# Petition for Writ of Certiorari — Grunberger v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0602%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 406 U.S. 917 ## Text | 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 » 2 Lena mgnet ee (i) ’ 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 . id (iii) 3 | | . : Rage ° oe | | ee ene Seok an ee ee eee 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. _ 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 s gh el § F 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. Ze y 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 rE 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, w.thin the meaning of the act of March 2, 1907.” 229 US. at 388. sd \ present Act, or the apparently all-inclusive list in the . ' corresponding portions of the 1942 Act, obviously refers to a specific common law antecedent. Moreover, it is construction of terms such as “setting aside” in the _ Statutory definition of our jurisdiction. For that reason, as well as the importance of honoring’ the constitutional] benefits which flow from an acquittal of a defendant I recognize, as does the majority, that Mr. Justice Harlan cited Apex in a footnote to his opinion in Sisson** But he also cited Judge Duffy’s opinion for this court in Brodson,* which plainly holds ‘that the Government has a broader right to appeal than Apex recognizes.* If the citation of Apex in the Sisson opinion can be interpreted as an awareness of the question involved here, the Su- preme Court’s disposition of Weller shortly thereafter takes on added significance.*” be allowed to accompany him in an appearance before | his local board. Relying on a 1940 regulation,“ the board denied his request. These facts were brought to the -atten- 34 He cites Apex for the proposition that the 1948 Act was not intended to broaden the coverage of the 1942 Act. See 399 US. at 293 n22. seer {vas no occasion to consider the scope of the 1942 Act. there is any appeal from a disrnissal. See 299 U.S. at 308. 36The Aper opinion expressly recognizes this fact. See 270 F.2d at p. 758. Ne 57 United States v. Weller, 401 US. 254, decided on Feb. 24> 1971, Sisson was decided on June 29, 1970. ‘ 38See Wright v. Ingold, 445 F.2d 109, 112, n6. 26d tion of the district court in support of Weller’s motion to dismiss the indictment. The motion to dismiss was granted on the ground that the regulation was invalid. The Government filed a notice of appeal to"the Supreme Court, but before argument the. Solicitor General ‘asked that Court to remand the case to the Ninth Circuit. The appellee opposed the remand, contending that jurisdiction did lie in ‘the Supreme Court. As the Court noted, the appellee urged that. the Supreme Court had “jurisdiction under \either of two sections of’ the Act, one relating to dismissal of an indictment based on the construction of the statute on which the indictment is founded and the other to motions in bar.” 401 U.S. at 257-258. The first of the two sections is relevant here because it is identical/ to the paragraph which grants us juris- . w RES | _ (7th Cir. 1971). , | No. 18315 | Cummines and ‘Sprecner, Circuit Judges, dissenting. For the reasons expressed in Judge Stevens’ scholarly dissent in United States v. Ponto, No.. 18396, and United States v. Grochowski. No. 18874. we conclude that the dis- trict jndge’s. order dismissing the indictment was review- able: here under 18 U.S.C. § 3731. As in Ponto and Grochowski, Gustavson’s trial never began. There had been no waiver of a jury, and no jurors had been impanelled. Defendant’s motion to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure was understood by all parties to be a pre-trial motion and was treated as such. Plainly jeopardy never attached. In view of the majority’s jurisdictional holding, we do not reach the merits. No. 18315 Pew, Circuit Judge, dissenting. I dissent for the same reasons expressed in my dissenting opinion in United States v. Ponto and Grochowski (Nos. 18396, 18874, slip op. Dec. 14, 1971) ........ FP. 20 ........ (7th Cir. 1971), and concur with Judge Cummings’ dissent on the issue of jeopardy. ' s A trne Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit. USCA 3921—The Scheffer Press, Inc, Chicago, Illinois—12-28-71—209 ie eeiael a a al *~ If APPENDIX F aoe In the betas Gnited States Court of Appeals For the Seventh Circuit SEPTEMBER TERM, 1970 — JANUARY Session, 1971 No. 18396: | ) 1 fr e Unirep States oF America, “pees States me Plaintiff-A ppellant, trict Court for the 9. > Northern District : of Illinois, East- Ricwarp Victor Ponto, ern Division. Defendant-Appellee. : ' Jury 7, 1971 Before Hastinas, Senior Circuit Judge, and Keryer and Stevens, Circuit Judges. Kerner, Circuit Judge. The defendant, Richard Victor Ponto, was indicted for failure to submit to induction into the Armed Forces. 50 U.S.C. App. §462. After hearings before the district court but prior to trial, the judge granted the defendant’s motion alternatively requesting the court “to dismiss the indictment or for a directed judg- ment of acquittal.” The government appeals. The defendant, who was living with his wife and child. -had been classified TTT-A (hardship) by his local draft board. In January, 1966, he was reclassified I-A after the board learned that he was no longer living with his wife and child nor contributing to their suppert. On March 3, 1967, after other unsuccessful attempts to con dant, it ordered Ponto. to report for induction on March 2f . 27, 1967; the order was returned by the post office indicat- © ing that defendant had moved. — | ; On March 27, the day he was to report for induction, de- fendant requested a III-A classification claiming that he was now the sole means of support for his mother, who, he - tated, “is sick and unable to work at this time.” He filed a Dependency Questionnaire (SSS Form 118) represent- ing his annual contribution to his mother’s support to be $1,500; he listed his mother’s annual income as $2,500. His income for the prior year was $5,000. | _ The board responded that it had considered Ponto’s re- ‘ quest for deferment and decided “that there be no change in. your classification.” Ponto was subsequently given a courtesy hearing at which the board requested him to pro- duce income tax returns for his mother and himself. Two months later, on July 14, 1967, the board, not re- ceiving Ponto’s income tax returns, decided again “that there be no change in your classification and that your orders stand.” On August 11, the board reached the same conclusion after considering: W-2 forms Ponto submitted for himself and his mother. On September 18, 1967, the defendant was ordered to report for induction, but refused to submit. In March, 1968, the United -States Attorney’s office, in a letter to the Deputy State Director of the Selective Service System of Tilinois, indicated that it would not prosecute Ponto. In May, 1969, however, the defendant was indicted. | Prior to hearings before the district judge, counsel for the defendant filed a motion with the court entitled “Mo- tion to dismiss the indictment or for a directed judgment of acquittal.” In the motion, counsel called attention to two letters he found in the Selective Service file: . -. A letter from the United- States Attorney to the Deputy State Director of the Selective Servite Sys- tem, dated March 18, 1968, recommending that the outstanding order for induction of defendant be can- oy and that his classification be reopened (Exhibit b. A letter from the United States Attorney to the . Chief of the Administrative Regulations Section, Criminal Division, Department of Justice, dated October 8, 1968, stating that the United States At- torney’s office was of the opinion that a prima facie case for a hardship deferment had been made by de- fendant and that denial of the III-A classification by the Local Board was in error (Exhibit B). Following this recitation, counsel stated in the written motion: ON One can conclude from these letters that the United f - States Attorney concurs in the legal correctness of the defendant’s plea of not guilty. To put the defen- dant to the.anxiety of a trial and to consume the court’s time in litigating an issne upon which the parties agree is the height of folly. ' Wherefore, the defendant moves for a dismissal] of the indictment or, in the alternative, for a directed judgment of acquittal. . Hearings were condneted on three occasions before the district judge in which counsel for both sides argued the defendant’s pending motion. Defendant was not present at any of the hearings. On the first day, the judge stated that he denied the defendant’s motion without prejudice. Fol- lowing this, counsel and the judge discussed the nossibilitv of the defendant voluntarily agreeing to induction. The ease was continued for a few davs in order for defense counsel to inquire into this apron | , a the second hearing date. a sn stion was made bv the {judge that the Tited States Attorney review the Selective Service file to determine whether the board had properly processed Ponto’s claim for re-classification. The United States Attorney also agreed to review the cases submitted to the court by defense counsel. On the following day, the final hearing was held. Argn- ment concerned the circumstances surrounding the defen- ‘dant’s attempt to reopen his classification. The - judge stated at one point:. ~The question—there are two questions. One is ‘whether or not in fact there was a proper basis for this kind of a deferment, and if there was & dependency that didn’t exist in the same quality and in the same 4 pe gt n aH ii Hi, : Hae Hine i i H : JHt ; = Hh + iiss z= re nl : uh 14 Hi : “a 25, i a j ial é eur ‘if: iz ; be wee pil HOSE i] ali fl if ih : is li wenn ee alee ba -a Sf . a bedeteal eel ily | toed i Dae et a Ht ae leat Lie ah of iis na sie i : AAT Ht Teele iN} “a qu HH al : fait Pile Ast fiasdes. Fag ‘ : £3353 | i; a} a i i sr ie f i if Ht 5 ial ft i: i lays i: i ally i Leet it IF i! 7f ity sa HRA + i ; = gc35282 Hi sig ie H Se Ha ue tad §4s02939. Hy cl i : 3 > Bah 5. zee 3 a: i gear isi “i niall 4 oo a « ie 1 Hl li lin 4 . sat Fi iH pi til yal Beh i Hille ie i Filly it ii if . Sf portion of §3731 permits appeal only from a dismissal which is based upon a defect in the indictment itself, or in the institution of the prosecution. After reviewing the proceedings below and the motion filed by def counsel, we conclude that the dismissal rder was not on a defect in the indictment or in the institution of prosecution. No reference is made to the : ing or form of the indictment itself or the manner in which the case was presented to-or deliberated by the Grand ws a Rather, the arguments of counsel and the comments trial judge at the pre-trial hearings concerned the We believe that disposition on this ground, prior to trial, is similar to an order of acquittal, from which the govern- ment is not entitled to a : For this conclusion, we find a recent decision by the Court of A for the First Circuit in United States v. Findley, No. 7765 (ist Cir., March 22, 1971). In Findley, the defendant was in- dant’s motion to dismiss. The First Circuit held thate§3781 did not authorize a government appeal! from this ruling of 7 dismissal. The court observed (p. 4, slip op.): ... if a dismissal is a result of the showing of eviden- tiaryfacts dehors the indictment which, if established at trial, would constitute a defense on the merits, the court’s ruling, however described, . . . is in effect an ittal . . .. and thus not within the intended pur- > She eta eaten, . . . Sauee eam & 9 ee then, that, had he waited and proved these facts at trial defendant would, assuming the court's view of a of 8 ++ <2... ocean se §%j “3 ral i wayate Ties ya | bie j me fi Roel eEAGE eel i ra fe fecaal pl a jini ra a3 21a slit Sold bc I ian il it hn GREE, tthe. iat nik ei i 5s pevaees as i Bi .. i ; 3 Hest ei it i ij af a rt ; ra edi ila His Bile ik ual ti isl ei ie sf ii 5 alt 3 lille! sPaayt anehe Tee ries sé i Pt i ns 8S. 10f character of his decision or affect the government's right to ope under §3731. We ean find nothing in the record which suggests . that the j dismissed this ease because of a defect in Srevens, Circuit Judge, dissenting. In my opinion Judge Parsons’ order cannot “fairly he interpreted as an acquittal. A motion for acquittal may be filed only “after the evidence on either side is closed. . . .”* In this case, the trial never started. The jury had not been impaneled or waived and no evidence had been offered or received. I do not believe a defendant should have the ee in jeopardy. defendant’ motion to the indictment; in my opin- ion, that is the only proper apeeaien of his order. If the Criminal Appeals Act means what it says, such an order is appealable.* SESE bon atthe be eoctine ous Dellate juriadie- ment or in the institution of the prosecution. See United | States v. Apex Dist Co., O10 F.2d 747 (9th Cir. 1959). With all respect, I not find the comments in the Committee Report on which that court relies sufficiently persuasive to overcome the plain language of the statute In United States v. Sisson, 399 US. 267, the motion was filed after both parties had rested. o ee a Pins gn dif itself." Moreover, both the Supreme Court and this court have assumed, without capeenaty deciding,‘ that ———— diction is not so narrowly limited. United States vy. eller, 401 U.S. 254; United States vy. Brodson, 234 F.2d 97 (7th Cir. 1956). Although I recognize that the Supreme Court’s deter- mination of its own narrow jurisdiction under the Criminal Appeals Act requires consideration of a district court’s grounds of decision,* | believe the statutory language used to define our jurisdiction requires us to consider the effect* of the order entered by orden my court rather than the reasons for its entry. Otherwisa it mi determine whether or not an appeal lies, since as in this ns and judgments heving Grr nesrur of sppeals all deci- 7 — ~ in eet eng, setting ad or a. fouations and ken eo DRE OST REOS Te ae Ge a o—" - 12f should not negate our power to set the order aside t S.C. § 2106. United States v. Fruehauf, 365 U.S. 146. find no defect in the indictment, I would reverse and remand for trial. FPP ET ESE E HOR CR HORE TEES Clerk of the United States Court of Appeals for the Seventh Circuit. USCA 3821—The Scheffer Press, Inc. Chicago, Illinois—7-7-71—200 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0602%3A1. Public record. Not legal advice.