# Petitioners Brief — Grunberger v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0602%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 917 ## Text oe | Se | LR - . ~ Supreme Court of the United States No. 71-1064 ALBERT GRUNBERGER, —_ ~~ Petitioner, Ve UNITED STATES OF AMERICA. Respondent. 4 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 | } } 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 4 | i 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 3 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 ae ‘ 4° - 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 ‘ * “i . = » ; : : . 3 . - j . a Sing - ‘ : - | ; OR GEESE: . ( - ’ ; ; ; R- 3 | | . | ? | . . co - . : | | ; . a ae 4 ‘ : . | 7 e | a : | | % . : | : ; | : | | Es | | : f * 4 ae | ~ . e ° bd i . ; ; | s . 7 . . “J 2 | : | e e . . pre ; | . 2 a | ,: «| | | : | : i 3 * , . 7 ; | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0602%3A3. Public record. Not legal advice.