Petition for Writ of Certiorari — Grunberger v. United States

| IN THE oa

Supresse Court of the United States = 3

OCTOBER TERM 1971 oe

—

” 7 1- | 06 4

HONORABEE-JACK-B-WEINSTEIN,

_ UNEFED-SFAFES-DISTFRICF-FUDGE

FOR-THE EASTERN-DISTRICT-OF NEW YORK,

and ALBERT haeeiiiacee ce

V.

UNITED STATES OF AMERICA,

PETITION FOR WRIT OF CERTIORARI _

TO THE UNITED STATES COURT OF APPEALS:

“FOR THE SECOND CIRCUIT ~

/

HERBERT J. MILLER, JR.

~ NATHAN LEWIN —

Miller, Cassidy, Larroca and

Lewin =

1320 19th St., N. W.

Suite 500

Washington, D.C. 20036

Attorneys for Petitioner s

Grunberger’ ys

Wachinatan M Cf . Tee! Settee 25 3A4 KOR

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’ TABLE OF Penne

: Page

OPINIONS BELOW........ wept Se eee

JURISDICTION ........... See, le Spe ease

QUES TIONS PRESENTED . WRK WK alse ROU eR ele x ee 2

sip seen EE ET eC ae 2

REASONS FOR G RANTING pros SR EEE eT eae 9

. The Prosecution Was Not Entitled to ‘edie Review

of Judge Weinstein’s Order of Dismissal ............. ~ 10

- 2. The Decision Below Conflicts With This Court’s

Holdings on the Double Jeopardy Clause and the .

Mandamus Power:..................... Se ee 96 18

3. The District Court Had oaraue Authority to

Dismiss the Indictment. . . ee ghee os es prarerces eo

CONCLUSION eee Se Cee BF PSP Fd Oe tee ae:

APPENDIX A—OPINION OF COURT OF APPEALS ........ la

APPENDIX E--ORDER ON PETITION FOR REHEARING.... Ib

APPENDIX (¢— DISTRICT COURT ORDERS. Se a a Maree Ic °

APPENDIX D—United States vy. Pont. > © 7th Cir. ) pie arn es Id

APPENDIX E-United States v. G.‘Stevson (7th a. Sees ee es le

APPENDIX. F--United States v. Ponto (7th Cir.) ...:....... If

APPENDIX G—New York and California meee Lk sae

TABLE OF AUTHORITIES

Cases: | ae | |

Baker v. United States, 139 F.2d 721 (1944) ....... Soe

Berman v. United States, 302 U.S. 211 (1937) ............ 13

Carroll v. United States, 354 US. 394 (1957)...*....0..0.. 21

"Draper v. Davis, 102 U.S. ZI... 2s: a ae

Ex Parte Altman, 34 F. Supp. 106 (S.D.Cal. 1940) .7...:... 20

Ex Parte United States, 101 F.2d.870 (7thCir. 1939) eer eer |

Ex Parte United States, 242 U.S. 27 (1916). :...... eae atate 18, 21

Fong Foo v. United States, 369 U.S: BSE (CIMEZ) Ss... a 18,19 -

fii)

| "Page

Green v. United States, 355 U.S. 184 (1957) ........... 19,20

Harris v. Nelson, 394 U.S. 286 (1969) :...:.....---. 1 BM

- Kepner v. United States, 195 U.S. 100 (1904). ...0........ 19

Parr v. United States, 351 U.S. 513 (1956)... .. eters 2

- Reopel v. Superior Court of Marion County, 446 T.20 |

138 72 Cal. Rptr. 330 (1968) 2... r.-- eee eee eee 24

Persico v. United States, 395 US. 911 £1969) ..........%- Pies te

Peters v. Hobby, 349 US. 331 (1955) ee er EINE

. Robinson v. United. States, 284 F.2d 775 (Sth Cir. 1960) | ree 20

United States v. Apex Distributing Co., 270 F.2d 747 © |

Pe We is oes wen he eens Se eies eee 21, 23

" United States v. DeBolt, 253 Fed. 78 (S.D.Ohio 1918) iste . 24

United States.v. Dooling, 406 F.2d 192 (2nd ie eee i:

_ United States v. ‘Findley; 439 F.2d 970 (ist Cir. 1971)... 10, 16, 17

United States v. Gustavson, No. 18315 (7th 6 | ee

United States v. Heath, 147 F. Supp. 877 (D. Haw. ,

1957); 260 F.2d 623 (9th Cir. 1958) ..... Ry sacar need 20, 23

United States v. Jom, 400 U.S. 470........ ca 11, 12, 13, 19

- United States v. H.E. Koontz Creamery, Inc.

257 F. Supp. 295 (D. Md. 1966) ..::.-...---- ee _ 20

United: States v. Pack, 247 F.2d 168 (3d Cir. | Meee 23

United States v. Smith, 331 U.S. 469 (1947) ..... mi apeoke -

United States v. Kilpatrick, 16 Fed. 765 (W.D.N.C. 1883)..... 24

United States v. Nardolillo, 252 F.2d 755 (ist Cir. 1958) ..... 23

United States v. Ponto, No. 18396 (7th 2) ee 10, 16, 17

United States v. Sisson, 399 US. 7 et. nr ‘passim

United States v. Zisblatt, 172 F.2d 740 (2d Cir. 1949)...:... 15

Will v. United States, 389. U.S. 95 (1967)... .. Sota sa passim

STATUTES AND RULES Tee

UGE AI Pe pare ee he

MUSE. E9T ..... PANCOLE SO OE TE Te os ae

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28 US.C.$2072...... er ee ow PO er sae ee

WRcieP: WH) ol ens oes ioe nage ee a

hee ns es BP Pe re eee re 21

J oe ree eine a Cea ee ae a 12, 13, 14

Ree, eS. c:., SG omer E Aare 14

Core ina aE sigh CPOE OTC E CEO O Pe AE 13

New York Crim.Procedure Law $210.40 .... eke nae - 24

New York Code of Criminal Procedure §671............ 24

OTHER AUTHORITIES Pie go |

Hughes, Federal Practice $3730 (1931) ..-............ 24-

&*

w

_IN THE

| Supreme Court of the United States

OCTOBER TERM 1971

HONORABLE JACK B. WEINSTEIN,

, UNITED STATES DISTRICT JUDGE

FOR THE EASTERN DISTRICT OF NEW YORK,

~and ALBERT GRUNBERGER, ~

: + Sf : iat

a tg

UNITED:STATES OF AMERICA, aes,

- PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals for the Second Cir-

cuit inabinaies A pp. la- 25a, wi is not yet reported. ‘

JURISDICTION

The opinion and judgment of the Court of Appeals for

the Second Circuit (Appendix A, pp. 1a-25a, infra) was

filed on November 16, 1971. A timely petition for rehear-

' Ing and suggestion for rehearing in banc were filed on Nov-.

ember 30, 1971, and were denied én December 20, 1971

7. ; 2° '

° , 3 : @*.: ; ° . ;

(Appendix B, p..1b, infra).. On January 13, 1972, Mr.

Justice Marshall granted an extension of time to and includ-

. ing February 18, 1972, for the filing of a petition for a writ

_of certiorari. The jurisdiction of this. Court is invoked

' under -28° U.S.C. 8 1254(1).

QUESTIONS PRESENTED

1. Whether a District Judge’s order terminating a prose-

cution in favor ofa defendant by dismissal of an indictment

after trial bécause the principal government witness’ testi-

mony was “incredible” and had been substantially altered

between the defendant’s first and second trials was substan-

‘ tially a “judgment of acquittal” and, therefore, not review- _

able under the rule of United States v. Sisson, 399 U.S. 267.

(1970).

2. Whether the Double Jeopardy — of the Fifth

Amendment bars any review by the Court of Appeals at the

request of the: prosecution of a post-tnal District- Court

order terminating a prosecution on the basis. of evidence

' ‘presented ai trial.

- 3. Whether mandamus could be used by the prosecution

to have the nonappealable order vacated. oS

4. Whether a United States District Court has inherent

. power tq terminate a criminal prosecution after trial, for

articulated reasons relating to the credibility of the prose-

cution’s evidence.

‘STATEMENT.

-” On June 10, 1971, after a guilty verdict in a jury trial

held before him, United States District Judge Jack B. Wein-

stein entered an order dismissing an indictment filed on

August 29, 1967, against petitioner Albert Grunberger.- The ”

‘government petitioned for mandamus to vacate this order

on October 5, 1971, and the decision of the Court of

Appeals granting that petition is the subject wl this peti-

tion for. review.

f-

3

The background of the mandamus action may be briefly

summarized: Petitioner Grugberger and one Jechiel Her-

stig’ were ‘charged in 1967 with having participated-on July.

_ 19, 1967, in a transaction which was alleged to be a sale

of 3,000,smuggled Swiss watch movements to one Kalman

. Berger, and -with having conspired to commit that offense.

The indictment gave rise to two trials of Grunberger, each .. "

“having a substantially different scenario. ,

The issues for the ‘juries at both trials turned entirely on

_the credibility of Berger and petitioner Grunberger, who

"gave diametrically opposite testimony as to the nature of

* their meeting on July \9.2_ Berger had been indicted for

- watch smuggling, and he admitted that he had been assured

of leniency if he would make a case against’Grunberger. As

summarized by the court below, Berger’s testimony at the

first trial was that “he simply agreed {with Grunberger} to

make a swift purchase of a large quantity of movements”

(p. 5a,- infra), and that this “buy” was consummated on

' July 19, 1967—with the exchange of the watch movements

for a post-dated check in the amount of $12,000 which

Berger gave to Grunberger at thaf time. Petitioner Grun-

befger, on’ the other hand, testified that the watch move-

ments belonged to Berger, and that Herstig had been keep-

ing them as collateral for a $12,000 loan he had made to

Berger. Grunberger testified that bot Berger and Herstig

prevailed upon him to act as an interniediary in returning

the movements to Berger in exchange for repayment of the

'The co-defendant, who was not a resident of the United States,

was never arrested and had left the country before his indictment. -

*There was, no question as to the meeting itself, which. was

observed by agents of the Bureau of Customs. It occurred in mid-day

in downtown Brooklyn, and Berger was segh giving petitioner Grun-

berger a check and a parking lot ticket. Grunberger then gave the tic-

ket fo Herstig, who secured a car from a parking lot and returned

some time later with approximately 2000 watch movements in the

car's trunk. The meetings between Berger and Grunberger took place

' in a restaurant, and Grunberger’s meetings with Herstig occu in

. neighboring restaurants. ;

ls

5

4

$12,000, and that his participation iri the events of July 19

- was entirely innocent. i Rasp oe

The first jury returned a guilty verdict on four of the six

‘counts in the indictment, and Grunberger appealed from

the judgment. The Court of Appeals reversed the convic-

tion because of several trial errors (431 F.2d 1062), noting

as well that “Grunberger’s story was inherently credible and

: dovetailed with the corroborating evidence the Customs offi-

.cials were able to produce.” 431 F.2d/at 1066, n. 7. In’

granting. a new trial, the Court of Appeals observed twice

‘that this was a case involving “close factual issues’’ (ibid. ;

431 F.2d at 1069) and that “the Government’s case. was

not particularly strong” (Ibid). _

While the case was on appeal, Grunberger obtained new

evidence strongly corroborating his testimony-that the 2000

- watch movements were Berger’s. Scientific tests showed

-that they had been initially manufactured with the trade

name “*LEICA*;” which, as the Court of Appeals roted,

“was Berger’s, trade name.at least until just prior to the

transaction here at issue” (p. 4a, infra). That name had

been erased* and a different trade name, not traceable to

Berger, was on the movements as of July 19, 1967. The

Court of Appeals observed in its opinion that since the case

Berger admitted at the first trial that the 2000 movements were

not worth $12,000, but he claimed that Grunberger also gave’ him a.

key to a subway locker where he found an additional 1000 move-

ments (although, according to his testimony, Grunberger represented

that the locker contained’ several bottles of liquor). The jury

acquitted Grunberger on a separate count of the indictment relating

- to the 1000 watch movements. The government's testimony at both

trials was that the 2000 movements were worth not more than

$8,000 or $8,500 (before payment of duty) and that the 3000 move-

ments were worth substantially more than $12,000.

‘The proof that the trade-name had been changed also buttressed

s explanation as to what he had been told regarding the

custody of the movements by both Berger and Herstig. He testified

that the movements had been given to Herstig by Berger for Herstig

—who did odd jobs in watch repair and adjustment—to erase the mame

_ “*LEICA*” and substitute a different brand name.

5

was being remanded for a new trial, the defense would be

free to introduce the newly discovered proof at such a trial

. “if “the Government chooses to retry [the petitioner] .” ”: 431

F.2d at 1067, n. 8.

The case went to trial again, this time before Judge Wein-

stein and a jury. The petitioner’s new evidence had been

disclosed.to the proneaten and it, in turn, had communi-

‘cated it to Berger.5 In light of the new evidence, the

counts of the indictment charging sale and conspiracy were

dismissed by the prosecution after the jury was impaneled.

At the second trial,-Berger’s testimony regarding the

transaction was substantially different from the story he

told at the first trial. He now claimed that he had ordered -

the watch movements in question from petitioner Grunber-

ger more than two-and-a-half years before they were deliv-

ered—and even asserted that the movements bore the trade-

name “*LEICA*”.on July 19. 1967.© Grunberger testified

to the same effect as he had in his first trial, and, in addi-

tion, a depositiog of Herstig—taken in a U.S. Consulate

abroad with cross-examination by government counsel—was

read to the jury. It corroborated Grunberger’ s testimony

in every material respect.

Judge Weinstein denied motions for judgment of acquit-

tal made ‘at the conclusion of the government’s case and at

the close of all the evidence, although he stated on both

occasions that he did not believe Berger and that if he were

the trier of the fact, he would return a verdict of not guilty.

(Transcript, pp. 1342, 1346, 1350, 1718). After six hours °

5 Berger, had, in the meantime, received a suspended sentence on

his plea of guilty to his own smuggling indictment because of the

prosecution’s recommendation.for leniency.

©The Court of Appeals observed that this was demonstrably false

since “‘all the watches recovered on July 19 showed the inscription

COVA” and concluded that “[a] pparently Berger was not aware that

the *LEICA* inscription had been found only after careful scientific

examination disclosed that it underlay COVA; and Berger could thus

not have seen it when the movements were delivered” (pp. 5a-6a, infra).

6

of deliberation, the jury found Grunberger—an alien who,

- the record demonstrates, had difficulty understanding and

speaking the English language—guilty of facilitating the

transportation and concealment of smuggled watch move-

ments. Immediately on return of the verdict, Judge Wein-

' stein stated that arguments for upsetting the verdict were

‘“‘weighty”’ and that he would give them substantial consid-

eration because he was “not happy with the way this case |

proceeded generally” (Transcript, p. 1726). After stating.

that he was rrepared to sentence immediately and permit

motions for a judgment of acquittal and for a new trial to.

be filed later (id. at 1705-1706), the judge deferred sentenc-

ing—at the request of the Assistant United States Attorney

—until after the filing of the presentence report. __

On June 10, 1971—more than two-and-a-half months

after the verdict’? —the case was set for further argumei:t.

Judge Weinstein noted, at the inception of the: hearing,

that he was reserving judgment on the motions for judg-

_ ment of acquittal and for a new trial filed on behalf of

Grunberger. He then proceeded to sentencing and imposed

a suspended one-year sentence and a fine of $10,000.

Immediately thereafter, he said as follows (Sranscsipt, June

10, 1971, pp. 8-10):

Now, I will address myself to the question of the

motions.

Pursuant to the authority that I have under Rule

33, I would grant a new trial to this defendant as

required in the interest of.justice based upon my

_ hearing of Mr. Berger and a comparison of what he

said in this trial and what he said in the other trial,

and I believe that his statements were incredible,

and that he is not worthy of belief. This, however,

was a matter for the jury, and if that were the only

7Petitioner’s counsel filed motions within the time allowed by the

court, but the government filed no response. On May 14—at a hear-

ing held on the motions—the court continued the matter on instruct~

ing the government to answer the petitioner’s motions and brief.

reason for granting a new trial, I probably would

allow the verdict to stand, but I think that his testi-

mony plus the physical evidence in the case as. deter-

Mined from inspection of the records and dials and

_ the like and the German manufacture of the diais,

and the changes in. the story of Mr. Berger and the

‘inconsistencies within the story, as well as I think’

' the strong feeling I get from the record that the

government agency involved, and I do not criticize

_ the agency-for believing that this defendant is a

well-known smuggler,® but that agency had to a

greater degree than is normally acceptable, suggested

to Mr: Berger its desire to see that this defendant

was convicted and take into account the suggesti-

bility of Mr. Berger and his incapacity to distinguish

between fact and falsity when his own interests are

at stake, and, I think, the danger of a miscarriage of

justice was too great in this case.-

With all those circumstances plus others I won't

advert to, it seems to me to come within the speci-

fic terms of Rule 33, that it requires a grant of a

new trial in the interests of justice.

In this case, however, it seems to me, a new trial

would. not serve any usefu! purpose because I believe

that the government has presented ‘this evidence it

now has as forcibly as it could be presented to this

jury. I do not believe-that a re-trial would serve any

purpose at all except to exhaust the government to

require the expenditure of substantially more public

revenue, and it certainly wouldn’t serve the defend-

"The pre-sentence report disclosed that the Customs Bureau’s

“belief” on this subject was based on the most tenuous hearsay—ie.,

that a certain unnamed “courier” had identified Grunberger as one

“Boruch Hirsh” who was notorious as a smuggler. Grunberger une-

quivocally denied this allegation, and, at an earlier hearing, Judge

Weinstein said of this allegation, “I don’t believe there is any basis for

_it, and Iam not going to accept any of this hearsay.” (Transcript,

May 14, 1971, p. 18.) His statement at sentencing was, therefore,

intended solely to absolve the agency from arty blame for its suspi-

cion, but not to accept it as true or credible in any manner.

ant’s purposes, becauis¢ I don’t see how the defend-

ant can make a° strog er defense at the second trial.

Accordingly, 1am am going to dismiss the indict-

ment.

Now, I have serious doubts about my power to

do so, which is why I sentenced this defendant in

the first place.

On that date Judge Weinstein signed two orders, and the

record does not show in what sequence they were entered

(Appendix C, pp. Ic-2c, infra.) One of the orders. stated

the sentenée imposed by the court; the other stated that

“on oral motion of the defendant” the court dismissed fhe

indictment.?

The United States filed a notice of appeal on July 9,

1971. On October 5S, it instituted the present action for

mandamus.’ The Court of Appeals directed that a .

response be filed by October 12, 1971, and it set oral argu-

ment for October 14. It granted the government’s petition

on November 16, 1971, rejecting the contentions that man-

damus was being used in this case by the government to

obtain reversal of a non-appealable order terminating a pros-

-ecution, ori the merits of the general issue, in favor of a

criminal defendant.. In its opinion, the Court of Appeals

authorized Judge Weinstein to grant a third trial to the pet-

- jtioner, but rejected the proposition that a judge had inher-

ent authority to terminate a criminal prosecution in the

interest of justice.

9In fact, defendant’s counsel made no oral motion to dismiss. The

only motions made by the defendant were for judgment of acquittal

under Rule 29 and for a new trial under Rule 32.

The Court of Appeals opinion states that the delay was

“occasioned . . . by the need for obtaining the approval of the Solici-

tor General” (pp. 8a-9a, infra). The affidavit of the Assistant United

States Attorney on file in the Court of Appeals states, however, that

authorization of the Solicitor General was received in the United

States Attorney’s office on August 2, 1971—approximately two

months before the petition for mandamus was filed.

9g

REASONS FOR GRANTING THE WRIT

This is a case in which an able and experienced District

Fudge has, after hearing the evidence presented at trial and

comparing it with evidence at an earlier trial, concluded |

that there is a substantial enough danger that a miscarriage

of justice will occur by the conviction of an.innocent man

- to warrant termination of the prosecution. For reasons sta-

ted below, we believe that the inherent authority of a Dis-

trict Judge to act in this manner has sound roots in tradi-

tional ‘usage, and the Court of Appeals’ holding that no such

power exists conflicts, in principle, with, decisions in other

Circuits and presents an exceedingly important question of

law warranting consideration and decision by this Court.

Preliminary to this issue, however, are several equally

important jurisdictional questions. The court below decided

all these questions in favor of the prosecution, and its rul-

ings conflict with authoritative decisions of ti:is Court gov-

erning (1) the right of the government to obtain review of

adverse final determinations in criminal cases, (2) the pro-

tection afforded by the Double Jeopardy Clause of the

Fifth Amendment against government appeals in criminal

cases, and (3) the proper scope of the writ of mandamus

‘in criminal cases. And with respect to the first two of

these jurisdictional issues, the government’s position in this

case conflicts with a policy applied by the Solicitor General

since at least 1949—and relied upon by this Court in its

1970 decision in United States *y. Sisson, 399 U.S. 267

(1970). Moreover, insofar as the decision below permits

appellate reivew, at the instance of the prosecution, of a

district judge’s order terminating a prosecution, it conflicts

squarely with recent decisions of the First and Seventh Cir-

cuits which have substantially narrowed the government’s

right to secure review by. appeal or mandamus of orders ter-

minating federal criminal prosecutions. And in these con-

flicting decisions there has been far less husis for applying

the policies of the Double Jeopardy Clause or of the limi-

tations on government appeal allowed by 18 U.S.C. § 3731

Be ae ites oo

than in this case—where the Judge’s ruling ‘was based on

trial evidence and it came after the defendant had beeh

compelled to undergo a jury trial.

1. The prosecution was not entitled to appellate review

of Judge Weinstein’s order of dismissal.—This Court and

Courts of Appeals in several circuits have, in recent years,

. considered in what circumstances the prosecution can

obtain appellate review of different kinds of district court —

orders terminating criminal prosecutions in favor of the

accused. In no reported case have the reasons of law and

policy against appellate réview been as strong as they are

here; yet in this case the court below rejected the argument

summarily. Its decision conflicted squarely with United

States v. Sisson, 399 U.S. 267 (1970), and with the recent

application given to Sisson in recent decisions of the First

and Seventh Circuits in United. States.v. Findley, 439 F.2d

970 (ist Cir. 1971); and United States v. Ponto, No. 18396

(7th Cir. en banc, decided December 28, 1971) a

D, pp. 1d-31d, infra). :

i. Sisson—On the face of his explanation it is clear

that Judge Weinstein terminated the prosecution entirely

because of (1) his conviction that the testimony of the key

government witness was “incredible,” (2) a comparison of

the witness’ second story with his first," and (3) an evalu-

ation of what the Customs Bureau had said to Berger in

persuading him to cooperate.'? This made the dismissal an

order terminating the prosecution “on the basis of evidence

adduced at trial” within the rule of Sisson, 399 U.S. at 288.

"The full variation in Berger's testimony could not be appreciated

wigout reading the entire testimony at the first trial. Accordingly,

cross-examination of the witness based on specific answers at the first

trial left the jury with only part of the picture. And the judge-noted -

after the second jury’s verdict that he had not theretofore read the

‘transcript of the first trial so as not to prejudice Grunberger (Trans-

eript, pp. 1733-1734).

!2Grunberger’s counsel contended at trial that the Customs Bureau

* had not merely sought Berger’s cooperation in apprehending other

violators. It had, rather, singled out Grunberger as the man they

c

1]

Under the square holding of. this Court in Sisson, the

order therefore constituted an “acquittal” which i§ not |

reviewable in any appellate ‘court. In Sisson this Court held

that Judge Wyzanski’s action in terminating a prosecution

for willfully refusing induction after a jury verdict of guilty

constituted a nonreviewable acquittal because “the disposi-

tion is bottomed on factual conclusions, not found in the

indictment but instead made on the basis ‘of evidence

-adduced at. the trial... .” 399 U.S. at 288. Judge Wyzan-

ski had labelled his post-verdict ‘disposition an “arrest of

judgment” atid he had apparently chosen that label in order

to assure the gevernment’ appellate review of his action.

399 U.S. at 279, n. 7. This Court expressly rejected the -

contention that Judge Wyzanski’s characterization of his

own action could control the jurisdictional determination.

399 U.S. at 279, n. 7, 290 and n. 19. ia

The Sisson definition of “acquittal”—ie., a judicial deci-

sion terminating the prosecution “on the basis of facts

adduced at the trial relating to the general issue of the 3

case,” 399 U.S. at 290, n. 19—was reaffirmed unequivocally

by seven members of: the Court in United States v. Jorn,

400 U.S. 470, 487, n. 7 (opinion of Mr. Justice Harlan);

489, n. 2 (opinion of Mr. Justite Stewart). And in Sisson

itself the dissenting Justices apparently agreed that a legal ©

determination based on evidence at trial going to the gen-

eral issue was an acquittal; their disagreement turned only

on the applicability of that standard to the facts of the

case. See, e.g., the opinion of Mr. Justice White (399 U.S.

at 328, n. 4,-332-333, n. 6% No similar question is pres-

ent here; Judge Weinstein relied exclusively on testimony

he witnessed at trial and reached conclusions as to the cred-

ibility of the government’s chief witness and the undue

influence placed upon him by a government agency.

wanted and made the conviction of Grunberger the price of Berger’s

freedom.

Pee

12

An analysis of the reasons given ‘by the court _ for

‘rejecting the Sisson argument demonstrates the error of the

Court of Appeals’ decision (p. 18a, infra): &

Defendant’s principal argument on the merits is

that although the judge characterized his order as_

- one dismissing the indictment, in truth and fact it

owas a judgment of acquittal. [1] We have the grav-

est doubt whether the judgé’s undoubted power to

att aside a-verdict and enter a judgment of acquittal,

“F.R.Cr.P. 29(c), can survive. the entry of a judgment

of conviction; the two actions segm antithetical. [2]

Beyond that, however, to characterize the judge’s |

order dismissing the indictment as one of acquittal

would be to attribute to him a purpose he repeat-

edly and rightly disclaimed. We have. already cited’

numerous instances of such disclaimers; there are

many more. [3] Beyond. that the judge was |

entirely, correct in acknowledging that he had ho

‘right’ to direct acquittal because of disbelief of the

prosecution’s witness, even though before entering

judgment of conviction he had the ‘power’ to do

so * * * * [Emphasis in original]

The second justification offered—i.e., Judge Weinstein’s

- characterization of his.action as a ‘“‘dismissal of an indict-

ment” rather than a “‘judgment of acquittal”—is foreclosed

by the already discussed express ruling in both. Sisson and

Jorn that the trial judge’s label of his action cannot con-

trol the question whether that action in fact constitutes an

acquittal.

The. third PEO ing is a classic example of a ‘merely

erroneous” trial coart ruling.as opposed to a ruling going

to either “power” or “jurisdiction.”” See Will v. United

States, 389 U.S. 95, 98 n. 6 (1967).'4

'3Numbers in brackets have -been added to separate the three dis-

tinct reasons given by the court below for ss the Sisson argu-

ment.

“The court in Sisson dabsinanly spelled out the “compromise ori-

gins” of the Criminal Appeals Act as revealed by a detailed study of

the legislative history. 399 U.S. at 307. Crucial to that compromise

13

The whole of the Court of Appeals’ reasoning on the

“acquittal” issue thus comes down to a single asserted dis-

tintinction between this case and Sisson—i.e.; the District

Court’s “undoubted power to set aside a verdict and enter

a judgment: of acquittal F.R.Cr.P. 29(c), [cannot] survive

the entry of a judgment of conviction... .” (Emphasis in

original.) . | oe fa ; .

‘The use of the term “power” here in order to bypass Sis-

“son illustrates the ambiguities ‘of this term referred to by

a unanimous Court in Will, See 389 US. at 98, n. 6.

Surely; the court below was not Suggesting that by sentenc-_ |

ing Grunberger, the district court lost jurisdiction over the

subject matter or the parties to this suit. A court ordinarily

retains jurisdiction over a criminal case after a judgment of

conviction until either the time for post-trial motions

expires Or an appeal is perfected. ‘Compare Berman y,

United States, 302 U.S. 211 (1937), with Draper v. Davis,

102 U.S. 370 (1880). Indeed, if Judge Wyzanski had sought

to make his ruling appealable by initially sentencing Sisson

and then granting the motion in arrest of judgment (com-

_ pare F.R.Cr.P. 34 with F.R.Cr.P. 29) would that sequence

have made his action reviewable? Yet that is precisely what

happened in this case. After expressly referring to the jur-

isdictional problem created under the Second Circuits ear!-

ier Dooling decision by a refusal to sentence, Judge Wein-

stein stated unequivocally that he was going to sentence

Grunberger before ruling on the motions in order to give

the government appellate review.

was the-Congressional determination that the government have no

_ appeal “under any circumstance when the defendant is acquitted for

any error whatever committed by the Court... . 2’: 399 USS. at 289,

quoting from 41 Cong. Rec. 2752. (Emphasis in original.) See also

Jorn, 400 US. at 476 US. at 476. Obviously then, ‘‘a legal deter-

mination on the basis of facts adduced at the trial: relating to the gen-

eral issue of the case” is no less an “acquittal” barring appellate

review under the Congressional policy employed in Sisson and Jorn

because the legal determination is erroneous, ‘‘no matter how erron-

cous the constitutional theory underlying the [legal determination] .”

399 US. at 289 (emphasis in Original).

14

Moreover, the suggestion that Judge Weinstein had “no

power” to acquit after pronouncing sentence conflicts with

the lower court’s own conclusion that he retained power

(which he still possesses) to act on the motion for a new

trial. . There is.no language in Ryle 33 (new trial) which.

confers more authority after "esaly et kit jodement” than

under Rule 29 (acquittal). Rule 33 reads:

A motion for a new trial based on any other

grounds {ie., other than newly discovered evidence]

shall be made within 7 days after verdict or finding

of guilty or within such further.time as the court

may fix during the 7-day period. ;

Rule 29(c) reads: :

If the jury retufns a verdict of guilty or is dis-

charged without having returned a verdict, a

motion for judgment of acquittal may be nade or

renewed within 7 days after the jury is discharged

or within such further time as the court may fix

during the 7-day period.

The district court’s power to act under Rule 29 after sen-

tence must, therefore, be the same as it is before sentence

and as it is under Rule 33 after sentence. If not, the deci-

sion below would mean that a district judge would also be

“powerless” after sentencing to change his mind on the

basis of a renewed defense plea—within time permitted by

- order under Rule 29-which persuaded him that the evi-.

dence was insufficient to warrant submission to the jury."*

At bottom, the government’s claim here cannot really be

that Judge Weinstein had no “authority” to enter an acquit-

tal after sentencing; it is nothing more than a challenge to

his reasons for terminating’the’ prosecution. And it is pre-

'Stndeed, in this very case, Judge Weinstein was ready to sentence

immediately upon return of the jury verdict and to consider motions

under both Rules 29 and-33 thereafter. (Transcript,-pp. 1705-1706,

1739-1742). If he had been persuaded by such a post-sentence sub-

mission that the evidence was insufficient, would he have lacked author-

ity to enter an order under Rule 29?

: 15

cisely that kind of ruling which was held to be an acquittal

in Sisson’ and also held nonappealable in Will v.. United s

States, 389 U.S. 90 (1967).** ~

Finally, we submit that in seeking -review here from a

decision terminating the prosecution after trial, the govern-

-ment violated the Solicitor General’s own consistent policy

since .United States v. Zisblatt, t72 F.2d 740 (2d Cir.),

appeal dismissed, 336 U.S. 934 (1949), which was explained

in the government's brief in Sisson. In Zisblatt, a trial

judge “dismissed” an indictment after the jury’s return of a

guilty verdict on the ground that prosecution was barred -

, by the statute of limitations. (The same defense had been

rejected by another district judge at the pre-trial stage.) As ~

* was true here, the district judge in Zisblatt had pending

before him a motion for acquittal under Rule 29, but he

neither. granted nor denied that motion. The Court of

- Appeals for the Second Circuit (per L. Hand, J.) certified

the government’s appeal to this Court. But-after the certi-

. fication, the Solicitor General dismissed the appeal. His

reason—as stated-in the government's brief in Sisson and

quoted, verbatim, by this Court—was “that the statute

barred appeals from the granting of motions in bar after

jeopardy had attached.” He represented that the govern-

ment “has thereafter adhered to that position, and * * *

has never sought to appeal in these circumstances.” 399

* U.S. at.306. In the present case—in violation of the rule

of Will v. United States; 389 U.S. 90, 97 (1967), that man-

damus “may never be employed as a substitute for appeal

- "In our argument on this point, we have relied on that part of the

majority opinion in Sisson which was generally accepted. Plainly,

under the rule of Sisson ‘propo by Mr. Justice Harlan’s opinion

for four members of the Court, is no possibility of appellate

review: “|E| xcept for decisions arfesting judgment, there can be no

government appeals from decisions rendered after the trial begins.”

399 US. at 307. Judge Weinstein’s decision was plainly not.

an “arrest of judgment,” and it came—as did that in Sisson—after the

trial began and ended. Hence its nonreviewability is squarely covered

by Sisson. ee .

. 16

in derogation of * * * [the] clear policies” limiting govern-

‘ment appeals in criminal cases to those “orders terminating

- the prosecution” specified in the Criminal Appeals Act (18

U.S.C. §3731)—the government has violated its own policy

as well as the legal principles established by this Court.

ii. Circuit court decisions.—The First and Seventh

Circuits have recently held that pretrial “dismissals” of

indictments are nonreviewable under Sisson where they are

based on facts which could have been raised at trial. United

States. v. Findley, 439 F.2d 970 (ist Cir. 1971); United

States v. Ponto, No. 18396 (7th Cir., December 28, 1971)

- (Appendix D, pp 1d-31d, infra); United States v. Gustav-

son, .No. 18315 (7th Cir., December 28, 1971) (Appendix

E. pp. le-4e, infra). All these cases involved dismissals

(1) before jeopardy had attached (ie., before impanelment

of a jury or beginning of the trial), and (2) on the basis of

evidentiary material not relating as directly to guilt or inno-

cence as the grounds stated here by Judge Weinstein. Yet

the Seventh Circuit in Ponto went so far as to hold, by a

majority of the in banc court, that the district judges’ pre-

trial ruling foreclosed all further proceedings under the

Double Jeopardy Clause of the Fifth Amendment.

The Findley, Ponto and Gustavson cases cannot be dis-

‘tinguished on the ground that the dismissals there were

within the district court’s “jurisdiction.” As the panel opin-

ion in Ponto demonstrates, the government objected vigor-

ously to the procedure being used by the judge (Appendix

F, pp. 1f-12f, infra),'’ and the Court of Appeals refused _

'7The district judge in Ponto determined to treat the pretrial motion

as the equivalent of a motion for summary judgment in a civil case.

The Untied States Attorney said (p. 4f, infra):

Well, your Honor, we would object to proceeding under

a motion for summary judgment because, to my knowledge,

- there is no such thing in a criminal case. Now, I just would

object to that most vigorously. * * *

The trial judge believed, however, he could achieve that result by

ordering the indictment “dismissed.” .

17

to grant the relief requested by the government even if its

application were treated as a petition for mandamus (p. 11d,

infra, at n. 10). In any event, it would be anomalous ‘if °

the effect of the ruling below and ‘the First and Seventh

Court decisions were that a dismissal of the kind entered

by Judge Weinstein would be final if it came before trial

(when he had not heard the evidence)—or, indeed, before

a retrial—but it would be vacated as beyond his power if

entered after trial. Surely the policies warranting limitation

on government appeals under the Criminal Appeals Act and

the Double Jeopardy Clause apply much more forcefully to

_the termination of a prosecution after jeopardy has attached

and a defendant has been put to the ordeal of a trial than

before trial begins. .

:

We have discussed this initial jurisdictional question in

greater detail than is usual in a petition for writ of certior-

ari because we believe that the decision below is so plainly

inconsistent with Sisson that it might be summarily vacated

on that basis. The very least that can be said, however, is

that certiorari should not be denied given the holdings in -

Ponto and, Findley.

The government may contend that the interpretation of

the pre-1971 Criminal Appéals Act is not of continuing .

importance. But the broad application of the Double Jeo-

pardy Clause to government appeals in Ponto affects the

current statute as well, and the basis for the Seventh Cir-

cuit’s in banc holding on the Fifth Amendment point was

the Sisson definition of an “acquittal.” Finally, the circum-

stances of this case bring it so clearly within the policies of

Sisson, and the effects of the decision below on the peti-

tioner are so personally and economically severe,'® that the

'® Although the Court of Appeals strongly implied that the District

Judge should grant a new trial, the judge explicitly stated at the time

of his ruling that he would not do so. Hence Grunberger will preb-

ably be put to the expense and strain of another appeal and, if this ~

results in a new trial, to a third trial.” Because of the pendency of

18

case should not be ignored simply because the statute an

been amended.

2. The decision below conflicts with this Court's hold-

ings on the Double Jeopardy Clause and the mandamus

power.—In granting the government’s petition for man-’

damus, the court below also disregarded this Court’s deci-

sion in Fong Foo v. United States, 369 U.S. 141 (1962),

where the government had similarly contended that a dis-

trict judge had acted in excess of his authority by terminat-

ing a criminal proceeding.in mid-trial because “of two

grounds: supposed improper conduct on the part of the _

Assistant United States Attorney who was prosecuting the

case, and a supposed lack of credibility in the testimony. of

’ the witness for the prosecution who had testified up to that

point.” 369 U.S. at. 142. The Court of Appeals had

granted the requested writ on the ground that the acquit-

tal entered for the reasons stated was “not only plainly”

_ erroneous but beyond [the trial judge’s] jurisdiction.”

286 F.2d at 560. In Fong Foo, as in this case, the Court

of Appeals viewed the district judge’s action as “not mere

error but usurpation of power,” 286 F.2d at 562, and it

‘relied, as the court below had done, on Ex parte United

States, 242 U.S. 27 (1916). This Court rejected the “‘juris-

diction—mere error” distinction as follows (369 U.S. at

142): :

_ The petitioners were tried under a valid indict-

ment in a federal court which had jurisdiction over

them and over the subject matter. The trial did not

terminate prior to the entry of judgment, as in Gori

v. United States * * *. It terminated with the entry

of a final judgment of acquittal as to each peti-

tioner. The Court of Appeals thought, not without

reason, that the acquittal was based upon an egre-

giously erroneous foundation. Nevertheless, “(t]he

verdict of was final and could not be

- these charges, his immigration status has been kept in abeyance ‘by

‘the Immigration and Naturalization Service.

19

reviewed . . . without putting [the petitioner] twice

in jeopardy, and thereby violating the Constitution.” -

Here, as in Fong Foo, a trial judge with jurisdiction over

the parties and the subject matter of the suit terminated the

prosecution on the basis of lack of credibility of the prose-

cution’s witness. No matter how “egregiously erroneous”

that judicial action was, government review is barred by the

Fifth Amendment.

This case presents a classic instance of an individual sub-

jected to “embarassment, expense and ordeal and [com-

pelled] to live a continuing state of anxiety and insecurity”

because the State is making “repeated attempts to convict

{him] for {the] alleged offense.” Green v. United States,

355°U.S. 184, 187-88 (1957); see United States y. Jorn,

400 U.S. 470, 479 (1971) (plurality opinion). Over a per-

iod of four and one-half years petitiorier Grunberger has

endured two full trials at considerable expense on two

entirely separate government theories of the allegedly crim-

inal behavior, the second worked up after defense counsel

produced physical evidence conclusively demonstrating the

impossibility of the first theory. The second trial termi-

nated after the trial judge concluded that the government’s

chief witness was lying. The judge also found that the gov-

ernment had overreached with respect to that witness in its

zeal to secure a conviction. ~ Finally, the petitioner has

"steadfastly maintained his innocence throughout. In Green

and Jorn, the Court found that double jeopardy policies

reached this kind of individual suffering even in the absence

of any indication of prosecutorial harassment. The facts of

the instant case present a much stronger example of the

type of injury said in those cases to be at the very core of

double jeopardy policies. :

It is no answer to say, as the court below did, that since

reversal would not require a retrial, there is no violation of

the Double Jeopardy Clause. This Court has established the

- principle—at least since Kepner v. United States, 195 US.

100 (1904)—that review “even in an appellate court” at the

aA?

20

instance of the prosecution “is to put [the defendant] a

second time in jeopardy for the same offense.” 100 U.S.

at 133.. Here too, the mere act of reviewing Judge Wein-

stein’s order amounts to a violation of the constitutional

prohibition.'? : ao

' Nor is the decision of the court below consistent, with

the principles governing writs of. mandamus which this

Court announced and applied in Will v. United States, 389

U.S. 90 (1967). Judge Weinstein’s order dismissing the

indictment was a standard form of relief traditionally

granted in federal criminal cases in a variety of factual cir-

cumstances.2° Indeed, the routine nature of this kind of

relief was demonstrated by the fact that the actual order

was typed on a mimeographed form available td judges in

the Eastern District of New York for nolle prosequis

entered on motion of the government. (See Appendix C,

p. 2c, infra). In addition, Judge Weinstein took this action

while he had sole and exclusive jurisdiction over the case. _

He expressly reserved judgment on pending motions before

pronouncing sentence”! and immedaisiy after the sentenc-

ing announced that he would dismiss the indictment and —

stated his reasons for doing so. |

19See also Green v. United States, 355 US. 184, 188 (1957); Peters .

_ v. Hobby, 349 US. 331, 344-345. (1955).

Trial courts have dismissed indictments at the request of defend-

ants (even prior to the adoption of the Federal Rules of Criminal Pro-

cedure) for failure to prosecute (e.g., Ex parte Altman, 34 F.Supp.

106 (S.D. Cal. 1940); on grounds of double jeopardy (United States

v. H. E. Koontz Creamery, Inc., 257 F.Supp. 295 (D. Md. 1966);

because the prosecution has lost certain necessary records (United

States v. Heath, 147 F.Supp. 877 (D. Haw. 1957), appeal dismissed,

260 F.2d 623 (9th Cir. 1958)); and “on grounds of public policy”

(Robinson v.. United States, 284 F.2d 775 (Sth Cir. 1960)).

21 The reasen for first imposing sentence, according to the Judge’s

explanation, was to enable the government to test, in a court of.

appeals, whether he had “‘power” to dismiss for the stated reasons.

(Transcript, June 10, 1971, p. 10; see also Trial Transcript, pp. 1739-

1741.)

oe

In these circumstances, the issuance of a writ of manda-

mus by the Court of Appeals violated the guidelines laid

" down by this Court in Will v. United States, 389 U.S. 90

(1967). Dismissal of an indictment—even after a. jury’s ver-

dict—on the grounds, inter alia, that the key government

witness’ testimony is “incredible” and that the defendant

was improperly singled out as the target of his ““coopera- ~

_ tion” does not present “exceptional circumstances” or a

- “judicial ‘usurpation of power’ ’’ within the standard set

down in Will. 389 U.S. at 95. And here, as in Will, resort

to appellate courts by the government is additionally

unsound because criminal charges are involved and

‘appeals by the Government in criminal cases are some-

thing unusual, exceptional, not ‘zvored,’ Carroll v. United

States, 354 U.S. 394, 400 (1957), at ‘least in part because

they always threaten to offend the policies behind the dov-

ble-jeopardy prohibition * * *.” 389 U.S. at 96.22 -

This case is, therefore, no different than the Will case’

would have been if the government had refused to comply

with the order to produce the names of witnesses and the

judge had thereupon dismissed the indictment. This Court

noted that both parties in Will had agreed that “it is highly

doubtful that [the government] could appeal” the dismissal

(citing United States v. Apex Distributing Co., 270 F.2d

747 (9th Cir. 1959). 389 U.S. at 97, n. 5. Yet under the

rationale adopted by the court below, the government could

have sought mandamus on the ground that no provision in

Rule 7(f) or Rule 12 of the Federal Rules of Criminal Pro-

Both United States v. Smith, 331 U.S. 469 (1947), and Ex parte -

United States, 242 U.S. 27 (1916), on which the court below relied,

are plainly distinguishable on these grounds. In Smith, the District

Judge attempted to act on a case which had become final by opera-

tion of law and over which he no longer had jurisdiction. In Ex parte

United States, the question presented was whether the trial judge had

authority to enter an order suspending a term of imprisonment at a

time when suspended sentences were not authorized by statute.

Hence the form of relief he granted was unlike any recognized by

law. . :

22

cedure (or in any other Rule) authorized the dismissal of

an indictment on that ground. ‘. |

The mandamus portion of the decision below also col-

lides with Parr v. United States, 351 U.S. 513, 520 (1956),

-where mandamus was held inappropriate ‘to review the

authority of a district court to dismiss an indictment at the

government’s request after the government had obtained a

new indictment for the same offense in a district to which

the original charge could not have been transferred. This

Court held that mandamus was inappropriate because “the

‘most that could be claimed is that the district courts have

erred in ruling on matters within their jurisdiction.” 351

U.S. at 520. The same terms are applicable to the dismissal.

involved here, and resort to the mandamus authority was,

therefore, inappropriate.?* ,

3.. The District Court had inherent authority to dismiss

the indictment.—The substantive issue reached by the

court below .is of substantial importance in the administra- .

tion of criminal justice in federal courts and should be

authoritatively resolved—particularly since the court below

rested its decision on a principle of law which conflicts |

with decisions of the Ninth Circuit.

The court below held that Judge Weinstein could not ter-

minate this prosecution for the ‘“‘well articulated reasons”

he had given—even though his action was required in the

interest of justice—because no express authority for such a

dismissal was conferred by the Federal Rules of Criminal

23Nor is United States v. Dooling, 406 F.2d 192 (2nd Cir.), cert.

| denied sub nom. Persico v. United States, 395 US. 911 (1969), au- _

thority for exercise of the mandamus power on these facts. In the

Dooling case; the judge refused to enter any judgment whatever and

a petition for mandamus was filed after he had filed a “proposed”

memorandum and order. Moreover, the legal issue—as described by

the Solicitor General in his Brief in Opposition in this Court—was

whether a District Judge had authority “to dismiss on grounds

rejected prior to trial by Judge Weinstein.” (Br. in Opp., No. 1187,

O.T. 1968, p. 7). No attempt to overrule a pretrial decision

is involved in this case. . ,

wr

_ 23

‘Procedure and “the failure of the Rules.to bestow such a

power precludes its exercise” (p. 21a, infra). The rejection

by the court below of an inherent power to dismiss the

indictment in the-interest of justice conflicts squarely with

the decision of the Ninth Circuit in United States v. Heath,

260 F.2d 623 (1958), where the Court of Appeals upheld

a district judge’s dismissal of an indictment because the

prosecution had lost‘certain key documents. The court

held, alternatively, that such a dismissal was “within the

inherent power of the District Court,” that its “author-

ity * * * to do justice is not encompassed either by rules

or by statutes’”—and that the Criminal Appeals Act did not

“provide an appeal from dismissal by the trial court to pre-

vent injustice.” 260 F.2d at 632.

The Ninth Circuit reached the same result in banc in

United States v. Apex Distributing Co., 270 F.2d 747

(1959), where it sustained the dismissal of indictments on

the alternative ground that the court was acting “‘in the

exercise of its inherent power to do justice.” 270 F.2d at

756. In other circuits indictments have been dismissed both

before and after trial for failure to produce documents or

for other reasons not specified in the Federal Rules of

Criminal Procedure. United States y. Nardolillo, 252 F.2d

755 (ist Cir. 1958); United States vy. Pack, 247 F.2d 168

(3rd Cir. 1957). In each of these cases, the circuit courts

rejected appeals by the government from the dismissal

orders.

The court below based its conclusion on several erron-

) cous premises. It mistakenly read the language in 18 U.S.C.

-$3771 which invalidates “all laws in conflict with” the Fed-

eral Rules of Criminal Procedure as wiping out any inherent

power not specified in the Rules. This reasoning conflicts

with the conclusion of this Court in Harris v. Nelson, 394

U.S. 286 (1969), that district courts have power beyond

- those conferred by the Fedral Rules whenever needed “in

24

the interest of justice.”** It also overlooks the observation

of the Eighth Circuit in Baker v. United States, 139 F.2d

721, 723 (1944), cert. denied, 325 U.S. 894 (1944), that

_ “the authority granted the Supreme Court [to promulgate .

Rules] did not empower that court to take away from any

person by a procedural rule a substantial nght given him

by law.” The right to have an indictment dismissed “‘in

* the interest of justice” is such a substantive right and was

not affected by the adoption of the Federal Rules.

The important protection given a defendant by this judi-

cial power has long been recognized in.local courts of crim-

inal jurisdiction. In New York, where this trial occurred,”®

* a statute specifically recognizing this power has been on the

books since 1881. See N.Y. Crim. Procedure Law § 210.40

-(substantially reenacting former 8 671 of the N.Y. Code of

Criminal Procedure). And in California, such a provision

has been in effect since 1872. See Cal. Penal Code Ann.

§ 1385. See Appendix G, p. lg, infra. In People v. Superior

Court of Marion County, 446 P.2d 138, 72 Cal. Rptr, 330.

(1968), the Supreme Court of California held that a post-

verdict dismissal order pursuant to this procedure was not

teviewable by mandamus. The majozity — said (446

P.2d at 146):

It. would seem that, if anything, a court should

have broader discretion to dismiss in furtherance

of justice after the verdict than it should have dur-

ing trial. After the verdict the judge has heard

the evidence of the prosecution; whereas prior to

the conclusion of the trial there is always the possi-

%4 Harris v. Nelson did, of course, involve the Federal Rules of Civil

Procedure and not the Criminal Rules. But 28 U.S.C. § 2072, which

is the civil equivalent of 18 U.S.C. § 3771, contains an identical provi-

sion that “All laws in conflict with such rules shall be of no further

force or effect after such rules have taken effect.” *

25Prior to the adoption of the Federal Rules, of course, the local ©

practice had more weight than it has today. See 6. Hughes, Feder

Practice § 3730 (1931); United States v. Kilpatrick, 16 Fed. 765, 7

(W.D.N.C. 1883); United States v. DeBolt, 253 Fed. 78, 82 (S.D. Ohi

1918).

oe |

bility that in the absence of dismissal more. evidence

may be received. ;

-

The court below buttressed its decision by relying on

language in Ex Parte United States, 101 F.2d 870 (7th Cir.,

1939), which. this Court heard and affirmed by an equal

division. 308 U.S. 519. In that case, the issue was whether—

prior to the present Rule 29—a court had inherent power

to reserve decision on + oto for judgment of acquittal

until after verdict.. Im lediately following the language

quoted by the court below was the following statement — |

which conflicts with the conclusion’ that district courts have

no “inherent power”: “In the absence of prohibitive legis-

lation courts have eh & power to provide themselves

with appropriate procedures required for the performance

of their tasks.” 10] F.2d\at 878. The procedure followed

here by Judge Weinstein was an “‘appropriate”’ one to achieve

_ justice, and there is no “prohibitive” legislation forbidding

it. It should be sustained by this Court.

|

CONCLUSION

For the foregoing reasons, the writ of certiorari should

be granted. pee

Respectfully submitted,

‘ HERBERT J. MIELER, JR.

| NATHAN LEWIN .

‘Miller, Cassidy, Larroca & Lewin

1320 19th Street, N. W.,

Suite 500

‘Washington, D.C. 20036

(202) 293-6400

Attorneys for Petitioner ;

Grunberger |

»

APPENDIX A

UNITED STATES COURT OF APPEALS

For rae Seconp Cmcurr: 3

No.-289—September Term, 1971. _ <-

(Argued October 14, 1971 Decided November 16, 197 )

a Docket No. 71-1942

Se

Ustrep States oF America,

Petitioner,

—against—

Howonaste Jack B. Wexsrerx, Usrrep States Disrarér

Juvor ron rue Eastenx Disraict or New Yorx,

| Respondent.

Ustrep States or Amenica,

naa

Defendant.

Before:

. Purxviy, Chief Judge, Cuan, Associate Justice, Retired, -

and Kavrmax, Circwit Judge.

Petition" by the United States for the issuance of man.

damus to require a district judge to vacate an order dis.

° Of the Supreme Court of the United States, sitting by designation

‘2a

missing an indictment after having entered a judgment

of conviction. Petition granted, with further considera-

tion to be given to defendant's motion for a new trial. .

oe

Epwarp R. Korman, Assistant U. S. Attorney

(Robert A. Morse, United States Attorney,

Eastern District of New York, of Counsel),

for Petitioner.

Naruan Lewrx, Esq. (Miller, Cassidy, Renseen

& Lewin, Esqs., Washington, D. C., of Coun-

sel), for Defendant Grunberger.

or

x, Chief Judge:

A conscientious and ingenious district judge has here:

endeavored to provide opportunity for an appellate rul-

ing on the nature of a trial judge’s powers and responsi-

bilities when a jury has found a defendant guilty on

evidence which was facially sufficient but which the judge,

for well articulated reasons, could not credit. This praise-

worthy effort has presented us with problems of no little

complexity.

L

Albert Grunberger was convicted in February, 1969,

after a jury trial before Judge Mishler in the District

Court for the Eastern District of New York om three

counts of having concealed, sold and facilitated the trans-

of Swiss watches smuggled into the United States

in violation of 18 U.S.C. $545 and one count of conspir-

tog to do so.t On his appeal this court rejected a con-

tention of of insufficiency of the evidence for submission of

the case to the jury, but reversed the conviction because

1 The court diemisesd 0 08th count and the jory sequitied on 0 cinth

a

of trial errors, and directed a new trial. United States v.

Grunberger, 431 F.2d 1062 (1970). The opinion noted

that, after the case had been argued oin appeal, Grun-

berger had moved in the district court for a new trial

on the ground that he had newly discovered evidence

proving that the 2,000 watch movements which the Gov-

ernment had claimed he had sold. to Kalman Berger, the

chief government witness, already belonged to Berger. In

light of the disposition of the appeal we found a remand

for consideration of this motion to be unnecessary since

“the way is now open for appellant to introduce his

newly discovered evidence” at the retrial, 431 F.2d at

1067, n. 8.

The Government’s presentation at the second trial, before

Judge Weinstein and a jury, differed from that in the first

in a number of respects. At the first trial the Government’s

theory had been one of a simple “buy” transaction arranged

by Berger at its request after he was assured of leniency

in the smuggling prosecution then pending against him.

Berger testified that he met with Grunberger for the first

time on June 28, 1967, in a-restaurant, and that a meeting

‘was set for July 2 at Berger’s home, at which time Grun-

berger would show him samples. When they met, Berger

was shown the samples, the two men agreed on a price,

and ‘Grunberger described the watches as “smuggled.”

Their next nigagting took place’on July 17 when Grunberger

drove Berger to a parking lot in Brooklyn, instructed him

to leave a rented car there on July 19 and then go toa

restaurant nearby to meet Grunberger. Berger testified

that on July 19 he left the car at the lot, met Grunberger

at the restaurant, gave Grunberger the keys to the car

and the parking lot ticket, waited while Grunberger went

off to arrange the transfer, and upon his return wrote

Gruyberger a check for $12,000 for the watches. Berger

RIT tem

4a

then testified that he and the Customs agents examined —

about 4 half dozen of the 2000 watch movements contained

in a shopping bag in the trunk of Berger’s car and bearing

the trade name COVA, and found these movements to be

- unsymboled. Berger also stated that, based upon his ex-

perience as a watch smuggler, the movements were wrapped |

in the way smuggled watches normally. are, as opposed to ©

the way legally imported movements would be packed.

Customs agents testified that a record check of all domestic |

ports of entry failed to show that.COVA watch movements

had been legally imported. From this the jury could prop-

erly infer that these-movements were illegally imported.

Grunberger asserted that the movements belonged to Ber-

ger all along, although he conceded that he had been a

party to the delivery to Berger of 2000 watch movements

from one Herstig, a watchmaker whom Berger had hired

to remove the mark *LEICA® and substitute the name

COVA. See 431 F.2d at 1065.’

Prior to the second trial, examination of the watch move-

ments demonstrated that *LEICA®* had originally been

inscribed on’ their face and that COVA had been super-

imposed. *LEICA* was Berger’s trade name at least until

just prior to the transaction here at issue. Berger was

apparently informed of this either by a Customs agent or

by the Assistant United States Attorney who handled the

first trial. It was also shown that a large quantity of the

*LEICA® faces had been manufactured in Germany in 1965

—upon whose order is uriclear.

In light of the newly discovered evidence, the prosecu-

tion dismissed two counts of the indictment charging sale

and conspiracy. The prosecutor’s summation made plain

the Government’s position that even if the jury found no

sale on July.19, they could find that Grunberger knowingly

3. Herstig has fled the country; he now resides in Switzerland.

peers

~ Se ene De EEE RD Peete , 7

Sa ti gle

concealed and facilitated the transportation of illegally im-

ported watches with knowledge that they were illegally

imported. os

The Government endeavored to avoid putting Berger

back on the witness stand at the second trial. It called him

only after the judge indicated that without his testimony

the Government had failed to make a prima facie case that

the movements were illegally imported and that Grun-

berger knew this.

The prosecutor examined Berger only briefly and most of

the story came out on cross-examination. One variation

was that whereas at the earlier trial Berger testified that

his first meeting with Grunberger occurred on June 28, he .

now said that Grunberger unexpectedly showed up.at his

house on July 2, and, as he was on his way out, got into

his car, showed him a number of samples, and asked whether

Berger would be interested in purchasing a larger quan-

tity. More important variations in Berger’s story related

to the watch movements themselves. Whereas at the first

trial Berger testified that he simply agreed to make a swift

purchase of a large quantity of Movements, at the second

trial, faced with the knowledge that in fact the recovered

movements bore his long standing trade name *LEICA’,

he now asserted that he had ordered these from Grunberger

some two and one-half years earlier, and these were the

watches being delivered. As to the *LEICA®* inscription,

Berger now said-that the samples Grunberger showed him

at his home had this inscription, and that the watches

recovered on July 19 also were so inscribed. In fact, how-

ever, all the watches recovered'on July 19 showed the in-

seription COVA. Apparently Berger was not aware that

the *LEICA® inscription had been found only after care-

ful scientific examination disclosed that it underlay COVA,

and Berger could thus not have seen it when the move-

6a

ments were delivered. Berger stuck to his story that Grun-

berger had described the watches as smuggled. Customs

agents testified somewhat inconclusively that although the

earlier record check regarding COVA watches had failed to

disclose their legal importation—a fa.‘ now insufficient to

support an inference of illegal importation since the move-

ments were found to have originally had *LEICA® in-

scribed on their faces—a partial. record check of domestic

ports of entry also failed to show the *“LEICA* move-

ments were legally imported.

Grunberger moved for acquittal under F.R.Cr.P. 29 both |

at the close of the Government’s case and at the end of

the entire case. Judge Weinstein deried both motions.'

The jury, on March 29, 1971, found Grunberger guilty on

the two counts for wilfully and fraudulently concealing and

facilitating the transportation of 2,000 unsymboled Swiss

watch movements, knowing the same ‘v have been illegally

imported into the United States.

After unsuccessfully renewing the motion for acquittal

upon the bringing in of the verdict, Grunberger filed writ-

ten motions for acquittal and, if that were denied, for a

new trial, within the time permitted by F.R.Cr.P. 29(c).

and 33. Argument was first heard on May 14, 1971. The -

judge then indicated an intention to adhere to his previ-

3 In denying the first motion, after the inconsistency between Berger’s

stories at the two trials had been thoroughly exploited by defense coun-

sel, the judge said: “I am not going to grant the motion on the ground

that thie man is inherently incredible. . . . I think a reasonable juror

ean conclude beyond a reasonable doubt that this man is telling the

truth on his [very likely ‘in its’) essentia, eiereats. ... I myself would

not believe him and would not convict any!ody, but I can’t say that

a reasonable juror might not and I am going to allow it to go to the

jury, if that is all there is.” In refusing to grant the motion for

acquittal at the end of the case, the judge said: “I must say, I am

not convineed by either Berger’s testimony or the defendant's testimony.

suspect very strongly that the—that we still haven't gotten the ona"

from either of thése people, but we will have to leave that to the jury.”

_

7a

ous rulings with respect to the motion for acquittal; the

‘hearing was adjourned so that the Government might file

-abrief. © - - . 3

On June 10 Grunberger came on for sentence. The judge

_ began by saying: ;

_ Continuing to reserve decision on the main motions,

I sentence the defendant to one year imprisonment but

suspend execution of sentence and place him on pro-

bation for a three-year period—In addition I sentence

him to a fine of ten thousand dollars. The execution of :

the fine may he stayed for thirty days from that pay-

ment. |

Pursuant to this the judge at some time signed a judgment

of conviction, which was duly entered by the clerk. He then

continued :

Now, I will address myself to the question of the

motions.

Pursuant to the authority that I have under Rule

33, I would grant a new trial to this defendant as

required in the interest of justice based upon my hear-

ing of Mr. Berger and a comparison of what he said

in this trial and what he said in the other trial, and I

believe that his statements were incredible, and that

he is not worthy of belief. This, however, was a matter

for the jury, and if that were the only reason for

granting a new trial, I probably would allow the ver-

dict to stand, but I think that his testimony plus the

physical evidence in the case as determined from in-

spection of the records and dials and the like and the

German manufacture of. the dials, and the changes in

the story of Mr. Berger and the inconsistencies within

the story, as well as I think the strong feeling I get

8a

from the record that the government agency involved,

and I do not criticize the agency for believing that this

defendant is a well-known smuggler, but ,that agency

had to a greater degree than is normally acceptable,

suggested to Mr. Berger its desire to see that this de-

fendant was convicted and take into account the sug-.

gestibility of Mr. Berger and his incapacity to dis-

tinguish between fact and falsity when his own in-

terests are at stake, and, I think, the danger of a mis-

carriage of justice was too great in this case.

With all those circumstances plus others I won't.

advert to, it seems to me to come within the specific

terms of Rule 33, that it requires a grant of a new

_ trial in the interests of justice.

In this case, however, it seems to me, a new trial

would not serve any useful purpose because I believe

that the government has presented this evidence it

now has as forcibly as it could be presented to this”

jury. I do not believe that a retrial would serve any

purpose at all except t6 exhaust the government to re-

quire the expenditure of substantially more public rev-

enue, and it certainly wouldn’t serve the defendant’s

purposes, because I don’t see how the defendant can

make a stronger defense at the second trial.

Accordingly, I am going to dismiss the indictment.

Now, I have serious doubts about my power to do

so, which is why I sentenced this defendant in the

first panes.

The judge thereupon signed an oie. also dated June 10,

1971, dismissing the indictment.

After waiting until October 5,-a delay occasioned, as it

tells us, by the need for obtaining the approval of the

9a

Solicitor General,‘ the Government filed a petition with

this court for issuance of a writ of mandamus to direct:

Judge Weinstein to vacate: his: order dismissing the indict-

ment on the ground that he lacked jurisdiction to do so.’

In accordance with F.R.A.P. 21(b), we directed that an:

answer be filed and that the petition be set for early argu-

ment. In a letter to the clerk, the judge declined the oppor-

tunity to answer but gave further aid in defining the issue

by saying: : .

"As indicated in the records of this Court, the action

challenged in the petition was designed to permit the

United States Government to seek review of this

‘Court’s decision in United States v. Grunberger,

67-CR-303. That decision raised the issue of whether

there are instances where, considering the totality of

the circumstances, based upon articulated reasons, and

in the interest of justice, a criminal proceeding should

be terminated in favor of the accused even though no

specific error warrants a new trial or dismissal of the

indictment. | ;

Grunberger’s counsel moved to dismiss the petition for

want of jurisdiction; the document filed by him also dealt

with the merits. After the argument, with our permission,

both the Government and defense counsel- filed further

briefd.

Il.

If one could decide the point simply as a matter of good

sense, it would seem almost too clear to require discussion

4 Grunberger’s exceedingly able counsef who, as a former member of the

Solicitor General's office, was familiar with the office's procedures and

was aware of the plan of the United States Attorney to seek mandamus,

endeavored, properly but unsugeersfully, to persuade the Solicitor Gen-

‘

eral not to grant approval.

2 1S,

RANI Sa S BA Op aT our weldies

10a

that when a litigant claims that a lower court has taken a

action. beyond its jurisdiction, as opposed to simply: erro-

neous action within its jurisdiction, see Will v. United

States, 389 U.S. 90, 97 n. 5, 98 n. 6 (1967), the court that

would normally review decisions in the field in question

should have power to require the lower court to set matters

right. Except insofar as the double jeopardy clause might

require otherwise; this would be equally true when the

action was taken in a criminal case, as would be quite clear -

if a judge, months after entering a “judgment of conviction,

should, sua sponte, direct an acquittal or order an indict-

ment to be dismissed. Compare United States v. Smith, 331

U.S. 469 (1947). The Government asserts that, under the

authorities, notably this court’s decision in United States

v. Dooling, 406 F.2d 192 (2 Cir.), cert. denied sub nom.

Persico v. United States, 395 U.S. 911 (1969), our power

to do this under 28 U.S.C. §1651 is just that plain. While

the Dooling case is indeed persuasive authority for the

- Government, we believe the importance of the .issue de-,

serves full examination.

In ‘order to clear the decks, we begin by saying that,

despite the earnest contention of Grunberger’s counsel that

United States v. Sisson, 399 U.S. 267 (1970), destroys the

underpinnings of Dooling, we regard the Sisson decision

%

as largely irrelevant to the issue here under discussion. The ~

holding of Sisson was that when a district judge had re-

leased a defendant, found guilty by a jury under an indict-

ment valid upon its face, because of the judge’s belief that,

on the evidence adduced at trial, application of the Selec-

tive Service Act to the defendant would violate the First

and Fifth Amendments, this was not “a decision arresting

a judgment of conviction for insufficiency of the indictment

or information, where such decision is. based upon the in-

validity or construction of the statute upon which the

OANA INS tat Sie A ial ERT eC

lla

-- indictment or information ji is founded,” within the relevant

provision of the Criminal Appeals Act, 18 U.S.C’ §3731- -

(1964), subsequently amended, 18 U.S.C. §3731 (1971), even

though the judge had characterized it as one. The Court

was convinced that, despite its contrary form, “the decision

was in fact an acquittal rendered by the trial court after

. the jury’s verdict of guilty.” 399 U.S. 288.5 The Govern-.

ment did not and, under the clear language of F.R.Cr.P. 29,

could not successfully have claimed that a post-verdict but

.pre-judgment direction of acquittal, such as J udge Wyzan-

ski’s in Sisson, was beyond his jurisdiction. Moreover, even

' if it had been founded on an erroneous view of his power,

the double jeopardy clause. would protect the defendant

against a retrial. Fong Foo v. United States, 369 U.S. 141

(1962).

The problem with respect to’ our power to issue mande-

mus arises from the wording of the “all writs” statute,

28 U.S.C. §1651(a). This provides:

The Supreme Court and all courts established by Act

of Congress may issue all writs necessary or appro-

priate in aid of their respective jurisdictions and agete-

able to the 1 usages and principles of law.

The stpement is that ne in light of the order dismissing

the indictment, the defendant had taken no appeal from the

judgment of conviction’ and the ord. is not appealable by

alone commanded a majority. However, we do not find élsewhere in his

opinion .dr, for that matter, in the dissents, anything that assists Grun-

berger on the question off the power of a court of appeals to issue

mandamus to vacate an order wrongly entered by a district court.

6 The United States appealed on July 9, 1971, from the order dismiss-

ing the indictment; on July 26 the defendant cross-appealed from the

same order to the extent that it “failed to enter a judgment of acquittal

at the conclusion ‘of the government’s case and at the close of all the

evidence.” These appeals, however, are not of the same type as in United

5 This passage occurs in “ IIC of Mr. Justice Harlan’s opinion which

y

i2e

the Government under the pre-1971 version of 18 U.S.C.

§3731; which is here controlling,’ the issuance of mandamus

cannot be in aid of our appellate jurisdiction.

The starting point for discussion is Chief J Mag-

ruder’s scholarly opinion in J re Josephson, 218 F.2d 175,

177-80 (1 Cir. 1954). He there traced the history leading

ranted by the principles and usages of law, to any courts

appointed, or persons holding office, under the authority

of the United States,” §13, and further provided that “all

the latter to conform to Marbury v. Madison, 5 US. (1

Cranch) 137 (1803) which is not here material) were con-

a

States ¥. Mayer, 225 U.S. 55 (1014), whove the Cowt foynd that drfen-

dent's appeal from-a judgment of conviction both eet off the district

-*

13a

tinued by Rev. Stat. 4688 (1878), whereas the all writs

essary for the exercise of their respective jurisdiction,”

With characteristic inscrutability, the Reviser, in a note

to what is now 28 U.S.C. §1651, stated that the special

provisions of §234 with respect to the Supreme Court's

powers of prohibition and mandamus “were omitted as

218 F.2d at 179,* and, inferentially, that the 1948 Congress

meant to withdraw any such broader power from the

&

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3

’ This stetemert did not take full ecrount

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While this is a possible reading of what the 1948 Con-

gress did, we find it hard to believe, in the absence of bet-

ter evidence than the Reviser’s Note, that Congress meant

to curtail a power the Supreme Court liad possessed for

159 years. A decision of the Court not yet rendered at the

time of the Josephson opinion has emphasized that “no

changes of law or policy are to be presumed from changes

of language in the [1948] revision unless an intent to make

such changes is clearly expressed.” Fourco Glass Co. v.-

Transmirra Products Corp., 353 U.S. 222, 227 (1957). See

also Madruga v. Superior Court of California, 346 US. 556,

560 n. 12 (1954). To be sure, this is not altogether disposi-

tiye here, for the 1948 revision must be read either as im-

posing a new limit on the mandamus power of the Supreme

Court or as determining that both it and the courts of ap-

peals have mandamus power over lower courts of the same

breadth which the first Congress expressly conferred on .

the Supreme Court by §13 of the First Judiciary Act—in

other words, that the phrase “in aid of their respective

jurisdictions” should not be read so as to prohibit them

from vacating orders, in actions generally subject to their

supervision, that were beyond the power of the lower court

to make, even though in the particular case there was no

frustration of an appeal. Although the Court has not

spoken directly to the point, we construe its post-1948 de-

cisions as indicating its belief that, of the two readings,

neither of which is wholly. satisfactory, the latter more

probably represents what Congress intended’—or, at least

would have preferred if the issue had been brought sharply

to its attention.

The first such indication is Le Buy v. Howes Leather Co.,

352 U.S. 249 (1957). The Court there stated its belief “that

® This is ales supported by Ax parte Cited States, upra, 287 US.

261, dierussed in the preeeding footnote.

15a

supervisory control of the District Courts by the Courts of

Appeals is necessary to proper judicial administration in

the federal system. The All Writs Act confers on ‘the

Courts of Appeals the discretionary power to issue writs

of mandamus in the exceptional circumstances existing ,

here,” 352 U.S. at 259-60. While this must be read in con-

nection with an earlier statement, “Since the Court of Ap-

peals could at some stage of the [private] ‘antitrust pro-

ceedings entertain appeals in these cases, it has power in

proper circumstances, as here, to issue writs of mandamus

reaching them,” 352 U.S. at 255, we also find significance

in the majority’s i ignoring the dissent’s strong advocacy of

the views expressed by Chief Judge Magruder in In re

Josephson, supra.

We find another such indication in Fong Foo ¥. United

States, supra. In-that case the district judge had directed

an acquittal in a criminal prosecution before the Govern-

ment had completed its case. The First Circuit issued

mandamus requiring him to vacate-the order. In justifica-

tion of its power to do this, it cited Ex parte United States,

" supra, 287 U.S. 241, see note 8, supra, and distinguished -

In re Josephson, supra, on that basis, In re United States,

286 F.2d 556, 563-64 (1961). The Supreme Court based ifs

reversal solely on the ground that the’ double jeopardy

clause prohibited a retrial; none of the Justices ques-

tioned the validity of the view expressed by the Court of

Appeals with respect to its powers under the “all-writs”

statute, although disagreement on that score would have

afforded an easy ground for reversal.

The final datum is Wil v. United States, 389 US. 90

(1967), where the Court reversed an order of-a court of .

10 = There is no similar problem here. Vacating the order dismissing the

indietment would simply leave the judgment of conviction unimpaired,

subject te whatever remedies Granberger may have with respect to it.

Pore ore eee. »

"Owe OFT ees "TTS ary RST Re PE ewe: -

Fo a ted

OF ee fe Tr es owt “ww ¢

.

7

16a

appeals granting man amus to require.a district judge to

strike a portion of his order directing the Government to

file a bill of particulars in a criminal case. Although the

Court said in a footnote, 389 U.S. at 95 n. 4, “It is likewise

unnecessary for us to reach the question whether the writ

in the circumstances of this case may be said to issue in

aid of the Court of Appeals’ appellate jurisdiction,” other

statements in the opinion indicate a rather broad view of

the power of the courts of appeals to issue mandamus,

although advocating a sparing use of it, especially in crim-

inal cases. Thus, after stating that “[m]landamus, of

course, may never be employed as a substitute for appeal

in derogation of these clear policies” [against appeal by

the Government in criminal cases}, the Court added that

“[t]his is not to say that martdamus may never be used to

review procedural orders in criminal cases. It has been

invoked successfully where the action of the trial court

totally deprived the Government of its right to initiate a

prosecution, Ez parte United States, 287 U.S. 241 (1932),

and where the court overreached its judicial power to deny

“the Government the rightful fruits of a valid conviction,

Ex parte United States, 242 U.S. 27 (1916).” 389 U.S. at

97-98." Also, while the Court vacated the writ, it remanded

the case to the court of appeals to enable that court to

“give a reasoned exposition of the basis for its action,”

389 U.S. at 107. This disposition would .not have been

appropriate if the Supreme Court was convinced there was

a jurisdictional bar to issuance of the writ except in cases

where an existing or potential appeal would be frustrated.

This examination does not end our inquiry, however,

since we are well aware that mandamus may not be em-

ployed to circumvent the limitations of the Criminal Ap-

11 Cotation of the 1062 ence woudl indicate that the Court Was sot per-

suaded by the distinction drawn by Chief Judge Magruder in Josephson.

wes os

— es

17a

peals Act. See United States vy. Will, supra, at 96-97.

Although, as we determine below, the order we review

here is not in substance a judgment of acquittal as was

the order reviewed in Sisson, it may well be that Judge

. Weinstein’s order is ‘not appealable under the pre-1971

Criminal Appeals Act. See note 7, supra. But, as we

also determine below, Judge Weinstein, unlike Judge Wy-

zanski in Sisson, acted beyond his jurisdiction. Under

these circumstances, the interests of the administration

of the system of criminal justice, as well as the limitations

of the Criminal Appeals Act which are founded in the

policies behind the double-jeopardy prohibition, are at

stake. Chief Judge Lumbard observed in Dooling, supra,

at 198:

We think it equally true that the fact that the gov-

ernment may have no right, of appeal does not act

as a conclusive bar to the issuance of mandamus in

its favor. Certainly the restrictions placed upon the

the government’s right to appeal do reflect important

policy judgments by Congress, at their core protect-

‘ing the right against double jeopardy,- which must

‘not be undermined by casual resort to mandamus.

But circumstances can arise which present a compel-

ling need for issuance of mandamus in order to further

‘important countervailing interests. Here we find this

need in our responsibility for preventing gross dis-

ruption in the administration of criminal justice, and

we act pursuant to our supervisory power over the

district courts.

The issuance of the writ in this proceeding will not sub-

ject Grunberger to retrial in violation of his right to be

protected against double jeopardy.

We therefore conclude on the basis of the foregoing

_ Teview, as well as on the authority of United States v.

“2. a dn Sele!

PeErre" Sh tr ~

—

—_ OT OR a ee

18a

_ Dooling, supra, that we have discretionary jurisdiction to

issue the writ if the order dismissing the indictment was

beyond the judge’s power and inconsistent with “accepted

principles and usages of law.” . .

Ill.

Defendant’s principal argument on the merits is that

although the judge characterized his order .as one dis-

missing the indictment, in truth and fact it was a judg-

ment of acquittal. We have the gravest doubt whether

the judge’s undoubted power to set aside a verdict and

enter a judgment of acquittal, F.R.Cr.P. 29(c), can sur-

vive the entry of a judgment of conviction; the two actions

seem antithetical. Beyond that, however, to characterize

th: judge’s order dismissing the indictment as one -of

acquittal would be to attribute to him a. purpose he re-

peatedly and rightly disclaimed. We have already cited

numerous instances of such disclaimers; there are many

more. Beyond that the judge was entirely correct in ac-

knowledging that he had no “right” to direct acquittal

because of disbelief of the prosecution’s witness, even

though before entering judgment of conviction he had

the “power” to do so.” F.R.Cr.P. 29(a), which abolished

motions for dirécted verdicts and substituted motions for

judgment of acquittal, directs the granting of such mo-

tions “if the evidence is insufficient to sustain a convic-

tion. .. ”” Grunberger’s own testimony sufficed to show

that he had concealed and facilitated the transportation

12 While the antinomy does not precisely fit the famous Hohfeldian for-

mulation, the distinction is nonetheless clear. The district judge in FongJ

Foo had the “power” to give the defendants immunity for all time by

directing an acquittal because our legal system had placed him in charge

of the trial, bat none of the reviewing judges thought that under the

facts of that case he had the “right” to do so in the sense of acting

im accordance with applicable rules of law. See also Will v. United

States, 395 U.S. 90, 98 n. 6 (1967).

19a

of the watch movements, albeit, on his view, innocently.

The remaining elements of the crime were that the move-

ments were in fact smuggled and that Grunberger -knew |

them to be. On those elements Berger testified that

Grunberger characterized the movements as “smuggled”—

clearly enough to establish Grunberger’s guilty knowledge

if the jury believed him—and that the movements were

wrapped in an illicit manner—which when combined with

other circumstantial evidence such as the “surreptitious

conduct of the parties, Berger’s past dealings in smug-

gled watches, ari the relationship between Granberger,

Herstig, and Berger, was more than sufficient to show

illegal importation. See United States v. Masiello, 235 F.2d -

- 279, 289 (2 Cir.) (concurring opinion of Frank, J.), cert.

denied sub nom. Stickel v. United States, 352 U.S. 882

(1956). To be sure, there were unusally strong grounds’

for not believing Berger. But that decision was the jury’s

function, not the judge’s, as he reiterated time and again.

The maxim “Falsus in uno, falsus in omnibus” has been

well said to be itself “absolutely false as a maxim of life.”

3A Wigmore, Evidencé (1008 at 982 (Chadbourn rev.

1970). The correct principle was stated by Judge Camp-

bell more than a century ago:

There has never been any positive rule of law which

excluded evidence from consideration entirely,’ on ac-

count of the wilful falsehood of a witness- as to some

portions of his testimony. Such disregard of his oath

is enough to justify the belief that the witness is

capable of any amount of falsification, and to make it

no more than prudent to regard all that he says with

strong suspicion, and to place no reliance on his mere |

statements. But when testimony is once before the

jury, the weight and credibility of every portion of it

is for them, and not for the Court to determine.

err

20a

Knowles v. People, 15 Mich. 408, 412 (1867). And the

Supreme Court has stated that: “The established safe-

guards of the Anglo-American legal system leave the

veracity of a witness to be tested by cross-examination,

and the credibility of his testimony to be determined by

a properly instructed jury.” Hoffa v. United States, 385

U.S. 293, 311 (1966)." ee

In light of this, defendant’s reliance on the Sisson hold-

ing that an appellate court will look at what a district

court did rather than at what it said it was doing, 399 U.S.

at 270, is misplaced. What the judge did in Sisson was

entirely plain. He refused to enter judgment on a verdict

because, in his view, the Constitution prohibited him from

doing so. This was, in truth and fact, a judgment of ac-

quittal; the judge believed that, with the evidence taken

in the light most favorable to the Government, it still would

not support a conviction. The Supreme Court held that

such a judgment of acquittal could not be transformed into

the rather technical concept of an arrest of judgment, to wit,

“the act of a trial judge refusing to enter judgment om the

verdict because of an error appearing on the face of the

record,” 369 U.S. at 280, simply by his calling it such. It

would be a far cry from this to hold that the order here

in question was a judgment of acquittal, which the judge

repeatedly said he did not intend to enter, could not rightly

have entered and, in all probability, had lost the power

to enter.

IV.

We thus reach the question Judge Weinstein wished us

to consider, namely, whether a judge has power to termi-

13 When proof with respect to an essential element of the crime is cir-

cumstantial, the judge may have a larger role with respect to sufficiency,

since he must determine whether the web of inferences the prosecution

scexs to have the jury draw has been spun too far.

—o TO 9 See i Awe es: Ll oe

21a

nate a criminal proceeding in favor of the accused even

though he hag felt bound by applicable rules of law to

enter a judgment of conviction on a verdict of guilty.

It is plain that no Rule of Federal Criminal Procedure

confers any such power. We have already discussed Rule

29 and shown its inapplicability. The other pertinent pro-

vision is Rule 33 relating to the grant of a new trial. We

have no doubt that, on Grunberger’s timely motion, the

judge had power to grant a new trial if he thought, in the

language of the Rule, that this was “required in the inter-

est of justice” even though, in his phrase, “no specific

error” warranted this."* But admittedly no Rule gives the

judge an overriding power to terminate a criminal prosecu-

tion in which the Government’s evidence has passed the

test of legal sufficiency simply because he thinks that-course _

would be most consonant with the interests of justice.

We believe the failure of the Rules to bestow such a

” power precludes its exercise. The Federal Rules of Crimi.

14 We do not join in the judge's forecast that the granting of a new

trial would doom the defendant and the Government to an infinite re-

gression. Apart from the possibilities that either the Government or

Grunberger wizht ecr-e up with wholly new evidence, a third trial stems

likely to differ from the second in at least two respects. On the one

hand, it is more than likely that at a third trial the Customs Bureau

will have completed its record check with respect to legal importation

of motements bearing the name *Lerca*. Assuming that the results of

this check reasenably support an inference of illegal importation, Ber-

ger's testimony woul: be unnecessary on this element of the case. On

the other side, Grunberger’s counsel would not be handicapped at a

third trial, as he apparently was at the second, by the Government's

delay in delivering certain §3500 material. If Grunberger is acquitted,

that will end the metter. On the other hand, if a third jury were to

find him guilty, e should suppose any judge would hesitate a long

time before concluding that the interests of justice required still another

trial. The two juries that have returned guilty verdicts could well have

been influenced by dirbelief in Grunberger’s own story, see 431 F.2d at

1065, which has aspects of.improbability. Cf. Dyer v. McDovgal?, 201

F.2d 265, 268-69 (2 Cir. 1952) (L. Hand, J.5. Indeed, as our earlier

quotation indicates, see note 3, supra, the judge himself doubted that

anyone at this trial was telling the whole truth.

® PING C0 oP map +

22a

s : |

. nal Procedure were designed to provide a uniform set of

procedures to govern criminal cases within the federal

courts consistent with the requirments of justice and sound

ce ei ee ee

administration. Where previously recognized powers were

thought appropriate for inclusion in the’ rules, this was

expressly done. Most relevant for our purposes, the three

rules providing for termination of a prosecution once a

jury has been impaneled* are all embodiments of such -

powers: Rule 29 is an expression of the common law

power to acquit for insufficiency of the evidence; Rule 34,

arrest of judgment, has recently been interpreted as exactly

carrying forward its common law predecessor, United

States v. Sisson, supra; and Rule 48(b), dismissal by the

court for unnecessary delay, was said by the Advisory

Committee to be “a restatement of inherent power to dis-

miss a case for want of prosecution,” see also United States

v. Research Foundation, Inc., 155 F. Supp. 650 (S.D.NLY.

1957). Moreover, the authority for the Criminal Rules,

now 18 U.S.C. §3771, épecifically provides that “All laws

in conflict with such rules shall be of no further force or

effect after such rules have taken effect.” Thus, even if

‘some other source had given a judge authorization to ter-

minate a prosecution on the basis here suggested, this

would be terminated in an area which the Rules have occu-

pied to such an extent as here. If the interests of justice

15 Rule 12, dealing with pre-trial motions, was the subject of great

debate in United States v. Mersky, 361 U.S. 431 (1960). There, Mr.

Justice Brennan in his concurring opiniow, 361 U.S. at 441, and Mr.

Justice Stewart in his dissent, 361 U.S. at 453, jained issue on the effect

of Rule 12 on the historic “motion in bar.” Mr. Justice Brennan argued

. that Rule 12 swept away the common law motion in bar if favor of a

broader rule. Mr. Justice Stewart argued that Rule 12 merely carried

forward the existing federal Jaw relating to 2 motion in bar which itself

was somewhat broader than its common law predecessor. But both Jus- —

tices focused oi what they found to be the proper interpretation of the

Rule, and neither recognized any inhetent power to go beyond whatever

the proper interpretation was-feend to be. . |

| 23a

would be served by bestowing so broad a power as that

here invoked, a matter on which ‘reasonfible minds may

differ, see 8 Moore, Federal Practice (Cipes) 929.05 at

29-13, the Supreme Court’s power to amend the Rules is ©

adequate to that end.. a

Apart from what we regard as the preclusive effect of

the silence of the Rules, we have not been pointed to any

precedent for such an inherent power. In England the

judge could not even direct a verdict of acquittal for legal

insuffitiency of the evidence; his only power, at least in

_ eases involving félonies, was to recommend royal clemency,

which was granted as a matter of course. See, eg., 2 Hale’s.

History of the Rleas of the Crown 294-95, 308, 412 (2d ed.

1800) ; 1 Chitty, Criminal Law 508, 532 (1819) ; 1 Stephen,

History of the Criminal Law of England 312-13 (1883) ;

Thayer, Preliminary Treatise on Evidence at the Common

Law 175 (1898); 1 Radzinowicz, A History of English

Criminal Law 110 (1948). According to the same authori- |

ties, a very limited power to order a new trial after a

conviction was recognized, at least after the 1660’s, but

then only in cases involving misdemeanors. In Ex parte

United. States, 101 F.2d 870 (7 Cir.), aff'd by an equally

divided court sub nom. United Statés v. Stone, 308 U.S.

_519 (1939), it was held, apparently for the first time, that

a federal judge who had reserved decision on a motion to

direct a verdict of acquittal could enter judgment notwith-

standing a verdict of guilty. This holding was based on

the alternative grounds that this power was a permissible

adaptation. of. English practice to American conditions, 101

.. F.2d at 877, and that “the trial court possesses inherent

power to render a judgment of dismissal pursuant to the

reservation of an issue of law, when deemed essential by

it to the administration of justice.” 101 F.2d at 878. The

court made clear that when it spoke of “an issue of law,”

S

2S A 3 a » - a PRP TEP, ce ag

24a.

it was referring to “the judicial function of determining —

the legal sufficiency of the evidence” id., not.a general view

on the part of the judge that, even though thé evidence was

. legally sufficient, the jury should not have credited it."

_ The Advisor’s Note to the original form of Rule 29 states.

that Rule 29(b) was adoptéd to sanction the practice ap-

proved i in the case just cited; the note to Rule 29(c) adopted

. _ in 1966, shows that this -was intended to permit a motion

for a judgment of. acquittal to “be made after discharge

‘of the jury whether or not a motion was made before sub-

mission to the jury”—not to broaden the grounds on ‘which

a verdict mignt-be set aside. If all this was thought needed |

to give the judge the power to acquit for legal insufficiency,

‘it ean searcely be that he had a much broader power all

along.

we

- Decision that; for the reasons stated-in sections III and

Iv of this opinion, we should direct that the order dis-

missing the indictment be vacated as beyond the district

court’s jurisdiction leaves us with a further question of

disposition. Because of his belief that the ‘interests ” ioe

justice required him to follow a course which we have held

_ to lie beyond his: power, the judge, as we read his decision,

did not pass on the timely motion for a new trial, which

he could well have wished to grant rather than permit the. -

- verdict to stand. Almost or. — will now

ask him to do that.

If we were to look only at the hangnage of F.R.Cr.P. 33, -

we .would perceive no obstacle. to a: judge’s granting a

timely motion for a new trial, although made only on the

e ~

i6 Indeed, the court chatacterized the principle, “Ad questionem facti -

non respondent juuices; ad questionem legis non respondent juratores,”

as having been * ‘enshrinéd in dur American Constitution.”

25a

ground that this “is required-in the interests of justice”

rather. than on that of. newly discovered evidence, even

after he had entered a judgment. of conviction. And the |

. precise holding of United States v. Smith, supra, 331 U.S.

469,.namely, that after the judge had denied such a mo-

tion and both the judgment of conviction and the order of

'.denial had been ‘affirmed on appeal, he could not thereafter

sua sponte direct a new trial in the interest of justice,

does not dictate otherwise. However, one of the several

grounds for the decision in that case was that a “Question

of finality would be raised if the trial court, while formally |

* denying the motion for a new trial on the record, reserves

the right to change its-mind after the opinion of an appel-

late court has been elicited.” 331 U.S. at 474. Hence, it

. can be argued with some force that the judge’s power to

grant a timely motion for a new trial iy the interest of

justice lapses when an appeal has been taken-er the time

for doing this has expired. Cf. United States v. Froehlich,

166 F.2d 84 (2 Cir. 1948).. |

_ We do not think this presents.a difficulty if, as we read

the record, the judge did not actually deny the motion for rc

* a new trial but rather left it undetermined because of his

desire to give Grunberger something better. No appeal

from the judgment of conviction has been taken, and none

needed: to be since a timely motion for a new trial extends.

_the time for an appeal until ten days after an order’ of

denial, F.R.A.P. 4(b). Our vacating the order dismissing

the indictment thus leaves Judge Weinstein -free-to act

upon Grunberger’s motion for-a new trial.

Petition granted.

c

+ a enna oe rae prscenn cossseu aA Ne ERAEA Ae AAI

: Pr

lb

APPENDIX B

{

[Caption Omitted in-Printing] a

ao *

A petition for a rehearing having been filed herein by

-counsel for the defendant, Albert Grunberger, Fs i

Upon consideration thereof, it is ;

- Ordered that said peition be and it hereby is denied.

- Henry J. Friendly,.Chief Judge

/s/ Tom C. Clark

- Tom C. Clark, Associate Justice

Irving R. Kaufman, US.CJ.

December 20, 1971 |

. _. (Caption Omitted in Printing]

A petition for a rehearing containing 4 suggestion that the

action be reheard in-banc having been filed herein by coun-—

sel for the defendant. Albert Grunberger, and no active cir-

cuit judge having requested that a vote be taken on said

suggestion, ie

Upon. consideration. thereof, |

Ordered that said petition be and it hereby is denied.

Chief Judge

December 20, 1971.

|

RP SALON RE

ese Po a eo Ln

wits es ts Watt : , *

: ; ~ .

"@

oo rhe ETA LRAT “Set: ME SLE

| Atfavorm

mu7uDGNTRY AND CB Tata A NT hate eS lS : 2 oo vom ne Ste

dintiten States Wisivict Conri

. ; FOR THE

wee ene =e ASSEUN. DLSTRICT OF _ HOW YORs scribes

United States of America .

. v. No. 67 CR=303

ALBERT “GRUNSERGLR- :

: On this. 10th day of yrnts, » 1972 came the attorney for the

governinent and the defendont appeared in person end? with counsel : at

Ir is AvJUvGZD that the defendant upordemydnacwlt a verdict of guiity:

has been convicted of the offense of violuting T-18, U.S.Code, Sces, 545 & 2, in

‘that ow o¢ shout July 19, 1967, the defendant, with another, wilfulty aad

fraudulently facilitated the transportetion aiter importation irxte the

U.S. contrary to lew, -opproxinately 2,909 uasymboied Swisr watch noverzate

knowing the same to have been imported into the U.S. contrary to law

°

as charged” fz, ecunts 1 and 2

and the ddurt having asked the defendant whether he has anything to say why judgment shovid not

be prcnounced, and no suflicient cause to the contrary being shown or appearing to. the Court, .

Ir 1s ADJoDGED that the defendant is guilty as charged and convicted.

It Is ADJUDGED that the defendant is hereby committed to the custody of the ‘Attorney Gereral or

bis suthorized representutive for imprisonment for a period ofl year -execution of :

sentcres fy suspended and the defeniant is placed on probatioa fcra

poring of 3 years oa counts 1 and 2, svdject to the standard conditions

of pro ation 25 set fority in the etendiug order of thie court cated

Gstorey 43, 1564. Defendant ic fined $16,699.00 on each of covnte i

snd <4 for a cotal Sine of $10,000.00 - sentences to ruv coucurrently,. .

Ster an execution for payment of fine is granted for 30 ys. i

x DESK 3 < eves - \

~

It Is ORDERED that the Clerk deliver a certified copy of this judgment and commitment to the

United States Marshal or other qualified officer eud that the copy serve as the commitment of the

i | DP Lae HB Aahs ortey

es .

». The Court recommends commitment to*

L 49?/

Ps

. A Tree Copy: Certified thin ° ZO day of _ WUNW< : |

(Signe?) Penne Og k eee | Reph On Bane -

“Clerk. ae ci Deputy Clerk.

Ey yah, :

2c’

ae : -

* ‘a 6

fg Be Lsh

U. 5. ote ude {do ee

e

.

UNLTED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK TIMI, ALL.

ewenece eceeee eee ee ee ee ee 4 pt

UNITED STATES OF AMERICA, .°

fe Wii eet Fs

-Ve-

ALBERT GRUNBERGER

ORDER_OF DISMISSAL

67 CR-303

Defendant

es 60222 oS 1S SSE 2S -BOO@ OOO +e oer -- Siete i

counsel for the defendant, “Nathan tanio, Esq.,

The Warkr AxlaaresnAKse oI *- having appeared iv

etic and having moved orally to diomins the pare

I.

cecil: and the Pe motion having been = 4t is --

eusres@e

indictment

4 ore

SEQ. 4 ioe wat!

Ordered that the io yesngted dismisced.

huenlic-Seeckige, Naw york

June 10, 1971

othe

U.S.D.J.

Lt Aff, Ge. ie

ld

“APPENDIX D

an the

Gnited States Court a Appeals

| - _ the Seventh Cieuit

Serremper: Term, 1971 — Sepremser Session, 1971

om

No. 1 9395

Usrrep States ‘or Peet

Plaintiff - Appellant,

ee

Ricuarn Victor cies

Defendant. Appellee.

ce ae

No.’ 18874

Unitep States OF AMERICA,

Plaintiff- Appellant,

7; ,

RayMonp J. GrocHowsz1,

a Appellee. “|

Appeal from the

United States Dis-

' trict Court for the

Northern. District.

_ of Illinois, Eastern

Division.

69 CR 313

Hon. James B.

Parsons, Judge.

On Rehearing

En Banc.

Appeal from the |

United States Dis-

trict Court for the

Fastern District of

Wisconsin.

69 CR 149

Hon. Jonn W.

Reynotps, Judge.-

On _hehearing

En Bane.

Approved: December 14, 1971 :

Issued: December ™ 1971 —

Before Swycert; Chief Judge, Hastrnes, Senior Circuit

Judge, and Kirey,

FarrcHIp, CumMInes, Kerner, Pett,

STEVENS and SPRECHER, Circuit Judges.

2d

Kerner, Circuit Judge.

A. |

Unirep States oF AMERICA V. Ricuarp Victor. Ponto.

- ‘The defendant, Richard Ponto, was indicted for refusing

to submit to induction into the Armed Forces: 50 U:S.C.

‘App. §462. Prior to trial, the district court granted the

defendant’s motion “to dismiss the indictment or for a

directed judgment of acquittal.” The government appealed.

A three-judge panel of this court, one judge dissenting, -

ruled that the government did not possess the authority

to appeal under 18 U.S.C. §3731': and dismissed the case

for lack of appellate jurisdiction. United States v. Ponto

(No. 18396, slip op. Jul. kb ee | ee eee (7th

Cir. 1971): Subsequently, the government’s: petition for a

rehearing en banc was granted.’ ‘Upon consideration by

the entire court, we affirm the panel’s opinion that the.

government is barred from appeal and dismiss the appeal *

for lack of jurisdiction. ee

‘The facts of the case were adequately stated in the

panel’s opinion, United States. v. Ponto, supra, and we

shall avoid unnecessary fepetition. kok

The issue reargued’en banc concerned the interpretation

‘of the portion of 18 U.S.C. §3731,° which provides:

An appeal may be taken by and on behalf of the

‘United States from the district courts to a court of

appeals in all criminal cases in the following instances:

‘1The Act has been amended in the Omnibus Crime "Control Act of

1970, §14(a), 84 Stat. 1890 (1971). The new provisions apply to indict-

~ ments issued after January 2, 1971. Ponto was indicted in 1969.

2 This case was consolidated for oral argument along with. a rehearing

of United States v. Grochowski _(No.. 18874, slip. op. Jul. 27, 1071), --.-

- B. 2d .... (7th Cir, 1971), and the original hearing: in United States Vv.

Gustavson, No. 18315. All cases involved the same jurisdictional question

_ under §3731. . :

‘8 The panel in Porito also decided that the: order of the district court

could not be appealed to the Supreme Court. under the “motion in bar”

provision of §3731. Ponto at pp. 6, 7 (slip op.). Since the government’s

petition for rehearing did not contest this ground and since it was not

argued at the rehearing en banc, we do not deem it necessary to recon-

3d

From a decision: or judgment setting aside, or dis-

missing any indictment or information or any count

thereof,-except where-a direct appeal to the Supreme

Court of the United States is provided by this section.

I.

The panel in Pons held that this portion hk §3731

permits. a ‘government appeal to this court only when

the dismissal of a criminal case by a district court is based

on a defect in the indictment-or information, or in the

institution: of the prosecution. For this holding, the panel

relied heavily on an en bane decision of the Ninth Circuit,

United States v. Apex Distributing Co., 270 F. 2d 747.

(9th Cir. 1959). In Apex, the Ninth Circuit, after an ex-

_hanstive exposition of the legislative history of §3731,

concluded, as we do here, that paragraph 6 reached some,

. but not all, orders dismissing ‘indictments.

_- To understand the méaning of §3731, a short review

of the Act’s legislative history is in order. Prior to 1907,

the government had no right to appeal from any criminal -

ease. In 1907, Congress permitted appeal by the govern. .

ment to the Supreme Court in certain narrowly defined .

instanees"* No government appeal was permitted to a

court of appeals. 34 Stat. 1246. United States v. Sisson, -

399 U.S. 267, 294 (1970); Carroll v. United. States, 354

U.S. 394, 402 n. 11 (1957),

In .1942, Congress permitted the government to appeal

to the court of appeals “[f]rom a decision or judgment

quashing, setting aside, or sustaining a demurrer or plea

in abatement to anv indictment or information, ... .” Act

of May 9, 1942, e: 295, §1, 56 Stat, 271, codified as ‘former

-18 U.S.C. 4682 ( 1946. ed.). The Report of the Judiciary

Committee explained: the purpose of this provision :

*The 1907 Act allowed the United States to poner

From a decision’ or judgment quashing, setting aside, or Perera

a demurrer to, any indictment, or any count thereof, where ‘such

* decision or judgment is based upon the invalidity, or construction

of the statute upon which the indictment is founded.

‘From a decision arresting a judgment of conviction ‘for insufficiency

of the indictment, where such decision is based upon the invalidity

or construction of the statute upon which the indictment is founded.

From the decision or judgment sustaining a special plea in bar,.

when the defendant has not been put in en th

Se a eee ee ee

. ++ your committee feels that the Government should

the _district court from decisions on demurrers

or pleas in abatement to indictments or informations —

in cases involving the sufficiency of the allegations

in the indictments or informations in the same manner

in.which the-Government may now appeal from. deci-

sions or demurrers to indictments direct to the Sn-

preme Court in those cases‘ involving -the validity

of a statute or the construction of a-statute.

U.S. Code Cong. Serv. 77th Cong., 2d Sess. 1942, pp.

°487-88.

- #The 1942 provision, sien, permitted gov ernment appeal

from a decision responsive to a demurrer or plea in

-abatement to the indictment. Under common law, a de-

murrer was raised by a criminal defendant to question

the legal sufficiency of the indictment. 2 Orfield, Criminal |

Procédure Under the Federal Rules, §§12.9, 12.10, 12.15.

(1966 ed.) ; Clark, Handbook: of the Law of Code Pleading,

501-07 (1947). A plea in abatement attacked the indictment

for reasons not apparent on the face of the indictment.

Orfield at $12.8. It was “. . . an appropriate means of

raising ohjections to an indictment which may involve

serious and prejudicial infringements of procedural. rights,

such as an objection to the qualifications of grand jurors

.,.. to the method of selection of the grand jury .. . or

its composition. . . .” See United States v. Janitz, 161 F. 2d

19, 21, (3d Cir. 1947); United States-v. Rintelen, 235 F.

; 787, 788 (1.C., $.D. N.Y. 1916). Misnomer of the defen-

dant in the indictmént was also grounds for the plea.

United States.v., Apex Distributing Co., supra, at 755.

The crucial characteristic of pleas in abatement was that

thet attacked the indictment by proof of extrinsic facts.

At,any rate, -by 1942, demurrers ah pleas in abatement

encompassed motions attacking an indictment on its face

_or the institution of the prosecution leading up to~ the

issuance of an indictment. United States v. Janitz, supra.

In 1946, the Federal Rules of Criminal Procedure

abolished the use of common taw procedyres such -as a

demurrer and plea in abatement and substituted in ‘ their

place the motion to dismiss the indictment under Rule

2 And Pe NI ORE OED, ems Sime Been ay ae ae Recncmamrnss: Sag SEEN PAR ai 28 © N\ “ “"

: :

e :

Sd

visory

12, ‘ =P. , the

Committee on the Rules explained that the government’s ia .

right to appeal should not he affected by the change ‘in |

_ terminology. Nates’ of Advisory Committee on Rules,

Note to Rule 54(c)(4), 18 U.S.C. p. 506. Rule 54(c) was,

enacted’ to provide that comnfon law pleading terms, _

ineluding demurrer and plea in. abatement, which appear

in Acts of Congréss “‘shall be construed to mean the

motion raising a defense or objection provided in Rule.

12.” Rule 54(e), Fed. R. Crim. ’P:.

_ In 1948, Congress amended 43731 and for. demurrers .

and pleas in abatement as a basis for government appeal

to the court of appeals, substituted the words “decision

or judgment setting aside, or dismissing an indictment or —

information.” 18 U.S.C. 43731, 16. The change in wording

was made to conform ‘the terminology of the Act with

the 1946 modernization in the-Federal Rules of Criminal

Procedure. No enlargement of the government's right to

appeal was intended. U/pited States v- Sisson, supra, at .

292-93, n. 22; United States v. Pack, 247 F. 24168 (34 —

Cir. 1957). Thus, the government, under the 1948 legisla-

tion, could appeal under 96 from dismissals of indictments

under Rule 12 which. would have been cognizable in legal.

basis as. orders responsive to demurrers or pleas in

abatement at common law. And, as indicated earlier,

these common law pleas were limited to ébjections to the

wording in thé indietment or to the proceedings culmi-

nating in the issnance of the indictment. — j

»

The Ninth Circuit reached this very same conclusian

-in Apex, when it held that the government could appeal

from an order dismissing the case becanseof a defect

ig the indictment or institution of the preseciiticn. United

States.v. Apex Distributing Co., supra, at 755. The Third

Cireuit relied on the same principle in’ United States

v. Pack, supra, as did thé First Cireuit in United States: -/

-v. Nardolillo, 252 F. 2d 755 (1st Cir. .1958), and United /

States v. Findtey, 439 F. 2d 970 (Ist Cir. 1971). “Apex . ‘

was cited with approval in Mann v. United States, 304

F. 2d 394, 395, n) 1 (D.C. Cir. 1962). The Supreme Court

has given implicit recognition to this interpretation of

$3731. In Sisson, the Court, citing Apez, ‘noted that. no

6d ‘

substantive changes in the 1942 Act were intended in the

1948 amendments, Umited Statés v. Sisson, supra, at 292-

93, n. 22. The Court stated, in analyzing appealability

in United States v. Fruehauf, 365 U.S. 146, 157. (1961):

“Nor does the record raise questions concerning the suf-

ficiency of the indictment which would require, in an

appropriate case, that the case be sent to. the Court of

Appeals, pursuant to 18 U.S.C. §3731.” Apex was also

_ cited in Will v. United States, 389 U.S. 90, 97, mn. 5 (1967).°

We are thus convinced that the rule in Apex is a sound —

interpretation of 976 of §373)1. so

The government contends that this court should in-

terpret {6 according to the plain meaning. of the words

in the provision. See Judge Pope’s coneurring opinion

in Apex at 759-62. Resort to legislative history and intent,

_ it is argued, is proper only when the wording of a statute

is ambiguous on its face and when that analysis will

remove the ambiguity. : .

This doctrine of statutory interpretation _ been te-

‘ jected by the Supreme Court, however, in a cast involving

construction of 43731: a

It is axiomatic, as a matter of history as well as

doctrine, that the existence of appellate jurisdiction

in a specific federal court over a given type of case

is dependent upon authority expressly conferred by

¢ statute. And since the jurisdictional statutes prevail-

ing at any given time are so much a product of the

whole history of both growth and limitation of

federal-court jurisdiction since the First Judiciary

Act, 1 Stat. 73, they have always been interpreted

in light of that history and of the axiom that clear.

statutory mandate must exist to found jurisdiction.

“© * Carroll v. United States, 354 U.S. 394, 399 (1957).

Appealability under $3731 is dependent upon an appellate

eourt’s characterization in common law pleading terms

5 We reject the argument that the remand order in United States vy. ~

ag hag hey gt y-- ay -- fy Gt

in Apex. See the panel's . in

(slip op.) at 9, n. 6.

7d

of the Tegal basis of the district court’s ruling. The Su-

preme Court, in analyzing another part of §3731, which

allows appeal from a decision “arresting a judgment of

conviction,” explained that: * - he

In using that phrase in the Criminal Appeals Act,

Congress did not, of. course, invent a new procedural |

classification. Instead Congress acted against a com-

mon-law background that gave the statutory phrase

_ a well-defined and limited meaning. United States vy.

Sisson, supra, at 280. og

ed the development of the statutory

phrase under consideration from its common-law usage

through its inclusion by Congress in §3731. This’ same.

approach was also utilized by the Supreme Court in two

other recent §3731 cases, United States -vy. Weller, 401

-U%S. 254 (1971), and United States v. Jorn, 400 U.S.-470

(1971). Such has been the analysis in most cases dealing

with §3731. See, for example, Judge Learned Hand’s

discussion in United States v. Zisblatt, 172 F. 2d 740, 742

(2d Cir. 1949) (“The Criminal Appeals Act spoke to the

law, as it then was.”).° :

Another interpretation of 96 urged upon us and men-

tioned by Judge Stevens in his dissent to the panel’s |

opinion in Ponto, supra, (slip.op.) at 11, is that we should

examine the effect of a dismissal-order rather than the

reasons. for its entry. This view finds support in one

portion of the 1942 Committee Report, supra,

The bill would . . . [p]ermit appeals to the circuit

court of appeals from all decisions and judgments

having the effect of quashing, setting aside, or sus-

The Court then reviewe

taining demurrers or pleas in abatement to indict. aa

ments or informations. . . .

It is claimed that Congress intended, by this statement, .

to allow the government to appeal from all pre-trial

on me ins implicitly conceded that the interpretation of the 1948

In di ing the in the_1970 enactment §3731, Congress

Stated: “Ti ical distinctions in pleading as limitations on appeals

by the United States were eliminated. " 3 US. Code Cong. and

suggests that prior to: the 1970 Act, Congress intended that: §2731 be

interpreted in light of technical distinctions in common ‘tat S334,

8d

. dismissal orders in which the end result—the actual

Such an interpretation would include virtually all dis-

missals prior to trial since most pre-trial orders dis-

missing the action do. so by dismissing the indictment

under Rule 12:of the Federal Rules of Criminal Pro-

cedure. United States v. Heath, 260 F. 2d 623, 628 (9th

Cir. 1958) ; United. States v. Apex Distributing Co., supra,

at 751 (“The dismissal of a criminal action ineseapably

sets aside or dismisses the indictment or information on-

which it is based.”). ee % a

_ We do not believe such a broad reading was intended

-by Congress. The 1942 Report, as quoted supra, states

that the enactment would limit the .right of appeal to,

dismissal orders “involving the sufficiency of the allega--

tions in the indictment or information” when raised by

demurrer or plea in abatement. The extraction of the

phrase, “having an effect,” from the 1942 Committee

Report does not necessitate a contrary conclusion.’

Further, such a broad reading of the words ih §3731

would violate the long standing principle that the Act

. ghould be strictly eonstrued against the government’s

- right to appeal. United States v. Sisson, supra, at 270,

286, 291; Carroll v. United States, supra, at 394, 400, 406;

Umited States v. Borden Co., 308 U.S. 188, 192 (1939).

In addition, ws rely on the Supreme Court’s statement

with respect to $3731: “While it is always necessary to

vategorize a situation realistically, to place a given order

according to its real effect,-it remains true. that: the

; categories themselves were defined by the Congress in

. terms of form.” Carroll v. United States, supra, at 406.

_ 2 Thus, “. .. in a limited sense, form is. substance with

. respect to ascertaining the existence of appellate juris-

diction.” Jd. As in Apex, we must examine the legal basis

™We note that the legislative history of the 1970 version of §3731

states: :

Technical distinctions in pleading as limitations on appeals were

* eliminated and in their place the Government was authorized to

appeal any decision or order terminating a prosecution except an.

3 US. Code Cong. & Admin. News (1970), — at 5848.

This explanation by Corigress in 1970 implies t in 1942 and 1948

it did not authorize an appeal from any pre-trial order terminatirg

a prosecution (except an acquittal) which has the effect of dismissing

Od

of the dismissal order rather than its -end result to deter-

3343.33.53

2202710

‘in $3731.

Applying the standard of appealability we have enun-

ciated to the facts in this case, we find that the dismissal:

order was not hased on a defect in the wording of the

indictment or in the institution of the prosecution. There |

was no contention below that the indictment was fatally

insufficient or that the proceedings culminating. in the

issuance of the indictment were faulty in any way. Rather,

the judge seemed to be disturbed about the draft board’s

procedures in-classifving Ponto I-A. His comments prior

to his ruling on the motion to dismiss focused on these

considerations. The alternatively titled motion to dismiss

the action dealt with Ponto’s classification and the actions

of the draft hoard, and was not an attack against the

indictment itself. ‘

TI.

An objection to the local board’s classification of a

registrant can he -raised as a defense to a prosecution

under 50 U.S.C. App. 4462. The Selective Service Act,

90 U.S.C. App. §460(b)(3), provides) that all questions

wWlating to judicial review of the classification and pro-

cessing by a hoard be reviewed. in this manner. The motion

in the instant case presented questions concerning Ponto’s

classification, which are raised only by defense. The ‘deci-

sion to dismiss by the district judge was based on ques-

tions presented by this defense. As such, it was a ruling

on the merits of the defense.

The panel in Ponto decided that the order was in the

nature of an acquittal, i.¢., a ruling on the merits by

_ which the defendant was discharged from prosecution.

See Pratt v. United States, 102 F. 2d 275, 279 (D.C. Cir.

1939). Upon reconsideration, we conclude that the ruling

below was, in fact, an acquittal, and for this reason,

appeal by the government is prohibited by the double

jeopardy clause of the Fifth Amendment.

The defense raised hy the motion below could have

been decided at trial. See United States v. Ramos, 413

F. 2d 743,744, n. 1 (1st Cir, 1969). Yet, a defense on the

10d

| : oud |

merits can likewise be decided prior to trials as it. was

here. Rule 12(b)(1) of the: Federal Rules of Criminal

_ Procedure allows a party to present prior ‘to trial a

motion to dismiss on a defense “which is capable of

determination without trial of the general issue. . . .” See

United States v. Covington, 395 U.S. 57, 60 (1969) : U niied :

. States v. Fargas, 267 F. Supp. 452, 455 (S.D. N.Y. 1967).

We believe that the motjon ruled upon by the court below

fits into this category. The validity of a classification

involves questions of law for the judge, as in anv judicial

review of administrative decision-making. United States

v. Ramos, supra, at 744-45, n. 1; Martinetto v. Tnited

States, 391 F. 2d 346, 347 (9th Cir. 1968). The jury is to

determine whether, in fact, the defendant refused to sub-

mit to induction. Questions involving the validity of the

defendant’s classification do‘not come before it. Fer this

reason, in many cases, a ruling on the merits of a defense

of improper classification eould he made by the judge

prior to trial when “. . . trial of the facts surrounding

the commission of the alleged offense would be of no

assistance in determining the validity. of the defense.’

Umted States v. Covington, supra, at 60. We find that

the pre-trial motion presented to the judge in this case

was of such a character.

Since the dismissal order was hased on a determination

on the merits, it was an acquittal to which jeopardy

attached.* [nited States y. Sisson, supra, at 289-290;

United States v. Ball, 163 U.S. 662 (1896); Green v. United

States, 355 U.S. 184 (1957); Ielvering v. Mitchell, 303

U.S. 391, 398 (1938). See United’ States v. Jorn, 400 U.S.

470, 479 (1971): Thus, government appeal from this

ruling would violate the double jeopardy clause -of the

Fifth Amendment since a retrial on the charge would be

prohibited. Kepner v. United States, 195 U.S. 100 (1904);

United States v. Ball, supra. We view this as an inde-

pendent ground for holding that the government may not

appeal in this case.*

®*That the judge did not review the contents of Ponto’s selective

service file does not change the character of his ruling. His failure to

review the file may be erroneous, but it does not create appellate

jurisdiction. See United States v. Sisson, supra, at 295.

‘ ®Double jeopardy considerations enter into the legislative history

of §3731. United States v. Sisson, supra, at 298-99, 305. The Act limited

\

lid

For the reasons we have stated, we dismiss this appeal

£ >

forteek—of-jurisdiction-*

B.

UNITED STATES: OF AMerIcA v. Raymonp J. GROCHOWS&I

The defendant, Raymond J. Grochowski, was indicted.

for refusing to submit to induction into the Armed Forces,

50 U.S.C. App. §462. Prior to trial, the district court

dismissed the indictment because the defendant, claiming

to bea conscientious objector, had not presented his con-

Sclentious objector (I-O) claim to his local draft board.

In dismissing the action, the judge remanded the case to

® (Continued) . . '

government appeal in those situations where retrial was permissible

erroneous the legal theory underlying the decision.” Congress was

mindful of the fact that “[c]riminal appeals by the Governmert ‘always

threaten to offend the policies behind the double-jeopardy prohibition,’

Will v. United States, supra, at 96, even in circumstances where the

Constitution itself does not bar retrial.” United States v. Sisson, supra,

at 298. The Criminal Appeals Act merely limits government appeal in

‘eases where jeopardy has not attached. “No Senator thought that Con-

gress had the power under the Constitution to provide for an appeal in

circumstances in which that would violate the Constitution.” ‘Id. at 305.

To view the Act as broader would render it unconstitutional.

10The government urged at oral argument that we treat this case

as a petition for a writ of mandamus. We follow the holding of the

Supreme Court in Fong Foo v. United States, 369 U.S. 141 (1962), that

a court of appeals possesses no jurisdiction to issue a writ of mandamus

after an acquittal. The issuance of the writ would violete the double

jeopardy clause. : ;

Assuming the double jeopardy clause did not bar appeal:in this case,

the only possible basis for the issuance of mandamus would be that

the actions of the district ~~ amounted to a clear abuse of power.

And even then, we would be faced with the question of whether man-

damus jurisdiction exists when appellate jurisdiction is lacking under

§3731. The Second Circuit in United States v. Dooling, 406 F. 2d 192

(2d Cir. 1969), cert. denied, 395 U.S. 911 (1969), reh’g denied, 400 US.

874 (1970), held that a petition for mandamus may be granted even

if the government is barred from appeal under §3731. The Supreme

Court indicated in Will v. United States, 389 U.S. 90, at 97 (1967), that

mandamus “. . . may never be employed as a substitute for appeal in

derogation” of the policies of §3731. These cases suggest that a writ

of mandamus may be granted in a case ostensibly unappealable under

§3731, when ithe district judge so abuses his authority as to render

his decision a nuillity. Ps) ee

In any event,-we believe that the district judge clearly possessed

the power to rule on the defense prior to trial under Rule 12, Fed.

R. Crim. P., even if his ruling may have. been erroneous. In Dooling,

the — of the district judge clearly amounted to a judicial usurpa-

tion . es

12d

the board to give the defendant an opportunity to present

his I-O claim. The government appealed this dismissal

. : >

OTuerT:

A three-judge pancl of this court ruled that the govern-

ment. was barred under 18 U.S.C. §3731 from appealing

the dismissal order to this court or the United States:

Supreme Court." United States v. Grochowski (No. 18874,

slip op. Jul. 27, 1971), 0... oh ee yee (7th Cir. 1971). -

Subsequently, the government’s : petition for rehearing

en bane was granted. Upon consideration by the entire

_ court, we affirm the panel’s opinion that the. government

is barred from appeal, and dismiss for lack of jurisdiction.

S.

3

The dismissal order was not based on any defect>in the

indictment or institution of the prosecution. The jndge’s

‘ order addressed itself to. the classification of the defendant

and was intended to allow the defendant to raise his

I-O claim before his local board. These matters are raised

by defense and not by objections to the sufficiency of the

indictment or institution of the prosecution. Consequently,

the government may not appeal under. §3731.

II.

We also believe that the order below was an acquittal

and thus appeal is prohibited by the double jeopardy

elause of the’Fifth Amendment. The ruling that the defen-

dant did not present a written request for an I-O reclassi-

fication addressed itself, however. erroneously, to the -.

classification process. As such, it was a decision on the

merits of a defense which could have been raised at trial,

but which was capable of: determination: prior to trial

under Rule 12(b)(1) of the Federal Rules of Criminal

Procedure. Jeopardy attached to the ruling, and the

government is thus prohibited from an appeal.

The decision of the three-judge panel is affirmed. This

appeal is dismissed for lack of jurisdiction.

le . ° Apprats Dismissep.

‘11The panel decided that the “motion in bar” provision of §3731 was

‘inapplicable. Since the government’s petition for rehearing did not

contest this ground and since it was not argued at the rehearing

en banc, we do not deem it necessary to reconsider it here. —

oa

13d

Teut Iuadges, concurring. We

concur in Judge Kerner’s opinion. With respect to Part

II [in both Ponto and Grochowski] it is our analysis

that the order of the district ‘court appealed from was a

dismissal with prejudice and had. the effect of barring

a second prosecution. White v. United States, 377 F.2d

948 (D.C. Cir. 1967); see United States v. Oppenheimer,

242 U.S. 85, 87 (1916). : |

No. 18396

Stevens, Circuit Judge, dissenting, with whom Cvn+.

MINGs and Sprecuer, Circuit Judges, join. The indictments

of Grochowski' and Ponto were dismissed in advance of

trial. In edch case the trial judge was apparently per

suaded that there was a defect in the defendant’s classifi-

cation by the Selective Service Board. In Grochowski’s

case, as a result of the Supreme Court’s later vate

in Ehlert v. United States, 402 US. 99, it is plain that

the district court erred. In Ponto’s case, it is equally

plain that the indictment was valid on its face.

. _ These cases happen to involve alleged violations of the

Selective Service law. The problem they identify, how-

ever, cuts across the whole spectrum of criminal justice,

from cases like the ill-fated Sherman Act prosecution

of the “Beef ‘Trust,’* which led to the original enactment

of the Criminal Appeals Act in 1907,° to more familiar

forms of federal crime. At issue is the scope of a district .

judge’s absolute power to decide, for whateyer reason.

may appeal to his fancy, that a defendant may not be

required to stand trial. More ‘narrowly, the question is

was void.

2 United States v. Armour & Co., 142 Fed, 808 (N.D.Ill. 1906). .

°See, eg., debates on the 1907 legislation, 41 Cong. Rec. 2753 (Feb.

12, 1907, remarks of Sen. Patterson); id. at 2757 (Feb: 12, 1907, remarks

of Sen. Nelson); id. at 3046 (Feb. 15, 1907, remarks of Rep. Jenkins and

Rep. Crumpacker). sles

14d .

whether 18 ‘U.S.C. , 3731 elsiain a court of appeals’

- to’ review a district court order dismissing an indictment

———

in advance of trial if the trial judge has erroneously

concluded, on the basis of matter not disclosed in the

. indictment itself, that the defendaht is not guilty.

There are two quite different theories which might sup-

port a holding that we have no jurisdiction of these

. appeals.-The majority has adopted both. On the one hand,

‘the. court’s opinion holds. that Ponto and Grochowski

were really acquitted even though the district - judges

merely purported to dismiss their respective indictments.

On the other hand, the opinion also holds that even though

the orders were dismissals wather than_acquittals, they*

are not appealable because the statute does not mean-

what it says.

Under the: first theory the objection to our appellate

jurisdiction is constitutional and there is, no need to

analyze the statutory language or the niceties of the

common law which interested the Ninth Cireuit in Apez.*

If the double jeopardy clause applies, defendants may not

be reindicted, and the Gov ~ nment may not appeal. United

States v. Ball, 163 U.S. 662, 671; U ited States. v. Sisson,

399 U.S. 267, 289-290. Under this approach, the cases take

on exceptional importance because the holding will also

determine appealability of comparable orders under the

Omnibus Crime Control Act of 1970," which amended

18 U‘S.C. § 3731. |

Under the second theory, the objection to our appellate

jurisdiction rests on an esoteric exception to plainly writ-

ten statutory language. The existence and scope of the

United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959).

5 Section 14(a) of that statute, which amends § 3731, provides, in 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 prosecu-

tion.” 84 Stat. 1880.

The new — - applicable to prosecutions commenced subsequent

to January 2, 1

See footnote ry i Mr. Justice White's dissenting opinion in United

States v. Sisson, 399 U.S. at 328-329; see also the statement of Mr.

Justice Black and Mr. Justice Brennan in United States v. Jorn, 400

U:S. 470, at 487-488.

-

ly

, 15d

—.

exception are thought to’ be based on common law dis-

tinction as—amended to ¢liminate.

To discover the exception, the Ninth Circuit made a

microscopic analysis of language which had been elimi.

nated from the statute in 1948 without noticing that

Janguage’ which was retained by Congress provided a

sufficient basis for appellate review of a pretrial order

“setting aside” an indictment. As Mr. Justice Holmes

recognized in 1913,° a simple reading of -those words will

avoid the niceties of an argument predicated on other

language in the Act. The exception discovered by the

Ninth Circuit is so esoteric that it was unknown to any

of the litigants in these cases when their original briefs

were filed,’.to any member of the Supretne Court when

Weller was remanded to the Ninth Circuit, or to any

member of Congress when § 3731 was amended in 1948. .

The majority opinion rests on both the constitutional

and statutory theories. It is, therefore, appropriate to

explain why neither is tenable. a

I.

_ Whether the problem is analyzed in constitutional terms:

as a matter of interpreting applicable procedural rules,

or solely by considering what the district judges did in

these cases, it is perfectly clear that the challenged orders

were not-acquittals. cae

The Fifth Amendment provides that no person shall

be subject for the same offense “to be twice put in jeop-

ardy.” Quite obviously the prohibition is inapplicable

until a defendant has been put in jeopardy at least once.*

®See United States v. Adams Express Co., 229 U.S. 381, 388, quoted at

footnote 33,. infra. .

‘Neither Ponto nor Grochowski originally questioned our jurisdiction

on either. of the theories discussed in this opinion. Both contended

the district court action should be considered a plea in bar.and thcrefore

appealable only to the Supreme Court under the fourth paragraph

of § 3731. Both also argued, alternatively, that the district court action

was a judgment of acquittal which precluded any appeal. Neither cited

Apex; neither contended that there was a category of non-appealable

dismissals; neither contended that jeopardy would have attached absent

a conclusion that the action of the district court was a judgment of

. acquittal.

®See United States v. Weller, 401-U.S. 254. . )

®See Shevlin-Carpenter Co. v. Minnesota, 218 US. 57, 67; State v.

War, 38 N.J. Super. 201, 118 A.2d 553, 555 (1955). _

16d

It has long been settled that the mere return of an indict-.

ment, the entry of a not guilty plea, or the conduct of a

preliminary examination doés not place a defendant in

jeopardy. Bassing v. Cady, 208 U.S. 386, 391-392; Collins

v. Loisel, 262 U.S. 426, 429-430. “Jeopardy attaches” when

a trial commences. United States v. Jorn, 400 U.S. 470,

10 r.

In these cases the trials never started. There had

no waiver of a jury by either Ponto" or Croc i, -

and no jury had been impanelled. In both cases thé defen-

dants’ motions were supported by their Selective Service

files, and during the hearing oh Grochowski’s motion, “he

took the stand to explain why he had not claimed. con-

scientions objector status before his draft board. How--

ever, neither the judge nor the parties treated. the prelimi-

nary proceedings as a part.of the tvial itself. At most

it could be said that each defendant supported his motion

‘to dismiss with factual matter which the judge regarded

as a valid defense to the charge. In my opinion, since

the defendants had not been placed in. jeopardy, they are

not itled to the constitutional protection which flows

from ¢ judgment of acquittal.

. Thd¢ Federal Rules of Criminal Procedure do not con-

tempjate the entry of a judgment of acquittal until “after

the évidence on either. side is closed.” Rule 29, Fed. R.

Crim. P. The fact that an order may be given the wrong

name does not prevent it from operating as an acquittal

provided that it is predicated “upon. evidence adduced

at the trial.” United States v. Sisson, 399 U.S. 267, 290."

US. 921; Newman v. United States, 410 F 2d 259 (D.C. Cir. 1969).

Bente’ qtterney indicated ot the Seeing oT tut

was “willing” to the issue to a bench trial, but he never did

. In the federal system there is no rule of criminal pro-

cedure .anthorizing the entry cf a pretrial judgment of

_______\__aegquittal."" Finally, it shonld be noted that althorvzh the

prayer of Ponto’s motion was “for a ‘dismissal: of the

indictment or, in the alternative, for a directed judgment

of acquittal,” the trial judge stated unequivocally that

he was granting the motion to. dismiss.“ Grochowski

moved to dismiss and remand to the local board. The

trial judge.ordered “that the -indictment be dismissed

and the case remanded to the defendant’s local draft board

for consideration of his conscientious objector claims.”

‘In my opinion neither of the challenged’ orders was

an acquittal; each was a decision or judgment setting

aside or dismissing an indictment.

II.

The applicable statute, 18 U.S.C. § 3731, authorizes -

' appeals on behalf of the United States in “all criminal

cases” from “a decision. or judgment setting aside, or

dismissing any indictment or information, or any. count

thereof.” If an order is covered by this language it is

appealable either to the Supreme Court or to a court

° .

12 (Continued)

of Criminal Procedure allow, however, a federal

to acquit a criminal defendant after the a verdict of

(Emphasis in original.)

** There are, of course, orders of dismissal which determine the merits

and, therefore, See,

-

of appeals." The appeal goes to the Supreme Court if

the decision is based npon the validity or eonstruetion

of the statute upon which the indietment is founded:

otherwise it goes to a court of appeals. *

The statute also authorizes an appeal from an order

sustaining a motion in ber or a motion arresting a jndg-

ment of conviction. Thus, except for aequittals, the statute

purports to provide for an appeal by the Government

from every kind of adverse final order deseribed in the

Federal Rules of Criminal Procedure. The orders before

us definitely did not arrest judgments of conviction, and

I think it is equally clear that they are not acquittals.

‘ Although the point is not free of diffieulty, I also am

_ persuaded that they did not sustain motions in bar.”

Accordingly, 1 -am left with the question whether the

orders come within the category of decisions or judgments

“setting aside or dismissing any indictment.” .

There can hardly be any doubt that the plain language

of the statute describes these orders. | believe all of the

opinions in Apey, and also the majority here, would accept

that proposition."* For reasons eloquently stated by Judge

_ Pope in his separate opinion in Aper,” that really should

~ be the end of the matter. Nevertheless, to avoid the risk

that there is a hidden category of exceptions which the

legislature inadvertently failed to identify, it may be

appropriate to review the statute’s history. _

Clear legislative history may modify a somewhat am-

biguous statute; I doubt if ambiguous history should ever

© Paragraphs five and six of $ 3731 provide:

“An appeal may be taken by and on behalf of the United States

from the district courts to a court of appeals in all criminal cases,

in the following instances:

17Cf. United States v. Covington, 395 US. 57; sce United States v

Mersky, 361 US. 431, 441-443, Mr. Justice Brennan concurring. United

States v. Weller, 401 US. 254, 259-261, persuades me that Judge Kerner’s

atialysis of this of the case, as set forth in his opinion for the

original panel in is proper. Whether that analysis can survive

the en banc holding, relying in part on Covington that Ponto’'s dismissal

was really an acquittal, is not entirely clear

18

3f

3

gf

E

“

é

a

19d

prevail over a clear statute. But when legislative history

merely confirms the unambiguous ineaning of the statutory

language itself, certainly judicial concern with a policy

disfavoring appeals by the Government should give way

. to the mandate of Congress. ‘ ;

There are three chapters in the history: of the Criminal

Appeals Act. Appeals by the Government in criminal

cases were first authorized “in 1907, but only to the Su-

preme. Court and only from certain decisions.*° In 1942

the scope of the Government’s right to appeal was .

broadened and review by a court of appeals was first

authorized.’ In 1948, in order to conform the statutory

language of that used in the Rules of Criminal Procedure

Which had been adopted two years earlier, Congress re-

placed terms such as “demurrer,” “motion to quash,” and

“plea in abatement” with phrases like “motion to dismiss.”

The relevant parts of the three chapters can be briefly

identified.

With respect to the 1948 enactment, two points are

perfectly clear. First, following the lead taken by the

judiciary when the Rules of Criminal Procedure were

adopted in 1946, Congress sought to eliminate the use of

*° 34 Stat. 1246. As enacted on March 2, 1907, the statute read as

follows:

“That _a writ of error may be taken by and on behalf of the

United States from the district or circuit courts direct to the Supreme

Court of the United States in all criminal cases, in the following

instances; = wit:

“From a decision or judgment quashing, setting aside, or Sustaining

a demurrer to, any indictment, or any count thereof, where such

decision or judgment is based upon the invalidity, or construction

of the statute upon which the indictment is founded.

“From a decision arresting a judgment of conviction for insuffici-

hen the defendant has not been put in jeopardy.

“The writ of error in all such cone hall te nken ‘within

Pendi ion ri

i foregoing instances, the defendant shall be admitted to

4 ob Provided, That no writ of error shall

taken by or allowed the United States in any case where there

been a verdict in favor of the defendant.”

2156 Stat. 271.

af

20d

ancient common law term=.*? Second, the draftsmen of

the legislation obviously thought that the 1942 Act already

authorized appeals by the Government’ in all cases de-

scribed by the new statutory language.”

-In my opinion they correctly interpreted the 1942 Act,

but even if we assume that they were unaware of certain

obscure exceptions to the 1942 law, such ignorance would

be irrelevant to an appraisal of their actual intent in 1948.

Language which is as plain as “a decision or judgment

setting aside or dismissing any indictment or information,

or any conduct thereof” can hardly have been misunder-

stood by Congress, regardless of whether its understand-

-ing of the 1942 Act was perfect or imperfect.

The history of the 1942 Act is sparse, but again certain

proposit@ns are perfectly clear.. The new Act- substan-

tially Moadened the Government’s right to appeal. Prior

to 1942 orders dismissing indictments had heen appealable

only to the Supreme Court and, except those which

sustained special pleas in bar,”’ were not appealable at all

‘unless based on a question of statutory construction or

constitutionality.” In the 1942 Act, this requirement was

preserved as a condition to direct appeal to the Supreme

Court, but -was completely eliminated as a condition to

appellate review. This change obviously multiplied the

instances in which the (iovernment might appeal.

. 22“The administration of justice under our Federal criminal laws was

| ea gee oe by the promulgation of the new Federal Rules of

. However, the process of modernizing our antiquated

Federal criminal laws is only half done. The task, so carefully planned

and skilifully executed, of providing the Nation with a vastly improved

structute of criminal laws, will be complete when this bill becomes

law.” H.Rep. 304 (80th Cong., Ist Sess.) pp. 8-9.

23 For reason the changes conforming the statutory language

to the Rules of Criminal Procedure were appropriately characterized

jeopardy.

25See footnote 20, supra.

“minor.” The reviser’s note stated, in part:

“The oo ‘dismissing’ was substituted for ‘sustaining a motion

' to > in two places for conciseness and clarity, there being

no difference in effect of a decision of dismissal whether made on

motion or by the court sua sponte.

“Minor changes were made to conform to rule 12 of the Federal

Rules of Criminal Procedure.” .

24The classic examples of such pleas, autrefois acquit and autrefois

éonvict, were, of course, akin to the constitutional claim of double

Bin 22 ~ — R ear ete Te el

21d

Moreover, the description of the kinds of orders which

were to be appealable was enlarged to inelude specific

reference to informations as well as indictments, and to

pleas in abatement as well as demurrers, motions to

quash, and orders “setting aside” jndictments.* Since

special pleas in har were covered in a separate paragraph,

the full list of appealable orders described in the. 1942

Act could reasonably he interpreted as covering every

kind of pretrial dismissal of an indictment then known

to the law.

This interpretation is confirmed by the statement in .

the House Committee Report that the statute would en-

large the power of the United States to appeal from all

decisions and judgments “having the effect of quashing, °

- Setting aside, or sustaining demurrers or pleas in abate-

ment to indictments or informations and from all decisions

arresting judgments of conviction.”** (Emphasis supplied.)

It is’ true that the Committee Report identified the

policy considerations disfavoring appeals by the Govern-

ment. It is more significant to recognize, however, that

not only the Committee, but also a unanimous Congress,” .

decided that these considerations were outweighed by the

desirability of broadening the Government’s right to

“appeal. The benefits to the public-at large of uniform

and evenhanded interpretation of criminal statutes were

clearly recognized when the statute was originally debated.

in 1907. and thongh not expressly reiterated in 1942.

*6 The relevant paragraph of the 1942 Act provided for an appeal on

behalf of the United States to a circuit court of appeals {f]rom a decision

or judgment quashing, setting aside, or sustaining a demurrer or plea

in abatement to any indictment or information, or any count thereof

except where a direct appeal to the Supreme Court of the United States

is provided by this Act.” 56 Stat. 271.

27H. Rep. No. 45 (77th Cong. 2d Sess.) p. 2, 1942 US. Code Cong.

Serv. 487, 488. ,

?°H.R. 139 passed- the House and Senate unanimously. There were

over the procedure on appeal resolved in conference.

report was then agreed to by both Houses.

2°“The reason, Mr. President, that I, as a member of the Committee

bill is this: Without this bill in the criminal

throughout

He

f

5.

aa y

53

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224

must have motivated the important action which Congress

then took. .

It is also true that in explaining the desirability of

enactment, the Committee pointed out that cases involving

the sufficiency of the allegations in an indictment should

i = *

outside of that jurisdiction. And we would have, Mr. President, this

and extraordinary condition as we have had it — and to my

multiply in the several sections of the country we may find one half -

of the courts of the country arrayed against the other half of the courts

of the country upon the same identical law; one half holding that it is

entirely constitutional and the other half holding that it is unconstitu-—

tional. confusion, that ridiculous condition exists ©

E.

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s

F

exist because as the law now stands, until a case

question shall go to the Supreme Court and it is brought

defendant, there can be no adjudication by a court whose

and judgment is controlling.

; willing to have it said, so far as I am concerned, that

decision of Judge Humphreys in the Chicago case led to the legisla-

is now Why should it not, Mr. President? If it calls

ibn of country to a condition of our laws that is absurd,

tne

28

that leads to injustice in one half of the country and to justice in the

other half, to a condition of our laws that will permit the same law

to be held constitutional in one half of the country and unconstitutional

in the other half, and have a citizen committing an act that is not an

the country but is an offense in the other half

el

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of

same act being done without any fear of consequence

in the union and leading to the penitentiary, it may be,

in certain States in

in other States in the Union — if that condition has been brought

to the attention of the country and of Congress, Congress has done

with the question and to make it possible to eliminate

such a status from the laws and their enforcement in the United States.”

41 Cong. Rec. 2753, (Feb. 12, 1907, remarks of Sen. Patterson).

. President, I can not see the argument presented by the Senator

“Mr

from Nevada [Mr. Newlands]... .. ‘I can see how the Senator from ~

Nevada would bring about a very unequal administration of the criminal

laws if in one case he provides that a man shall be permitted to go

absolutely free on the erroneous decision of one judge as to the con-

stitutionality of a law while a man tried for exactly the same offense

before judge under the same law would be put in the peniten-

tiary. It looks to me that the latter individual might have some right

‘to complain, at least of the inéquality of the administration of the law.”

41 Cong. Rec. 2822 (Feb. 13, 1907, remarks of Sen. Carmack).

See also Congressional Record references in notes 48 and 49, infra,

-

23d

be reviewable.*° No court, however, — not even the Ninth

Circuit — has interpreted the 1942°Act as limited to such

eases.” Such a narrow reading could not possibly be

reconciled with the fact that the appealability of orders

sustaining pleas in abatement was first authorized in

1942, because the common law plea-in abatement did not

test the sufficiency of the indictment. See United States

v. Brodson, 234 F.2d 97, 99 (7th Cir. 1956). See also, e.g.,

3 Foster, Federal Practice § 517 (6th ed. 1921).

In short, the history of the 1942 Act ‘does not support

a reading of the statute which is any narrower than its

actual language. On the contrary, if appropriate signifi-

cance is attached to the legislative decision to broaden

the Government’s right to appeal notwithstanding the

countervailing poliey considerations, it is fair to infer.

that the expressed desire to authorize appeals’ from all

decisions and judginents “having the effect of” granting

%0“Nevertheless your cornmittee feels that the Government should

have the right to appeal to the circuit court of appeals from the district

court from decisions on demurrers or pleas in abatement to indictments

or informations in cases involving the sufficiency of the allegations in

the indictments or informations in the same manner in which the

Government may now appeal from decisions on demurrers to indictments

direct to the Supreme Court in-those cases involving the invalidity

of a statute or the construction of a statute.” H. Rep. No. 45 (77th Cong.

' 2d_ Sess.) p. 2, 1942 U.S. Code Cong. Serv. 488. See 270 F2d at 752.

The sentence quoted above is the only. excerpt from the entire legisla-

tive history which even arguably supports the proposition that the

committee stated that the 1942 enactment would limit the right of appeal

to dismissal orders involving the sufficiency of the allegations in the

indictment or information. There is a rather obvious difference between

identifying a category of dismissals to ‘which the statute will apply

and stating that the statute was intended to be limited to that particular

-. Category. Indeed, if such a limitation had been intended, the Apex

court’s interpretation of the statute as covering all dismissals based

on a defect in the indictment or information, or in the institution of the

prosecution, was actually a broadening rather than a narrowing con-

struction of the act. - -—

31 The reasoning of the Apex opinion implies that such a, narrow

construction would be appropriate, but the opinion’ itself refuses. to go

that far since it recognizes that pleas in abatement, even as it has

defined them, are not rherely directed to the sufficiency of the allegations.

270 F.2d at 753-754. The Apex court’s translation, which went beyond

sufficiency, was that the Government could appeal from an order dis-

. missing the case because of a defect in the indictment or institution

of the prosecution. The latter phrase covers some, but not necessarily

all, pleas in abatement. I do not think it is fruitful, however, to judge

the Government’s right to appeal on the basis of this shorthand trans- .

lation of the statute rather than the broader words of the statute itself,

as enacted in 1942 or in 1948. .

24d

“

‘pretrial relief to a defendant in any of the enumerated

categories was intended to be as broad as the plain Jan-

guage which was substituted in 1948. '

Reference to the 1907 Act is appropriate to demonstrate.

that the statute has never contained an esoteric admonition

to adhere to common law technicalities rather than the

language of the statute itself. Since its original enactment,

the relevant portion .of the Criminal Appeais Act has-

consistently covered orders “setting aside” indictments.

If there ever was a common law motion or plea to “set

aside” an indictment, I have been unable to find any

literature describing it.** It is, therefore, reasonable to:

infer that inclusion of orders “setting aside” indictments

in the 1907 Act was specifically intended to minimize the

necessity for analyzing the niceties of the common law

in determining the scope of appellate jurisdiction au-

thorized by the statute.**.

I recognize, of course, that certain provisions of the

statute derive meaning from their common law antecedents.

For reasons not applicable in these cases, the Supreme

Court has looked to the. common law for explanation

of the special plea in bar and arrest of judgment para-

graphs which provide that Court with direct appellate

jurisdiction. Each of these provisions, unlike the broad

{

‘anguage in the second and. sixth paragraphs of the

82 The Apex opinion contains no satisfactory explanation of the words

“setting aside”; apparently the Ninth Circuit considered them redundant.

See 270 F.2d at 753. The words were, of course, included in the 1907

Act as well as the 1942 and 1948 revisions. Mr. Justice Holmes did not

consider them redundant (see note 33 infra) and it is significant that

they were retained in the statute when the various common law terms

that Apex analyzed so carefully were eliminated. In short, the Apex

— attaches greater significance to the words of the 1942 statute

-that were eliminated than to the words that were retained in 1948. |

83 In his: opinion for the Court in United States v. Adams Express Co.,

229 U.S. 381, Mr. Justice Holmes simply relied on the statutory words

“setting aside” to avoid the niceties of defendant’s argument:

It is objected that this court has no jurisdiction of the present

writ of error under the.act of March 2, 1907, c.2564, 34 Stat. 1246,

and that the court below had no authority to treat the motion of

Barrett as equivalent to a demurrer. Without following the defendant

into the niceties by which it seeks to escape the jurisdiction of this

-court after having eluded that of the court below, it is enough

to say that in our opinion, if we are to go behind the entry, the

decision entered was one setting aside the indictment and was based

upon the construction of the statute upon which the indictment

is founded,

This text is long and has been trimmed here. Open the source document for the complete record.