Opposition Brief — Yasui v. United States

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J AUG 21 198

No. 86-2066 JOSEPH F. SPANIOL, JR.

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Iu the Supreme Court of the United States

OCTOBER TERM, 1987

MINORU YASUI and TRUE S. YASUI, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PET’TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the appeal of an order denying coram

nobis relief was properly dismissed as moot when

the petitioner died during the pendency of the appeal.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases :

Dove v. United States, 423 U.S. 325 (1976) ............ 4

Durham v. United States, 401 U.S. 481 (1971)...... 4

Hauptmann v. Wilentz, 570 F. Supp. 351 (D.N_J.

SE gS TESS SP 6, 7

Hirabayashi v. United States, 320 U.S. 81 ( 1943) .. 2

Hohri v. United States, 586 F. Supp. 769 (D.D.C.

1984), aff’d, 782 F.2d 227 (D.C. Cir. 1986), rev’d

and remanded, No. 86-510 (June 1, 1987) _........ 7

McManzx V. Ross, 396 U.S. 118 (1969) ...................... 4

Menken vy. Atlanta, 131 U.S. 405 (1889) -................. 4

Mintzes v. Buchanon, 471 U.S. 154 (1985) -............. 4

United States v. Dudley, 739 F.2d 175 (4th Cir.

ne EAT tlie 4,5

United States v. Fairfield, 526 F.2d 8 (8th Cir.

POI INE rare Hira 5a as a a 5

United States v. Janney, 525 F.2d 1208 (5th Cir.

aan Oe REINA EPS ee a 5

United States v. Moehlenkamp, 557 F.2d 126 (7th

a Ce esinebatwnoeeene 5

United States v. Morgan, 346 U.S. 502 (1954) aoe - 3,5

United States v. Oberlin, 718 F.2d 894 (9th Cir.

AES SS Sa 4,5

United States v. Toney, 527 F.2d 716 (6th Cir.

1975), cert. denied, 429 U.S. 838 (1976) —.......... 5

Warden Vv. Palermo, 431 U.S. 911 (1977) ................ 4

Statute and rule:

Act of Mar. 21, 1942, ch. 191, 56 Stat. 178 .............. 2

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Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-2066

MINORU YASUI and TRUE S. YASUI, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet.

App. 40-41) is unreported. The order of the district

court (Pet. App. 39-40) is also unreported. An

earlier decision of the court of appeals (Pet. App. 18-

37) is reported at 772 F.2d 1496. An earlier decision

of the district court (Pet. App. 15-17) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on March 23, 1987. The petition for a writ of certi-

(1)

2

orari was filed on June 22, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On April 22, 1942, petitioner Minoru Yasui was

indicted in the United States District Court for the

District of Oregon under the Act of March 21, 1942,

ch. 191, 56 Stat. 173 (Pet. App. 19). Pursuant to

the authority of that Act, Lieutenant General John

L. DeWitt, Commanding General, Western Defense

Command, had issued a curfew order requiring all

persons of Japanese ancestry in certain far western

states to be in their homes between the hours of 8:00

p.m. and 6:00 a.m. (id. at 19-20). Yasui violated

this curfew order and, following his indictment and

trial, was convicted and sentenced to one year in

prison and a $5,000 fine (id. at 20). This Court

affirmed Yasui’s conviction on the basis of its deci-

sion in Hirabayashi v. United States, 320 U.S. 81

(1943), but remanded the case to the district court

for resentencing. Yasui v. United States, 320 U.S.

115 (1943). On remand, the district court reduced

Yasui’s sentence to 15 days’ imprisonment. United

States v. Yasui, 51 F. Supp. 234 (D. Or. 1943).

2. Forty-one years later, on February 1, 1983,

Yasui petitioned the district court for a writ of error

coram nobis (Pet. App. 20). Yasui claimed that,

during 1942-1943, the government had suppressed and

manipulated evidence in order to create the false im-

pression that Americans of Japanese ancestry posed

a threat to national security and that, as a result, his

conviction was based on erroneous information and

was unconstitutionally obtained (id. at 20-21). Yasui

requested that the district court dismiss his indict-

ment and vacate his conviction (7d. at 21).

3

In response, the government moved the court to dis-

miss the indictment, vacate the conviction, and dis-

miss the petition for a writ of error coram nobis

(Pet. App. 21). Yasui opposed the government’s mo-

tion, arguing that a simple dismissal of his indict-

ment and vacation of his conviction, without a dec-

laration that his constitutional rights had been vio-

lated, would not fully redress his claim (ibid.). The

district court held for the government, noting that

Yasui was asking the court “to make such findings

forty years after the events took place,” and that

“Tt]here is no case nor controversy since both sides

are asking for the same relief but for different rea-

sons” (id. at 16-17).

3. On March 2, 1984, 36 days after the district

court entered its order, Yasui filed a notice of appeal

(Pet. App. 22). The government moved to dismiss

the appeal as untimely, arguing that the 10-day time

limit on filing of notices of appeal in criminal cases,

rather than the 60-day time limit on filing notices of

appeal in civil cases, applies to cases involving coram

nobis petitions (id. at 22-23). The court of appeals

agreed with the government that a petition for a writ

of error coram nobis is but “ ‘a step in the criminal

case’ ’”’ and therefore that the 10-day, not the 60-day,

time limit for filing a notice of appeal is applicable to

a coram nobis proceeding (id. at 28-29, quoting United

States v. Morgan, 346 U.S. 502, 505 n.4 (1954)). But

the court remanded the case to the district court to

allow Yasui to make a showing of excusable neglect

pursuant to Fed. R. App. P. 4(b) (Pet. App. 29-

30).

On remand, the district court found that Yasui

had demonstrated excusable neglect and granted him

a 30-day extension of time within which to file a

notice of appeal with respect to the decision on the

4

merits of the dismissal order (Pet. App. 39-40).

Yasui filed a notice of appeal within that 30-day

period. The government, in turn, filed a notice of ap-

peal with respect to the district court’s finding on the

excusable neglect issue. While these appeals were

pending, Yasui died. Accordingly, the government

moved that both appeals be dismissed as moot (id. at

41). Yasui’s widow moved to substitute herself as a

party of record and, concomitantly, opposed the gov-

ernment’s motion to dismiss (ibid.). The court of

appeals denied her motion to substitute and granted

the government’s motion to dismiss the appeals as

moot (ibid.).

ARGUMENT

1. Petitioner first contends (Pet. 17-53) that the

court of appeals erred in dismissing as moot Yasui’s

appeal from the district court’s order denying coram

nobis relief.

It is settled law that a criminal case abates upon

the death of the defendant. See Durham v. United

States, 401 U.S. 481, 483 (1971); Menken v. At-

lanta, 131 U.S. 405, 405 (1889); United States v.

Dudley, 739 F.2d 175, 176 (4th Cir. 1984). The

same principle applies in the case of collateral at-

tacks on criminal convictions. See, e.g., McMann v.

Ross, 396 U.S. 118 (1969) (per curiam) ; Mintzes v.

Buchanon, 471 U.S. 154 (1985); Warden v. Palermo,

431 U.S. 911 (1977) ; see also Untied States v. Ober-

lin, 718 F.2d 894 (9th Cir. 1988).’ Since a petition

1In cases in which the defendant dies while the case is

pending before this Court, the Court’s current practice is

simply to dismiss the petition. See Mintzes v. Buchanon,

supra; Warden. v. Palermo, supra; Dove v. United States, 423

U.S. 325 (1976). By contrast, where the conviction is on

direct appeal by right, the disposition is typically to dismiss

the appeal and direct that the indictment be dismissed. See,

5

for a writ of error coram nobis is but “a step in the

criminal process” and “is of the same general char-

acter as [a motion for collateral relief] under 28

U.S.C. § 2255” (United States v. Morgan, 346 U.S.

502, 505-506 n.4 (1954)), it follows that the court

of appeals was correct in refusing to consider the

merits of petitioner’s appeal from the denial of the

coram nobis petition. For the same reason—because

the request for coram nobis relief had become moot

with the defendant’s death—the court of appeals was

clearly correct in refusing to substitute petitioner

True S. Yasui as a party in place of the decedent

for the purpose of maintaining this coram nobis

action.

Petitioners’ attempt to draw support (Pet. 24-34)

from survival statutes applicable in civil rights, mari-

time, and torts cases must fail. Those survival stat-

utes apply to particular claims for monetary relief

that a legislature has determined should survive the

death of a litigant. But petitioner Minoru Yasui had

not initiated a civil rights, maritime, or tort action

for monetary relief. Rather, he had initiated a coram

nobis acticn, and no survival statute applies to peti-

tions seeking the dismissal of indictments and the

vacation of judgments of conviction. Petitioners can-

e.g., United States v. Dudley, supra; United States v. Oberlin,

supra; United States v. Moehlenkamp, 557 F.2d 126 (7th Cir.

1977) ; United States v. Toney, 527 F.2d 716 (6th Cir. 1975),

cert. denied, 429 U.S. 838 (1976) ; United States v. Fairfield,

526 F.2d 8 (8th Cir. 1975) ; United States v. Janney, 525 F.2d

1208 (5th Cir. 1976). In this case, because the direct appeal

from the conviction has long since been concluded, dismissal

of the appeal from the denial of coram nobis relief was the

appropriate response to petitioner’s death, particularly since

the district court had already dismissed the underlying in-

dictment and vacated petitioner’s conviction.

6

not change that result by now attempting to rechar-

acterize his action as one for the vindication of civil

rights.

Nor can petitioners draw support, as they seek to

do (Pet. 34-41), from cases holding that the govern-

ment’s confession of error does not divest a court of

jurisdiction to adjudicate a pending controversy.

This case does not involve a confession of error.

Rather, it involves a request by a defendant who is

no longer alive for collateral relief from a criminal

conviction. And, as noted above, the courts have con-

sistently declined to entertain such challenges.

Finally, petitioners err in suggesting (Pet. 44-53)

that petitions for coram nobis relief have historically

survived a defendant’s death in criminal cases. In

their lengthy discussion of the history of coram nobis

relief, petitioners cite only one case involving such a

petition. But that case, Hawptmann v. Wilentz, 579

F. Supp. 351 (D.N.J. 1983), did not address whether

a petition for coram nobis relief survives the death of

the defendant. It addressed only the question whether

an application for a writ of error coram nobis must

be made to the court in which the judgment of con-

viction was entered. And it answered that question

in the affirmative—precisely because the petition for

2 Several of the cases in the petition (at 48-50) involved

the use of the writ of coram nobis in civil, rather than crimi-

nal, cases. Those cases are therefore inapposite. The two

19th century state criminal cases that petitioners cite (Pet.

50-51) both involved claims raised by a person acting in a

representative capacity—in one case, a slave’s owner, and, in

the other case, the best friend of an insane defendant—but in

each case the defendant was alive throughout the proceedings,

so there was no issue of abatement due to the defendant’s

death.

7

coram nobis relief is but a step in a criminal case.

See id. at 401. Thus, the development of coram nobis

as a vehicle for collateral attacks on criminal convic-

tions does not support petitioners’ claim that petitions

for coram nobis survive the defendant’s death. To the

contrary, the history of the writ shows that federal

courts treat petitions for coram nobis relief as part

of the criminal process, in which the proceedings tra-

ditionaliy abate when the defendant dies.

2. There is no merit to petitioners’ suggestion

(Pet. 13-17, 23, 34, 41-44) that this case must sur-

vive Yasui’s death in order to vindicate the rights of

Japanese-Americans interned during World War II.

This case is not a class action; it does not seek any

relief for other Japanese-Americans. It is an indi-

vidual action; and it seeks relief only for a person

who is now deceased. Moreover, the issues that the

petition urges must be resolved are now pending

before two federal courts of appeals. See Hirabay-

ashi v. United States, No. 86-3853 (9th Cir., argued

Mar. 2, 1987) ; Hohri v. United States, 586 F. Supp.

769 (D.D.C. 1984), aff’d in part, 782 F.2d 227 (D.C.

Cir. 1986), rev’d and remanded, No. 86-510 (June 1,

1987). Thus, there is no need in this case to ignore

the well-established rule that criminal proceedings

abate upon the death of the defendant.

8

CONCLUSION

The petition for a writ of certiorari should be

denied. Bp =

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F.. WELD

Assistant Attorney General

JOHN F. DE PUE

Attorney

AUGUST 1987

WG. 8. GOVERNMENT PRINTING OFFICE; 1987 181483 404868