Brief for the United States in Opposition — Grunberger v. United States

LIBRARY

SURF: =-COURT, U; ‘ PARTS?

In the Spc Couct of the uited States

OCTOBER TERM, (1971

ALBERT GRUNBERGER, PETITIONER _

v. :

UNITED STATES OF AMERICA

&

ON PETITION | FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS F OR

; THE SECOND CIRCE AT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ERWIN N. GRISWOLD,

\ : Solicitor General,

HENRY E. PETERSEN,

Assistant. Attorney General,

’ BEATRICE ROSENBERG, .

~ROGER A. PAULEY, |

Attorneys,

- Department of J ustice,

Washington, D.C. 20530.

e Siw

No. 71-1064 rs ee A; t..651 ety

3 te Supreme Court of é the United States

OCTOBER TERM, 1971

No 71- 1064.

ALBERT GRUNBERGER, PETITIONER _

=e

« - UNITED STATES OF. AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

U NITED STATES COURT OF APPEALS FOR .

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the curt of appeals is reported:at ~

452 F. 2d 704. '

J URISDICTION.

The opinion and judgnient of the court of ‘anita

(Pet. App. A. la-25a) were filed on November 16, ~

1971. A petition for rehearing was denied on De-- |

cember 20, 1971 (Pet. App. B. 1b). The petition

for a writ of certiorari was filed on February 18,

Cia .. Ae

2.

1972. The jurisdiction of this Court is invoked un-

der 28 U.S.C. 1254(1). 3

| QUESTIONS PRESENTED

1) Whether the United States may: seek review, by.

*: writ of mandamus, of an order of the distr ict court.

_ dismissing an indictment after the entry of a valid

judgment of conviction. _

2) Whether the district court has the power to

dismiss an ifdictment after the entry of a valid judg-

ment of conviction even though no specific error

warrants a new trial or dismissal of the -indictment.

STATEMENT

After a second jury trial in the United. States

District Court for the Eastern District of: New York,

petitioner -was convicted on two counts of having

facilitated the transportation and concealment ‘of

watch movements known to have been illegally im-

ported, in violation of 18 U.S.C. 545. Petitioner was

sentenced to concurrent suspended prison terms,

placed on — for three — and fined $10,-

000.

Following sentence the district judge stated that

there was a great danger of a miscarriage of justice

in this case because of the inability. of the govern-

ment’s principal witness “to distinguish between fact

and falsity when his own interests are at* stake” —

(Pet. App. A. 8a). This factor, “plus others”. not

adverted to, in his view, brought the case “within — |

the specific terms of Rule 33, that it requires a new

3

trial in the interests of justice.” But, since he felt .

that neither side would be able to make a stronger

case’at another trial, the judge dismissed the indict-

ment without ruling on petitioner’s motion for a

_hew trial. In so doing, the trial judge observed that

he had “serious doubts” about his power to terminate

the proceeding in this way (Pet. App. A. 8a). The

United States filed a petition for a writ of manda-

mus in the court of appeals on the ground that the

district court had exceeded its powers in dismissing 3

~ the indictment.

The district judge did not formally respond to thé

“petition but advised the court of appeals by letter

that the purpose of his action was to raise “the issue

of whether there: are instances where, considering z

the totality of the ‘circumstances, based upon articu-

lated reasons, and in the interest of justice, a crimi-

nal proceeding should be terminated ‘in favor of the

accused even though no specific error warrants a

new trial or dismissal of the indictment” (Pet. App.

_ A. 9a). The court of appeals, in an exhaustive opin-

ion by Chief Judge Friendly, granted the writ on

the ground that the judge was without authority to

‘dismiss the : indictment in these circumstances. The

court of appeals suggested that a new trial might 7

be appropriate: and directed the district court.to act

upon petitioner’s motion for a new trial (Pet. App.

23a-25a).

4 ;

ARGUMENT

Petitioner’s contentions; that the judge’s. ruling

should be. deemed an acquittal, thus barring review

by ‘mandamus, and that the trial court had power °

to dismiss the indictment, are dealt with fully in the

opinion of Chie? Judge. Friendly on- which we pri-

marily rely. We, therefore, respond only briefly to

petitioner’s contentions here. ;

1. The law is clear that appellate review of a.

“district court order may be obtained by way. of a

writ of mandamus where it is alleged that “the [dis-

~ trict] court overreached its judicial power to deny

_ the Government the rightful fruits of a valid con-

viction.”” Will v. United States, 389 U.S.. 90, 97-98.

This is so even though no direct appeal is authorized

by statute. Ea’ parte United States, 242 U.S. 27:

United States v. Real, 446 F. 2d 40 (C.A. 9); United

States v. Dooling, 406 F! 2d 192 (C.A. 2), certio-

_ Yari‘denied sub nom. Persico v. United States, 395

U.S. 911; cf. United States vy. Whitted, 454 F. 2d

642 (ce. 8). Seeking to avend the force of these

_- 1The citation of - these cases is sufficient answer to -peti-

tioner’s argument that the authorization of the mandamus

- action i™shis case marked a departure from the “consistent

~ policy”: of the Solicitor General (Pet. 15) and that appeilate

review here is barred by the Double Jeopardy Clause (Pet. .

- 18). The policy of the Solicitor General has been that 18 _

U.S.C. 3731 (1964 ed.), subsequently amended, 18 U.S.C.

d | 3731 (1970 ed.), did not authorize a direct appeal from the ©

dismissal of an indictment after jeopardy attached. United

‘States v. Zissblat, 172 F. 24 740 (C.A. 2), appeal dismissed,

336 U.S. 934. But where the dismissal followed the conviction

of a defendant, either by plea or jury verdict, a petition for

\

5

decisions, petitioner argues that the dismissal of the

_ indictment, after the entry of the- -judgment of con-

viction, was in reality a judgment of acquittal from

which no appellate review may be sought. Although

the trial judge repeatedly held that the evidence, if

_ credited by the jury, was sufficient to warrant a

conviction: and refused to enter a judgment of ac-

quittal, petitioner argtes that under United States

v. Sisson, 399 U.S. 267, the label. of acquittal must

be attached to the trial judge’s action because his

decision to dismiss the indictment was made “on the |

basis of evidenice adduced at the trial” (Pet. 10).

The facts in Sisson - are, however, quite different

_from those here. There ‘the trial judge concluded

that the evidence adduced at the trial, which resulted

_in defendant’s conviction, was insufficient as a mat-..

ter of law to sustain the conviction. Aécordingly,_

= entered an order which he denominated as one

“in arrest of judgment.” On appeal, the government

argued that the trial ‘Judge erroneously construed

the elements of the offense with which the defendant

a writ of mandamus has been authorized to review the power

of the district court to dismiss the indictment. Review by the

- court of appeals in such cases does not offend the Double

Jeopardy Clause, since a decision in’favor of the government

does not require the defendant to stand trial anew; it merely

upholds a valid conviction. Foug- Foo v. United States, 369 U.S.

141, upon which petitioner relies, irivolved a case in which

the court of appeals set aside a judgment of acquittal entered

.in the midst of trial. The Double Jeopardy Clause was held

to be violated ‘“‘when. the Court ‘of Appeals set aside the judg-

ment of acquittal. and directed that the petitioners be tried

again for the same offense’ (369 U.S. 143, emphasis added).

6

.was charged and that the evidence: was sufficient to ,

sustain a conviction.’ "In holding that the trial judge’s

action was in fact a judgment of acquittal, this Court

held that “what the Distfict Court did in this case

- cannot be distinguished from a post-verdict acquittal

entered on the ground that the Government’ did: not

present evidence sufficient to prove that Sisson was

. insincere [an essential element of the offense]” .(399 |

U.S. 299). But in the instant case, as has been noted,

the trial judge was satisfied that “any jury, or the —

basis of ‘the evidence would be entitled to. fiid in

favor of the government” and that the testimony of

the principal government witness was not “‘ineredi-

ble as a matter of law” (Tr. 4-6; Exhibit 5 of Peti-

tion for Writ of Mandamus). While the trial -judge

felt that the government’s principal witness had os:

strong motive to lie “where his own interests. are at

_ stake” and that the jury may not have been able to.

- discern this fact (Pet. App. A. 7a-8a), he repeatedly

and correctly held that the issue of credibility was for

the jury to decide and that the entry of a judgment

of acquittal was not warranted (Tr. 561, 568-569,

_ 582-583, 1348-1351). As the tr ial judge advised

the court of appeals, he entered a judgment of con- |

viction, prior to the order dismissing the indictment;

‘not to permit the government to appeal from a judg- —

2In Sisson, the defendant was charged, with ‘‘wilfully fail-

ing to report for induction.” The trial judge held, in effect, that

‘in order for the government to prevail, it was necessary to

establish that its interest in having defendant serve in

Vietnam outweighed the defendant’s interest in obeying the

dictates of his conscience (399 U.S. 289-290).

ft

ment of acquittal but in order ‘to raisé the issue of

“whether there are instances where, considering the

totality of the circumstances, based t upon articulated

reasons, :and in the interests of justice, a criminal]

proceeding should be terminated in favor of the ac-

cused even though no specific error warrants a nev

trial or dismissal of ‘the indictment” (P¢t. App. A. ° |

Ja, emphasis added). The issue of'a judge’s power |

So to terminate a criminal proceeding, as the court

of appeals held, is clearly one ee of revidw_ by

_writ of mandamus.‘ :

2. Little need be added to the court of appeals re-

* - jection of petitioner’ S argument that a district court

judge possesses the inherent power to dismiss an in-

dictment, after ‘a defendant has been validly con-

victed, “even. though -no specific error. war rants a

hhew trial or dismissal of the indictment.” What- |

“ever may be the rule in some: ‘state: jurisdictions in.

. eis is no conflict among the circuits. United States V:

. Findley, 439 F. 2d 970 (C.A- 1), and United States v. Ponto,

454 F. 2d 647 (C.A. 7) (en banc), set forth in Pet. App. D,

. involved pre-trial dismissals of indictments pursuant to Rule

12(b) (1) of the Federal Rules of Criminal Pr ocedure, which

grants district court judges the power to decide any defense

“capable of determination without the trial of the general

issue.” These dismissals were held to be acquittals because the © :

district court judges in effect determined that the government

could not adducg evidence sufficient to warrant a conviction.

Whatever merit. there may be in such a holding -(compare

United States v. Brewster, No. 70-45, reargued March 30,

1972), it-plainly has no application to a post-judgment dis-

missal of .an indictment in a case in which the government’s

evidence has~ been found legally sufficient to ‘warrant

. conviction. eae .

1 fe

- which courts are expressly authorized by statute to

grant such relief (Pet. App. G), it has. long been

settled that under the Constitution the power sovg |

affect a judgment of conviction is vested exclusively

in the President pursuant to Article II, §2, which “s

empowers him to “grant reprieves -and pardons for

offenses against the United‘States.” Ex Parte United

_. States, supra, 242 U.S. at 41-42; Be parte Gartend,

. 4 Wail. 333, 380-381. .

CONCLUSION

It: is therefore respectifully ‘submitted’ that the

petition for a writ of certiorari meets be denied.

. i “4

ERWIN N. GRISWOLD,

Solicitor General.

HENRY E. PETERSEN, :

Assistent: Attorney General.

° Braraice ROSENBERG,

‘Roger A. PAULEY,

Bae 6 '. * Attorneys.

"APRIL 1972. - ~\.

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® ss. quan cme een, 1972 462721 649

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