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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 818

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0202%3A1. Public record. Not legal advice.