Reply Brief — United States v. DiFrancesco

rT

Supreme Court, U.S.

FiLE D

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-567 SEP 30 1980

ERRECRODAK JR., CLERK

UNITED STATES OF AMERICA, PETITIONER

V.

EUGENE DiFRANCESCO

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WADE H. McCreg, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Green v. United States, 355 U.S.

SITE ‘sisson sacle nnasiasdetics iced iesasnics oniadesnateeiaedbb iesancuatamaaiaaiucaadanas 7

Rex v. Bourne, 7 Ad. & E. 58, 112 Eng. Rep.

TDEDP ‘sanicinsionidsssiiindinssonhdeiankasdasnaisies-tarciatestestumasaniaiamcaa mena 7

Rex v. Fletcher, 1 R. & R.C.C.R. 58, 168 Eng.

BN, GE es eccsnentnisonessnsninasicnmeiinnestinindsleniacieheninamniaaieat 7

Rex v. Price, 6 East 323, 102 Eng. Rep.

IUD : cccrnsadddeplatinbssiesincderhcoasiceciasencalactendusasaidaeuanulieaeamaaat tana 7

Rex v. Walcot, 4 Mod. 396, 87 Eng. Rep

WIE ceccsemsbdiathnlaceinicutses ieisdibacliaicaganadidudsmmuesnéaatagmt neudiinsai 7

Rex v. Walcot, 90 Eng. Rep. 533° ....ccccccccecceeeeeeee 7

United States v. Allison, 555 F. 2d

ERR Reel a aOR ROR TEN OI MA Uren mene. 4

United States v. Burroughs, 537 F. 2d

IID asacissibiiiibinicsitasalasicasan cates alah ie aie ae 4

United States v. Cahalane, 560 F. 2d 601,

cert. denied, 434 U.S. 1045 wo... eee cece eeeees 4

United States v. Calloway, 562 F. 2d 615 ........... 4

United States v. Ceccolini, 435 U.S. 268 ......... 3-4

United States v. Cravero, 530 F. 2d 666 ............ 4

United States v. De Garces, 518 F. 2d

UII saciacslscsisecusaeideniedbtcesteennoda anianssavbonsinadoabedeaseedaatelebicaainabiaa nasa 4

United States v. Donahue, 539 F. 2d

SSI - Kiss sscesapcacsuncvaleecelacd ihe ibedeimelstaaeeebaauniineaelia a 4

Il

Page

Cases—Continued:

United States v. Forcellati, 610 F. 2d 25,

cert. denied, No. 79-5945 (Mar. 24, 1980) ....... 4

United States v. Grayson, 438 U.S. 41 ............... 6

United States v. llacqua, 562 F. 2d 399, cert.

I, Ie SIR BEF casececicctsnnvnsnceschcossonsesensones 2

United States v. Jones, 580 F. 2d 219 ................ 4

United States v. Rojas, 554 F. 2d 938 ............008 4

United States v. Wilson, 420 U.S.

SI iat estes idee hho dale eiebesieieniaaaals 3, 5, 6

Williams v. New York, 337 U.S. 241 w...c..cceeeeeees 6

Constitution and statutes:

Fifth Amendment, Double Jeopardy

iy RSE oS ROR On ree I os 1, 2, 3, 4, 5

BP a! PEED: ehesiesioiicnconescpvasnsoeceyenssancooaptieiibaaiaes a

Ue RR Ies: SORPTEP Sanectescbivnhatelecsskbunsddénamioqcnimeccns 1, 2, 4

Miscellaneous:

Harris’s Criminal Law (22d ed. 1973) ............0000 6

S. Rep. No. 91-617, 9ist Cong., Ist Sess.

CONTENT sciankdnnsaineced ovacecsiionanideangetdccesdaaameinanntbinduianies 2

Stern, Government Appeals of Sentences:

A Constitutional Response to Arbitrary and

Unreasonable Sentences, 18 Am. Crim. L.

Be. Bee CII inkei cass Rcseueceiehaisechanecabancssonmegeienssie 6

In the Supreme Court of the Wnited States

OCTOBER TERM, 1979

No. 79-567

UNITED STATES OF AMERICA, PETITIONER

Vv.

EUGENE DiFRANCESCO

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. Respondent contends (Br. 6-9, 14) that, apart from

constitutional considerations, the government’s appeal

should be dismissed because respondent does not qualify as

a dangerous special offender under 18 U.S.C. 3575. That

issue is not before this Court. There can be no doubt that the

district court found respondent to be a “dangerous special

offender” (A. 35), although the sentence it imposed is

inconsistent with that finding. Whether that determination

was erroneous is a question that the court of appeals may

consider if it takes jurisdiction of the government’s appeal.

The only question before this Court is whether the court of

appeals erred in holding that it lacked jurisdiction to hear

the government’s appeal on the ground that 18 U.S.C.

3576 violates the Double Jeopardy Clause.

2

In any event, respondent’s objections are without

substance. To be sure, the court’s lenient sentence is at odds

with its finding that respondent was a “dangerous” offender

under 18 U.S.C. 3575.! That is the basis for the

government’s appeal. But that fact does not eliminate the

constitutional question in this case. Even assuming that, as

respondent asserts, the district court’s sentence should be

construed as a ruling that respondent was not a dangerous

special offender, the sentence would still be appealabie

under Section 3576. See S. Rep. No. 91-617, 91st Cong., Ist

Sess. 166 (1969); United States v. llacqua, 562 F. 2d 399, 402

(6th Cir. 1977), cert. denied, 435 U.S. 917 (1978). The court

of appeals would have to consider whether respondent

should have been sentenced as a “dangerous special

‘Contrary to respondent’s suggestion (Br. 7, 11-12), Judge Pratt did

not sentence respondent at his bombing trial to a term below the

maximum because he believed that respondent was not dangerous.

Along the lines of Judge Burke’s later written findings at the dangerous

special offender hearing, Judge Pratt clearly indicated at the sentencing

hearing of March 17, 1978, that he felt respondent was a dangerous

criminal (Tr. 18-19):

[Respondent’s offenses] are among the most serious violations of

the law recognized by the legal system. * * * He has continued ina

pattern of criminal activity in crimes which relate to extortion,

assault, burglary, racketeering. | have searched the presentence

report and listened carefully throughout the proceedings here this

morning for some offsetting factors and have found very little. The

history of the defendant appears to be that of defiant, antisocial

conduct. His prior incarcerations have apparently failed to deter

any further criminal behavior on the part of the defendant. He has

given no indication or remorse, of desire or willingness to

relinquish his criminal ways or of any respect or regard for his

fellow man, for society, or for the law.

Judge Pratt explained that he imposed concurrent, rather than

consecutive, sentences on the bombing counts only because they

involved the “same combination of acts” (Tr. 20). He imposed an eight-

year sentence on the bombing count, rather than the ten-year maximum,

because he felt it was equitable to give respondent credit for time served

on a state conviction that was set aside on appeal (id. at 21).

3

offender,” and thus whether his sentence should be

increased. The same question would still remain for this

Court—whether a sentence imposed by the district court is

imbued by the Constitution with a degree of finality such

that Congress may not provide that it may be increased on

appeal.

2. Amicus American Civil Liberties Union (ACLU)

erroneously asserts (Br. 7, 37-40) that the fundamental

prohibition of the Double Jeopardy Clause is that any

readjudication of facts, except at the defendant’s request,

is forbidden. The primary basis given for this conclusion

is the fact that United States v. Wilson, 420 U.S. 332

(1975), involved a correction of an error of law (Br. 23-

24). We disagree with this proposition and its proposed

application to the instant case on two counts: First, we

think it plain that the Double Jeopardy Clause draws no

absolute distinction between factual and legal questions;

second, even assuming that it did, such a distinction

would be irrelevant here because no readjudication of

facts is required by the government’s appeal in this case.

As discussed in our opening brief (at 18-24), the

constitutional prohibition focuses upon the need for a

retrial on the issue of guilt or innocence, not the degree to

which the issue sought to be appealed is a factual one. Thus,

when a jury returns a verdict of not guilty, the government is

equally precluded from seeking review of legal errors as it is

of factual ones. Moreover, while we are not quite sure what

amicus means when it speaks of “readjudication of facts”

(Br. 37), it is equally clear that the government may seek

review of questions that require the appellate tribunal to

undertake a searching inquiry into the factual record. This

Court itself has reviewed a post-trial suppression ruling and

reversed the suppression after weighing the facts and their

legal consequences. United States v. Ceccolini, 435 U.S. 268

4

(1978). And every court of appeals to consider the question

has held that the Double Jeopardy Clause permits the

government to appeal from a post-guilty-verdict acquittal

entered by a district court.? So long as retrial would not be

required by the government’s appeal, the question whether

the appeal involves “factual” or “legal” issues has never been

thought material.

Even assuming arguendo that the Constitution would bar

a de novo sentencing hearing by the court of appeals, it is

apparent that no such hearing is involved here. The statute

provides that the sentence review is to be had “on the record

of the sentencing court.” The ACLU confuses (Br. 29, 40-41)

this review of the record with a readjudication of facts

decided below. In most appeals it is necessary for the

reviewing court to examine the record, but no

“readjudication” of facts is thereby involved.’ Although the

ACLU characterizes (Br. 41) review under Section 3576 as

“ab initio, * * * wholly without regard to * * * the trial

court’s action,” the statute does not contemplate ade novo

factual determination by the court of appeals based on the

record below. The scope of review is quite narrow; the

*See, e.g., United States v. Forcellati, 610 F. 2d 25 (1st Cir. 1979),

cert. denied, No. 79-5945 (Mar. 24, 1980); United States v. De

Garces, 518 F. 2d 1156 (2d Cir. 1975); United States v. Cahalane, 560

F. 2d 601, 603 n.2 (3d Cir. 1977), cert. denied, 434 U.S. 1045 (1980);77

United States v. Burroughs, 537 F. 2d 1156 (4th Cir. 1976); United

States v. Cravero, 530 F. 2d 666 (Sth Cir. 1976); United States v.

Jones, 580 F. 2d 219, 221-222 n.3 (6th Cir. 1978); United States v.

Allison, 555 F. 2d 1385 (7th Cir. 1977); United States v. Donahue,

539 F. 2d 1131 (8th Cir. 1976); United States v. Rojas, 554 F. 2d 938

(9th Cir. 1977); United States v. Calloway, 562 F. 2d 615 (10th Cir.

1977).

3The ACLU notes (Br. 30, 41) that a “hearing” is required before

the court of appeals may increase the defendant’s sentence. We think

it clear from the statute, however, that this language does not provide

for a duplication of the sentencing hearing held in the district court,

but rather constitutes a requirement that the defendant be afforded

an opportunity to be heard through counsel in oral argument, as in

most appeals.

5

statute provides that the court of appeals should review

whether “the findings made were clearly erroneous, or the

sentencing court’s discretion was abused.”

Finally, it must be noted that, in this case, the government

did not challenge the district court’s factual findings in any

way. We fully accept them and raised on appeal only the

question of the proper legal consequences to be attached to

those facts. Thus, the appeal in this case, held

unconstitutional by the court of appeals, does not even

involve the narrow review of the district court’s factual

findings authorized by the statute, but only the legal

question of abuse of discretion by the trial court in imposing

sentence.

3. The ACLU also takes issue (Br. 43-45) with our

argument (Br. 33-42) that trial and sentencing are

significantly different for double jeopardy purposes, so that

a statute authorizing review and redetermination of a

sentence would not offend the Constitution even though one

authorizing a retrial after review of an acquittal would.

While we do not for one moment question the importance to

a defendant of the sentence imposed upon him after

conviction, amicus’ arguments are unconvincing because

they wholly fail to come to grips with the necessary

implications of Wilson.

Whatever else may be said about a defendant’s interest in

retaining the benefits of a lenient sentence, that interest

cannot exceed the interest of a defendant (such as Wilson) in

retaining the benefits of an acquittal or a dismissal of the

charges against him. Yet Wilson and its progeny (see note

2, supra) clearly settle that the Double Jeopardy Clause

does not protect such interests except where the

government’s appeal would require a new trial. indeed,

Wilson implicitly confirms that trial and sentencing are

wholly different matters for double jeopardy purposes, since

6

the government appeal that it permits would, if successful,

have as one of its consequences the sentencing of the

defendant, with all the ordeal and expense that that entails.

If sentencing and trial were part of a unitary whole for

double jeopardy purposes, then the recognition in Wilson

that further trial proceedings are barred would presum-

ably have precluded sentencing proceedings as well.

It is equally settled by Wilson and other cases

authorizing government appeals in the face of double

jeopardy objections that the ordeal and expense inherent

in defending against the appeal itself is not material to the

double jeopardy analysis. Here, as in those cases, the

appeal entails the presentation of briefs and argument by

counsel in an appellate court, a proceeding wholly

different in character from a trial. The defendant would

ordinarily not even be present. Moreover, the potential

public embarrassment and stigma associated with

appellate proceedings is minimal when contrasted with

that attending trials. See Stern, Government Appeals of

Sentences: A Constitutional Response to Arbitrary and

Unreasonable Sentences, 18 Am. Crim. L. Rev. 51, 67

(1980).

Finally, although it is not controlling of the double

jeopardy issue, it is certainly relevant that the Court has

recognized substantial distinctions between trial and

sentencing for due process purposes. See United States v.

Grayson, 438 U.S. 41 (1978); Williams v. New York, 337

U.S. 241 (1949).

4. The ACLU mistakenly claims (Br. 30-33) that the

common law prohibited amending a sentence once it was

imposed. Prior to 1907, no right of appeal existed in

criminal cases in England. If review could be obtained, it

was on a writ of error. See Harris’s Criminal Law 840 (22d

ed. 1973). Because of the nature of this procedure, the higher

court’s options were limited to denying the writ, thereby

7

leaving the judgment undisturbed, or granting it, thereby

discharging the prisoner; the court could not alter the

judgment below.* However, the trial court was free to

amend a sentence at any time before the judgment was

entered on the rolls at the end of the court’s term, even in

capital cases.> Thus, in Rex v. Fletcher, | R. & R.C.C.R.

58, 168 Eng. Rep. 682 (1803), although the judges were

divided on the question whether the death sentence

pronounced was defective (because it did not provide for

dissection), all the judges agreed that the omission could

have been remedied by the trial judge “as the sentence

may be corrected or altered at any time during the

assizes.” Jd. at 683. Accord, Rex v. Price, 6 East 323, 102

Eng. Rep. 1310 (1805).°

4See, e.g., Rex v. Bourne, 7 Ad. & E. 58, 112 Eng. Rep. 393 (1837)

(judgment reversed and prisoners discharged because they were

sentenced to transportation for a crime punishable only by death).

5As noted in our opening brief (at 25-26), this function of the rolls

of the court carried over into America. Thus, in addition to the

section cited by the ACLU, the Massachusetts Body of Liberties also

provided:

Everie Action betweene partie and partie, and prcceedings

against delinquents in Criminall causes shall be briefly and

destinctly entered on the Rolles of every Court by the Recorder

thereof. That such actions be not afterwards brought againe to

the vexation of any man.

Green v. United States, 355 U.S. 184, 200 (1957) (Frankfurter, J.,

dissenting), quoting Colonial Laws of Massachusetts 47 (emphasis

added).

*Rex v. Walcot, 90 Eng. Rep. 533 (1694), cited by Amicus ACLU

(Br. 32 n.4), is not to the contrary. A more complete report of that

case at 4 Mod. 396, 87 Eng. Rep. 464 (1694), reveals that it involved a

collateral attack by the son of Thomas Walcot, who had been

executed for treason, seeking to reverse the forfeiture of his father’s

lands on the ground that the judgment of treason was technically

invalid. The court did not hold that it could never order increase of a

8

CONCLUSION

For the foregoing reasons and those stated in our opening

brief, the judgment of the court of appeals should be

reversed.

WADE H. McCREE, JR.

Solicitor General

SEPTEMBER 1980

sentence after imposition, but instead recognized that that might be

possible in certain circumstances. In the case before it, however,

nothing could be done to “increase” the sentence because the

collateral attack was brought in a different court from the one that

had initially imposed the defective sentence.

DOJ-1980-09