# Respondents Brief — United States v. Scott

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 889

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1741%3A6. Public record. Not legal advice.