Brief for the United States in Opposition — Gulf Oil Corp. v. United States

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ON-PETITION FOR A. WRIT OB. CERTIORARI TO. THE UNITED

STATES COURT OF APPEALS. FOR THB THIRD CIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

: .OPINIONS .BELOW

The order of the court of appeals (Pet. App. A7-

A8) is not reported. The opinion of the district court °

(Pet. App. AIZA5) is-reported at 296 F. Supp.'538.

The order of the district court (Pet. App. A is not

_ reported.

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J URISDICTION

The. order of the court of appeal was entered on

May 23, 1969. The -petition for a writ_of certiorari’

\_was-filed on June: 19, 1969. The jurisdiction of this -

.court is invoked under 28 U.S;C. 1254(1).

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™ Whether petitionérs were entitled to inunediate ap-

p@late -review of the district piurt’s denial of their os

motion to dismiss ‘one count of a eriininal indic ment

on the Sround of double jeopardy.

STATUTE INVOLVED

28 U.S.C. 1291 provides: ee or

* The courts of appeals shall have jurisdiction

of appeals from all final decisions of the -

district courts of the United States, the United

_ States District Court for the District of the

Canal Zone, the, District Court of Guam, and

the District Coutt of the Virgin Islands, exéept ..

-where a direct .review may be had in the. Su-

preme Court, ~ | :

i STATEMENT .

Petitionicis seek review of an order of the court

of appeals dismissing their appeal from the district ~

court’s denial of their motion to dismiss one count of

a criminal’ indictment’ on the ground of double. jeop-

~ ardy. On February 28,,1969, the United States Dis-

trict Court for the District of New J ersey entered.an

order denying a motion by seven (including the four

_ petitioners) of the eight defendants in United States ~

v. American Oil Co., et al., Criminal Action No.

153-65, to bar trial of and dismiss Count I of a

. three-count indictment on the grounds: of double

jeopardy and res judicata. Count I of the indictment,

which had been returned on April 8, 1965, charged a

violation of Section 1 of the Sherman Act, 15 U.S.C.

1, alleging that the defendants had fixed prices of.

automotive’ gasoline in the three-State area of Dela-

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ware, Pennsylvania and New Jersey from 1955 to the

return date of the indictment.’ The motion to dis-

miss, filed on January 6, 1969, asserted that the

previous indictment and trial of all.of the instant

defendants except American Oil Co., in a proceeding.

% in the United States District Court for the Northern

District of- Oklahoma entitled United States v. Ar-

KanSas< Fuel Oil Corp. (hereafter the “Tulsa case’’),

ce barred their trial on the instant indictment. ‘In the

“+, Tulsa case, the indictment charged 29 defendants

» “with, conspiraey (directed toward a: single price rise

in January 1957) to fix the prices of-crude oil and

automotiye gasoline .throughout forty-four States,

ene - including Delaware, Pennsylvania and New Jersey,

beginning in 1956 and’ continuing .through January

. 1957. Directed verdicts for the defendants were en-

tered in the Tulsa case.

. -* Following submission of memoranda and oral argu-

ment, the district court issued an opinion (Pet. App.

_ 1d) denying the motion to dismiss,Count I. The court

held that the defendants had the burden of proving -

: double -seopardy | by a.pr eponderance of ‘the evidence

-” ‘and that they had failed to demonstrate that.the of-

“-fenses charged in the Tulsa and the instant indict-

ments were the same.

Five-of the seven defendants who had moved to

dismiss filed appeals to the United States Court’ of

Appeals for the ‘Third Cireuit“The goverament moved

+ Counts II-‘and III of the’indictment charged four of the

eight defendants with a combination and conspiracy to mo-

nopolize and an attempt to monopolize the automotive gas

market in the same thtee-State area .in violation of Section 2

of the a aes Act, 15 YS. C, 2.

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to dismiss the appeals on the ground that the order

from, which the appeals were, taken. was not a final

order. After oral argument thegnotion to dismiss was

granted (Pet. App. 7-8).* Four of the five appellants. .

now seek reviéw in this Court of the order of the

court of appeals.’ :

ARGUMENT

~The decision of the. court of appeals correctly ap- ~~

plies long standing principles of judicial administra-

tion in criminal proceedings established hy Congress

and this Court and does not conflict with the decisions\

of any other court. Further-review. at the present in-

terlocutory stage of the proceedings is not warranted.

Congress has specified’ that an immediate appeal

will not gate an interlecutory order denying a:

motion to disntiss a eriminal indictment, and that ap-

pellate review ean be obtained only after a final judg-

‘ment has been entered by tife trial, court. 28 U.S.C.

1291, -1292. The policy underlying this statutory e-

quirement has been articulated in several opinions of |

this Court. See, ¢.9., DiBella v. United States, 369

U.S. 121; Roche v. Evaporated Milk Assn., 319 U.S. —

21; Cobbledick v. United States, 309 U. S. 323, 324-326.

Indeed, this Court has said that the policy ‘ is applica-

2 Four of th hppellants also filed a “Petition, for Writ of

Mandamus or Prohibition” ’ with the court of appeals to compel

the district court to vacate its order and to dismiss Count. I.

On May 16, 1969, the coyft of afpeals denied the petition. Peti-

tioners do not. seek review of this order. .

*Three of the four petitioners are charged only in Count I

of the indictment, but petitioner Gulf Oil peas is also

charged in Counts II and ILI,

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ble to appeals based upon claims of double jeopardy.

See Heike vy. United States, 217 U.S... 423, 482-433

(dictum). = |

Although Co ongr ess has recognized a need to permit

interlocutory appeal’ from orders in specified situa-

> tions, (see DiBella v. United States, supra, 369 U.S.

at 124-125), it is significant that ‘‘[e]very statutory

exceptions Midressed either in terms or by necessary

operation solély té civil actions” (id. at 126), This is

hecause ‘‘* * “the delays and ‘disruptions attend-

ant upon intermediate appeal are especially inimical

to the effective and fair administration of the criminal * A

aw.’’ Ibid. Cf. Stefanelli v. Minard, 342 U.S. 117;

Douglas v. City of Jeannette, 349. U.S. 157. Thus, while

“* * * this Court has held that the requirement of

finality ‘is to be given a ‘practical rather ‘than a fech-

nical construction’ ’ (Gillespie v. United States Steel

Corp., 379 U.S. 148, 152), virtually all cases in whfth

appeal has heen per mitted from interlocutory orders ~

have been civil cases, in which the inter est in prompt

final disposition is not so compelling as in criminaf .¢

proceedings. See, e.g., Swift &Co. v.Com pania Car ibe, ”

339 U.S. 684, 688-689; Cohen v. Beneficial Loan Corp.,

337 U.S. 541, 545-547. The only significant alftation

in which a pre-trial order in a criminal case has been

held appealable before final judgment involves orders ¢ ¥

denying motions to reduce bail. Stack v. Boyle, 342: —

US. In But this type of order, unlike denial of ae |

‘motion to dismiss the indictment, can he challenged i

on appeal independently of the underlying ease, and |

POO OS NE

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without interrupting. the course of proceedings in the

trial eourt.* *

- Petitioners suggest (Pet. 9) that the instant order

may be treated as final because. it is ‘‘eollateral’’ in the:

sense that it does not go to the question, of whether ~

defendants violated the Sherman Act. But this iZnores

. the fact that any motion to dismiss an indictment goes

directly to the subject matter of the case in the more

important sense that if orders denying such motions

are immediately appealable the proceedings below can-

not go forward until the appeal is decided. The in-

.. stant. case well illustrates the disruptive consequences. |

of a rule which would permit immediate appeal from.

denials of motions to dismiss indictments. Although

_ the indictment. here was returned on April 8, 1965,

- the double Jeopardy claim was not raised until Janu-

ary 6, 1969, andgwas rejected by the district court on

February 28. The motion was made on behalf of only

- geven of the eight defendants, and challenged only one

- _eount of the three-count indictment. Even had the mo-

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tion been granted; a trial of all three counts would

still have been necessary to determine the issues re-

‘ Petitioners’ reliance on Ayle v.. United States, 211 F. 2d

912 (C.A..9), is misplaced. There thie court’s entertainment of

an appeal from an order denying a motion for speedy trial was

expressly based on the special facts of that case (id. at 914).

‘Appellant was a prisoner confined under a life sentence in fed-

eral prison in California, and the government had rather clearly

indicated that it did not intend either to proceed with or dis-

miss a 17-year-old indictment pending in Oregon charging

another offense. Moreover, in the same opinion the court held

that a motion to dismiss the indictment was not appealable

before final judgment. /

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maining.’ Nonetheless, proceedings in the district court

have had to be delayed while some of the moving .-

‘defendants have sought review of, the order. Peti-

tioners were plainly entitled to consideration and de-

termination of the double jeopardy claim before trial,

and they will be @ntitled to appellate review ‘of that.

claim upon appeal from an adverse final judgment.

But to permit appellate review of such. motions at any

stage of the proceedings would invite such motions,

ho matter how frivolous, as a delaying tactic and frus-

‘trate the objective of expeditious and effective ad-

oD ministration of criminal justice.’

> Since, in the circumstances of this case, proof of the alleged

participation by petitioners in’ the alleged conspiracy would,

im ny event, be properly admissible in the triakhof the remain-

ing alleged co-conspirators, the district court's ‘denial of. the

present motion obviously was not a ruling “fundamental to the

further conduct: of the®case.” Cf. Gillespie v. United States

Steal Corp.. 379 U.S. 148, 153-154. |

The, principle for which petitioners contend ~vould presum-_

ably: be applicable to such motions even if made and denied \

after impanelling’ of a jury and commencement of trial. In such’

circumstan¢ées a right to appeal would totally disrupt orderly”

criminal process.

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