Appendix — Esposito v. United States

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APPENDIX 1

Opinion of the Court of Appeals for the Seventh Circuit,

June 12, 1973

(No. 72-1825)

Before Swycert, Chief Judge, Kiey, Circuit Judge,

and Baanes, Senior Circuit Judge. *

Swycert, Chief Judge. DUefendant-appellee Anthony

Esposito was charged in a two count indictment with the

possession and distribution of 206.5 milligrams of cocaine

in violation of 21 U.S.C. §841, Following a trial before

a jury, he was found guilty on both counts. Esposito then

moved for a new trial or, in the alternative, for an arrest

of judgment on the ground that the Government had failed

to prove any connection between the offense charged and

interstate commerce, The district court denied the motion

for a new trial but granted the motion for arrest of judg-

ment, holding that the ‘‘offense of which this defendant

stands convicted is not one against the federal government,

or one which Congress has power to prohibit in the manner

attempted by 21 U.S.C. §841.’’ The Government appeals.

I,

The threshold question is one of appealability. Under

the 1971 amendment to the Criminal Appeals Act, 18 U.S.C.

§3731, can the Government appeal from the district court’s

order?

Section 3731 provides ;

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

* Senior Circuit Judge Stanley N. Barnes of the United States

Court of Appeals for the Ninth Circuit, sitting by designation.

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App. 2

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

prosecution.

The Government’s right to appeal trial orders terminating

criminal prosecutions is limited by §3731 and the double

jeopardy clause of the fifth amendment. The jeopardy

clause stands as an absolute prohibition against Govern-

ment appeals where jeopardy is found to have attached.

Although Congress has no power to expand the Govern-

ment’s right to appeal beyond the prohibition of the jeopar-

dy clause, it does have the power to further limit it." That

being true, the question of appealability in cases such as

this is best approached by a two part inquiry. Initially

the question is whether jeopardy in fact attached, If it did,

1 Referring to the original Criminal Appeals Act of 1907, Act

of March 2, 1907, c. 2564, 34 Stat. 1246, the majority in United

States v. Sisson, 399 U.S. 267 (1970), noted Congress’ intent to

“restrict” the Government's right to appeal in criminal cases to

“enumerated circumstances” ;

In this regard, the legislative history reveals a strong cur-

rent of congressional solicitude for the plight of a criminal de-

fendant exposed to additional expense and anxiety by a govern-

ment appeal and the incumbent possibility of multiple trials.

Criminal appeals by the Government “always threaten to offend

the policies behind the double-jeopardy prohibition,” Wéill v.

United States, supra, at 96, even in circumstances where the

Constitution itself does not bar retrial. Out of a collision be-

tween this policy concern, and the competing policy favoring

review, Congress enacted a bill that fully satisfied neither the

Government nor the bill's opponents. For the Criminal Appeals

Act, thus born of compromise, manifested a congressional policy

to provide review in certain instances but no less a congressional

policy to restrict it to the enumerated circumstances, 399 U.S.

at 298-99,

App. 3

the prosecution is at an end and no appeal is available to

the Government; if it did not, the second inquiry, involving

the interpretation of $3731 and its application to the spe-

cifie facts of the case, is required.

For jeopardy purposes the question to be decided is

whether the trial court ‘‘bottomed’’ his order ‘‘on factual

conclusions not found in the indictment’’ or ‘‘on the basis

of evidence adduced at trial.’’ United States v. Sisson,

399 U.S. 267, 288 (1970). If the court’s order ‘‘arresting

judgment’’ is based upon evidence produced at trial, it is

in the nature of an acquittal and is not appealable under

the double jeopardy clause.

A review of the record here shows that the trial judge

did not base his order on the evidence adduced at trial.

Jeopardy did not, therefore, attach and this appeal is

not constitutionally barred. The challenged order was

limited to the court’s conclusion that unless adequate con-

nection between the conduct sought to be regulated and

interstate commerce is alleged and proved, prosecution

under the statute is an invalid exercise of federal power. ?

The court, in arriving at that conclusion, did not need to,

and indeed did not, rely on the evidence produced by

* The court's order, which deals in length with Congress’ attempt

to regulate cocaine without requiring proof of a connection with

interstate commerce, summarizes:

The court finds and concludes that the offense of which this

defendant stands convicted is not one against the Federal gov-

ernment or one which Congress has power to prohibit in the

manner attempted by 21 U.S.C. §841. The defendant's Motion

in Arrest of Judgment is therefore granted,

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App. 4

either party. The indictment contained a narrative of

virtually every fact recited in the order* and there was

3 The defendant’s contention that the court’s detailing of the amount

and percentage of cocaine involved shows reliance on the evidence,

and thus, jeopardy, does not convince us that this case is controlled

by Sisson. In denying the Government the right to appeal the trial

court’s arrest of judgment in Sisson’s trial for refusing induction, the

Supreme Court stated:

The court below clearly went beyond the “face of the record”

in reaching its decision. As noted earlier, the opinion explicitly

relies upon the evidence, adduced at the trial, including de-

meanor evidence, for its findings that Sisson was “sincere” and

that he was “as genuinely and profoundly governed by his

conscience” as a religious conscientious objector. 399 U.S.

at 283.

The trial court’s use of the factual allegations of the indictment is

considerably different in the instant case. Given the nature of the

court’s holding, we are persuaded that the recitation of the facts was

merely designed to provide a framework for the decision on the con-

stitutionality of the statute. As such, this case is more akin to

United States v. Brewster, 408 U.S. 501 (1972). There, the district

court dismissed certain counts charging Senator Brewster with

bribery on the theory that the speech and debate clause of the Con-

stitution shielded the defendant from prosecution. The Govern-

ment appealed and the defendant responded that jeopardy prohibited

appeal because the trial judge had explicitly relied on the facts of

the case. Despite the fact that the trial judge stated in his order,

“based upon the facts of this case,” the Supreme Court held the

dismissal appealable :

Appellee contends that the statement “based on the facts of this

case,” used by the District Judge in announcing his decision,

shows reliance on the Government’s outline of its case. We

read the District Judge’s reference to “facts,” in context, as a

reference to the facts alleged in the indictment, and his ruling

as holding that Members of Congress are totally immune from

prosecution for accepting bribes for the performance of official,

i.c., legislative, acts by virtue of the Speech or Debate Clause.

Footnote Continued

App. 5

neither allegation nor proof of a connection with interstate

commerce. Further, it is clear from the order that the

court concluded that the fatal defect in the prosecution

lay in the indictment’s failure to state and the statute’s

failure to require a nexus with interstate commerce which

would justify federal regulation. The fact that the prose-

cution failed to prove such a connection, though alluded

to in the order, was of no significance to the actual basis

for the decision. The order was neither based upon nor

limited in application to the facts of the case. Appeal,

therefore, is not barred by the double jeopardy clause of

the fifth amendment.

The defendant also argues that this appeal is barred by

the clear and unambiguous language of §3731. We disagree.

The predecessor of the present Appeals Act, Pub. L.

90-351 (1968), contained express provisions that permitted

appeals by the government from various trial court orders

which ‘‘terminated’’ prosecutions, including ‘‘arrests of

judgment.’’ The present section contains no such provi-

sion. It is limited to dismissals of indictments. The Gov-

(Footnote continued )

Under that interpretation of §201, it cannot be applied to a

Member of Congress who accepts bribes that relate in any way

to his office. We conclude, therefore, that the District Court

was relying only on facts alleged in the indictment and that the

dismissal of the indictment was based on a determination that

the statute on which the indictment was drawn was invalid

under the Speech or Debate Clause. As a consequence, this

Court has jurisdiction to hear the appeal. 408 U.S. at 507.

The facts as they are set forth in the order appealed here were

taken from the indictment and cannot be used as a vehicle to invoke

jeopardy protections where the true gravamen of the decision is

limited to the constitutionality of a particular criminal statute.

Cf. United States v. Knox, 396 U.S. 77, 79 (1969).

App. 6

ernment argues that appeals are permissible under the

present §3731 from any order except an acquittal. The

language of the statute, its legislative history, and the

well established rule of construction that the Criminal

Appeals Act is to be strictly construed against the Govern-

ment, Will v. United States, 389 U.S. 90, 97 (1967), all

compel the rejection of that expansive interpretation. ‘

Nevertheless, the fact that we read §3731 as permitting

appeals only from dismissals of indictments does not re-

solve the question that is presented here. Although the

trial judge labelled his order an ‘‘arrest of judgment,’’

it remains for us to determine whether that characteriza-

tion is correct, and, if so, whether an arrest of judgment

under the circumstances of this case is equivalent to the

dismissal of an indictment. We answer both questions in

the affirmative.

The order in question was properly designated an arrest

of judgment. As noted above, it was based exclusively upon

allegations made in the indictment and was entered be-

cause of deficiencies in the charge against the defendant.

As such, it was an ‘‘arrest of judgment’’ as that term was

recently defined by the Supreme Court in Sisson.

In using that phrase [arrest of judgment] in the Crim-

inal Appeals Act, Congress did not, of course, invent a

*The most logical interpretation of the legislative history of the

present §3731 is that Congress, while intending to eliminate the

“technical” distinctions in pleading, sought to limit the Government's

right to appeal cases in which the indictment had been dismissed.

The bills initially proposed in both the House and Senate, H.R.

14588, 91st Cong., Ist Sess. (1969) and S. 3132, 91st Cong., Ist

Sess. (1969), contained a provision for appeal from dismissals of

indictments and any order “terminating a prosecution in favor of

a defendant... .” The bill which was ultimately enacted, however,

contained no such provision.

App. 7

new procedural classification. Instead, Congress acted

against a common-law background that gave the stat-

utory phrase a well-defined and limited meaning. An

arrest of judgment was the technical term describing

the act of a trial judge refusing to enter judgment on

the verdict because of an error appearing on the face

of the record that rendered the judgment invalid.

* * *

For the purpose of this case the critical requirement

is that a judgment can be arrested only on the basis

of error appearing on the ‘‘face of the record,’’ and

not on the basis of proof offered at trial. 399 U.S.

at 280-81.

Congress, in using the phrase in the former §3731, defined

it in a manner which would encompass the instant order.

Senator Nelson of Wisconsin, one of the bill’s sponsors,

noted that ‘‘[t]he arrest of judgment... is not a general

motion covering all the grounds on which a judgment

may be arrested. It is simply for arrest of judgment be-

cause of the insufficiency of the indictment—that is, the

failure of the indictment to charge a criminal offense.’’

41 Cong. Ree. 2756.

Not only was the instant order an arrest of judgment,

it was tantamount to the dismissal of an indictment. It

comes, therefore, within the meaning of ‘‘dismissal’’ as

used in §3731, and is appealable.

II.

Having decided that the Government may prosecute

this appeal, we turn to the merits. The district court con-

cluded that Congress had no power to regulate the use and

distribution of cocaine without requiring proof in each

prosecution of some connection with interstate commerce.

We hold that it erred in so doing.

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App. 8

The arguments made by the defendant and accepted

by the trial court have previously been rejected by both

the Fifth and Sixth Circuits. United States v. Scales, 464

F.2d 371 (6th Cir. 1972) ; United States v. Lopez, 459 F.2d

949 (5th Cir. 1972). We concur in the reasoning of those

cases and reject the conclusion of the district court in this

case.

For this reason, the order of the district court is reversed

and vacated and the cause is remanded for entry of judg-

ment in accordance with the jury’s verdict.

App. 9

APPENDIX 2

Order of District Court, July 14, 1972

(No. 71 CR 980)

ORDER

The defendant on March 17, 1972 filed a motion for a

new trial, and the government has filed an answer thereto.

Neither party has elaborated on the bare bones of the de-

fendant’s motion and has not directed the Court’s atten-

tion to any prejudicial error committed during the trial

of this case. The court is not aware of any grounds for

granting a new trial, and the deefndant’s motion filed

March 17, 1972 is therefore denied.

On April 24, 1972 the defendant filed a Motion for a

New Trial Based on Newly Discovered Evidence, arising

out of the allegedly inconsistent testimony of government

witness Haight who testified subsequently in case 72 CR

178. The court finds that the testimony of the government

witness in the later case is not substantially contradictory

to his testimony in the case at bar, according to the excerpts

supplied in defendant’s Motion for a New Trial. Nor was

that witness an occurrence witness against defendant but

was corroborative of the government’s case in chief.

The rule in the Seventh Circuit and in the federal courts

generally is that a new trial should not be granted on the

ground of newly discovered evidence relating to the merits

unless that evidence would probably result in an acquittal.

United States v. Spencer, 415 F.2d 1301 (7th Cir. 1969) ;

United States v. Balistrieri, 436 F.2d 1212 (7th Cir. 1971).

The test is more liberal if the evidence is such that the

court believes a government witness committed perjury or

if he recants. In such an event a new trial should be

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granted if the outcome of a new trial might be different.

Larrison vy. United States, 24 F.2d 82 (7th Cir. 1928);

United States v. Higgins, 412 F.2d 789 (7th Cir. 1969).

This court finds that the evidence in question was not ma-

terial to the main issue of defendant’s guilt and was not

perjured. Since the newly discovered evidence is at most

impeaching on a collateral matter and since in the court’s

opinion it would not change the outcome of the case at

bar, the defendant’s motion for a new trial based on newly

discovered evidence is denied.

The defendant has also filed a Motion in Arrest of Judg-

ment on the ground that Title 21, United States Code, Sec-

tion 841 is not a valid exercise of congressional power and

that the court therefore lacked jurisdiction over the alleged

offense. Defendant contends that the possession and gratui-

tous distribution of 206.5 milligrams of cocaine within a

state is not sufficiently connected with interstate commerce

to give Congress jurisdiction over this particular act.

Congress apparently sought to exercise control over co-

caine by virtue of its power over interstate and foreign

commerce and not by exercise of its power to tax, or even

by its treaty making power. In enacting Section 814, Con-

gress made the following ‘‘findings and declarations’’:

(1) Many of the drugs included within this sub-

chapter have a useful and legitimate medical purpose

and are necessary to maintain the health and general

welfare of the American people.

(2) The illegal importation, manufacture, distribu-

tion, and possession and improper use of controlled

substances have a substantial and detrimental effect

on the health and general welfare of the American

people.

(3) A major portion of the traffic in controlled sub-

stances flows through interstate and foreign commerce.

App. 11

Incidents of the traffic which are not an integral part

of the interstate or foreign flow, such as manufacture,

local distribution, and possession, nonetheless have a

substantial and direct effect upon interstate commerce

because—

(A) after manufacture, many controlled sub-

stances are transported in interstate commerce,

(B) controlled substances distributed locally

usually have been transported in interstate com-

merce immediately before their distribution, and

(C) controlled substances possessed commonly

flow through interstate commerce immediately

prior to such possession.

(4) Local distribution and possession of controlled

substances contribute to swelling the interstate traffic

in such substances,

(5) Controlled substances manufactured and dis-

tributed intrastate cannot he differentiated from con-

trolled substances manufactured and distributed inter-

state. Thus, it is not feasible to distinguish, in terms

of controls, between controlled substances manufac-

tured and distributed intrastate.

(6) Federal control of the intrastate incidents of

the traffic in controlled substances is essential to the

effective control of the interstate incidents of such

traffic.

(7) The United States is a party to the Single

Convention on Narcotic Drugs, 1961, and other inter-

national conventions designed to establish effective

control over international and domestic traffie in con-

trolled substances, [21 U.S.C. $801]

In making the foregoing general statement, Congress

was apparently attempting to overcome the effect of Turner

v. United States, 396 U.S. 398 (1970) which had been de-

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App. 12

cided several months before the new statute was enacted.

The Supreme Court specifically differentiated cocaine from

certain other narcotic drugs and held invalid the presump-

tion that cocaine is necessarily smuggled in this country

from abroad or moves in interstate commerce. It found

as a fact that much more cocaine is lawfully produced

in this country than is smuggled in. 396 U.S. 418. Con-

gress made no finding to the contrary and merely made

some general observations and conclusions concerning a

large number of controlled drugs.

In the case at bar the government made no attempt to

prove that the cocaine in defendant’s possession was of

foreign or interstate origin. The almost infinitesimal

quantity of cocaine involved herein (47% of approximately

206.5 milligrams) is clearly in and of itself insufficient to

raise any presumption of being in interstate commerce or

of having any perceptible effect on interstate commerce.

Cf. Leary v. United States, 395 U.S. 6 (1969). The fact

that defendant ‘‘distributed’’ this cocaine to a friend does

not advance the government’s case. The court finds and

concludes that the offense of which this defendant stands

convicted is not one against the Federal government or

one which Congress has power to prohibit in the manner

attempted by 21 U.S.C. §841.

The defendant’s Motion in Arrest of Judgment is there-

fore granted.

Enter:

Thomas R. McMillen

Judge, U. S. District Court

App. 13

APPENDIX 3

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 6, 1973

Before

Hon. LUTHER M. SWYGERT, Chief Judge

Hon. STANLEY N. BARNES, Sr. Circuit Judge*

Hon. ROGER J. KILEY, Cireuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 72-1825 vs.

ANTHONY ESPOSITO,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

(71 CR 980)

On consideration of the petition for rehearing and sug-

gestion that it be heard en banc filed in the above-entitled

cause, no judge in active service having requested a vote

thereon, nor any judge voted to grant the suggestion, and

a majority of the members of the panel having voted to

deny a rehearing,

IT IS ORDERED that the petition for a rehearing in

the above-entitled cause be and the same is hereby denied.

* Hon. Stanley N. Barnes, Sr. Circuit Judge for the Ninth Circuit.

COUNT I

‘*On or about the 23rd day of June, 1971, in the

Northern District of Illinois, Eastern Division,

ANTHONY ESPOSITO,

defendant herein, knowingly and intentionally did pos-

sess, with the intent to distribute, about 206.5 milli-

grams, more or less, of a substance containing cocaine,

a Schedule II narcotic drug controlled substance;

In violation of Title 21, United States Code, Section

841.”’

COUNT II

‘On or about the 23rd day of June, 1971, in the Nor-

thern District of Illinois, Eastern Division,

ANTHONY ESPOSITO,

defendant herein, knowingly and intentionally did dis-

tribute about 206.5 milligrams, more or less, of a sub-

stance containing cocaine, a Schedule II narcotic drug

controlled substance ;

In violation of Title 21, United States Code, Section

841.”

App. 15

APPENDIX 5

18 U.8.0. $801

‘*(3) A major portion of the traffic in controlled

substances flows through interstate and foreign com-

merce, Incidents of the traffic which are not an inte-

gral part of the interstate or foreign flow, such as

manufacture, local distribution, and possession, none-

theless have a substantial and direct effect upon inter-

state commerce because—

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‘*(A) after manufacture, many controlled sub-

stances are transported in interstate commerce.

Se

ee

‘*(B) controlled substances distributed local-

ly usually have been transported in interstate

commerce immediately before their distribution,

and

‘*(C) controlled substances possessed common-

ly flow through interstate commerce immediately

prior to such possession.

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‘*(4) Local distribution and possession of con-

trolled substances contribute to swelling the interstate

traffic in such substances,

**(5) Controlled substances manufactured and dis-

tributed intrastate cannot be differentiated from con-

trolled substances manufactured and distributed in-

terstate. Thus, it is not feasible to distinguish, in terms

of controls, between controlled substances manufac-

tured and distributed interstate and controlled sub-

stances manufactured and distributed intrastate.

‘*(6) Federal control of the intrastate incidents of

traffic in controlled substances is essential to the effec-

tive control of the interstate incidents of such traffic.’

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