Petitioners Brief — Grunberger v. United States

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~ Supreme Court of the United States

No. 71-1064

ALBERT GRUNBERGER,

—_

~~ Petitioner,

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UNITED STATES OF AMERICA.

Respondent.

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ON PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITIONER'S REPLY BRIEF.

HERBERT J. MILLER, JR. .

NATHAN LEWIN

Miller, Cassidy, Larroca. |

& Lewin

1320 19th Street N.W.

Washington, D.C. 20036

Attorneys for Petitioner

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st paresis am

IN THE

—. Supreme Court of the United States

No. 71-1064

ALBERT GRUNBERGER,

on) mn Petitioner, —

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITIONER’S REPLY BRIEF

. The government’s response to- our petition consistently

overlooks the fact that this case concerns a finding by a

District Judge that the prosecution’s critical proof at peti-

tioner’s second trial was “incredible.” The government re-

= lies, in its effert to sustain the judgment below, on the con-

tention that only the President has the power to “grant

repri€ves and pardons’’(Br. in Opp. 8) and.on the proposition

, that it may seek mandamus to secure “the rightful fruits of a

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valid conviction’: (Br. in Opp. 4). But the authority which

- Judge Weinstein was exercising was, in no way, analogous

io the power to pardon. Nor did it deprive the government

- of “rightful fruits.” Indeed, it rested on-the finding that the

Netitioner’s convietion was not “valid” at all, and that there

was no sustainable judgment on which the authority to

pardon or reprieve could properly be exercised. |

|. ‘There have been a substantial. number of recent cases

in Which the authority of District Judges to terminate pro-

. secutions and to take measures ‘after trial in the “interest

of justice” has been. put in issue. In addition to the Seventh. ©

Circuit decisions reproduced in our petition, the Eighth Cir-

cuit has recently considered the subject in United States vy.

Whitted, 454 F.2d 642 (1972), and-the Third Circuit recently

determined a related issue in United States v. Newman, No.

71-1998 (decided February 24, 1972).- Whether or-not a

Federal District Judge possesses inherent power to terminate

a criminal prosecution after trial in the interests of justice

analogous to the power he possesses to take appropriate

procedural steps in habeas corpus proceedings under Harris

vy. Nelson, 394 U.S.-296 (1969)- is an issue of increasing

importance. As noted in our original brief. (p.23), the Ninth

Circuit has held that he possesses such power, and the Second

Circuit has now held that he does not. ‘Long-standing

statutes. in jurisdictions such as California and New York

‘recognize this power as an important aspect of trial courts’

autnority to do justice. The substantive issue plainly war-

rants resolution by this Court—if the Court does not reverse

the judgment below on the preliminary jurisdictional issue.

2..The government’s Brief in Opposition strengthens our

initial contention that the court below should have dismissed

the government’s request for mandamus on the authority

of United States v. Sisson, 399 U.S. 267 (1970). The

government apparently does not rely on Judge Friendly’s

‘conclusion that Sisson is inapplicable to a judicial determin-

ation entered after the judge pronounces sentence. Rather,

the government argues that Sisson was a case in which the

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District Judge applied a legal standard (which may have been’

erroneous) to the proof and_ then found the proof insuf-

ficient. (Br. in Opp. 6 and note 2). But. it was precisely

that aspect of the plurality Sisson opinion which Justice

White (joined by the Chief Justice and Justice Douglas)

criticized most vigorously. They noted that-the “factual -

findings” made in this regard by the District Judge did not _

relate to the defendant’s guilt or a pe but rather “to

the defendant’s ‘standing to raise the constitutional ¢ssue.””

399 US. at 93.9

The present. case presents a sharp contrast. Here -the

District Judge’s findings were directed squarely to the proof

of the defendant’s guilt, In-the language of Part II C of

the plurality opinion in Sisson—the only language which was’

endorsed by a full majority of the Sisson court—‘‘the disposi-

tion [was] 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. And-the use to

which that evidence was put here—unlike Sisson—was not —

‘for the purpose of testing the constitutionality of the charg-

ing statute as applied.” 399 U.S. at 314 (dissenting opinion

of Burger, C.J.). It was, rather, “relevant to. . . the question

whether the defendant committed-the offense. . .” 399 U.S.

at 326 (dissenting opinion of White, J.). If Judge Weinstein,

had called his action on “arrest of judgment”—as Judge

Wyzanski called his—would not even the dissenters in Sisson

agree that it was really a judgment of acquittal? ‘And if Judge

Wyzanski-had termed ‘his action in Sisson a “dismissal of in-

dictment” rather than an “arrest of judgment’ would the

government have been able to vacate that action by manda-

mus, as it is seeking to do here?

The obvious anomaly of the decision below sit be de-

monstrated by considering that the ‘government would have °

had no avénue open to it if Judge Weinstein had entered a

“judgment of acquittal” on the ground that he could over-

ride the jury’s fact-findings. Had he ruled that the defendant

——- be ‘acquitted because the government’s principal

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- witness was a liar, there could patently have been no govern-

ment appeal from his ruling. C ompare Fong Foo v. United

States 369 US_ 14) , bin ;

_ in part, on “a supposed lack of credibility in the sitceaaly

of the witness for the prosecution who had testified up to

‘USS. at 142. ‘Is the a be areas

‘tion? If aha emerges S ieas from Sisson eee the ae

that followed it, it is that substantive rights should not turn

on the labels given by District Judges to the actions they |

_take. 2

CONC LUSION one.

For the foregoing reasons,: the petition for a writ of cer-

tiorari should be granted.

iheepbcifiatly cubeniteen.

HERBERT 3. MILLER. IR.

NATHAN LEWIN

ie Miller, Cassidy. Lairoca & Lewin

1320 19th Street, N.W. Suite’500

Washington, D. C. 20036

Attorneys for Petitioner Grunberger

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