Petitioners Reply Brief — Computer Sciences Corp. v. United States

t ovtice -Supreme Court, uS.

| FILED

| pec 1? 1982

No. 82-728 wehNZR L. STEVAS,

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1982

COMPUTER SciENcES Corp., et al., Petitioners,

Vv.

UNITED StaTEs OF AMERICA, Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Fourth Circuit

PETITIONERS’ REPLY BRIEF

MILTON EISENBERG

Jack B. GoRDON

FRIED, FRANK, HARRIS,

SHRIVER & KAMPELMAN

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

Counsel for Computer Sciences

Corporation

BARRY Wm. LEVINE

Davip R. Appis

GEORGE KAUFMANN

DICKSTEIN, SHAPIRO & MORIN

2101 L Street, N.W.

Washington, D.C. 20037

Counsel for Erwin L. Allen

WALTER J. BONNER

THOMAS A. GUIDOBONI

BONNER, THOMPSON, O'CONNELL

& MIDDLEKAUFF

900 Seventeenth Street, N.W.

Washington, D.C. 20006

* y»unsel for Norman W. Derrick

Jacop A, STEIN

ROBERT F. MUSE

STEIN, MITCHELL & MEZINES

1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Herbert G. Blecker

NATHAN LEWIN

(Counsel of Record)

R. STAN MORTENSON

JONATHAN B. SALLET

MILLER, CASSIDY, LARROCA

& LEWIN

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

Counsel for John W. Luke

THOMAS L. PATTEN

MICHAEL CHERTOFF

LATHAM, WATKINS & HILLS

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Counsel for Thomas A. Marti

BARNET D. SKOLNIK

1709 New York Avenue

Washington, D.C. 20006

DANIEL J. HURSON

HUNDLEY & CACHERIS

1709 New York Avenue

Washington, D.C. 20006

Counsel for Peter C. Loux

a

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

i

TABLE OF AUTHORITIES

CASES: Page

Abney v. Unite! States, 431 U.S. 651 (1977) ......... 5

Burroughs v. United States, 290 U.S. 534 (1934) ..... 6

Busic v. United States, 446 U.S. 398 (1980) .......... 2

Finch v. United States, 433 U.S. 676(1977) (percuriam) 5

Gooding v. United States, 416 U.S. 430 (1974) ....... 6

Heike v. United States, 217 U.S. 423 (1910) .......... 3, 4

Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943) . 3, 4

Serfass v. United States, 420 U.S. 377 (1975) ........ 5

Simpson v. United States, 435 U.S. 6 (1978) ......... 2

United States v. Echols, 542 F.2d 948 (5th Cir. 1976), cert.

denied, 431 U.S. 904 (1977) ........ cece eee wees

ae — v. Henderson, 386 F. Supp. 1048 (S.D.N.Y.

United States v. Lill, 511 F. Supp. 50(S.D.W.Va. 1980) 2

United States v. Mersky, 361 U.S. 431 (1960) ........ 4

STATUTES:

TT bitntnencnued peehedeeweaseuneeeeads 7

EE ss nnd nun 6noee6e0seeeseescesece 7

EE it isin ee ne eieseeansesenceesets 4,6

Be ee Ps GEG kvccccccccccccccsccccsedes 2

Federai Rules of Criminal Procedure:

a 2

OTHER:

Brief for the United States, Gooding v. United States,

Sy EE 4-050 556060666666606066464646056E600 6

H.R. Rep. No. 91-1768, reprinted in 1970, U.S. Cong. &

LE sina cddhcobsededuenseeeess _ ic -@

Brief for the United States, J/linois v. Abbott and Associ-

ee hs CE Ss os ccc cckdecscctsenooeces 3

R. Stern & E. Gressman, Supreme Court Practice, (5th

Di ctiided ch edideahleddddwevinéenetodaes 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-728

COMPUTER ScIENCES CorpP., et al., Petitioners,

Vv.

Unirep StaTes OF AMERICA, Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Fourth Circuit

PETITIONERS’ REPLY BRIEF

In his Memorandum in Opposition to our Petition for a

Writ of Certiorari (“Mem. Op.”), the Solicitor General has

declined to address the merits of our Petition.' There is,

therefore, no response to our arguments: (i) that the

prosecution’s legal theory overrides Congress’ limitation

' Although the Solicitor General purports not to address the

merits, he has characterized the facts concerning the invasions of

grand jury secrecy by asserting that Rule 6(d) was violated on only

five occasions. Mem. Op. at 3. In fact, there were at least five

intrusions into the grand jury, as shown by grand jury transcripts

disclosed to the petitioners in pretrial discovery. The petitioners

have never been given access to the remaining transcripts in order to

determine if there were additional intrusions. Before the trial court,

the prosecutors asserted that, on the basis of their ex parte review of

the documents, there was one other possible violation of the Rule.

Petition for a Writ of Certiorari at 18, n.9.

2

on the reach of the Racketeer Influenced and Corrupt

Organizations Act of 1970 (“RICO”), 18 U.S.C. §§ 1961,

et seq., and perverts RICO’s statutory policy of prevent-

ing the infiltration of legitimate businesses by criminal

elements, (ii) that the prosecution improperly escalated

corporate employees’ submission of false claims into mail

and wire fraud charges in contravention of rules of

statutory construction announced by this Court in Busic

v. United States, 446 U.S. 398 (1980), and Simpson v.

United States, 435 U.S. 6 (1978), and in violatiou of the

legislative history of the Mail Fraud law, and lower court

precedent (see United States v. Henderson, 386 F. Supp.

1048 (S.D.N.Y. 1974)), and (iii) that the Fourth Circuit

improperly refused to follow the rule, previously adopted

by the Fifth and Eleventh Circuits (see United States v.

Echols, 542 F.2d 948, 951 (5th Cir. 1976), cert. denied, 431

U.S. 904 (1977)) and most other federal courts (see, e.g.,

United States v. Lill, 511 F. Supp. 50, 58 (S.D.W.Va.

1980)), that violations of the grand jury standards pre-

scribed in Rule 6(d) of the Federal Rules of Criminal

Procedure are per se grounds for dismissal of indictments

before trial.’

® The Solicitor General has agreed to “file a response on the merits

if the Court requests.” Mem. Op. at 5, n.2. This form of grudging

piecemeal response is, we believe, demeaning to the Court and

disruptive of its processes. A respondent should properly present ail

the reasons supporting his opposition in a single pleading rather than

forcing this Court to consider objections to review in a sequential

manner. The Solicitor General's reluctance to address the merits may

result from inconsistency between the position of the Department of

Justice concerning the grand jury claim in this case and the Depart-

ment’s position in //linois v. Abbott and Associates, Inc., No. 81-

1114. In that case, the Solicitor General requested this Court to

permit States to receive grand jury materials after the completion of

3

The Solicitor General has offered only one reason why

this Court should decline review and that reason is, we

submit, demonstrably wrong. Indeed, if it is seriously

presented as a legal argument, it provides an additional

ground for the granting of certiorari so as to determine its

validity for future cases. The Solicitor General contends

that “this case is interlocutory,” Mem. Op. at 5, n.2, and

is, therefore, not “ripe for review by this Court.” /d., at 4.

This claim—which would foreclose review by this Court

of all reversals by federal courts of appeal of pretrial

dismissals of criminal indictments—conflicts with the in-

tent ot Congress in permitting the government to appeal

to the courts of appeal from pretrial dismissals and other

pretrial rulings in criminal cases. Neither precedent nor

sound judicial policy supports the application of a rule

that prevents this Court’s review of a court of appeals

decision when the government wins but not when it loses.

The Solicitor General relies on two decisions of this

Court, Roche v. Evaporated Milk Assn., 319 U.S. 21

(1943) and Heike v. United States, 217 U.S. 423 (1910), to

support his contention that our petition is “inter-

locutory.” Both cases, iowever, involved efforts to

criminal proceedings. But the Solicitor General took a strong stand

against “disclosure during a grand jury investigation” to any person,

even if disclosure were accompanied by a protective order. Brief for

the United States at 26, n.19, J/linois v. Abbott and Associates, Inc.,

No. 81-1114 (emphasis added). The Department of Justice has not

displayed a similar concern for the need for grand jury secrecy in this

case, in which no purpose is served by permitting unauthorized

intrusions into the grand jury. The need for secrecy here is surely

greater than in situations where, as in //linois v. Abbott and Associ-

ates, Inc., material is scught to be disclosed for legitimate purposes

through orderly court procedures.

1

appeal district court denials of defendants’ pretrial mo-

tions. It is well established that Congress never intended

to permit criminal defendants to appeal adverse pretrial

rulings by district courts. See Roche v. Evaporated Milk

Assn., 319 U.S. at 30; Heike v. United States, 217 U.S. at

428.

By contrast (as this Court noted in Roche v. Evapo-

rated Milk Assn., 319 U.S. at 30, n.4), the government

since 1907 has been allowed to appeal from the dismissal

of an indictment. See 18 U.S.C. § 3731; R. Stern & E.

Gressman, Supreme Court Practice 79-82 (5th ed. 1978).

Indeed, until 1971, such issues were considered impor-

tant enough to warrant direct review in this Court. See,

e.g., United States v. Mersky, 361 U.S. 431, 434-36

(1960).

In 1971, Congress amended 18 U.S.C. § 3731 and pro-

vided that a government appeal from the dismissal of an

indictment would first go to a court of appeals. That

amendment reduced the workload of this Court by

decreasing its mandated appellate jurisdiction. But Con-

gress recognized that “cases in the courts of appeals may

be reviewed by the Supreme Court. . .” ona petition for

a writ of certiorari. H.R. Rep. No. 91-1768, reprinted in

1970 U.S. Cong. & Ad. News, 5804, 5849. No one remote-

ly suggested the position now being urged by the Solicitor

General—i.e., that if a court of appeals reverses a district

judge’s dismissal of an indictment, the case must be

treated, for purposes of further review, as if the district

judge had denied a motion to dismiss. Such a rule would,

in effect, oust this Court of jurisdiction to review issues

which, prior to 1971, were deemed so important that only

this Court could review them.

The Solicitor General apparently believes that 18

U.S.C. § 3731 should now be interpreted by this Court to

5

provide the United States with the right to appeal an

adverse district court decision to the court of appeals and

then to seek certiorari if its appeal is unsuccessful, but to

deny a defendant an equal right to seek certiorari if the

government, having lost in the district court, prevails at

the appellate level. There is no evidence in the relevant

committee reports to support the contention that Con-

gress intended to construct such a one-way appeals proc-

ess solely for the benefit of the government.

In fact, this Court has granted a petition for certiorari

in precisely the same circumstances as are present in this

case. In Serfass v. United States, 420 U.S. 377 (1975), a

trial court dismissed an indictment and the government,

invoking 18 U.S.C. § 3731, persuaded a court of appeals

to reverse. The petitioner requested this Court to grant

review and rule that the court of appeals’ decision was

improper. Althought the Court could have denied the

petition for certiorari and awaited a post-conviction

appeal—as the Solicitor General now maintains it must

do—it granted certiorari and considered the petitioner’s

claim. Serfass thus demonstrates that our petition is in no

way “interlocutory.” See also Finch v. United States,

433 U.S. 676 (1977) (per curiam).

5 In Serfass, the petitioner’s substantive claim concerned the prop-

er interpretation of the Double Jeopardy Clause. Two years after

Serfass was decided, this Court distinguished double jeopardy claims

from other pretrial grounds for a motion to dismiss. See Abney v.

United States, 431 U.S. 651 (1977). At the time Serfass was decided

and in the context of that opinion, however, there was no procedural

difference in terms of finality between Serfass’ claim and the petition-

ers’ claims herein.

Moreover, the Court has granted petitions for cer-

tiorari in other analogous situations. 18 U.S.C. § 3731

also permits the government to appeal a pretrial suppres-

sion of evidence. In Gooding v. United States, 416 U.S.

430 (1974), this Court decided a suppression issue that

came to the Court in precisely the same posture as this

case. A defendant, indicted on charges of possession and

concealment of narcotics, moved to suppress evidence

seized from his apartment on the ground that the search

warrant did not comply with the laws of the District of

Columbia. The district court granted the defendant’s mo-

tion, and the government took an appeal to the District of

Columbia Circuit pursuant to 18 U.S.C. § 3731. See Brief

for the United States at 11, Gooding v. United States, No.

72-6902. After the court of appeals reversed the suppres-

sion order, the defendant petitioned for a writ of cer-

tiorari to this Court. This Court granted the petition and

decided the case on its merits.

The Solicitor General has also failed to recognize that in

situations not governed by 18 U.S.C. § 3731 this Court

has heard cases, on petition by criminal defendants, rais-

ing claims that proceedings should be terminated before

trial. For example, in Burroughs v. United States, 290

U.S. 534 (1934), a trial court in the District of Columbia

dismissed an indictment on the ground that the facts

alleged did not state a criminal offense. The Court of

Appeals of the District of Columbia reversed, but before

the indictment proceeded to trial this Court granted cer-

tiorari on the defendant’s petition. This Court’s readiness

to decide the defendant’s claims on the merits demon-

strated that it is not “premature” or “interlocutory” to

consider the validity of an indictment before trial.

Nor is there substance to the Solicitor General’s asser-

tion that this case is not otherwise “ripe” for review. The

7

court of appeals considered and decided the issues pre-

sented to this Court, which are questions presented by

this record—i.e., whether the conduct alleged in the in-

dictment states an offense under either RICO or the mail

and wire fraud statutes (18 U.S.C. §§ 1341, 1343) and

whether the district court properly remedied several

violations of Rule 6(d). Neither claim requires further

factual development in order for this Court to review the

court of appeals’ rulings.

Moreover, petitioners and the district court will be

burdened by a lengthy and unnecessary trial if their

position is correct and this Court now declines review

because of the Solicitor General’s “ripeness” assertion.

And, as we noted in our Petition (p. 20), the claim based

on grand jury intrusion is uniquely appropriate for judi-

cial remedy before trial. This Court should, therefore, act

promptly to (i) eliminate conflict among the circuits con-

cerning the proper remeily for violations of Rule 6(d), (ii)

quell confusion concerning the relationship between the

false claims and mail fraud acts, and (iii) hait an avalanche

of improper RICO suits, both civil and criminal.

In summary, the sole legal argument made by the

Solicitor General in response to our Petition rests on a

novel claim of statutory construction which significantly

affects this Court’s jurisdiction to hear important issues

raised at the pretrial stage by criminal defendants. If a

district court sustains a claim made at that juncture by a

defendant, this Court should not be deprived of jurisdic-

tion to consider that claim simply because the court of

appeals disagrees with the district judge. In light of the

Solicitor General's stated position, the parties to this case

should be instructed to discuss the issue presented by the

Solicitor General in their briefs on the merits. Resolution

of the issue presented by the Solicitor General will aid

both the government and the private bar by erasing any

uncertainty that may exist concerning reviewability in

this Court of a court of appeals decision that reverses

dismissal of a criminal indictment. The government will

know whether—as it asserts—cases at this juncture are

not suitable for this Court’s review, and prospective peti-

tioners will henceforth know whether their petitions will

be treated by the Court as requests to review inter-

locutory decisions. Accordingly, the writ of certiorari

should be granted on all issues raised by the petition and

on the novel question now raised by the Solicitor General.

Respectfully submitted,

MILTON EISENBERG NATHAN LEWIN

Jack B, GORDON (Counsel of Record)

DICKSTEIN, SHAPIRO & MORIN

2101 L Street, N.W.

Washington, D.C. 20037

Counsel for Erwin L. Allen

WALTER J. BONNER

Counsel for Norman W. Derrick

Jacos A. STEIN

Rosert F. Muse

STEIN, MITCHELL & MEZINES

1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Herbert G. Blecker

December ____., 1982

R. STAN MORTENSON

JONATHAN B. SALLET

MILLER, CAssiDy, LARROCA

& LEWIN

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

Counsel for John W. Luke

Avenue, N.W.

Counsel for Thomas A. Marti

BARNET D. SKOLNIK

1709 New York Avenue

Washington, D.C. 20006

DANIEL J. HURSON

HUNDLEY & CACHERIS

1709 New York Avenue

Washington, D.C. 20006

Counsel for Peter C. Loux