Petition for Writ of Certiorari — Nilson Van & Storage v. United States

84-1771 Segre on |

- F I

MAY 6 1985

ALEXANOER STEVAS,

CLERK

—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

Nilson Van and Storage, and Howard A.

Nilson, Petitioners

versus

The United States of America

A Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

* Charles Porter

Elizabeth Van Doren Gray

Jane W. Trinkley

McNAIR GLENN KONDUROS CORLEY

SINGLETARY PORTER & DIBBLE, P.A.

Post Office Box 11390

Columbia, South Carolina 29211

(803) 799-9800

Pees ic.s 2 wanree

QUESTIONS PRESENTED

1. Whether the Government can appeal

an order granting a criminal defendant a new

trial when the statute permitting appeal was

enacted after the new trial order became

final?

2. Whether the United States Court of

Appeals For the Fourth Circuit erred in

reversing the grant to petitioners of a new

trial on the grounds that fraudulent intent

is not a necessary element under 18 U.S.C. §

1001 and that materiality, although an

essential element of the offense, is a

question for the court rather than the jury?

Whether the abuse of discretion

standard applies to appeals by the

Government as_- well as to appeals by

defendants of new trial orders in criminal

cases?

PARTIES TO THE PROCEEDING BELOW

Nilson Van and Storage

Howard A. Nilson

The United States of America

John 0. Marsh, Jr., Secretary of the United

States Department of the Army

John Lehman, Secretary of the United States

Department of the Navy

Verne Orr, Secretary of the United States

Department of the Air Force

TABLE OF CONTENTS

Beads OE BRO Sh es co cb chssadswiacdsbs iii

ogi its = «fs PPPrerrrvrrrrrvrrcr rrr. rrr 2

PUREE Os 68 0 es bso SOs SNS Oe 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

RPP PT TEL OST eee ee TL Cee Te rere 3

Srnseemes OF Tie CARB sc ccciccicdasscnss 6

REASONS FOR GRANTING CERTIORARI........ 10

A. Retroactive application

of the amendment to

section 3731 constitutes

an ex post facto law......... 11

B. A split in the circuits

exists on retroactive appli-

cation of the amendment to

COGRE DIG Rs wk aniwaneeessensds 15

Cc. A split in the circuits

exists on the essential

elements of 18 U.S.C. § 1001. 19

D. The decision below either

applies a different

standard to appeals by the

government of new trial

orders or applies a

standard different from

that applied in other

Gabber ck cue eavabésceves 25

COMSCEAIBION. cs ccctccccscsceneseseseesesees 27

APPEMDIX Aun. cccccncccccscsscesccesssccs la

APPENDIX B.. cccccccccsssccsccsscesssess 22a

ii

TABLE OF AUTHORITIES

Cases:

Bradley v. Richmond School Board,

416 U.S. 696 (1974)... ccc cece cccccccces

Carroll v. United States, 354 U.S.

39H (19ST). cccccccccccccesscscccsesescces

In re United States, No. 84-1959

(4th Cir. October 5, 1984)...........4.4..

In re Winship, 397 U.S. 358 (1970)........

Kring v. Missouri, 107 U.S. 221

C1GSES pe cccccccccceccccsccecsesseessccececs

Mullaney v. Wilbur, 421 U.S. 684

CAD TS )ccccccccccccscesecceseesesseesesese

Sinclair v. United States, 279

U.S. 263 (1929)... cece cccncscncccecceces

Thompson v. Utah, 170 U.S. 343

PIOO) oocs6eencccsescccuceranesaueenenen

Weaver v. Graham, 450 U.S. 24

CUGS Lp ccccccccccccccscesecseccesecsceses

United States v. Abadi, 706 F.2d 178

(6th Cir. 1983), cert. denied,

U.S. , 104 S. Ct. 86 (1984)......

United States v. Adler, 623 F.2d

1287 (Sth Cir. 1980)... . ccc cece ccccccces

iii

|

mit States v. Bernard, 384 F.2d

DAD EOE GES. BST Po cccccecscccecscsvccccce

Inited States v. Brack, 747 F.2d

1142 (7th Cir. 1984) cert. denied,

: U.S. , 105 S. Ct. 1193 (1985)....

bited States v. Clancy, 276 F.2d 617

CTU Gals BOOOP cccesececccesecsscecccses

'

ited States v. Fernandez-Toledo,

749 F.2d 703 (llth Cir. 1985)...........

ipited States v. George, 568 F.2d

SOGG (GEE CAF. W7E) cccccccehpvccscccccces

Ipited States v. Hall, 2 Wash. C.C.

366, 26 Fed. Cas. 84 (1809).............

mited States v. Hausmann, 711 F.2d

SAD (SER COR. Beep cccccccccacccsscccece

ited States v. Irwin, 654 F.2d 671

(10th Cir. 1981), cert. denied,

GSS G.B. WRG (iGESpecccccccscevsscctscces

Bited States v. Ivey, 322 F.2d 523 (4th

Cir), cert. denied, 375 U.S. 953(1963)..

Rited States v. Lauga, 726 F.2d

See COU CAE. FOO) cc cscccbsbececesees

Bited States v. Lincoln, 630 F.2d

SEE SO ORs. SEG sce ed eee ekdaesen.

sited States v. McIntosh, 655 F.2d

80 (Sth Cir. 1981), cert.

Geniead, 455 U.S. 948 (19G2)..cccccscceces

iv

10,20

22

10,15,

16,18

25

12

23,24

23

21

United States v. McLennan, 563 F.2d

a BO a rg Ss Fre rrerrrrrrrrrere 10,20

United States v. Miller, 658 F.2d 235

i.) ie si. debe wee oe ew be O08 6068 26

United States v. Norris, 749 F.2d 1116

i is MPR s cheb ebeseeesecensebeseese 19,22

United States v. Race, 632 F.2d 1114

tt (is PECs cdcagabeocbedsescbatecesonse 26

United States v. Richmond, 700 F.2d

tt i, Bhi ces 66 eee Saw baa ew eee 22

United States v. Seay, 718 F.2d 1279

i. MCs ccanenetebebeebeseeesaess 26

United States v. Sisson, 399 U.S.

i) Rh a6 cn 68 46 OS 6 e66 RS KOCH ORE NOD EEA 11

United States v. Stanford, 589 F.2d

— Fy, 2B aR), RPP TTT erTry Te 20

United States v. Valdez, 594 F.2d

ee ee Sea Pe ia dee aw Oe wd eee eaee 23

Weaver v. Graham, 450 U.S. 24 (1981)....... 13

Weinstock v. United States, 231

Rome Gee Cees GEE, BOOP dcccccesiesioves 22

Constitutional provisions:

United States Constitution,

a oc OR a a a ls we ooo | ee!

United States Constitution,

i a a or ene ee oe a ee a oe eee eee oe (>! FP

23

itatutes:

ee ee | ee ee eee 3,19,20

24

ae Gedeallc. Bene isaccncdeebeccéees 14,18

RAS Awe Sl} eee 4, 17

6 U.S.C. § 3731 (1982), as amended

by the Comprehensive Crime

Control Act of 1984, Pub. L. No.

98-473 § 1206, 98 Stat. 2153..... 4,7,a0

vi

Ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

Nilson Van and Storage, and Howard A.

Nilson, Petitioners

versus

The United States of America

A Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners pray that this Court issue

a writ of certiorari to review the judgment

of the United States Court of Appeals for

the Fourth Circuit, entered February 13,

1985, which reverses the district court's

April 27, 1984, order granting petitioner a

new trial.

OPINIONS BELOW

The opinion of the Court of Appeals

which reversed the district court's grant of

petitioners’ motion for a new trial is

reported at 755 F.2d 362 and appears in

Appendix A hereto. The Order of the Court

of Appeals denying the petition for

rehearing and suggestion for rehearing en

banc is unreported and appears in Appendix B

hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Fourth Circuit was entered on

February 13, 1985. A timely Petition for

Rehearing and suggestion for rehearing en

banc was denied on March 18, 1985, and this

petition for certiorari was filed within 60

days of that date. This Court's

jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Article l,

§ 9, clause 3, provides:

No bill of attaindes or ex post facto

law shall be passed.

United States Constitution, Amendment

VI, provides:

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial, by

an impartial jury of the State

and district wherein the crime

shall have been committed, which

district shall have been

previously ascertained by law,

and to be informed of the nature

and cause of the accusation; to

be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

Assistance of Counsel for his

defense.

18 U.S.C. § 1001 provides:

Whoever, in any matter within

the jurisdiction of any

department or agency of the

United States knowingly and

Willfully falsifies, conceals or

covers up by any trick, scheme,

3

or device a material fact, or

makes any false, fictitious or

fraudulent statements or

representations, or makes or uses

any false writing or document

knowing the same to contain any

false, fictitious or fraudulent

statement or entry, shall be

fined not more than $10,000 or

imprisoned not more than five

years, or both.

18 U.S.C. § 3731 (1982) provided

in pertinent part:

In a criminal 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.

18 U.S.C. § 3731 (1982), as amended by

the Comprehensive Crime Control Act of 1984,

Pub.

L. No. 98-473 § 1206, 98 Stat.

provides in pertinent part:

In a criminal case an appeal by

the United States shall lie toa

court of appeals from a decision,

judgment, or order of a district

court dismissing an indictment or

4

2i953,

i

i

information or granting a new

trial after verdict or judgment,

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.

* + «&

An appeal by the United

States shall lie to a court of

appeals from a decision or order,

entered by a district court of

the United States, granting the

release of a person charged with

or convicted of an offense, or

denying a motion for revocation

of, or modi fication of the

conditions of, a decision or

order granting release.

STATEMENT OF THE CASE

Nilson Van & Storage and Howard A.

Nilson (collectively referred to as

"Nilson") were indicted in a three-count

Indictment alleging an antitrust violation,

making a false statement under 18 U.S.C. §

1001, and mail fraud. Nilson was convicted

under Section 1001 and acquitted of the

remaining charges. Upon a timely filed

motion, the district court granted Nilson a

new trial on April 27, 1984, on the ground

that the jury instruction omitted the

element of fraudulent intent. On May 9,

1984, the Government moved for

reconsideration of the order. After the

case was rescheduled for trial, Nilson moved

to dismiss the remaining count on the ground

of double jeopardy. The district court

denied the motion but certified it as not

frivolous, and Nilson appealed to the Court

eee See tee ee

of Appeals for the Fourth Circuit. The

Government's Motion for Reconsideration

remained unresolved. On September 10, 1984,

while the double jeopardy appeal was

pending, the Government sought from _ the

Fourth Circuit a Writ of Mandamus directing

the district court to reinstate the guilty

verdicts and to vacate its order granting a

new trial, or to rule on the Government's

Motion for Reconsideration. The mandamus

petition was summarily denied by the Fourth

Circuit on October 5, 1984. See In re

United States, No. 84-1959 (4th Cir. October

Sy 1984). On September 19, 1984, the

district court denied the Government's

Motion for Reconsideration. Each of these

events occurred prior to the enactment of

the Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, § 1206, on October 12,

1984, which, in pertinent part, amended 18

U.S.C § 3731 to permit appeal by the

government of orders granting new trials.

The Government noticed its appeal on October

18, 1984.

The double jeopardy and new trial

appeals were consolidated and argued before

a panel of the Fourth Circuit on December 4,

1984, and an opinion was filed on February

13, 1985. The Fourth Circuit concluded that

it had jurisdiction to consider the

Government's appeal from the new trial order

by retroactively applying the amendment to

Section 3731, reversed that order on the

grounds that fraudulent intent is not an

essential element of a Section 1001

violation and that materiality is an issue

for the court, not the jury, without ©

discussion of the standard of review applied ©

to the district court order, and dismissed

mv i Toasts

a

Oe eee ea ee ee eee Peer Ls ae ae ee We

eerie be

the remaining appeals without substantive

consideration.

Petitioner filed a timely Petition for

Rehearing pursuant to Rule 40, Federal Rules

of Appellate Procedure, and a suggestion for

a rehearing en banc pursuant to Rule 35 of

those rules. The petition urged the court

to reconsider its decision on the ground

that it contradicted prior decisions of that

court, overlooked a material fact and

appeared to apply a lower standard of review

to appeals by the Government than is applied

to appeals by a defendant. The petition was

denied, without elaboration, on March 18,

1985.

REASONS FOR GRANTING THE PETITION

Petitioner submits that the

Comprehensive Crime Control Act of 1984, as

applied in this case, constitutes an ex post

facto law. Moreover, the decision of the

Fourth Circuit in this case is directly

contrary to a decision of the Eleventh

Circuit Court of Appeals in United States v.

Fernandez-Toledo, 749 F.2d 703 (llth Cir.

1985), on the retroactivity issue, and is

directly contrary to a decision of the

Seventh Circuit in United States v. Brack,

747 F.2d 1142 (7th Cir. 1984), and a

decision of the Ninth Circuit in United

States v. McLennan, 563 F.2d 943 (9th Cir.

1977), on the essential elements of 18

U.S.C. § 1001. Further, whether materiality

of a false statement must be determined by

the jury, and what standard of review

applies to appeals by the Government of new

10

trial orders, are important questions of

federal law which should be settled by this

Court.

A. Retroactive Application of the

Amendment to Section 3731 Constitutes

an Ex Post Facto Law.

Petitioner submits that retroactive

application of amended Section 3731 to

permit the appeal of the new trial order in

this case constitutes an ex post facto law.?

Article 1, Section 9, U. S. Constitution.

The prohibition against ex post facto laws

includes any statute "which, in its

line right of the government to appeal

criminal cases is extraordinary and

disfavored in American jurisprudence. E.g.,

Carroll v. United States, 354 U.S. 394, 400

(1957). It is so disfavored that, unlike

other statutes granting appellate

jurisdiction, the statute permitting the

United States to appeal in criminal cases

has been strictly construed against a right

of appeal. United States v. Sisson, 399

U.S. 267 (1970).

operation, makes that criminal which was not

so at the time the action was performed, or

which increases the punishment, or, in

short, which, in relation to the offense or

its consequences, alters the situation of a

party to his disadvantage." United States

v. Hall, 2 Wash. C. C. 366, 26 Fed. Cas. 84

(1809), quoted in Thompson v. Utah, 170 U.

S. 343, 351 (1898), and Kring v. Missouri,

107 U. S. 221, 228 (1883) (emphasis in

original). Application of the 1984

amendment to Section 3731 to this case would

materially disadvantage Nilson by

transforming mere accusations into

convictions.

The critical question under the ex post

facto clause is whether "any substantial

right which the law gave the defendant at

the time to which his guilt relates [is]

taken away from him." Kring, 107 U.S. at

12

232. Accord, Weaver v. Graham, 450 JU. S.

24, 30-31 (1981). This Court has found the

right to bail to be a substantial right.

Kring, 107 U. S. at 232. The right to a new

trial is certainly as substantial as the

right to bail.

The inability of the Government to

appeal adverse decisions was and is a

substantial protection for criminal

defendants. Prior to passage of the

Comprehensive Crime Control Act of 1984,

criminal defendants had an absolute right

not to have the Government appeal orders

granting new trials. To deprive these

criminal defendants of that right would be

an ex post facto law. Thompson v. Utah, 170

U. S. at 351-52.

Moreover, to permit the Government to

appeal the new trial order penalizes Nilson

Van and Storage and Nilson for exercising

13

their right to appeal their claim of double

jeopardy. The new trial granted to Nilson

included the right to a speedy new trial.

iF Constitution, Amendment VI. The

constitutional right to a speedy trial, as

implemented by Congress in the Speedy Trial

Act, entitled Nilson to a new trial within

seventy days of the district court's

Aprii 27, 2966, order. —i6 U.8.C. § S262¢e}.

Therefore, not only was Nilson entitled to a

new trial after the April 27, 1984 order,

but Nilson would have actually received a

new trial by the time the Comprehensive

Crime Control Act of 1984 was passed, were

it not for Nilson's appeal of the double

jeopardy claim. The Fourth Circuit has in

essence said that Nilson forfeited the right

to a new trial by exercising the right to

appeal the double jeopardy claim. To exact

the loss of their undisputed right to a new

14

trial, and the corresponding presumption of

innocence, upon the defendants as a cost of

pursuing their double jeopardy appeal is

clearly impermissible. See Kring Vv.

Missouri, 107 U. S. at 234-35.

B. A Split in the Circuits Exists on

Retroactive Application of the

Amendment to Section 3731.

The Comprehensive Crime Control Act of

1984, signed into law on October 12, 1984,

amended 18 U.S.C. § 3731 to permit the

Government to appeal orders granting new

trials and orders granting bail. The Fourth

Circuit applied that amendment in this case

to permit appeal by the Government of the

district. court's April 27, 1984, erdéer

granting Nilson a new trial. The Eleventh

Circuit in United States v. Fernandez -

202,000, 749 ¥F.a2a 703 (1ith Cir. i965),

refused to apply the amendment retroactively

to confer jurisdiction of an appeal from an

a3

order granting bail, which order was entered

prior to the enactment of the amendment to

Section 3731.

The Eleventh Circuit recognized the

general rule, stated in Bradley v. Richmond

School Board, 416 U.S. 696 (1974), that a

new statute should be applied in pending

cases "unless manifest injustice would

result." 749 F.2d at 705. The Eleventh

Circuit reasoned, however, that it would be

manifestly unjust to apply the amendment to

persons who were entitled to be released and

whose release had been ordered at the time

the amendment became effective. 749 F.zd at

705.

The Fourth Circuit, also citing Bradley

Vv. Richmond School Board, reached the

opposite result in this case. The Fourth

Circuit ignored the fact that after its

denial of the Government's petition for

16

mandamus, the Government had no other means

to overturn the order granting Nilson a new

trial and therefore Nilson was irrevocably

entitled to a new trial before Section 3731

was amended.

When the district court granted

Nilson's motion for a new trial on April 27,

1984, the government had no right to appeal

[a. eeaen. 2e U.e.C. § 3731 (1982). The

only avenue of review available was a

petition for writ of mandamus. The

Government requested a writ of mandamus from

the Fourth Circuit and the Fourth Circuit

denied that request on September 19, 1984.

Accordingly, on September 19, 1984, Nilson

stood indicted but unconvicted, presumed

innocent, and irrevocably entitled to a new

trial. Furthermore, that new trial wceuld

have occurred prior to the enactment of the

amendment if Nilson had not appealed the

17

” |

double jeopardy issue. 18 U.S.C. § 3161(e).

Application of the amendment to Section 3731

to permit appeal of the new trial order

entered five months earlier and to work a

forfeiture of Nilson's right to a new trial

would result in manifest injustice.

Rather than viewing Nilson's position

at the time of the amendment, and

considering the effect that bévenmeeve 1

application would have on those rights as

the Eleventh Circuit had done in United

States v. Fernandez-Toledo, the Fourth

Circuit looked at the merits, concluded that

the new trial was erroneously granted,

reasoned accordingly that no manifest

injustice would result, and applied the

amendment retroactively. This conflict -

among the circuits on the retroactive

application of amended Section 3731 should

be resolved by this Court.

18

e: A Split in the Circuits Exists on the

Essential Elements of 18 U.S.C. § 1001.

The decision of the court of appeals in

this case ‘Gttere from decisions of other

courts of appeals on two of the elements of

18 U.S.C. § 1001, fraudulent intent and

materiality. A split in the circuits exists

on whether fraudulent intent is necessary

and on whether materiality is a question of

fact for the jury or a question of law for

the court.

: = Fraudulent intent

The district court in this case granted

Nilson a new trial because it believed that

the jury was not adequately instructed that

fraudulent intent was a necessary element of

Section 1001. The Fourth Circuit reversed

the new trial on the ground that fraudulent

intent is not a necessary element of a

Section 1001 violation. 755 F.2d 362, 367,

citing, United States v. Norris, 749 F.2d

19

1116, 1121 (4th Cir. 1984), which also held

that fraudulent intent is not an essential

element of a Section 1001 violation. This

decision of the Fourth Circuit is contrary

to decisions of the Seventh and Ninth

circuits on that issue.

The Seventh Circuit held in United

States v. Brack, 747 F.2d 1142, 1146-47 (7th

Cir. 1984), cert. denied, U.S.

‘

105 Ss. Ct. 1193 (1985) and United States v.

Stanford, 589 F.2d 285, 298 (7th Cir. 1978),

that 18 ¥.3.¢, § 1001 does require

fraudulent intent. The Ninth Circuit also

regards fraudulent intent as an essential

element of 18 U.S.C. § 1001. United States

v. McLennan, 563 F.2d 943 (9th Cir. 1977).

This conflict among the circuits on whether

fraudulent intent is a necessary element of

Section 1001 should be resolved by this

Court.

20

2. Materiality

The district court, while questioning

the rationale of eliminating an essential

element from jury consideration, followed

the Fourth Circuit's ruling that materiality

is a question of law rather than fact,~ and

refused to submit the question of

materiality to the jury. Rather than

omitting reference to materiality in the

charge, however, the district court

instructed the jury that the statement was

material. Upon consideration of Nilson's

motion for a new trial, the district court

concluded that the instruction to the jury

on materiality, coupled with the omission of

an instruction on fraudulent intent, was

prejudicial and theretore the interests of

justice warranted granting Nilson a new

trial.

2eOg., United States v. Ivey, 322 F.2d

nae Cee Car.), Cert. denied, 3/5 U.S. 953

(1963).

21

The Fourth Circuit concluded that the

district court's charge with respect to

materiality was not prejudicial because

materiality is a question of law for the

court. 755 F.2d 362, 367, quoting, United

States v. Norris, 749 F.2d at 1122. The

Second, Fifth, Sixth, Seventh, Eighth, and

District of Columbia circuits have also |

ruled that materiality is a question of law.

United States v. Bernard, 384 F.2d 915, 916 ©

(2a Cir. 1967); United States v. McIntosh,

655 F.2¢d 680, G2 (Sth Cir. 196%), cert.

denied, 455 U.S. 948 (1982); United States

v. Abadi, 706 F.2d 178, 180 (6th Cir. 1983),

cert. denied, U.S. _ 266 8. Ces &

(1984), United States v. Clancy, 276 F.2d

617, 635 (7th Cir. 1960); United States v.

Richmond, 700 F.2d 1183, 1188 (8th Cir.

1983); Weinstock v. United States, 231 F.2d

699, 703 (D.C. Cir. 1956).

22

The Ninth and Tenth Circuits have held,

however, that materiality is a question of

fact for the jury. United States v. Irwin,

654 F.24 671, 677 2.8. (10th Cir. 19623),

cert. denied, 455 U.S. 1016 (1982); United

States v. Valdez, 594 F.2d 725, 729 (9th

Cis... 39fs): The Fifth Circuit in United

States v. Hausmann, 711 F.2d 615 (5th Cir.

1983), and the Eighth Circuit in United

States v. Adler, 623 F.2d 1287, 1292 n.8

(8th Cir. 1980) have opined that materiality

should be a question of fact, since it is an

essential element of the offense.” This

3The defendant in Hausmann argued that

his Sixth Amendment right to trial by jury

was infringed by withdrawal of this

essential element of the offense from the

jury's consideration. The Fifth Circuit

found Hausmann's argument to this effect

persuasive but felt bound by this Court's

decision in Sinclair v. United States, 279

U.S. 263 (1929), to treat materiality as a

legal issue. 711 F.2d at 617.

23

split in the circuits should be resolved by

this Court.

The cases holding that materiality is a

question of law for the court rely on this

Court's decision in Sinclair v. United

States, 279 U.S. 263 (1929) with respect to

pertinency under 2 U.S.C. § 192 and dictum

therein with respect to perjury charges.

Sinclair held that pertinency, like

relevancy, is an issue for the court, not

the jury. 279 U.S. at 298. Sinclair

predated, however, this Court's decisions in

Mullaney v. Wilbur, 421 U.S. 684 (1975), and

In re Winship, 397 U.S. 358 (1970), which

held that the prosecution must prove to the

trier of fact each essential element of a

crime.

Materiality is an essential element of

an offense under Section 1001 and _ the

prosecution must prove each element of the

24

offense charged. Although the trier of fact

in this case was the jury, the issue of

materiality was determined by the court.

Therefore, whether petitioners' Sixth

Amendment right to trial by jury is

infringed by withdrawal of the materiality

issue from the jury is an important question

of federal law which should be decided by

this Court.

D. The Decision Below Either Applies a

Different Standard to Appeals by the

Government of New Trial Orders or

Applies a Standard Different from that

Applied in Other Circuits.

The standard traditionally applied by

the courts of appeal in reviewing orders

granting new trials is the abuse of

discretion standard. E.g., United States v.

Lauga, 726 F.2d 1032 (Sth Cir. 1984); United

States v. Lincoln, 630 F.2d 1313 (8th Cir.

1980); United States v. George, 568 F.2d

1064 (4th Cir. 1978). In granting the new

25

trial, the district court determined that

the interests of justice warranted the new

trial because the defendants were prejudiced

by faulty instructions. In so ruling the

district judge relied upon the consistent

precedent of the Fourth Circuit, * and his

understanding and observations of the events

oeccurring at trial. By reversing the

district court for applying the controlling

law of the Fourth Circuit at the time the

new trial order was entered and interpreting

what the interest of justice requires, the

panel has adopted a different standard of

review of appeals from new trial orders.

The effect of the decision below is

either to lessen the existing standards for

tunited States v. Seay, 718 F.2d 1279

(4th Cir. 1983); United States v. Miller,

658 F.2d 235 (4th Cir. 1981); United States

v. Race, 632 F.2d 1114 (4th Cir. 1980).

26

all appellants, or create a new, less

stringent standard of review of Government

appeals from new trial orders, while

continuing to exact a greater burden from

appealing defendants. This dichotomy should

be addressed by this Court.

CONCLUSION

The petition for certiorari should be

granted to resolve the conflict among the

courts of appeal and to settle the important

questions about the necessary elements a

jury must find present in order to convict a

27

defendant under 18 U.S.C. § 1001, and the

standard of review when the government

appeals a new trial order.

Respectfully submitted.

Charles Porter

Elizabeth Van Doren Gray

Jane W. Trinkley

McNAIR GLENN KONDUROS

CORLEY SINGLETARY PORTER

& DIBBLE, P.A.

Post Office Box 11390

Coiumaie, 8. ©. £29eth

(803) 799-9800

Attorneys for Petitioner

Nilson

May, 1985

28

APPENDIX A

[Caption omitted]

INTER, Chief Judge:

These three appeals, two of which were

onsolidated with one another, are so

elated that we decide them in a single

Dinion. Additionally, the decision of one

f the appeals effectively decides the

thers.

All of the appeals arise out of an

ndictment against Nilson Van & Storage

ompany and Howard A. Nilson, its president

collectively referred to as "Nilson"), for

rice-fixing in violation of the Sherman

ct, mail fraud, and making false statements

5 a government agency in violation of 18

s2.C. § 1001. A jury convicted the

efendants of making false statements but

squitted them on the other charges. While

ne indictments were pending, the Department

E Defense, Nilson's largest customer,

la

suspended it from contracting with the

government to render moving and storage

services.- Together with Checker Transfer &

Storage Company (Checker) and Miller Moving

and Storage, Inc. (Miller), which were

Similarly indicted and similarly suspended,

Nilson sued to set aside the suspension

orders, and the district court granted a

preliminary injunction barring the

suspension. ~ No. 84-1336 is the

1. Subsequent to the entry of the

preliminary injunction, the Army modified

the suspension to allow Nilson to conduct

business with the Department of Defense as

agent for other government contractors.

However, Nilson was still prohibited from

direct contracting with the government.

2. At trial, Checker and Miller were

both acquitted on all counts. The

government has therefore lifted their

suspension, a & = suggests that the

injunction as it pertains to them should be

vacated and the case remanded with

instructions to dismiss for mootness. See

United States v. Munsingwear, 340 U.S. 36

(1950). We will order this to be done.

2a

ee eee eae ee a a ee a eee ee ee ey ae

government's appeal seroma the...grant of

interim injunctive relief.

After conviction, Nilson moved for a

new trial on the ground, inter alia, that

the district court had incorrectly charged

the jury with regard to the elements of the

false statements charge. Although the

district court ruled that its instructions

"taken as a whole" were correct, it

concluded that out of "an abundance of

caution" it should grant a new trial. The

government then moved for reconsideration of

the grant and reinstatement of the guilty

verdict; and when its motion was denied, it

appealed from the order granting a new

trial. (No. 84-6634). Before the

government's motion for reconsideration was

decided, Nilson, having obtained the right

to a new trial, moved to dismiss the false

statements count of the original indictment

on the ground that a new trial would violate

3a

the guarantee against double jeopardy. The |

district court denied this motion, and

Nilson appeals (No. 84-5180).

We conclude that we have jurisdiction —

to entertain the appeal in No. 84-6634 and

that the government's appeal is meritorious. ©

We therefore reverse the order granting a

new trial, order the guilty verdicts —

reinstated, and direct that judgment be

entered thereon. Because there is thus no

need for a new trial, our ruling renders —

moot Nilson's appeal in No. 84-5180 in which

it contents that it would be subjected to

double jeopardy if retried. And because

Nilson thus stands convicted of making a

false statement in violation of 18 U.S.C.

§ 1001, the basis for granting a preliminary

injunction against suspension is removed and

the order granting the injunction must be

reversed.

4a

We consider the appeals in their

logical order.

Be

No. 84-6634

This appeal presents two questions for

decision, cirat., whether we have

jurisdiction to entertain the appeal, and,

if so, whether the district court correctly

granted a new trial for legal error in its

charge to the jury.

A. Jurisdiction

The question of jurisdiction arises

because at the time that Nilson was

convicted and at the time the district court

granted Nilson a new trial (April 27, 1984),

the government had no right of appeal from

the adverse ruling. However, on May 9,

1984, it moved for reconsideration of the

order granting a new trial, and the district

court did no deny its motion until

5a

September 19, 1984.° On October 12, 1984,

the President signed into law the

Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, which, among other

provisions and effective immediately,

amended 18 U.S.C. § 3731 to afford the

government a right of appeal from an order

of a district court "granting a new trial

after verdict or judgment." On October 18,

1984, the government filed a notice of

appeal, and that date was within thirty days

from denial of its motion for

reconsideration.

3. On September 10, 1984, the

government sought a writ of mandamus in our

court for an order directing the district

court to reinstate the jury verdicts of

guilty and to vacate its order granting a

new trial. The petition was denied by

another panel of the court without statement

of reasons. See In re United States, No.

84-1959 (4 Cir. 1984} (unreported).

6a

We think that the 1984 Act gives us

jurisdiction to decide this appeal. By its

terms, it authorizes the government to

appeal from an order granting a new trial

after verdict. Of course, an existing

provision of § 3731, as well as the

provisions of Fed. R. App. P. 4(b), provide

that an appeal by the government shall be

taken within thirty days after the entry of

the order from which the appeal is taken,

but it is settled law that a-timely motion

for rehearing or reconsideration tolls the

running of the time for appeal. See United

States v. Dieter, 429 U.S. 6 (1976); United

States v. Healy, 376 U.S. 75 (1964). While

it is true that the Federal Rules of

Criminal Procedure do not specifically

provide for motions for reconsideration and

prescribe the time in which they must be

filed, United States v. Healy, supra, treats

as timely a motion for reconsideration filed

7a

before the order sought to be reconsidered

becomes final. Since § 3731, as amended,

and Fed. R. App. P. 4(b) prescribe thirty

days within which the government must

appeal, we think that the government's

motion to reconsider was timely and that

the government filed a timely appeal unless,

of course, it is concluded that § 3731, as

amended, has no application to an order

granting a new trial after verdict when the

order was entered prior to October 12,

1984.> We therefore turn to Nilson's

argument that § 3731, as amended, does not

have that retrospective effect.

4. We note that the district court

ultimately denied the government's motion

for reconsideration on its merits and not on

the ground that it was untimely.

5. We are aware that the Handbook on

the Comprehensive Crime Control Act of 1984

and Other Criminal Statutes Enacted by the

(Footnote Continued)

8a

Usually, when there is a change in the

law while a case is pending, a court applies

the law in effect at the time of the

decision and not antecedent law, unless so

doing would result in manifest injustice or

there is a statutory direction or

legislative history to the contrary. See

Bradley v. Richmond School Board, 416 U.S.

696, 711 (1974); United States v. Schooner

Peggy, 1 Cranch, 103 (1801). The statute

amending § 3731 so as to give the government

(Footnote Continued)

98th Congress (December, 1984) published by

the Department of Justice states that the

government's new right to appeal from an

order granting a new trial after conviction

applies "to any new trial order entered on

or after the effective date of the Act

(October 12, 1984)" and further that

"appeals of post-conviction ew trial orders

require the approval of the Solicitor

General." Id. at 155. Since the Solicitor

General obviously authorized the

government's appeal in No. 84-6634, we can

only conclude that the handbook expresses

policy, but not necessarily law.

Ga

the right to appeal asserted in this case

makes no provision as to whether it applies

to orders granting a new trial entered

before the effective date of the amendment,

and we have not been referred to any

legislative history, nor have we found any,

bearing on the question. We therefore

consider Nilson's claims of manifest

injustice.

Nilson argues, first, that to recognize

a government right to appeal this grant of a

new trial would violate the prohibition

against enactment of ex post facto laws

contained in article 1, section 9 of the

Constitution. We think that this argument

must be rejected on the authority of Mallett

v. North Carolina, 181 U.S. 589 (1901). In

that case two defendants were indicted,

tried, and convicted of conspiracy to

defraud in the criminal court of Edgecombe

County, North Carolina. They appealed to

10a

the superior court, and it reversed the

judgment of conviction and granted a new

trial. While the case was pending in the

superior court, the state enacted

legislation giving it the right to appeal to

the supreme court from an order of the

superior court granting a defendant a new

trial.® The state exercised this right, and

the supreme court reversed the judgment of

the superior court and directed that the

sentence imposed by the trial court be

carried into execution. Before the Supreme

Court of the United States, defendants

contended that since the statute giving the

6. As an interesting aside, the

legislation giving the state this right of

appeal was applicable only to the eastern

district of North Carolina of which

Edgecombe County is a part. There was no

such right for the western district. In the

case a contention that the legislation

denied equal protection of the laws was

rejected.

lla

state the right of appeal was enacted after

the commission of the offense charged and

the trial resulting in convictions, it was

an ex post facto law invalid under

article l, section 10 of the Constitution. ’

After an extensive review of its own

precedents on ex post facto laws, the Court

concluded:

[Wje think it may be concluded

that the legislation of North

Carolina in question did not make

that a criminal act which was

innocent when done; did not

aggravate an offense or change

the punishment and make ho

greater than when it was

committed; did not alter the

rules of evidence, and require

less or different evidence than

the law required at the time of

the commission of the offense;

and did not déprive the accused

7. Aaeticie oo section 10 of the

Constitution prohibits a state from passing

an ex post facto iaw. In the instant case,

Nilson asserts a violation of Art. l, § 9

which prohibits Congress from passing an ex

post facto law. We think that the two

prohibitions are identical.

12a

—i

of any substantial right or

immunity possessed by them at the

time of the commission of the

offense charged.

[Tjherefore, we agree with the

Supreme Court of North Carolina

in holding that the law granting

the right of appeal to the State

from the Superior to the Supreme

Court of the State was not an ex

post facto law within the meaning

of the Constitution of the United

States.

181 U.S. at 597.

Nilson's second contention is that the

reading that we give § 3731 would constitute

manifest injustice because it would

interfere with Nilson's "antecedent rights."

We start with the observation that this

argument may be answered in part by the

conclusion in Mallett that the North

Carolina statute "did not deprive the

accused of any substantial right or immunity

possessed by them at the time of the

commission of the offense charged." Id.

l3a

The major difficulty in assessing the

validity of the contention is that nowhere

does Nilson clearly define the "antecedent

rights" claimed to be infringed. Nilson

argues that the case is a criminal

prosecution, that appeals by the prosecution

are exceptional and disfavored, and that

ambiguous statutes giving the right of

appeal to the prosecution should be strictly

construed against the government. While we

do not doubt the validity of these

principles, we deem Bradley v. Richmond

School Board, supra, the controlling

authority, and it permits retrospective

application of a statute enacted while

litigation is pending unless such

application results in manifest injustice.

We do not deem the nonexistence of a

right to obtain review of the grant of a new

trial, especially one which we will show was

improvidently granted, to create an

l4a

antecedent right. This is particularly true

where Nilson, having sought and obtained a

new trial, now asserts that it would be

subjected to double jeopardy if it is tried

anew. While it may be distasteful to Nilson

to have its apparent victory in setting

aside its original conviction snatched from

it, we do not think that it has any right to

profit from that victory when, on the

merits, the victory is not justified. Even

before the amendment to . 3732, an

unjustified post-verdict grant of a new

trial could be redressed by the government

by a petition for a writ of mandamus. See

Will v. United States, 389 U.S. 90, 97-98

(1967), (citing Ex parte United States, 242

U.S. 27 (1916)); In re United States, 565

ame are Ga Gar. 2977); United States v.

Newman, 456 F.2d 668 (3 Cir. 1972). The

panel which considered the government's

application for mandamus denied it for

15a

reasons which it did not disclose. All the

same, in light of the authorities cited,

Nilson should not have assumed that the

order granting a new trial was absolutely

final. We therefore hold that the

legislation giving the government the right

to appeal a post-verdict grant of new trial

enacted after Nilson's conviction did not

interfere with any antecedent right of

Nilson's and that retrospective application

of the statute thus results in no manifest

injustice.

B. The Merits

Nilson moved for a new trial® on the

grounds that the district court was in error

S. In £act, the. motion was for «4

judgment of acquittal, or in the

alternative, for a new trial. The judgment

of acquittal was denied, and the correctness

of this ruling is not before us. We

therefore need not consider the grounds on

which it was based.

16a

in failing to instruct the jury that

"fraudulent intent" was a requisite element

of an infraction of the crime charged, and

in instructing the jury that the materiality

of the statements was a suestion for the

court and not the jury and that’ the

statements were material. Nilson also

contended that the verdict was against the

weight of the evidence.” The district court

granted the motion on the ground, expressed

in an oral opinion, that its instructions,

while covering all essential elements of the

crime, raised questions whether the elements

were "stated in the sequential fashion" set

forth in United States v. Race, 632 F.2d

413146..14 Cir. 19600); #0 that “out «of an

9. Before us, Nilson does not advance

the contention that the evidence was legally

insufficient to warrant conviction.

17a

abundance of caution, the motion for the new

trial should be granted."

In denying the government's motion for

reconsideration of this ruling, the district

court, in a written opinion, advanced a

different explanation of why the new trial

was granted. This time the district court

ruled that "fraudulent intent is an

necessary element under 18 U.S.C. § 1001

[and] that the jury was not adequately

instructed that fraudulent intent was an

essential element which the government was

required to prove." The district court

commented on its observation that’ the

instruction was not given in proper

"Sequential fashion" by saying that it had

instructed the jury as to fraudulent intent

with respect to the charge of mail fraud but

that this aspect of its instructions could

not compensate for its omission to give a

Similar charge with respect to the charge of

18a

false statements, since "the jury may not

have understood the necessary intent

required for conviction [of false

statements]." Finally, the district court

assigned as a reason for granting the new

trial its instruction to the jury that the

statement made by Nilson was material.

Our very recent decision in United

states v. Norris, F.2d # £4(Nos. .83-

5277-8, 4 Cir. December 5, 1984) decides, if

indeed the law in this circuit was not

settled, both that (1) "[t]here is no

requirement that the false statement

influence or effect the decision making

process of a department of the United States

oovecmeent,.” F.2d at , se that

fraudulent intent is not a necessary element

of the crime, and (2) "“[m]ateriality is a

question of law to be determined by the

oeee6O Jaga,” . - F.2a at ; It

therefore follows that the district court

19a

granted the motion for a new trial on an

erroneous legal basis. Its order granting

the new trial will be reversed, the jury's

guilty verdict reinstated, and the case

remanded for entry of judgment on the

verdict.

es

No. 84-5180

Because we reverse the grant of the

motion for a new trial and direct that the

original verdict be reinstated, there is no

occasion to retry Nilson. The claim that

such retrial would place Nilson in double

jeopardy is moot, and the appeal in No.

84-5180 will be dismissed.

7 a

No. 84-1336

In granting interim injunctive relief

against Nilson's suspension from contracting

with the government pending trial of the

criminal charges, the district court

20a

proceeded on the basis that Nilson was

entitled to relief, because, inter alia, the

constitutionality of a suspension pending

trial and before conviction was not a

frivolous question. Indeed, Nilson's whole

theory of the case was that there had been

no conviction and that it would prevail on

the merits of the criminal case.

Nilson now stands convicted, and it is

manifest that interim injunctive relief must

now be denied if, indeed, the case has not

been rendered moot.

No. 84-6634 - REVERSED AND REMANDED.

No. 84-5180 - APPEAL DISMISSED.

10

No. 84-1336 - REVERSED.

10. As to Checker and Miller, the

injunction granted is vacated and the case

remanded to be dismissed for mootness. See

n.2, supra.

2la

APPENDIX B

[caption omitted]

ORDER

The appellees-appellants' petition for

rehearing and suggestion for rehearing in

banc were submitted to this Court. As no

member of the Court requested a poll on the

suggestion for rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that it

should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

22a

Entered at the direction of Judge

Winter, with the concurrence of Judge

Murnaghan and Judge Dupree.

For the Court,

JOHN M. GREACEN

CLERK

23a