Opposition Brief — Esposito v. United States

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No. 73-482 _

Gu the Supreme Court of the Wnited States

Ocroper TERM, 1973

ANTHONY ESPOSITO, PETITIONER

v.

Untrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THBP SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. BORK,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

JEROME M. FEIT,

ROBERT H. PLAXICO,

Attorneys;

Department of Justice,

Washington, D.C. 20530.

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CITATIONS

Cases:

Fong Foo v. United States, 369 U.S. 141_.-.-...----- 13

Perez v. United States, 402 U.S. 146_...2-2-2 2 ee 13-14

Turner v. United States, 396 U.S. 398_.....-.-.----- 14

United States v. Brewster, 408 U.S. 501_...-.------- 13

United States v. Ball, 163 U.S. 662......-.-.------- 12

United States v. Darby, 312 U.S. 100__...-.--------- 13

United States v. Findley, 439 F. 2d 970...--.------- 13

United States v. Goldstein, 479 F. 2d 1061, certiorari

denied, No. 73-3, October 9, 1973_......----.---- 6

United States v. Jorn, 400 U.S. 470_...------------- 10, 13

United States v. Lopez, 459 F. 2d 949__________-_--- 14

United States v. Pecora, C.A. 3, No. 72-2173, decided

Se le Sa 5 co cebacakesecsauebdneususan 10

United States v. Perez, 402 U.S. 146_-..------------ 13

United States v. Real, 446 F. 2d 40__-.-..---------- 13

United States v. Sisson, 399 U.S. 267___.--- 5, 6, 7-8, 12, 13

United States v. Weinstein, 452 F. 2d 704, certiorari

denied sub nom. Grunberger v. United States, 406

Se ord ee a a a tieca ek aud 13

United States v. Whitted, 454 F. 2d 642___..__._--_-- 13

Constitution, statutes and rules:

United States Constitution, Fifth Amendment (double

RY MO nn peenandcecaceneceudens 1, 10, 12, 13

527-893—73——-1

Constitution, statutes and rules—Continued

Controlled Substances Import and Export Act, Title

III, Pub. L. 91-513, 84 Stat. 1285, 1291, repealing the

--«*Nartotic Drugs Import and Export Act, 21 U.S.C. Page

NI eS oe seaweoen 14

Criminal Appeals Act, as amended, 18 U.S.C. 3731__- i,

2, 3, 5, 6, 8

Omnibus Crime Control and Safe Streets Act of 1968,

Title VIII, 82 Stat. 237, 18 U.S.C. (1964 ed., Supp.

NT nee 7

ee TL uwuensaweeawe 14

0 eS pisiaioawewle 2,3

Federal Rules of Criminal Procedure:

aS SR Ie ee OG aR 4

RE eee ee Nee Mea ae yee 12

ee a aaentase 4

Miscellaneous:

4 Blackstone, Commentaries (Lewis ed., 1900)_.____-- 4

H. Conf. Rep. No. 91-1768, 91st Cong., 2d Sess_ ___- 10

S. Rep. No. 91-1296, 91st Cong., 2d Sess_-____.. 6, 8-9, 10

Gn the Supreme Court of the Wnited States

OcToBEeR TERM, 1973

No. 73-432

ANTHONY Esposito, PETITIONER

Vv.

UNITED StTaTES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on June 12, 1973. A petition for rehearing was denied

on August 6, 1973 (Pet. App. 13). The petition for a

writ of certiorari was not filed until September 6, 1973,

and was accordingly out of time under Rule 22(2) of this

Court.

QUESTIONS PRESENTED

1, Whether the government was barred by 18 U.S.C.

3731 or the double jeopardy clause of the Fifth

Amendment from appealing a decision of the district

court, denominated as an order in “‘arrest of judg-

ment,’’ which sustained a defense to the indictment.

(1)

oe

a

2

2. Whether Congress could rationally find that it

was, empowered to regulate intrastate transactions in

cocaine on the ground that such transactions affect

interstate commerce.

STATUTES INVOLVED

18 U.S.C. 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

prosecution.

* * * * *

The provisions of this section shall be liber-

ally construed to effectuate its purposes.

21 U.S.C. 841 provides:

(a) Unlawful acts.

Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

(1) to manufacture, distribute, or dispense,

or possess with intent to manufacture, distrib-

ute, or dispense, a controlled substance; or * * *,

STATEMENT

Petitioner was found guilty by a jury in the United

States District Court for the Northern District of

Tilinois on a two-count indictment charging posses-

sion with intent to distribute and distribution of

cocaine, a controlled substance, in violation of 21

U.S.C. 841. The evidence which resulted in the jury’s

guilty verdict showed that petitioner provided a gov-

3

ernment informer with 206.5 milligrams of a sub-

stance later determined to consist of 47% cocaine.

After the jury’s verdict was announced, the trial

judge granted petitioner’s motion for an order ‘in

“arrest of judgment,” ruling that “‘Séction 841 is not

a valid exertise of congressional power and that the

court therefore lacked jurisdiction over the alleged

offense” (Pet: App. 10). The basis for the motion was

that Section 841 did not require in each case a specific

showing that the substance possessed or distributed

was of interstate or foreign origin (Pet. App. 12).

The United States appealed to the court of appeals,

which reversed the ‘district court and remanded the

ease for entry of judgment in accordance with the

jury’s verdict (Pet. App. 1).

ARGUMENT

1. Petitioner claims that the order of the district

court, which the court of appeals held ‘‘was tanta-

mount to the dismissal of an indictment’’ (Pet. App.

7), is not appealable under the Criminal Appeals Act

(18 U.S.C. 3731), which authorizes an appeal to the

court of appeals from “a decision, judgment, or order

of a district court dismissing an indictment * * *

except that no appeal ‘shall lie where thé double

jeopardy clause * * * prohibits further prosecution.”

Petitioner contends that an arrest of judgment can-

not be “tantamout to the dismissal of an indictment”

because “[a]n order arresting judgment is obviously

different from one which dismisses an_ indict-

ment * * *” (Pet. 8). The fact is, however, that the

only distinction between the two orders is historical

RE ae

DOP PEM RE eT PEE

4

and depends largely on the point in the proceeding

at which a defense is raised.

‘The Federal Rules of Criminal Procedure provide

two methods for challenging the sufficiency of an in-

dictment or the jurisdiction of the court to try the of-

fense. Pursuant to Rule 12(b)(1), a defendant may

raise such a defense by motion prior to trial, which, if

granted, results in the entry of an order dismissing

the indictment. Such an order, as petitioner concedes,

is clearly appealable.

When the same defense is raised after a guilty ver-

dict has been returned, the traditional vehicle is by

way of a motion in ‘‘arrest of judgment”’ pursuant

to Rule 34, Fed. R. Crim. P. If the defense is sus-

tained, it results in the entry of an order ending the

prosecution in a manner indistinguishable from a dis-

missal. The different label is largely based on the early

common-law procedure for raising post-trial defenses.

As explained in 4 Blackstone, Commentaries, p. 1756

(Lewis ed., 1900) :

We are now to consider the next stage of

criminal prosecution, after trial and conviction

are past * * * which is that of judgment. For

when, upon a capital charge, the jury have

brought in their verdict guilty, in the presence

of the pri: oner, he is, either immediately, or at

a convenient time soon after, asked by the

court if he has anything to offer why judg-

ment should not be awarded against him. And

in case the defendant be found guilty of a mis-

demeanor (the trial of which may, and does

usually, happen in his absence, after he has

once appeared), a capias is awarded and issued

5

to bring him in to receive his judgment; and, if

he absconds, he may be prosecuted even to out-

lawry. But, whenever he appears in person,

upon either a capital or inferior conviction, he

may at this period, as well as at his arraign-

ment, offer any exceptions to the indictment in

arrest or stay of judgment; as for want of suf-

ficient certainty in setting forth either the per-

son, the time, the place, or the offence. And if

the objections be valid, the whole proceedings

shall be set aside; but the party may be indicted

again. [Footnotes omitted. ]

While this ‘“‘venerable’’ procedure has been pre-

served in name and form under the Federal Rules of

Criminal Procedure as a separate post-trial remedy

(see United States v. Sisson, 399 U.S. 267, 281-282),

there is no reasonable basis for declining to treat ar-

rests of judgment ‘‘as tantamount to the dismissal

of an indictment” for purposes of the Criminal Ap-

peals Act. As the Court held in Sisson (td. at 279,

n. 7):

The label attached by the District Court to

its own opinion does not, of course, decide for

us the jurisdictional issue, however. ‘‘We must

be guided in determining the question of ap-

pealability of the trial court’s action not by the

name the court gave [its decision] but by what

in legal effect it actually was.”

Moreover, the construction placed on Section 3731

by the court of appeals is compelled by that provi-

sion’s language and history. Particularly pertinent

here is the command of Section 3731 (omitted by pe-

titioner from the “pertinent part’’ of the statute set

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6

forth at pp. 2-3 of the petition) that ‘‘[t]he provi-

sions of this section shall be ‘liberally construed to

effectuate its purpdses.” As the Senate’ Judiciary

Committee Report (S. Rep. No. 91-1296, 91st Cong.,

2d Sess., p. 18) states:

The amended Criminal Appeal Act is in-

tended to be liberally construed so as to effectu-

ate its’ purpose of ‘permitting the Government

to appeal from dismissals of criminal prosecu-

tions by district courts in all cases where the

Constitution permits,’ and from all suppressions

and exclusions of evidence in criminal proceed-

ings, except those ordered during trial of an

indictment or information, 8, 3132 places on

the face of section 3731 an explicit expression

of this intent, in view’ of the restrictive judicial

interpretatidns of congressional intent whieh

have resulted from the histories of the’ earlier

versions of section 3731 despite strong indica-

tions in the debate on the 1907 act that it should

be broadly interpreted.

See also United States v. Goldstein, 479 F. 2d 1061,

1065 (€.A. 2), certiorari denied, No. 73-3, Cehieer

9, 1973.

Pétitioner attaches some significance, however, to

the fact that the old Criminal Appeals Act specifically

There can, of course, be no claim that an appeal by the

government from an order granting a motion in arrest of

judgment violates the double jeopardy clause of the Constitu-

tion, since a successful appeal does not involve a retrial, but

merely the entry of a judgment of conviction in accordance

with the verdict of the jury. Indeed; appeals from such orders

were entertained by this Court under the old Criminal Appeals

Act. See United States v. Sisson, supra, 399 U.S. at 280-281.

OE PN aOR arta tll

7

referred to orders in arrest of judgment,’ while the

present act merély speaks of “decisions, orders and

judgments”’ dismissing indictments. But one of the

reasons for the change in wording was precisely be-

cause the “clear and well-settled distinction be-

tween * * * dismissal[s] of * * * indictment([s]

and * * * arrest[s] of * * * judgment[s]’’ (Pet. 7)

, was never, in fact, readily discernible. Consequently

Congress, prompted by this Court’s decision in Sisson,

deemed it advisable to eliminate distinctions as to com-

mon law categories of pleadings. As this Court noted

in Sisson, 399 U.S. at 307-308 :

*The pre-1971 version of the Act reads as follows (18 U.S.C.

(1964 ed., Supp. V) 3731) :

“An appeal may be taken by and on behalf of the United

States from the district courts direct to the Supreme Court of

the United States in all criminal cases in the following in-

stances:

“From a decision or judgment setting aside, or dismiss-

ing any indictment or information, or any count thereof,

where such decision or judgment: is based upon tlie inva-

lidity or construction of the statute upon which the indict-

ment or information is founded.

“From a decision arresting a judgment of conviction

: for insufficiency of the indictment or information, where

| such decision is based upon the invalidity or construction

of the statute upon which. the indictment or information

is founded.

“From the decision or judgment sustaining a motion in

bar, when the defendant lias not been put in jeopardy.

“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:

“From a decision or judgment setting aside, or dismissing

any indictment or information, or any count thereof ex-

cept where a direct appeal to the Supreme Court of the

United States is provided by this section.”

527-8938—73-——2

ARENAS OFT ESR Te IEE ELIS UIT

SSSA SF ee

rs Perret bate «

* * * [T jhe Criminal Appeals Act is a failure.

Born of compromise, and reflecting no co-

herent allocation of appellate responsibility,

the Criminal Appeals Act [prior to the 1971

amendment] proved a most unruly child that

has not improved with age. The statute’s roots

are grounded in pleading distinctions that ex-

isted at common law but which, in most in-

stances, fail to coincide with the procedural

categories of the Federal Rules of Criminal

Procedure. Not only does the statute create

uncertainty by its requirement that one analyze

the nature of the decision of the District Court

in order to determine whether it falls within

the class of common law distinctions for which

an appeal is authorized, but it has also en-

gendered confusion over the court to which an

appealable decision should be brought. [Foot-

notes omitted. ]

Moreover, if petitioner’s construction of Section

3731 were accepted, it would give the 1971 amendment

the effect of cutting back substantially on the cate-

gories of rulings from which appeals are authorized,

when in fact the principal purpose of the 1971 amend-

ment was to overcome the restrictive judicial construc-

tion of the old act, which, ignoring the plain language

of Section 3731, engrafted numerous limitations on

the right of the United States to appeal from district

court orders sustaining defenses to indictments. As the

Senate Committee Report explained (S. Rep. No. 91-

1296, supra, pp. 2-3):

Three major problems have appeared under

the Criminal Appeals Act. The first concerns

the failure of the act to provide for any appeal

by the Government from many frequently en-

countered types of dismissals, and from some

improper orders suppressing evidence. The sec-

ond concerns the requirement under the act that

an appeal in many cases be taken directly to the

Supreme Court, with the result that lower

court decisions which ought to be reviewed are

often not appealed because they are not of suffi-

cient general importance to warrant Supreme

Court review. These problems have created seri-

ous obstacles to effective law enforcement. 8S.

3132, by amending the Criminal Appeals Act,

will assure that the United States may appeal

from the dismissal of a criminal prosecution by

a district court in all cases where the Constitu-

tion permits, will permit the Government ap-

peal from all suppression orders except those

made during a trial of guilt, and will provide

that * * * the appeal shall be taken first to a

court of appeals.

The third problem is the ambiguity and ab-

sence of settled meaning surrounding many of

the statute’s existing provisions, which result

in a considerable and needless expenditure of

prosecutive and judicial resources.

There is nothing in the detailed and comprehensive

Senate Judiciary Committee Report or the debates

on the bill to support petitioner’s implication that

Congress intended to encourage defendants to avoid

raising defenses prior to trial by limiting the right

of the United States to appeal post-verdict dismissals

which are labeled orders in arrest of judgment.’

* Petitioner attempts to muster legislative history support-

ing his position by comparing the original Senate version

of the 1971 amendments with the bill ultimately enacted. The

RAEN MALES GISELE AE

10

2. Petitioner argues alternatively that the order of

the district court ‘was an acquittal; and that an appeal

is barred by the double jeopardy clause: The basis

of this claim is that the district court ‘relied'“in part

upon evidence introduced at trial” (Pet. 9). In re-

jecting this claim, the court of } appre stated (Pet.

App. 3-5):

A review of the record here shows that the

trial judge did not base his order’ ‘on the evi-

original aeilp bill stated ( Ss. Rept. No. 91-1296, supra, p. 1):

“Except as otherwise expressly provided by this section, in a crim-

inal case an appeal by the United States shall lie to a court of ap-

peals from a decision, judgment or order of a district court dis-

inissing an indictment or information or- terminating a prosecution

in favor of a defendant as to any one or more:counts, except that

no appeal shall he from a judgment of acquittal.” After a con-

ference between representatives of the Senate ‘and House, the

present version was agreed upon.

Petitioner argues that the deletion of the phrase “termi-

nating a prosecution in favor of a defendant * * * except that

no appeal shall lie from a judgment of acquittal” in favor of

the current “except that no appeal shall lie where the double

jeopardy clause of the United States Constitution prohibits

further prosecution” evinces an intent on the part of Congress

to bar appeals after a motion im arrest of judgment, because

such a motion supposedly comes under the deleted provision.

As the Third Circuit recently pointed out, however, while: no

explicit reason was given for the change (see H. Conf. Rep. No.

91-1768, 91st Cong., 2d Sess., p. 21), the most apparent reason

is that the Senate version was in fact too broad in providing

for appeal after any termination of a prosecution in favor of

a defendant, since “double jeopardy often prohibits reprosecu-

tion after a trial begins and is terminated even though the

defendant was not acquitted.” United States v. Pecora, C.A. 3,

No. 72-2173, decided August 31, 1973, slip op. 8, n. 6. See also

United States vy. Jorn, 400 U.S. 470. The change reflected in the

Conference report was thus merely to confirm that the amendment

was not meant to infringe upon the constitutional right against

doubie jeopardy.

11

dence adduced at trial. Jeopardy did not, there-

fore, attach and this appeal is not constitu-

tionally barred. The challenged. order was

limited to the court’s conclusion that unless ade-

quate connection between the conduct sought

to be regulated and interstate commerce is

alleged and proved, prosecution under the stat-

ute 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 evi-

dence produced by either party. The indictment

contained a narrative of virtually every fact

recited in the order and there was neither alle-

gation nor proof of a connection with inter-

state 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 re-

quire a nexus with interstate commeree which

would justify federal regulation. The fact that

the prosecution failed to prove such a econnec-

tion, 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. [Footnotes

omitted. ]

While we believe the court of appeals correctly con- |

eluded that in fact the district court order was based |

solely on ‘“‘the indictment’s failure to state and the |

statute’s failure to require a nexus with interstate

commerce” and cannot be labeled an acquittal, we

submit that, even if the district court relied on facts

adduced at trial and intended to direct an acquittal,

12

the double jeopardy clause would only bar a “subse-

quent prosecution for the same offense’ (United

States v. Ball, 163 U.S. 662, 671) and not an appeal,

which merely seeks to compel the entry of a judg-

ment in accordance with the verdict of guilty returned

by the jury.

United States v. Sisson, upon which petitioner re-

lies, is inapposite. There the district court entered a

post-trial order, which it denonimated an order ‘‘in

arrest of judgment,’’ terminating the prosecution in

favor of the defendant. The determination in Sisson

that the government could not appeal from that order,

because it was ‘‘in fact an acquittal,” was predicated

on the fact that the order of the district court was

“bottomed on factual conclusions not found in the in-

dictment but instead made on the basis of evidence

adduced at trial” (399 U.S. at 288). Accordingly, it

was held that the action could not be distinguished

from a directed judgment of acquittal entered not-

withstanding a jury verdict of guilty under Rule

29(b) of the Federal Rules of Criminal Procedure

(399 U.S. at 290). Since Congress had not provided

for appeals from such orders under the old Criminal Ap-

peals Act, the appeal by the government was dis-

missed.

The present case is quite distinguishable from Sis-

son. Unlike Sisson, this is not an appeal under the old

Criminal Appeals Act, which was strictly construed

against the right of the government to appeal. More

significantly, the holding in Sisson, despite some dicta

in the opinion (399 U.S. at 289-290), did not rest on

os Gaal SEU AED Tas ATI AF OP RN it

13

the double jeopardy clause. Rather, the decision was

based on a determination of the ‘‘Court’s jurisdiction

over the appeal under 18 U.S.C. 3731 [1964 ed.].’’ See

United States v. Jorn, 400 U.S. 470, 478, n. 7. See also

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

with approval in United States v. Brewster, 408 U.S.

501, 506, where, commenting on Sisson, the Court of

Appeals for the First Circuit stated (439 F. 2d at

973): “Collectively we believe this was an approach

not in terms of double jeopardy, but in terms of the

kind of error [the prior] section 3731 was intended

to cover.’’ ‘

3. While admitting that Congress has the power to

regulate intrastate transactions in marijuana, heroin,

amphetamines, and barbiturates, petitioner argues that

there is no basis for federal regulation of intrastate

cocaine transactions. As was noted long ago in United

States v. Darby, 312 U.S. 100, 121, Congress may reg-

ulate “intrastate commerce * * * that all must be regu-

lated if the interstate commerce is to be effectively

controlled.” See also Perez v. United States, 402 U.S.

“The courts of appeals have since held (either explicitly or

implicitly) that where the only relief the United States seeks

on appeal is to compel the entry of a judgment. of conviction

in accordance with the verdict of the jury, as was the case in

Sisson, the double jeopardy clause does not bar appellate re-

view. United States v. Weinstein, 452 F. 2d 704, 711, n. 10, 713

(C.A.2), certiorari denied sub nom. Grunberger v. United

States, 406 U.S. 917; see also, United States v. Whitted, 454

F. 2d 642 (C.A. 8); United States v. Real, 446 F. 2d 40 (C.A.

9). The double jeopardy clause bars an appeal only where

the relief sought requires “that the petitioners be tried again

for the same offense” of which they were acquitted. Fong Foo

v. United States, 369 U.S. 141, 143.

14

146. This Court, reeggnized i in Turner v. United States,

396. U.S... 398, 419, n. 39, 423, that, cocaine legitimately

manufactured is, often the, subject of theft and later

illicit distribution. Thus, the findings contained in 21

U.S.C, 801 (Pet. App.. 10-11), upon which Congress

based the federal regulation | of intrastate transactions

of a multitude of drugs, must certainly be held, to ap-

ply to cocaine. See United States v. Lopez, 459 F. 2d

949 (C.A. 5).°

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Rosert H. Bork,

Solicitor General.

Henry E. Perersen,

Assistant Attorney General.

JEROME M. Fer,

Rosert H. Puaxico,

Attorneys.

D&rcEMBER 1973.

* Cocaine is not, as petitioner implies, only a recent subject

of federal regulation. 21 U.S.C. (1964 ed.) 174, repealed by the

statute in the instant case (Pub. L. 91-513, 84 Stat. 1291), pro-

hibited the sale of cocaine and other drugs illegally imported, when

the seller knew them to be imported illegally, and provided

that knowledge of the illegal importation was presumed from

possession. This, for all intents and purposes, permitted federal

regulation of local transactions in cocaine. When this presump-

tion was rejected in Turner, supra, the current statute, based

upon the federal power to regulate interstate and related intra-

state commerce instead of the federal power over foreign im-

ports, was enacted to accomplish the same ends.

U.S. GOVERNMENT PRINTING OFFICE:

1973