# Opposition Brief — Esposito v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1974
- **Citation:** 414 U.S. 1135

## Text

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JOBRARY. (0b FLEE Dp, fee

RUPREME, COURT. UL Bi Pees OR Oe
| oF a a DEC 4 1973

| Schnee BozAK, JnCLERK

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.

bE DORA LS I TREE LIB ES FLITE E SI Ste EL NTE VEAL is DEEDS

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1197%3A3. Public record. Not legal advice.