminal case has been limited by statutory

provisions, respondent acknowledges that the only

relevant existing limitation is the Double Jeopardy Clause

of the Fifth Amendment to the Constitution. United

States v. Wilson, 420 U.S. 332. Thus, an examination of

the Double Jeopardy Clause as interpreted by this Court

is essential to a disposition of this case.

lt is clear that acquittals are not appealable by the

government. The fundamental principal of double

jeopardy is that “[A] verdict of acquittal could not be

received, On error or otherwise, without putting [a

defendant} twice in jeopardy, and thereby violating the

Constitution.”’ United States v. Ball, 163 U.S. 662.'

The petitioner contends that the dismissal appealed

from in this case was not an acquittal and, thus, is not

subject to the restraint of the Double Jeopardy Clause.

While respondent acknowledges that the label attached to

the action of the trial judge was a dismissal with prejudice

rather than “acquittal”, the terminology is not decisive.

See, United States v. Sisson, 399 U.S. 267. The petitioner

would analogize the instant case to a line of decisions

culminating with J/ilinois v. Somerville, 410 U.S. 458. In

that case a jury was empanelled to hear the case. At that

point, the attorney for the government moved for a

mistrial after discovering that the indictment was

defective.

The district judge granted the requested relief over the

defendant's objection. The Court in Somerville held that

a new trial would not violate the Double Jeopardy Clause

since the district court actually lacked jurisdiction to hear

the case and reversal on appeal would have been a

certainty had the defendant been convicted. Under these

circumstances, manifest necessity and the ends of public

justice would be served by a new trial. The government in

the instant case suggests that this reasoning opens the

door for appeal since the ends of public justice so require.

' This axiom is any acquittal whether by jury, judge, or on post

verdict motion. United States v. Martin Linen Supply Co.,

US. . 51 L.Ed2d 642,97 S.Ct. ,

However, respondent submits that this case is

distinguishable from Somerville in significant particulars.

The district court herein had jurisdiction pursuant to a

valid indictment that sufficiently charged a criminal

offense under the laws of the United States contrary to

the Somerville situation. Furthermore. and most

importantly, the decision in this case was a final ruling

favorable to the respondent. Counts | and Il were

dismissed by the Court at the conclusion of the evidence

and the jury returned a not guilty verdict as to Count III.

In Somerville there was no ruling favorable to the

defendant as here. The trial was merely terminated

without an order or judgment favorable to the petitioner.

The significance of this distinction was noted by Justice

Renquist in the majority opinion of United States v.

Jenkins, when he stated, “We disagree with this analysis

{ analogizing Jenkins to Somerville} because we think it is

of critical importance whether the proceedings in the trial

court terminate in a mistrial as they did in the Somerville

line of cases, or in the defendant's favor, as they did

here.” 420 U.S. 358 at 365, n.7 (emphasis supplied?

Thus, the reasons underlying retrial after a mistrial are

not relevant to a situation such as the instant case, where

the trial terminates in the defendant's favor.

Another factor distinguishing the Somerville line of

cases is the fact that, although jeopardy attached, there

had been no trial. This mistrial was declared in Somerville

prior to the introduction of any evidence. This factor is

2 This Court has recently reaffirmed this reasoning by permitting

appeal of the dismissal of a defective indictment. Lee v. United

States, U.S. ___. , §3 L-Ed2d 80,97 S.Ct. ;,

9

significant when the reasons for the constitutional

prohibition against double jeopardy are considered.

“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

In the instant case, all of the evidence on behalf of the

prosecution and the defense had been presented before

the trial was terminated in appellee's favor. This presents

the optimum situation for the government to review its

mistakes and take a second chance at convicting the

defendant — a chance the double jeopardy clause does

not permit. See, United States v. Wilson, 420 U.S. 332.

Thus, the Somerville court would deny a retrial! even in a

mistrial situation if the u.petus for discharging the jury is

bad faith conduct by the judge or prosecutor since that is

tantamount to harassment of the defendant by successive

prosecutions which afford the government a more

favorable opportunity to convict the defendant after

carefully examining the previous record for tactical

errors.

As more recent Supreme Court decisions reflect. the

concern expressed in Green and Somerville is the

controlling factor in assessing the applicability of a bar to

10

further proceedings under the Double Jeopardy Clause.

In United States v. Sisson, 399 U.S. 267, the petitioner

had presented three pretrial motions to dismiss in the

district court, all of which were denied. The case

proceeded through trial and the jury returned a verdict of

guilty. The defendant made a post-verdict motion for

arrest of judgment. The court granted the motion,

however, the opinion cited grounds contained in the

pretrial motion and dismissed the indictment. While the

court was concerned with the application of the now

repealed Criminal Appeals Act, the opinion discussed the

constitutional implications of a new trial. A protracted

discussion of the legislative history of the Act concluded

that Congress has shown concern for the plight of

defendants exposed to added expense and anxiety

together with the possibility of multiple trials in the

event of a successful appeal by the United States. The

Court rejected the notion that the applicability would

depend upon the label the district court attached to its

order. e.g. dismissal or acquittal. Rather, a reviewing

court must examine the basis for the decision in the

lower court in order to determine whether the action was

in fact an acquittal. United States v. Sisson, supra at 279,

n.7

The test developed by the Sisson court was that the

dismissal or arrest of judgment must not be based on any

matters not apparent on the face of the indictment itself.

The issue raised by the defense must be capable of

determination without trial of the general issue and the

trial of the facts surrounding the commission of the

offense must be of no assistance in determining the

validity of the defense. United States v. Covington, 395

U.S. 57. If those circumstances exist, the double jeopardy

clause would not bar a retrial after government appeal.

However, if the lower court relied upon facts

established at trial to support his decision to dismiss or

acquit, the order will bar an appeal by the government.

The Court concluded in Sisson that the action of the

lower court was an acquittal since the judge considered

matters not contained in the indictment itself but

developed at trial. The district judge went beyond the

face of the record relying on evidence introduced at trial

including observation of the demeanor of the petitioney.

In fact, the trial judge could not have arrived at his

decision without hearing the facts of the case.

The Sisson opinion distinguished those facts from

United States v. Covington. The Court had permitted

appeal in Covington. However, that case involved a

dismissal before trial without submission of facts to a

jury or any evidentiary hearing. In Sisson, the court’s -

dismissal followed presentation of evidence to the jury.

As a result, the decision was not subject to appellate

review.

Respondent submits that the facts in the instant case

are analagous to those of Sisson. Respondent presented

his motion to dismiss for preindictment delay before

trial, at the conclusion of the government's case in chief

and at the conclusion of all of the proofs. The pretrial

denial of the motions was made without prejudice since

the court wanted to consider facts developed during the

trial. That the district judge wanted to hear the evidence

in the case to assist in deciding whether to dismiss or

acquit the respondent is clear from the pretrial order

which denies the motion without prejudice “so that the

defendant may reassert it if he chooses after all evidence

has been presented.” (A. 15) The trial court considered

evidence brought out in the trial concerning the nature of

12

respondent’s work, the circumstances surrounding his

assignment to Central Narcotics, the demeanor of the

witnesses, his impairment of recall and based his decision

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

(Pet. App. D). Based on the principles enunciated in

Sisson, respondent contends that the action of the court

was tantamount to an acquittal and involved a final

determination in defendant’s favor for purposes of

analysis of the applicability of the Double Jeopardy

Clause.

Furthermore, the respondent submits that it is not

necessary that the trial court’s decision be considered an

acquittal in order to invoke the Double Jeopardy Clause.

The petitioner argues that only acquittals are

inviolably preserved by the Fifth Amendment. This court

has recently rejected that notion. Finch v. United States,

supra. \n Finch, after hearing the evidence, the trial judge

dismissed the information for failure to state an offense.

The dismissal was granted prior to the declaration of guilt

or innocence. In that sense, there was no acquittal.

However, this court, citing United States v. Jenkins, 420

U.S. 358, held that the Circuit Court of Appeals was

without jurisdiction to hear the appeal. /d. Thus, it is

clear that a decision by the court following presentation

of all the evidence will bar an appeal despite the fact that

the ruling is not an acquittal.

Finch also cited the court’s most recent decision

concerning double jeopardy. Lee v. United States, supra.

The language in Lee is directly applicable to the instant

situation. While the holding essentially refused to apply

the Double Jeopardy Clause to prevent a trial, there are

significant variances between the facts in Lee and this

case. First, the points of similarity should be noted.

a oe”

13

There was no general finding of guilt or innocence in Lee

as in this case. Lee v. United States, supra, at n.4. Also,

the decision of the trial court in each case was rendered

after all of the evidence from both sides had been

presented.’ At this juncture, the fact patterns in the two

cases diverge.

The Lee opinion proceeded from the premise that the

lower court’s action should be considered a declaration of

a mistrial when it ruled that the information was

defective. Lee v. United States, supra, 53 L.Ed2d at 86.

Clearly, the action of the judge in the instant case was

not a declaration of mistrial. Nothing occurred during the

course of the trial that required a dismissal nor was the

fatal error of the government something that could be

corrected on retrial as the defective information in Lee

was. Rather, the reason for dismissal of Count I was due

to the activities of the government that took place before

trial. Furthermore, that error resulted in prejudice to the

respondent because of total lack of recall which,

obviously, could never be restored no matter how many

retrials were permitted.

Consequently, the decision by the lower court herein

was functionally distinguishable from a mistrial. Cf. Lee

v. United States, supra. This case more closely resembles

the situation in United States v. Jenkins, supra, which

also did not involve an acquittal. However, the lower

court terminated the trial in the defendant's favor prior

to a verdict which could have resulted in conviction or

acquittal. That case was tried to the court, and, after

hearing all the evidence, the judge dismissed the

34 jury having been empanelled, jeopardy had attached,

Downum v. United States, 372 U.S. 734.

14

indictment which effectively granted a motion that had

been filed prior to the commencement of trial. The

dismissal was based on an interpretation of the relevant

law. However, the Court, in review, was uncertain

whether the dismissal necessarily involved a finding of

facts which would have resulted in a guilty verdict had

the government’s proposed interpretation of the law been

applied. As a consequence, the opinion noted that a

retrial would be necessary should the government prevail

on appeal. United States v. Jenkins, supra, 420 U.S. at

370.

That factor was significant in view of the Court’s

decision in the companion case, United States v. Wilson,

supra. In Wilson, defendant had presented a pretrial

motion to dismiss for preindictment delay which

paralleled respondent’s motion at issue in this case. A

pretrial hearing was held establishing prejudice

occasioned by the loss of a key witness during the delay.

However, the trial court denied the motion and ordered

the case to trial. After presentation of all evidence, the

jury returned a verdict of guilty. The petitioner presented

several post-trial motions. Without ruling on these

motions, the trial judge overruled the jury and dismissed

the indictment due to the delay previously raised in the

defendant’s pretrial motion. The opinion did not find it

necessary to determine whether the trial judge’s action

was an acquittal under the reasoning of Sisson. /d. at 336.

Rather, the Court concluded that the appropriate focus

should be on the Double Jeopardy Clause’s prohibition of

multiple trials. The Court stated:

“The development of the Double Jeopardy Clause

from its common-law origins thus suggests that it

was directed at the threat of multiple prosecutions,

1S

not at Government appeals, at least where those

appeals would not require a new trial.”

United States v. Wilson, supra at 342.

Therefore, the Court concluded the constitutional protec-

tion of the Double Jeopardy Clause against government

appeal attaches only where there is a danger of subjecting

the defendant to a second trial for the same offense.* The

Court ruled that with the amendment of 18 U.S.C.

§ 3731, the only limitation on government appeal is the

Double Jeopardy Clause. /d. at 339. The opinion went on

to note that “[{W]here there is no threat of either

multiple punishment or successive prosecutions, the

Double Jeopardy Clause is not offended” and “[{s]ince

reversal on appeal would merely reinstate the jury’s

verdict (in Wilson) review of such an order does not

offend the policy against multiple prosecutions.” /d. at

344-45. The jury had already found the petitioner guilty

and a reversal on appeal would merely mean the jury

verdict would be allowed to stand. The Court noted that:

“Although review of any ruling of law discharging a

defendant obviously enhances the likelihood of

conviction and subjects him to continuing expense

and anxiety, a defendant has no legitimate claim to

benefit from an error of law when that error could

be corrected without subjecting him to a second

trial before a second trier of fact.”’ (emphasis

supplied)

Id.

*The opinion refused to overturn the Sisson decision barring

appellate review, although the defendant had been found guilty by

a jury, because Sisson was nonreviewabie primarily for statutory, as

opposed to constitutional reasons, not relevant in the Wilson case.

16

The Jenkins decision pointed to this reasoning as the

primary principle of Wilson in observing:

“We hold today in Wilson, supra, that the Double

Jeopardy Clause does not bar an appeal when an

error of law may be corrected and the result of such

correction will simply be a reinstatement of a jury’s

verdict of guilty or a judge’s finding of guilt. But

because of the uncertainty as to the basis for the

District Court's action here, Wilson does not govern

this case.”

United States v. Jenkins, supra, 420 U.S. at 368.

The uncertainty, noted previously in this brief, refers

to the lack of a finding of actual guilt under the law

proposed by the government. The trial proceedings in

Jenkins did not result in either a verdict or finding of

guilt. However, the opinion considered it of critical

significance that the lower court proceedings had resulted

in a decision favorable to the petitioner:

“Here there was a judgment discharging the

defendant, although we cannot say with assurance

whether it was, or was not a resolution of the

factual issues against the Government” .. . “But it is

enough for purposes of the Double Jeopardy Clause,

and therefore for the determination of appealability

under 18 U.S.C. §3731 [18 USCS §3731] that

further proceedings of some sort, devoted to the

resolution of factual issues going to the elements of

the offense charged, would have been required upon

reversal and removal. Even if the District Court were

to receive no additional evidence, it would still be

necessary for it to make supplemental findings. The

trial, which could have resulted in a judgment of

conviction, has long since terminated in the

defendant's favor.”

Id. at 369-70,

17

As with Jenkins, the facts herein are distinguishable

from Wilson. In this case the respondent was not found

guilty at the trial level. On the contrary, a full trial of all

issues bearing on the elements of the offense was

conducted after the jury had been empanelled. Unlike the

facts in Serfass v. United States, 420 U.S. 377, jeopardy

had attached. At the conclusion of the trial, a final

decision in favor of the respondent was rendered by the

dismissal of Counts | and II by the Court and Count III

by the jury. These are precisely the circumstances alluded

to in Jenkins. If the government were permitted to

appeal, a reversal would result in a plenary retrial of

issues raised in the respondent's previous trial where all of

the issues bearing on the elements of the offense were

completely litigated and considered by the court in

ordering the dismissal of Counts I and II. Unlike Wilson,

there is no contrary verdict to reinstate. The judge and

the jury have effectively acquitted the respondent and

the only way the government can prevail in this case is via

a retrial which is barred by the Double Jeopardy Clause.

The basis for respondent’s contention that these facts

are distinguishable from a mistrial, is found in the court’s

discussion of Jenkins set forth in Lee. Petitioner

incorrectly assumes that this court analyzed Jenkins on

the premise that it involved an acquittal. (Br. 19). This

assumption is invalid in view of the court’s statement in

Lee that it did not consider when rendering the opinion

whether the facts in Jenkins amounted to an acquittal.

Lee v. United States, supra, 53 L.Ed2d at 87, n.8. As

stated in Lee “[{T]he critical question is whether the

order contemplates an end to all prosecution of the

defendant for the offense charged.”’ /d.

Applying that test to the instant case, it is clear that

the trial on Count | terminated in the respondent's favor.

When the judge ruled on the motion to dismiss at the

conclusion of the proofs, he did so on the basis of the

intentional nature of the delay coupled with prejudice to

the respondent. That prejudice related to his inability to

recall the events on the date of the offense charged in

Count I due to the peculiar nature of the respondent's

work. The court also noted the unsatisfactory nature of

the evidence against the defendant due to the inability of

the informant who testified for the government to recall

events. With this basis for dismissal, clearly the trial court

contemplated an end to further prosecution. Loss of

memory, unlike indictments when defective, cannot be

restored or repaired. Consequently, not only is it

impossible to correct the error in a second trial, it is

certain that the error would be magnified. With this in

mind, the order dismissing Count I concluded in

respondent's favor on the basis that he could never be

prosecuted or convicted for an offense charged. The

petitioner acknowledges that fact. (Br. 11, 18)

‘In fact, as time passes, the degree of prejudice is increased as

memory continues to fade. This unique characteristic of errors due

to pre-accusation delay was noted by an Eighth Circuit opinion

which stated:

“The remand would provide the government with another

chance to convict the appellees by exhaustingly reviewing the

record, marshalling the facts and rearguing the case in a

manner not previously presented . . . The appellees would be

put to further expense, ordeal and anxiety . .. Even if the

trial judge were available on remand, there is nothing to

insure that the resultant dimming of the memory will not

adversely affect the rights of the appellee.” United States v.

Jaramillo, 510 F.2d 808 (8th Cir. 1975)

19

This situation is precisely what the court referred to in

Lee. The respondent relies on the specific language in the

opinion which states:

“Where a midtrial dismissal is granted on the

ground, correct or not, that the defendant simply

cannot be convicted of the offense charged, Jenkins

establishes that further prosecution is barred by the

Double Jeopardy Clause.”

Lee v. United States, supra, 53 L.Ed2d at 87°

This portion of the Lee opinion is dispositive of the

appeal in this case and clearly establishes the applicability

of the Double Jeopardy Clause to preclude a second trial.

B. Respondent’s Motion to Dismiss the

Indictment Did Not Bar Subsequent Objection

to Being Twice Placed in Jeopardy for the

Same Offense.

1. A Motion to dismiss made during trial, after having been

denied without prejudice prior to commencement of

trial, does not deprive the respondent of the protection

of the Double Jeopardy Clause.

The petitioner relies on Lee for the proposition that

the motion to dismiss made by respondent at trial

prevents him from claiming double jeopardy in a second

trial. (Br. 17) The opinion in Lee referred to United

States v. Dinitz as holding that retrial is permissible when

© Petitioner suggests that it would be unjust and perverse to let

the judge’s error in the lower court go uncorrected. (Br. 2)

However, this passage from Lee indicates the presence or absence

of error on the merits is not relevant to the jurisdictional question

presented herein.

20

the defendant has moved for a mistrial not attributable to

prosecutorial or judicial overreaching. 424 U.S. 600.

Essentially, the Lee opinion concludes that the defendant

in that case had moved for a mistrial and. therefore. was

not entitled to invoke the Double Jeopardy Clause.

The Dinitz decision is simply not relevant to the

circumstances of this case. The primary criterion for

granting the government appeal in Dinitz is the fact that

the court granted a mistrial. This is why the court in Lee

relied on the Dinitz decision by noting that the facts in

Lee were functionally indistinguishable from a mistrial.

This brief has already elaborated on the various reasons as

to why the action taken in district court was not a

mistrial, but rather a final decision in his favor based on

the judge’s conclusion that he could not be prosecuted.

Any attempt to compare the facts in Dinitz with the

instant situation is fruitless. The facts set forth in that

opinion indicated that the defendant was afforded three

specific -alternatives. two of which involved avoiding

termination of the trial by adjournment or proceeding

without desired counsel. Similar alternatives were not

offered to the respondent herein. Counsel diligently filed

his motion to dismiss for pre-accusation delay long before

the date of trial in an effort to obtain a pre-jeopardy

determination. He was rebuffed in this attempt with the

judge noting that the motion might be renewed after

presentation of evidence, which meant that the court

would not entertain any motion until after jeopardy had

attached. Thus, the respondent elected to avoid being

placed in jeopardy but the court required him to be so

exposed before it would consider his motion.

Furthermore, from the recitation of the facts in Dinirz.

it is clear that the court did not contemplate that the

21

defendant could not be successfully prosecuted or that

proceedings against him were finally terminated.” The

third alternative afforded the option of a mistrial, but for

what purpose? The court said this would permit the

defendant to obtain new counsel. Why would the

defendant need different counsel if he weren't going to

be reprosecuted? If the proceedings were finally

terminated. he would have no need for a lawyer. Thus,

the opinion justifiably concluded that the lower court did

not contemplate an end to all prosecution when the

mistrial was granted.®

The respondent herein clearly did not engage in the

elaborate evaluation suggested by the court in Dinirz

prior to making a motion. The Dinitz situation of error

occurring during trial caused the opinion to conclude:

“But it is evident that when judicial or prosecutorial

error seriously prejudices a defendant, he may have

little interest in completing the trial and obtaining a

verdict from the first jury. The defendant may

reasonably conclude that a continuation of the

tainted proceeding would result in...a second

prosecution.”

United States v. Dinitz, supra, 424 U.S. at 608.

"The petitioner herein concedes that the court dismissed with

prejudice and concluded the defendant would not be reprosecuted.

(Br. 11).

* The petitioner's suggestion that the respondent wanted his trial

terminated knowing he could be reprosecuted is without basis. This

is so, particularly in view of respondent's decision to forego a

mistrial during testimony of government witness, Clifford Best,

which included prejudicial testimony. The respondent through his

counsel stated that he wished to have his fate determined during

the ongoing trial and declined to request a mistrial despite ample

grounds therefor.

79

When prejudicial error occurs in front of the jury, it may

be said, as in Dinitz, that the particular proceeding is

tainted and warrants a mistrial. In the instant case, there

was no error occurring during trial before the jury. The

factfinders were not “tainted”. The basis for dismissal

involved a decision that the defendant could not be

prosecuted based on the evidence presented at trial.

There was no suggestion that the jury had been

contaminated, justifying the empanelling of a new group

of factfinders. Regardless of which panel of jurors hear

the evidence in this case, the court concluded, after

jeopardy had attached, that the prosecution must end.

The pre-accusation delay did not increase the probability

of conviction before the particular jury empanelled. The

court concluded that the prosecution was defective for

reasons that could not affect one jury more or less

profoundly than another.

2. The mere possibility of a motion in arrest of judgment,

when not made, does not determine whether the

Double Jeopardy Clause applies where the proceedings

have been concluded in a defendant's favor.

The petitioner suggests that the defendant should have

postponed the motion to dismiss until after a verdict was

rendered by the jury on all three counts. This argument

might have some validity were this a situation where the

defendant had deliberately deferred a motion to dismiss

until after jeopardy attached.’

* Indeed, the petitioner suggested that respondent had done just

that in its brief in support of the petition for writ of certiorari. (Br.

6). This Court has reserved for decision the issue of whether

government appeal is permitted when a defendant 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.

Serfass v. United States, 420 U.S. 377.

—— ee eee ee oD

23

However, in this case, respondent acted with due

diligence in presenting arguments to the court. He filed

the motion to dismiss due to pre-indictment delay with a

number of other petitions within two weeks after

arraignment as ordered by the magistrate and local court

rule. These pretrial requests were supported by briefs and

oral arguments. This is decisively different from the

defendant in Lee who waited until the threshhold of his

trial to raise the motion to dismiss.'®

It must be remembered that the respondent did not

request that the judge reserve ruling on the issue until

after the trial had commenced. It was the court that

ordered the motion denied and declined to reconsider it

until after all of the evidence had been presented. (A.

15).'' The respondent simply abided by the court's ruling

and refrained from renewing the motion until after all

evidence was presented.

Likewise, this is not the type of hypothetical tactic that was

frowned upon in the Serfass decision where the defendant

deliberately delayed a motion until after jeopardy had attached.

"In fact, the procedure followed by the trial judge was most

appropriate. In reviewing the merits of a motion such as this, the

court must necessarily hear all of the facts of the case to determine

whether a defendant has suffered prejudice of a degree that would

warrant dismissal. To present all of the evidence in a pretrial

hearing would constitute a was’e of the court's time and,

effectively, require both sides to present al] of their evidence twice.

This type of motion is not like a motion to suppress which

customarily isolates a portion of the evidence for consideration.

Prejudice can only be gleaned after an examination of the evidence

in total. Consequently, the procedure employed by the trial judge

in the instant case has been suggested by reviewing courts.

Petitioner concedes this point. (Br. 25).

24

Petitioner relies on Fed. R. Crim. P. 1 2(e) to support

its petition by saying that the judge erred in deciding the

motion after jeopardy attached. Initially it is noted that

when the judge denied the pretrial motion and refused to

reconsider until after all evidence was presented, Rule

| 2(e) was not in effect.'? In addition, the Rule forbids

deferral of a decision on a motion where a party's

appellate prerogatives are, thereby. restricted. The trial

judge did not defer the determination of the motion until

trial. It denied the motion because the respondent had

not sustained his burden in regard to a showing of

intentional delay by the government and/or resultant

prejudice. The court simply did not find the respondent's

position meritorious. However, after the evidence was

presented the judge ruled that the burden had been

sust.. ed as to both intentional delay and prejudice.'*

Te petitioner's argument based on Rule | 2(e) ignores

the purpose of the Double Jeopardy Clause which is to

bar multiple trials for the same offense and exposing an

accused to repeated expense and anxiety. See, Green,

supra. Petitioner contends that barring retrial after an

erroneous dismissal of the indictment would “disserve

‘the purpose of law to protect society from those guilty

of crimes’. (Br. 27, n. 21). This type of reasoning has

been rejected by this Court. Whether or not the trial

judge's decision was erroneous or correct is not relevant

to a determination of the applicability of the Double

'2The effective date for Rule 12(e) was December |, 1975, and

the order denying the motion was entered November 20, 1975.

'SAs petitioner concedes, the nature of this type of motion

necessarily requires that the evidence be presented before it could

be granted. (Br. 26).

ee ee oO

ee SE

25

Jeopardy Clause. In Lee, the opinion stated that if the

trial judge rules that a defendant cannot be convicted,

retrial is barred whether the decision is correct or not.

See, Lee, supra. Therefore, the petitioner's argument as

to Rule | 2(e) would not be relevant unless, and until, it is

determined that the Court of Appeals has jurisdiction to

review the decision and order yet another trial. At that

point the petitioner could present its position on Rule

1Xe) as well as its contention that an insufficient

showing of prejudice was made.

Finally, this reasoning ignores one simple fact.

Petitioner contends that, since a decision on the motion

to dismiss could have been deferred until after a jury

verdict, the Wilson opinion should apply. However, the

entire basis for the Wilson decision is that the defendant

would not be retried, but, rather, a verdict would be

reinstated. Respondent submits that the issue is not

whether he could avoid further proceedings. Rather, the

Double Jeopardy Clause asks “will a second trial occur”.

Obviously, there is no verdict to reinstate here and a

retrial is necessary with all the attendant cost, anxiety

and advantage to the government that the Fifth

Amendment forbids. See, Green v. United States, supra.

26

CONCLUSION

The judgment rendered by the Court of Appeals

should be affirmed.

Respectfully submitted,

WILLIAM C. MARIETTI

820 Terrace at Clay

Muskegon, Michigan 49440

ALEXIS J. ROGOSKI

704 Hackley Bank Building

Muskegon, Michigan 49440

Counsel for Respondent