Brief for the United States — United States v. Oppenheimer
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INDEX.
THE FACTS..
ARGUMENT..... sate f
I. The so-called motion ‘to ‘quash filed by the
defendant is in fact and in law a special plea
in bar. The designation given to his plead-
ing by a defendant can not change its essen-
tial nature. This court will disregard the
misnomer and act upon the fact......._. __ _-
United States v. Adams Express Co., 229 U.
S. 381.
United States v. Barber, 219 U.S. 72.
II. A decision upon a special plea in bar when the
defendant has not been put in jeopardy is
subject to review here whether or not it
involves the construction of the statute upon
which the indictment is based - -
III. The order of the court entered upon ‘the motion
to quash in effect sustained the one-year bar
of limitation, and directly involved a con-
struction of the statute upon which the in-
dictment was founded _._.
CONCLUSION... teas Yh ea
37619—16—-1 (1)
4-18
4-14
. 14-16
16-18
18
CASES CITED.
Commonwealth v. Gould, 12 Gray (Mass.) 171 ..._. --
Duffy v. Britton, 48 N. J. L. 371... ......--.------
Ex parte Lange, 18 Wall. 163.........- st AS eet ea be
Joy v. State, 14 Ind. 139
Kepner v. United States, 195 U.S. 100.. eon as
Marshall v. Commonwealth, 20 Gratt. (Va. ) 845.
Pritchett v. State, 2 Sneed (Tenn.) 285.... .. __ --. -. --
Shoener v. Pennsylvania, 207 U. S. 188- -
State v. Fley (S. C.), 4 Am. Dec. 583_- hanes
United States v. Adams Express Co., 299 U. s. 381...
United States v. Barber, 219 U.S. 72__- eis
United States v. Keitel, 211 U.S. 370... ...-.-.----
United States v. Kissel, 218 U.S. 601......-. -.--.
United States v. Nizon, 235 U.S. 231_...-......---
United States v. Rabinowich, 238 U.S. 78... -....--.
United States v. Rogoff, 163 Fed. 311... ........-. --
United States v. Van Vliet, 23 Fed. 35... _.
Am. & Eng. Ency. Law (2d ed.), vol. 24, p. 830
Bishop’s New Crim. Proc., 1913, vol. 2, p. 623... ..-
Bishop’s New Crim. Law (8th ed.), vol. 1, sec. 1027,
Inthe Supreme Courtof the United States.
OcroBER TERM, 1915.
v.
THE UNITED STATES, PLAINTIFF IN ERROR,
No. 899.
HERMAN OPPENHEIMER ET AL.
IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK.
BRIEF FOR THE UNITED STATES IN OPPOSITION TO
MOTION TO DISMISS.
THE FACTS.
February 24, 1914, Herman H. Oppenheimer, de-
fendant in error here, and nine others were jointly
indicted in the District Court for the Southern Dis-
trict of New York under section 37 of the Criminal
_Code for conspiracy to conceal assets from a trustee
in bankruptcy in violation of section 29b of the
Bankruptcy Act of July 1, 1898, 30 Stat., 544, 554,
c. 541. (R. 3-8.)' To this indictment the defend-
ant, Oppenheimer, filed a demurrer, pleas in bar and
1 Wherever the record is referred to, the “ Extracts from
Transcript of Record,” printed by defendant in error, is meant.
(1)
9
abatement, and motion to quash, setting out, among
other matters of defense, the one-year bar of limit-
ation to the prosecution of offenses under the Bank-
ruptcy Act prescribed in section 29d thereof. The
trial court sustained the plea of limitation, saying
(R. 25):
I therefore find that no lawful indictments
were found against Herman H. Oppenheimer,
Abraham Samuels, Charles Hepner, and Ray
Abrahams, or either of them within one year
after the offenses alleged in the indictments,
and that their prosecution is barred by sec-
tion 29b (d) of the Bankruptcy Act. These in-
dictments are therefore dismissed as to each
and all of them.
December 21, 1914, a new indictment was returned
in the same court against Oppenheimer and one of
his associates for the same offense. (R. 9-14.)
January 4, 1915, the defendant Oppenheimer filed
four documents which he designated “Motion to
Quash,” “Plex in Abatement,” “Plea in Bar,” and
“Demurrer.” The first ground of defense advanced
in each of these variously termed pleadings was prior
adjudication under the indictments of February 24,
1914, substantially the same words being employed
in them all to set out the plea. January 30, 1915,
the so-called pleas in bar and abatement were with-
drawn, joinder in demurrer filed by the Govern-
ment, and the demurrer and the so-called motion to
quash were argued. (R. 22, 23.) February 2 and
14, 1916, the trial court filed opinions (which are
ee ZpRPet Wes yt
IE ee Ty ae ea OSE, Oe e e
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3
consolidated in the record) overruling the demurrer;
sustaining the motion to quash upon the first ground
set up in its support, 7. e., prior adjudication; and
directing the entry of an order quashing the indict-
ment and discharging the defendant. (R. 23.)
The plaintiff in error seasonably filed assignment
of errors, and perfected its writ of error under the
Criminal Appeals Act of March 2, 1907, 84 Stat. 1246.
Defendant in error has filed motion to dismiss the
writ of error, alleging lack of jurisdiction in this court
to review the judgment. The only assignments
necessary to be considered in connection with this
motion are the first and the seventh:
I. The Court erred in holding that the action
of the Court in quashing the former indict-
ments Nos. 2461 and 2462 were [sic] a bar to
a reindictment and prosecution upon a similar
charge although the defendant had not been put
in jeopardy under said former indictments.
VII. The Court erred in sustaining the mo-
tion to quash the indictment.
The so-called motion to quash filed by the defendant
is in fact and in law a special plea in bar. The
designation given to his pleading by a defendant
ean not change its essential nature. This court will
disregard the misnomer and act upon the fact.
Under the Federal system of criminal procedure the
matters alleged in the so-called motion to quash
constituted a special plea in bar, and the grounds
on which the district court sustained the motion
could only have been appropriate to a ruling upon a
special plea in bar—viz., that the indictment was
barred by former jeopardy or by limitation. This
court has jurisdiction under the Criminal Appeals
Act to review the decision and determine whether
the bar of jeopardy had attached or the bar of limi-
tation had accrued.
The first ground set up by defendant in error in
support of what he styled his “‘motion to quash,”
and upon which the court below based its decision,
was (R. 15):
It appears from the records of this Court
that the indictment herein is barred by reason
of the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462.
This constituted a speciat plea in bar, whether it
was intended to present the defense of former ac-
quittal, or did, in effect, renew the prior plea of
limitation set up in bar of the first indictment. The
bar of former jeopardy must be pleaded specially
and that of limitation may be.
5
Bishop’s New Crim. Proc., 1913, vol. 2, p. 623:
Matter in bar,—occurring after the offense
was committed,—as, a conviction or acquittal
or another indictment, or a pardon,—must be
pleaded specially.
Ib., vol. 2, p. 623:
The statute of limitations may be pleaded
specially, and sometimes it is. Yet this de-
fence is permissible under the general issue.
The plea of not guilty was withdrawn and the
general issue never joined. Limitation, if pleaded at
all, was pleaded specially in this case.
See also United States v. Barber (1910), 219 U. S.
72, 77.
Numerous other pleas were embodied in the same
“motion to quash,” which is a hodge podge of special
pleas in bar, plea in abatement, demurrer, and motion
to quash; but all these were overruled by the trial
court, and its ruling based solely upon the first special
plea in bar quoted. Supra. After overruling the
other pleas and stating that the indictment formerly
found and dismissed was legally identical with the
one here involved, the trial judge said:
With this as a premise, the disposition made
of the first indictment is material. The suf-
ficiency of that was before Judge Thomas upon
a motion to quash, and was decided by him on
October 1, 1914. His decision, which, of
course, was in advance of any submission to or
swearing of a jury, quashed the indictment and
discharged the defendants thereunder. This
decision proceeded upon the ground that the
ERSEAP PLN, CAN SER NER OIA, HENS BER I ENN . we
6
prosecution was barred by the Statute of Limi-
tations. No appeal was taken by the Govern-
ment from this decision, and thus from October
1, 1914, when the decision was rendered, until
December 21, 1914, when this indictment was
found, there was nothing pending against these
defendants. Should the prosecution under
this last indictment be allowed to proceed
when there is outstanding a judgment in favor
of the defendants to the effect that the Statute
of Limitations has run against their alleged
offense? The Government urges that this may
be done, and further sets forth to the court the
fact that since the decision of Judge Thomas a
decision of the Circuit Court of Appeals for
this Circuit, as well as a decision by the Supreme
Court of the United States, has shown that the
Statute of Limitations did not run until three
years after the offense instead of one year as
held by him, and that his decision was thus
erroneous. This latter, however, does not im-
press me as being of relevance provided the
defendants have heretofore been heard upon
this issue, have been discharged thereunder,
and that judgment being unappealed from re-
mains in force and effect. The decision of
Judge Thomas in my judgment became the
law of the case, and until reversed, protected
the defendants from further prosecution arising
upon the same state of facts. While, of course,
were the case open to decision upon the ques-
tion of limitation, the decision of the appellate
courts would control, yet the law of the case
having been settled previous to these decisions,
the defendants should not be subjected to
another prosecution while the judgment quash-
7
ing the indictment and discharging them still
remains in force and effect. To hold other-
wise is to subject the citizen to a series of
prosecutions when the law contemplates that
once having a decision in his favor he should,
until such decision is reversed, be allowed to go
unmolested by another proceeding on the same
charge. [Italics ours.]
It is well settled in the criminal jurisprudence of
this country that a defendant is not placed in jeopardy
by any ruling or judgment obtained upon his motion
or plea prior to the impaneling of a jury, and that no
such ruling or judgment will preclude the bringing of
a new indictment for the same offense and a trial
thereunder. No jury was ever impaneled in this
case
Kepner v. United States (1903), 195 U. 8. 100, 128:
Undoubtedly in those jurisdictions where a
trial of one accused of crime can only be to a
jury, and a verdict of acquittal or conviction
must be by a jury, no legal jeopardy can at-
tach until a jury has been called and charged
with the deliverance of the accused.
Bishop’s New Criminal Law, 8th ed., vol. 1, sec.
1027, par. 4:
Where, at any stage of the proceedings, the
defendant procures the indictment to be
quashed, he cannot in bar to a new one assert
that the first is good, and he was in jeopardy
under it.
12 Cyc. 265:
As a general rule, where an indictment is
quashed on motion as insufficient, or a demurrer
37619—16——2
8
thereto is sustained, and the accused is there-
upon discharged, there is no such jeopardy
as will bar prosecution on another indict-
ment for the same offense (citing authorities
from the appellate courts of Alabama, Arkan-
sas, California, Indiana, Massachusetts, Michi-
gan, Missouri, New York, Pennsylvania, South
Carolina, Tennessee, Virginia, and Wisconsin).
Commonwealth v. Gould (1858), 12 Gray (Mass.),
171, 173:
But the effect of quashing an indictment is
like that of a nol. pros. of it, or of its being
adjudged bad on demurrer, or of an arrest of
judgment for a defect therein, after a verdict
of guilty has been returned; by neither of
which is a defendant acquitted of the offense
with which the indictment charged him, but
is exempted only from liability on that indict-
ment.
The plea of former acquittal is allowed and
sustained on a maxim of the common law, that
no one shall be brought into jeopardy more
than once for the same offence. But when an
original indictment is quashed, adjudged bad on
demurrer, or when judgment thereon is ar-
rested for a defect therein, it is held that the
accused has not thereby been in jeopardy,
within the meaning of that maxim. Common-
wealth v. Wheeler, 2 Mass. 172. Commonwealth
v. Roby, 12 Pick. 502. Rez v. Burridge, 3 P.
W. 500, by Lord Hardwicke. 2 Hawk. c. 35.
2 Gabbett Crim. Law, 332. Archb. Crim. Pl.
(13th ed.) 118 & seq.
9
See also:
United States v. Rogoff (1908), 163 Fed. 311,
312;
United States v. Van Vliet (1885), 23 Fed. 35;
Ex Parte Lange (1873), 18 Wall. 163, 173, 174;
Shoener v. Pennsylvania (1907), 207 U. 8.
188, 195, 196;
Joy v. State (1860), 14 Ind. 139, 148;
Pritchett v. State (1854), 2 Sneed (Tenn.) 285;
State v. Fley (1809) (8. C.), 4 Am. Dec. 583,
587;
Duffy v. Britton (1886), 48 N. J. L. 371,
affirming decision reported in 18 Vroom, 251,
253;
Marshall v. Commonwealth (1871), 20 Gratt.
(Va.), 845, 846.
The court below evidently confused the doctrine of
res judicata in civil cases with the somewhat similar
doctrine of former jeopardy in criminal cases. The
defendant in error falls into like confusion when he
says (brief, 12-13):
But the form of pleading res adjudicata is
immaterial so long as the necessary facts ap-
pear in the plea.
The plea of res adjudicata is unknown to the crim-
inal law. The attempt to interpose it here is novel,
but not allowable.
Am. & Eng. Ency. of Law (2d ed.), v. 24, p. 830:
The rule that a former adjudication is a bar
to another action for the same claim or de-
mand has its counterpart in criminal law in
the doctrine of former jeopardy. But the two
10
rules, while similar in purpose and effect, are
otherwise separate and distinct subjects.
Ex Parte Lange (1873), 18 Wall.-163, 168:
The principle finds expression in more than
one form in the maxims of the common law.
In civil cases the doctrine is expressed by the
maxim that no man shall be twice vered for
one and the same cause. Nemo debet bis
verart pro una et eadem causa. It is upon the
foundation of this maxim that the plea of a
former judgment for the same matter, whether
it be in favor of the defendant or against him,
is a good bar to an action.
In the criminal law the same principle, more
directly applicable to the case before us, is
expressed in the Latin, ‘‘ Nemo bis punitur pro
eodem delicto,” or, as Coke has it, ‘‘ Nemo debet
bis puniri pro uno delicto.”” No one can be
twice punished for the same crime or misde-
meanor, is the translation of the maxim by
Sergeant Hawkins.
The designation of the plea upon which the judg-
ment here was had is immaterial in arriving at its
true character. The defendant termed it a motion
to quash; but the court below, while so designating
it, really treated it as a special plea in bar—as it
should have been treated—and gave judgment upon
it as such. Under the established rules of criminal
procedure it was impossible to treat it otherwise, and
this court will so consider it.
In United States v. Adams Express Company
(1912), 229 U. S. 381, objection was made to the
jurisdiction of this court to review a judgment
11
sustaining a motion to quash service, which it was
contended did not fall within the language of the
Criminal Appeals Act. Apparently, a judgment of
that character did not fall within the specific terms
of that act, but this court said (p. 388):
It is objected that this court has no juris-
diction of the present writ of error under the
act of March 2, 1907, c. 2564, 34 Stat. 1246,
and that the court below had no authority
to treat the motion of Barrett as equiva-
lent to a demurrer. Without following the
defendant into the niceties by which it seeks
to escape the jurisdiction of this court after
having eluded that of the court below, it is
enough to say that in our opinion, if we are
to go behind the entry, the decision entered was
one setting aside the indictment and was based
upon the construction of the statute upon which
the indictment is founded, within the meaning
of the act of March 2, 1907. [Italics ours.]
In United States v. Barber (1910), 219 U. S. 72,
the defendant pleaded the bar of limitations as a
plea in abatement, and counsel and the court below
so termed it. On writ of error, the jurisdiction of
this court to review a judgment upon what was
denominated a plea in abatement, but constituted a
plea in bar, was questioned. Mr. Chief Justice White
conclusively settled the point, saying (p. 77, 78):
So far as the claim based upon the stipula-
tion is concerned, it is plainly without merit,
since we can only look to the judgment which
was actually entered to determine what was
decided with respect to the fourth count, and
12
the court in that judgment expressly placed
its decision that the United States could not
prosecute the defendants upon the plea of
the bar of limitations. The claim that the
pleas were not in bar but merely rn abate
ment is we think equally untenable. The des-
ignation of the respective pleas, as a plea in
abatement, did not change their essential nature.
[Italics ours. }
Defendent in error contends that since he withdrew
pleading which he actually termed his “plea in bar”
it cannot now be held that the ground upon which
the motion to quash was sustained constituted a “spe-
cial plea in bar.” The first ground of the actual plea
in bar which was withdrawn was: '
1. It appears from the records of this Court
that the indictment herein is barred by reason
of the adjudication by this Court on the in-
dictments in this Court, in re United States
against the same parties who are defendants in
this indictment, which indictments were num-
bered 2461 and 2462.
It may be noted that almost the same words were
used in the first ground set up in the plea in abate-
ment, also withdrawn.
The first ground of the so-called motion to quash,
as well as the first ground of what was termed a de-
murrer, reads:
1. It appears from the records of this court
that the indictment herein is barred by reason
‘ This does not appear in the printed “ Extracts from Tran-
script of Record,”” but appears in the full record of the case,
and is here quoted by stipulation with the defendant.
ROLLE TC LICL, LOE see ER
13
of the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462. (R. 15.)
Comparison of the pleas withdrawn, and those left
in the record and argued, upon which the case was
decided, discloses their substantial identity.
Defendant withdrew his plea, which was properly
styled a plea in bar, but secured a consideration of
and judgment upon identically the same plea under
the misnomer of “‘motion to quash.” He now seri-
ously advances the contention that his erroneous
designation of his own pleading may be used to defeat
plaintiff in error’s contention. Comment is unneces-
sary.
The point is also raised that where a defendant
files a plea in bar the United States must either
demur to it or answer, and that neither was done
in this case. As heretofore pointed out, defendant
in error set out former adjudication as the first
ground of what he called a demurrer and the first
point in his alleged motion to quash, and the lower
court rendered its decision solely upon that plea.
The Government filed a joinder in demurrer, which
was the proper method to join issue upon the pleas
filed by defendant under the designations which he
had given them. It would be rather paradoxical
and wholly unsound to permit a party to set up the
same plea in two, three, four, or any number of in-
struments—all identical in words, or substantially so,
and exactly identical in import—designate each instru-
ment by such name as pleased his fancy; withdraw
14
all save one, which he incorrectly entitled a motion
to quash, or a demurrer, when it was really a special
plea in bar; and then attempt to hold his antago-
nist to a strict compliance with what he apparently
believes to be the rule of pleading with regard to
answering or traversing a special plea. The joinder
in demurrer filed by plaintiff in error in response to
defendant in error’s demurrer to the indictment
and motion to quash, was sufficient to join the
issue, if, indeed, any character of pleading was neces-
sary to be filed. Certainly defendant in error can
not by affixing a misnomer to one of his pleas at-
tempt now to hold the Government to rules of strict
pleading, and contend that it should have answered
his plea in its true character when he himself had
otherwise entitled it.
II.
A decision upon a special plea in bar when the defend-
ant has not been put in jeopardy is subject to
review here whether or not it involves the construc-
tion of the statute upon which the indictment
is based.
Defendant in error contends that under the Criminal
Appeals Act a writ of error can be had on a decision
sustaining a special plea in bar only when the validity
or construction of the statute upon which the indict-
ment is based is involved, quoting an excerpt from
the opinion of this court in United States v. Kissel
(1910), 218 U. 8. 601, 606, in support. The conten-
tion is without merit, and the expression quoted is
wholly misconstrued. The language employed in
15
the third clause of the act is plain and unambiguous,
and gives the Government the right to a review by
this court of any decision “sustaining a special plea
in bar when the defendant has not been put in
jeopardy.” In the Kissel case, as well as the Keitel
case cited therein, many points were advanced by
the Government upon which a review was sought,
and lengthy and elaborate briefs were filed covering
matters of which no review was authorized by the
Criminal Appeals Act. Discussing these, this court
in effect stated that it would consider only the par-
ticular character of decisions designated by that
statute, saying (pp. 606-607) :
We deem it unnecessary to state the plead-
ings with more particularity, because the only
question before us under the act of March 2,
1907, c. 2564, 34 Stat. 1246, is whether the plea
in bar can be sustained. That this court is
confined to a consideration of the grounds of
decision mentioned in the statute when an in-
dictment is quashed was decided in United
States v. Keitel, 211 U. S. 870, 399. We
think that there is a similar limit when the
case comes up under the other clause of the
act, from a “judgment sustaining a special
plea in bar, when the defendant has not been
put in jeopardy.” This being so, we are not
concerned with the technical sufficiency or
redundancy of the indictment, or even, in the
view that we presently shall express, with any
consideration of the nature of the overt acts
alleged.
16
While this language is clear, the sense in which it
was employed is even more distinctly emphasized
in the Keitel case (1908), 211 U.S. 370, 398-399:
In other words, that the purpose of the
statute was to give the United States the
right to seek a review of decisions of the
lower court concerning the subjects embraced
within the clauses of the statute, and not to
open here the whole case. We think this con-
clusion arises not only because the giving of
the exceptional right to review in favor of the
United States is limited by the very terms of
the statute to authority to re-examine the
particular decisions which the statute em-
braces, but also because of the whole context,
which clearly indicates that the purpose was
to confine the right given to a review of the
decisions enumerated in the statute, leaving
all other questions to be controlled by the
general mode of procedure governing the same.
Il.
The order of the court entered upon the motion to
quash in effect sustained the one-year bar of
limitation, and directly involved a construction of
the statute upon which the indictment was founded.
The court based its order sustaining the plea of
former adjudication upon the decision of Judge
Thomas on the demurrer and motion to quash filed
by the defendants under the first indictments found.
That decision was to the effect that the one year bar
of limitation prescribed by the Bankruptcy Act
applied; afd was based upon a clear misconstruc-
tion of the statutes involved. The opinion rendered
17
and order entered in this case will perpetuate that
error unless relief can be had in this court.
In United States v. Rabinowich (1915), 238 U. 8.
78, involving a precisely similar indictment, this
court héld that the one year statute of limitation
did not apply; that as the offense charged was con-
spiracy and not a violation of the bankruptcy law,
the three year statute of limitation governed, and
the indictment was not barred. That decision was
conclusive of the law in the instant case, and the
court below cannot, by merely referring to and
adopting the erroneous decision of Judge Thomas
under the former indictments, thus indirectly defeat
the plain right of plaintiff in error to have the sub-
stantial effect of the ruling now complained of
reviewed under the Criminal Appeals Act. The
identical question of law, arising in exactly the same
‘manner, is involved here as was presented in the
Rabinowich case, supra, and the jurisdiction of this
court to review the question was there definitely
and conclusively fixed.
United States v. Nizon (1914), 235 U. 8S. 231, 236:
In rendering that decision he made a ruling
of the very kind which the United States was
entitled to have reviewed under the provisions
of the Criminal Appeals Act (34 Stat. 1246).
If that were not so the right of the Govern-
ment could in any case be defeated by enter-
ing a general order of dismissal, without refer-
nag to the statute which was involved or
without giving the reasons on which the
decision was based.
18
The effect of the decision in the case at bar was to
sustain a motion to quash the indictment upon the
construction of a statute upon which it was founded;
and the right to a review is given in the first clause
of the Criminal Appeals Act.
CONCLUSION.
It is respectfully submitted that the motion to
dismiss should be denied.
Joun W. Davis,
Solicitor General.
CHARLES WARREN,
Assistant Attorney General.
APRIL, 1916.
O
ey ew en AY PI MW SKU A RN GSA AI OAS Ree Cae att —
I 20 nn sine ww ics nk a lg dawns
ARGUMENT:
I. The so-called “motion to quash” filed by the de-
fendant was in fact and in law a special plea in
bar. The designation given to his pleading by
defendant or by the court below can not change
its essential nature. This Court will disregard
the misnomer and act upon the fact. It has
jurisdiction under the Criminal Appeals Act to
review the decision in this case and determine
whether the bar of jeopardy had attached____ 12-18
II. The defendant was not placed in jeopardy under
the former indictments nor did the decision of
Judge Thomas, on the pleas to those indict-
ments, become res adjudicata. The erroneous
decision that the indictments were barred by
the one-year statute of limitations was ren-
dered upon preliminary pleas which were inter-
posed before any submission to or the swearing
of a jury, and under such condition jeopardy
could not attach or the case be finally deter-
Se SRE TO I aa nies soca oe
III. The first ground of the pleading, termed “Mo-
tion to quash,”’ really renewed the defense of
the one-year bar of limitation embodied in see-
tions 29d of the Bankruptey Act which had
been sustained to the former indictments, and
necessarily involved a construction of the con-
spiracy statute (Criminal Code, section 37)
under which the indictment here involved was
NRC <x det darn’. ow ainicinre’ eaheaceanbnaiiel ee
IV. A decision upon a special plea in bar when the de-
fendant has not been put in jeopardy is sub-
ject to review here, whether or not it involves
the construction of the statute upon which the
RD ONIN iw ink eiuicicnebecsaetents
61958S—16——1 (1)
Il
Page.
V. The indictment in this case alleges that an addi-
tional overt act was committed by the defendant
in error less than one year before it was brought,
and as limitation begins to run from the com-
mission of the last overt act and not from the
date of the formation of the conspiracy, the
decision of Judge Thomas discharging the
defendants under the former indictments on
the plea of the one-year bar can have no appli-
cation in this case and necessarily can not
become the law of the case or constitute res
adjudicata . becgdahekacoe .-- 26-31
VI. (This point is suggested by the brief of the éclind-
ant in error on his motion to dismiss.) The
contentions of the defendant in error that (1)
the errors assigned are insufficient, and (2) that
the writ of error and citation are defective,
because the names of all parties indicted are
not specifically mentioned therein, are not sus-
tained by the authorities cited. ...........-.. 31-34
NS Ualedhict ne ab ea oe chen ode eek oaee Sa us 34
_—
CASES CITED.
Page.
Brown v. Eliott (1911), 225 U. S. 392.........-.-- 29
Commonwealth v. Gould, 12 Gray (Mass.) 171... .... 20
Duffy ¥. Brij, 46 hd. U. B71... 2 on ck oe ce cece 20
Durland v. United States (1895), 161 U. S. 305... .. 13
Ex Parte Lange, 18 Wall. 163.................-.-. 20, 22
ae Vices We eo kn as ood eo na ba eh ewwees 20
Kepner v. United States, 195 U.S. 100... -..- ..-.-- 18
Marshall v. Commonwealth, 20 Gratt. (Va.) 845... _- 20
Pritchett v. State, 2 Sneed (Tenn.) 285.__.__._.__-- 20
Shoener v. Pennsylvania, 207 U.S. 188___.....-. 20
State v. Fley (S. C.), 4 Am. Dec. 583... .......---- 20
United States v. Adams Express Co., 229 U.S. 381. -- 15
United States v. Barber, 219 U.S. 72... ..... 2... 15
United Statee v. Keitel, 211 U.S. 370... ........... 25
United States v. Kissel, 218 U.S. 601___.........13, 25, 29
United States v. Pond (1855), 2 Curt. 265... .___.-- 14
United States vy. Rabinowich, 238 U.S. 78... --
United States v. Rogoff, 163 Fed. 311... ....------
United States v. Van Vliet, 23 Fed. 35... ......--.--
Am. & Eng. Ency. Law (2d ed.), vol. 24, p. 830. _. -- 22
Archb. Criminal Practice and Pleading (Pomeroy’s
SR, Sen hs oh ans ones on ces Tk Guacae
Bishop's New Crim. Proc., 1913, vol. 2, p. 623. __. -- 13
Bishop's New Crim. Law (Sth ed.), vol. 1, see. 1027,
i Sener a Cm meer sents
Encyclopedia, Pleading and Practice, p. 569_ . .- .- .-
(1m)
—_ to, ae cx Saggy oe 5 PASSO RS EER: BROS SUN TONE At OY PR
meter
Inthe Supreme Court of the Pnited States,
OctroBeR TERM, 1916.
THe UNITED STATES, PLAINTIFF IN
ERROR,
v.
HerMAN H. OPPENHEIMER ET AL.
No. 899.
IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK.
BRIEF FOR THE UNITED STATES.
STATEMENT OF THE CASE.
February 24, 1914, two indictments, numbered,
respectively, 2461 (R. 3-8) and 2462 (R. 8-13), were
returned in the District Court for the Southern
District of New York against Herman H. Oppenheimer,
the defendant in error here, and a number of others,
under section 37 of the Criminal Code, for conspiracy
te conceal assets from a trustee in bankruptcy, in
violation of section 29b of the bankruptcy act of
July 1, 1898 (30 Stat. 544, 554). To these indict-
ments, the defendant Oppenheimer filed a demurrer
and what he designated ‘“‘ Motion to quash plea in bar
(1)
2
and abatement” (R. 14, 15), setting out in each of
these pleadings the one-year bar of limitation to the
prosecution of offenses under the bankruptcy act
prescribed in ser‘un 29d thereof. Judge Thomas,
the trial judge, considered these pleadings of Oppen-
heimer and of three of the co-defendants charged in
the respective indictments, saying (R. 45, 46):
Four of the defendants, Herman H. Oppen-
heimer, Abraham Samuels, Charles Hepner,
and Ray Abrahams, are represented by coun-
sel, and pleadings bearing various titles have
been filed in their behalf. Each of these four
last-mentioned defendants in his pleadings
asks that the indictment, so far as it relates
to him, be quashed for the reason that the
acts alleged in the indictment are barred by
the statute of limitations contained in section
29d of the Bankruptcy Act. Said section
reads as follows:
“A person shall not be prosecuted for any
offense arising under this act unless the indict-
ment is found or the information is filed in
court within one year after the commission
of the offense.”
In my opinion the above-quoted section is
determinative of the issues presented by the
indictment against the aforenamed defend-
ants who have, in their pleadings attacking
the indictment, invoked the provision of said
section, hence there is no occasion to deter-
mine other questions raised by pleadings,
some of which are of vital importance and
decisive.
3
And discharged the defendants October 1, 1914,
saying (R. 47):
I therefore find that no lawful indictments
were found against Herman H. Oppenheimer,
Abraham Samuels, Charles Hepner, and Ray
Abrahams, or either of them, within one year
after the offenses alleged in the indictments,
and that their prosecution is barred by
section 29d of the bankruptcy act. These
indictments are therefore dismissed as to each
and all of them.
December 21, 1914 (in the same year) (R. 16-21),
a new indictment, numbered 2882, was returned in the
same District Court against Oppenheimer and some of
the same parties included in the previous indictments
of February 24, 1914, charging the same offense—i. e.,
conspiracy to conceal assets from a trustee in bank-
ruptcy; this new indictment alleging a later and ad-
ditional overt act in furtherance and continuance of
the result of the conspiraey—viz, that Oppenheimer
had falsely testified in a hearing before a referee in
bankruptcy, January 19, 1914, that he had received
no money or property in the bankruptcy cases upon
which this indictment was based. The later indict-
ment unquestionably charged a continuing con-
spiracy. December 22, 1914, Oppenheimer filed a plea
of not guilty, which was withdrawn January 21, 1915.
(R. 44, 45.) January 4, 1915, Oppenheimer filed four
pleadings which he respectively designated “ Demur-
rer’ (R. 22, 23), “Motion to quash” (R. 24, 25),
“Plea in abatement” (R. 53, 55), and “ Plea in bar”
(R. 55-57). The first ground of defense advanced in
—_— Se
4
each of these variously termed pleadings was prior ad-
judication under the indictments of February 24,
1914, the defendant using the following language in
the respective pleadings to set out this defense:
DEMURRER.
1. It appears from the records of this court
that the indictment herein is barred by reason
of the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462. (R. 22.)
MOTION TO QUASH.
1. It appears from the records of this court
that the indictment herein is barred by reason of
the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462. (R. 24.)
PLEA IN ABATEMENT.
1. It appears from the records of this court
that the indictment herein is barred by reason
of the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462. This
indictment sets forth and is based on the same
conspiracy as the last indictment, which last
indictment is hereby made a part of this plea
together with the opinion and order thereon
now on file in this court. (R. 53.)
PLEA IN BAR.
1. It appears from the records of this court
that ‘the indictment herein is barred by reason
of the adjudication by this court on the in-
9)
dictments in this court, in re United States
against the same parties who are defendants
in this indictment, which indictments were
numbered 2461 and 2462. (R. 56.)
Januery 30, 1915, the so-called plea in bar and
plea in abatement were withdrawn; joinder in de-
murrer was filed by the Government, and the demurrer
and the so-called motion to quash were argued before
Judge Pope, of the District of New Mexico, then
sitting in the Southern District of New York (R. 45).
February 14, 1916, Judge Pope filed an opinion and
decision, overruling the demurrer in foto, although,
singularly enough, it embodied the identical defense,
res adjudicata, wpon which he based his decision, and
was no more erroneously included in the one pleading
than the other. Portions of his opinion pertinent
to this case are as fo lows (Rt. 47-49):
OPINION.
The demurrer and the motion to quash filed
by the several defendants proceed upon a
number of grounds. All of these have been
carefully examined.
* * * * * * *
The only ground which impresses the court
as serious as against the validity of the present
indictment arises out of the following state of
facts:
An indictment was found against these same
defendants on February 24, 1914, which, in
legal effect, is identical with the indictment
here under consideration. This latter state-
ment is made advisedly, notwithstanding the
7
fact that the present indictment, found De-
cember 21, 1914, contains an alleged overt act
in addition to those set forth in the indict-
ment of February 24. In other respects the
indictments are practically identical. An ex-
amination of the additional overt act alleged in
the last indictment leads to the view that,
notwithstanding certain conclusions of law
therein set forth, the matters therein stated
cannot, from their nature, constitute an overt
act under the conspiracy alleged in each of the
indictments. It follows, therefore, as stated
above, that the two indictments are legally
identical.
With this as a premise, the disposition made
of the first indictment is material. The suf-
ficiency of that was before J udge Thomas upon
a motion to quash, and was decided by him
on October 1, 1914. His decision (which of
course was in advance of any submission to
or swearing of a jury) quashed the indictment
and discharged the defendants thereunder.
This decision proceeded upon the ground that
the prosecution was barred by the statute of
limitations. No appeal was taken by the Gov-
ernment from this decision, and thus from
October 1, 1914, when the decision was ren-
dered, until December 21, 1914, when this in-
dictment was found, there was nothing pend-
ing against these defendants. Should the
prosecution under this last indictment be al-
lowed to proceed when there is outstanding a
judgment in favor of the defendants to the
effect that the statute of limitations has run
against their alleged offense? The Govern-
6
4
| oo rae
7
ment urges that this may be done, and further
sets forth to the court the fact that since the
decision of Judge Thomas a decision of the
Circuit Court of Appeals for this Circuit, as
well as a decision by the Supreme Court of
the United States (United States v. Rabinowich,
1915, 288 U. S. 78) [inserted by us], has
shown that the statute of limitations did not
run until three years after the offense instead of
one year as held by him, and that his decision
was thuserroneous. This latter, however, does
not impress me as being of relevancy, provided
the defendants have heretofore been heard upon
this issue, have been discharged thereunder,
and that judgment being unappealed from re-
mains in force and effect. The decision of
Judge Thomas in my judgment became the
law of the case, and, until reversed, protected
the defendants from further prosecution aris-
ing upon the same state of facts. (Italics ours.)
While, of course, were the case open to decision
upon the question of limitation, the decision of
the appellate courts would control, yet the law
of the case having been settled previous to these
decisions, the defendants should not be sub-
jected to another prosecution while the judg-
ment quashing the indictment and discharg-
ing them still remains in force and effect. To
hold otherwise is to subject the citizen toa
series of prosecutions when the law contem-
plates that once having a decision in his favor
he should, until such decision is reversed, be
allowed to go unmolested by another proceed-
ing on the same charge.
g
An order will accordingly be entered quash-
ing the indictment of December 21, 1914, and
allowing the defendants to go without day
thereunder.
This January 29, 1916.
In conformity with this opinion and decision,
Judge Hand, of the United States Distriet Court for
the Southern District of New York, entered an order,
February 26, 1916, which recites (12. 49):
A motion to quash the indictment herein
having been filed by the detendant, Herman
H. Oppenheimer, and having duly come on to
be heard before the Honorable William H.
Pope, district judge, on the 29th day of Jan-
uary, 1915;
Now, after reading the decision and opinion
of Honorable Willism H. Pope, United States
district judge, dated January 29, 1916, and
filed in the office of the clerk of the District
Court of the United States for the Southern
District of New York on February 2, 1916,
3 and the amended opinion of said judge, it is
Ordered and adjudged, that the motion to
quash made by the defendant, Herman H.
Oppenheimer, be granted, and the indictment
is hereby quashed and the defendants allowed
to go without day thereunder.
The United States seasonably filed assignment of
errors (Rt. 50) and perfected its writ of error under
the Criminal Appeals Act of March 2, 1907, 34 Stat.,
1246. (R. 50, 51, 1, 2.)
At the last term of this Court, plaintiff in error
filed 2 motion to advance, which was granted, and
5 ry ac, tig do iad linia oe ooo gt
i olin ait bin abi iS Js oft ving
BP ievacices Sollee eek aa A ARPES te PES
_—
| defendant in error filed a motion to dismiss the writ
of error, alleging lack of jurisdiction in this Court
to review the judgment. This motion was passed
| to be considered in connection with the whole case
| at this term.
9
Statute Involved.
The Criminal Appeals Act of March 2, 1907, 34
Stat., 1246, provides:
That a writ of error may be taken by and
on behalf of the United States from the dis-
| trict or circuit courts direct to the Supreme
Court of the United States in all criminal
| cases, in the following instances, to wit:
From a decision or judgment quashing, set-
ting aside, or sustaining a demurrer to, any
indictment, or any count thereof, where such
decision or judgment is based upon the in-
validity, or construction of the statute upon
which the indictment is founded.
From a decision arresting a judgment of
conviction for insufficiency of the indictment,
where such decision is based upon the invalid-
| ity or construction of the statute upon which
the indictment is founded.
_ From the decision or judgment sustaining a
special plea in bar, when the defendant has not
been put in jeopardy.
Specifications of Error.
I. The court erred in designating the plea upon
which its decision was based a “Motion to quash”
instead of a ‘‘Special plea in bar,”’ which it really was.
—
II. The court erred in holding that the prosecution
was barred by the decision quashing the former indict-
ments against the defendant in error.
III. The court erred in holding that the last overt
act—i. e., the one alleged to have been committed
January 19, 1914—set out in the indictment herein
did not constitute an overt act under the conspiracy
alleged in the indictment, and that the former indict-
ments and this indictment are legally identical.
The Questions Involved.
Besides the questions raised on the assignment of
errors, defendant in error, in his brief on his motion
to dismiss, suggests other questions which will be
briefly noted herein.
I.
Can the jurisdiction of this Court be divested by
an erroneous designation of a plea by the defendant
filing it or by the trial court passing upon it, either or
both?
II.
Was not the plea upon which the trial court based
its decision in this case, in law and in fact, a special
plea in bar and not a motion to quash, and has not
this Court jurisdiction under the Criminal Appeals
Act to review a decision or judgment sustaining such
a plea, however pleaded, when the defendant has not
been put in jeopardy ?
iI
Ill.
Is not the construction of a statute—section 37 of
the Criminal Code—involved in the decision of the
court quashing the indictment?
IV.
Was the defendant in error placed in jeopardy by
the decision of the trial court sustaining his plea of
limitation to the first indictments?
V.
Did not the alleged false statement made by the
defendant in error before the referee in bankruptcy
on January 19, 1914, constitute an overt act in
furtherance of the alleged conspiracy to conceal the
assets of the bankrupt and the result thereof, and
render the indictment herein different from those
theretofore quashed; and bar the application of
“the law of the case’? upon which Judge Pope founded
his decision ?
VI.
Does the plea of res adjudicata have any applica-
tion to a decision in a criminal case, based upon a
preliminary plea in bar, filed and passed upon by
the court, before a jury has been sworn?
VI.
Was the writ of error, assignment of errors, or cita-
tion, or either of them, defective; and if so, would
such defects, or any of them, be sufficient to in-
validate the writ?
The so-called “‘motion to quash” filed by the defend-
ant was in fact and in law a special plea in bar.
The designation given to his pleading by defendant
or by the court below can not change its essential
nature. This Court will disregard the misnomer
and act upon the fact. It has jurisdiction under
the Criminal Appeals Act to review the decision
in this case and determine whether the bar of jeop-
ardy ‘ad attached.
Judge Pope based his decision upon the first
ground set up by the defendant in error in his so-
ealled “ Motion to quash,” viz (R. 24):
1. It appears from the records of this court
that the indictment herein is barred by reason
of the adjudication in re United States against
the same parties who are defendants in this
indictment, numbers 2461 and 2462.
While it is quite clear that this plea constituted a
special plea in bar, whatever it may have been desig-
nated, the language of the pleader “that the indict-
ment herein is barred” plainly discloses that he so
regarded it. Whether it was intended to advance
the defense of former jeopardy or of res adjudicata,
as the defendant in error termed it, or renew the
defense of limitation, the first two defenses must be
pleaded specially, and the last can be pleaded only
under the general issue. Necessarily all constitute
special pleas in bar, however pleaded.
tl
13
Bishop’s New Crim. Proc., 1913, vol. 2, p. 623:
Matter in bar—occurring after the offense
was committed, as a conviction or acquittal or
another indictment, or a pardon—must_ be
pleaded specially.
In a case of this character, charging a continuing
conspiracy, the plea of limitation could be pleaded
only under the general issue. It was error to plead
it specially, as was done in this case, and, under the
Criminal Appeals Act, this Court has reversed a case
of this characte:, i. e., of continuing conspiracy,
where otherwise pleaded. (United States v. Kissel
[1910], 218 U. S. 601, 610.)
It is wholly immaterial that the pleader styled his
pleading “Motion to quash,” since the judge in the
court below could not have rendered the decision
he did upon a motion to quash. This Court will
treat the pleading in its true character.
A motion to quash is in the nature of a demurrer,
and according to the great weight of authority may
be employed only to raise questions as to defects
which are apparent upon the fact of the indictment.
See Encyclopedia, Pleading and Practice, p. 569,
and cases cited.
In Durland v. United States (1895), 161 U.S. 305,
the Court said (314):
These objections were raised by the motion
to quash the indictment, but such a motion is
ordinarily addressed to the discretion of the
court, and the refusal to quash is not, gener-
ally, assignable for error.
61955—16——2
RS eI tye eas oy ar sponte nis -0 as NEEL ELLIE IE TINNED ONT es:
an
In United States v. Pond (1855), 2 Curt 265, the
circuit court said:
A motion by the defendant to quash an _
indictment must be founded on defects which |
would make a judgment against him, on that
indictment, erroneous. |
It is evident that the excerpts quoted supra would
not justify the inclusion of a special plea in bar in a
motion to quash, since the matter of finally sustaining
such a motion being within the discretion of the trial
court, that court, regardless of the Criminal Appeals
Act, could indirectly sustain a special plea in bar filed
under the designation of a motion to quash and leave
the Government absolutely remediless to come to this
Court under that act. Neither is the particular
ground embodied in the motion to quash in this case
upon which the opinion to sustain was based ad-
dressed to any defect in the indictment, and Judge
Pope in his opinion expressly stated (R. 47, 48) that
there were no defects therein. It is quite clear, there-
fore, that the plea was erroneously designated under
the rules governing criminal procedure in United
States courts.
See also Archb. Criminal Practice and Pleading
(Pomeroy’s notes, 8th ed.), 318:
In all cases where an indictment is so defec- _
tive that any judgment to be given upon * |
against the defendant would be erroneous, the
court in its discretion may quash it.
Judge Pope stated, in effect, that a judgment upon
the indictment here would not be erroneous. It was
15
to prevent a valid judgment being entered upon a good
indictment that he sustained the special plea in bar
erroneously plead in the motion to quash.
In United States v. Adams Express Company (1912),
229 U.S. 381, objection was made to the jurisdiction
of this Court to review a judgment sustaining a
motion to quash service, which it was contended did
not fall within the language of the Criminal Appeals
Act. Apparently, a decision of that character did
not fall within the specific terms of the act, but
this Court said (p. 388):
It is objected that this court has no juris-
diction of the present writ of error under the
act of March 2, 1907, ¢. 2564, 34 Stat. 1246,
and that the court below had no authority to
treat the motion of Barrett as equivalent to a
demurrer. Without following the defendant
into the niceties by which it seeks to escape
the jurisdiction of this court after having
eluded that of the court below, it is enough
to say that in our opinion, if we are to go
behind the entry, the decision entered was one set-
ting aside the indictment and was based upon
the construction of the statute upon which the
indictment is founded, within the meaning of the
act of March 2, 1907. [Italics ours.]
In United States v. Barber (1910), 219 U.S. 72,
the defendant set up the bar of limitations as a plea
in abatement, and counsel and the court below so
termed it. On writ of error, the jurisdiction of this
Court to review a judgment upon what was denomi-
nated a plea in abatement, but constituted a plea in
a a
- cg
16
bar, was questioned. Mr. Chief Justice White con-
clusively settled the point, saying (p. 77, 78):
So far as the claim based upon the stipula-
tion is concerned, it is p'sinly without merit,
since we cen only look to the judgment which
was actually entered to determine what was
decided with respect to the fourth count, and
the court in that judgment expressly placed
its decision that the United States could not
prosecute the defendants upon the plea of
the bar of limitations. The claim that the
the pleas were not in bar but merely in abate-
ment is, we think, equally untenable. The
designation of the respective pleas, as a plea in
abatement, did not change their essential nature.
[Italics ours.]
Defendant in error contends in his brief that since
he withdrew a pleading which he actually termed his
“plea in bar” it can not now be held that the ground
upon which the motion to quash was sustained con-
stituted a “special plea in bar.”
The ground upon which Judge Pope’s decision was
based, whether considered as setting up former
jeopardy, res adjudicata, or limitation, constituted a
special plea in bar and could have constituted nothing
else. This Court has jurisdiction to review such a
decision provided only the defendant was not placed
in jeopardy.
Defendant withdrew the plea which was properly
styled a plea in bar, but secured a consideration of,
and judgment upon identically the same plea under
the misnomer of “motion to quash.’”’ He now seri-
ously advances the contention that his erroneous
a
q
oye eA OS Se aie Bar Ca ea a LEE EIR OR NS oe —
Be
17
designation of his own pleading may be used to defeat
plaintiff in error’s contention. Comment is unneces-
sary.
The point is also raised that, where a defendant
files a plea in bar, the United States must either
demur to it or answer, and that neither was done in
this case. As heretofore pointed out, defendant in
error set out former adjudication as the first ground
of what he called a demurrer and as the first point in
his alleged motion to quash; and the lower court
rendered its decision solely upon the latter plea. The
Government filed a joinder in demurrer, which was
the proper method to join issue upon the pleas filed
by defendant under the designations which he had
given them. It would be rather paradoxical and
wholly unsound to permit a party to set up the same
plea in two, three, four, or any number of instru-
ments—all identical in words, or substantially so, and
exactly identical in import—designate each instru-
ment by such name as pleased his fancy; withdraw
all save one, which he incorrectly entitled a motion to
quash, or a demurrer, when it was really a special
plea in bar; and then to attempt to hold his antago-
nist to a strict compliance with what he apparently
believes to be the rule of pleading with regard to
answering or traversing a special plea. The joinder
in demurrer filed by plaintiff in error in response to
defendant in error’s demurrer to the indictment and
motion to quash, was sufficient to join the issue, if,
indeed, any character of pleading was necessary to be
filed. Certainly defendant in error can not by affix-
Pe la are crate eo et eee EERE RR RARE EE
a
18
ing a misnomer to one of his pleas attempt now to hold
the Government to rules of strict pleading, and con-
tend that it should have answered his plea in its true
character when he himself had otherwise entitled it.
II.
The defendant was not placed in jeopardy under
the former indictments nor did the decision of
Judge Thomas, on the pleas to those indictments
become res adjudicata. The erroneous decision
that the indictments were barred by the one-year
statute of limitations was rendered upon prelimi-
nary pleas which were interposed before any sub-
mission to or the swearing of a jury, and under
such condition jeopardy could not attach or the
case be finally determined on its merits.
In his opinion and decision in this case Judge Pope
says, referring to the decision of Judge Thomas (R.
48): “His decision (which of course was in advance of
any submission to or swearing of a jury) quashed the
indictment and discharged the defendants there-
under.” (Italics ours.)
In any contested case, a person charged with crime
can be tried in a court of the United States only before
; a jury, and judgment of conviction or acquittal can be
} entered only upon the jury’s verdict. Unless he
plead guilty, the guilt or innocence of a defendant
must be determined by a jury, and, in its absence, it
is impossible for jeopardy to attach or for the case to
become res adjudicata.
Kepner v. United States (1903), 195 U.S. 100, 128,
129:
PR eS ERE eR
Undoubtedly in those jurisdictions where a
trial of one accused of crime can only be to
19
a jury, and a verdict of acquittal or convic-
tion must be by a jury, no legal jeopardy can
attach until a jury has been called and charged
with the deliverance of the accused. * * *
The Constitution of the United States, in
the Fifth Amendment, declares, “nor shall
any person be subject to be twice put in
jeopardy of life or limb.”” The prohibition is
not against being twice punished, but against
being twice put in jeopardy; and the accused,
whether convicted or acquitted, is equally put
in jeopardy at the first trial. An acquittal
before a court having no jurisdiction is, of
course, like all the proceedings in the case,
absolutely void, and therefore no bar to sub-
sequent indictment and trial in a court which
has jurisdiction of the offense. Common-
wealth v. Peters, 12 Met., 387; 2 Hawk. P. C.,
c. 35, sec. 3; 1 Bishop’s Crim. Law, sec. 1028.
Bishop’s New Criminal Law, 8th ed., vol. 1, sec.
1027, par. 4:
Where, at any stage of the proceedings, the
defendant procures the indictment to be
quashed, he can not in bar to a new one assert
that the first is good, and he was in jeopardy
under it.
12 Cyc., 265:
As a general rule where an indictment is
quashed on motion as insufficient or a de-
murrer thereto is sustained and the accused
is thereupon discharged, there is no such
jeopardy as will bar a prosecution on another
indictment for the same offense (citing authori-
ties from the appellate courts of Alabama,
ay
20
Arkansas, California, Indiana, Iowa, Ken-
tucky, Louisiana, Maryland, Massachusetts,
Michigan, Missouri, New York, Pennsylvania,
South Carolina, Tennessee, Utah, Virginia, and
Wisconsin).
Commonwealth v. Gould (1858), 12 Gray (Mass.)
171, 173:
But the effect of quashing an indictment is
like that of a nol. pros. of it, or of its being
adjudged bad on demurrer, or of an arrest of
judgment for a defect therein, after a verdict
of guilty has been returned; by neither of which
is a defendant acquitted of the offense with
which the indictment charged him, but is ex-
empted only from liability on that indictment.
The plea of former acquittal is allowed and
sustained on a maxim of the common law, that
4 no one shall be brought into jeopardy more
g than once for the same offense. But when an
k original indictment is quashed, adjudged bad
3 on demurrer, or when judgment thereon is ar-
; rested for a defect therein, it is held that the
q accused has not thereby been in jeopardy,
4 within the meaning of that maxim. Common-
S| wealth v. Wheeler, 2 Mass. 172. Common-
4 wealth v. Roby, 12 Pick. 502. Rex v. Burridge,
4 3 P. W. 500, by Lord Hardwicke. 2 Hawk. ec.
| 35. 2 Gabbett Crim. Law, 332. Archb. Crim.
t Pl. (13th ed.) 118 & seq.
i See also, United States v. Rogoff (1908), 163 Fed. 311, 312; United States
v. Van Vliet (1885), 23 Fed. 35; Er Parte Lange (1873), 18 Wall. 163, 173, 174;
Shoener v. Pennsylvania (1907), 207 U. S. 188, 195, 196; Joy v. State (1860),
14 Ind. 139, 148; Pritchett v. State (1854), 2 Sneed (Tenn.) 285; State v.
Fley (1809) (S. C.), 4 Am. Dec. 583, 587; Duffy v. Britton (1886), 48 N. J. L.
371, affirming decision reported in 18 Vroom 251, 253; Marshall v. Common-
wealth (1871), 20 Gratt. (Va.) 845, 846.
Es
21
Both the court below and the defendant in error in
his brief on his motion to dismiss appear to have con-
sidered the decision of Judge Thomas on the motion
to quash the first indictment as constituting res
adjudicata in this case, Judge Pope, in his opinion,
saying (R. 48, 49):
The decision of Judge Thomas in my judg-
ment became the law of the case, and, until
reversed, protected the defendants from further
prosecution arising upon the same state of
facts.
The defendant in error says in his brief (brief of
defendant in error on motion to dismiss, 12-13):
But the form of pleading res adjudicata
is immaterial so long as the necessary facts
appear in the plea.
And (ib. 15):
The decision was really “res adjudicata,” a
defense which can be set up at any time in
any plea or in a special plea without other
name. In fact it can be of the Court’s own
motion at any time, when the law may come
to its attention.
What Judge Pope really decided was that the de-
fendant had been placed in jeopardy under the former
indictment, that the bar of limitation had attached,
or that the principle of res adjudicata applied. Each
of the conclusions is erroneous.
The plea of res adjudicata is apparently unknown
to the criminal law. The attempt to interpose it
here is novel, but not allowable.
22
Am. & Eng. Ency. of Law (2d ed.), v. 24, p. 830:
The rule that a former adjudication is a bar
to another action for the same claim or de-
mand has its counterpart in criminal law in
the doctrine of former jeopardy. But the two
rules, while similar in purpose and effect, are
otherwise separate and distinct subjects.
Ex Parte Lange (1873), 18 Wall. 163, 168:
The principle finds expression in more than
one form in the maxims of the common law.
In civil cases the doctrine is expressed by the
maxim that no man shall be twice vezed for
one and the same cause. Nemo debet bis
vezari pro una et eadem causa. It is upon the
foundation of this maxim that the plea of a
former judgment for the same matter, whether
it be in favor of the defendant or against him,
is a good bar to an action.
In the criminal law the same principle, more
directly applicable to the case before us, is
expressed in the Latin, “‘ Nemo bis punitur pro
eodem delicto,” or, as Coke has it, “ Nemo debet
bis puniri pro uno delicto.”’” No one can be
twice punished for the same crime or misde-
meanor, is the translation of the maxim by
Sergeant Hawkins.
—_—
23
Ill.
The first ground of the pleading, termed ‘‘Motion to
quash,” really renewed the defense of the one-year
bar of limitation embodied in section 29d of the
Bankruptcy Act which had been sustained to the
former indictments, and necessarily involved a con-
struction of the conspiracy statute (Criminal Code,
section 37) under which the indictment here in-
volved was brought.
The motion to quash was sustained by Judge Pope
upon the ground that the decision of Judge Thomas
under the former indictments holding that the one-
year bar of limitation prescribed in the Bankruptcy
Act was applicable, instead of the three-year bar to
the conspiracy statute, constituted the ‘‘law of the
case” and that the prosecution was accordingly barred
by the rule of res adjudicata. This Court, in United
States v. Rabinowich (238 U. S. 78), which was
based upon an indictment for conspiracy to conceal
assets in violation of section 29b of the Bankruptcy
Act, held that the three-year bar applied.* The
decision in the Rabinowich case (1915) necessarily
The case of United States v. Rabinowich involved the same point as
was raised in the first Oppenheimer case, and arose in the same district.
After the decision by Judge Thomas, October 1, 1914, in the first Oppen-
heimer case, Judge Hough, following that decision, held in the Rabinowich
case, November 25, 1914, that the one-year statute of limitations, and not
the three-year statute, applied. and consequently overruled a demurrer
filed by the United States to the defendant's special plea in bar setting
up the one-year statute of limitations. The United States took an appeal
to the Supreme Court under the Criminal Appeals Act and a writ of error
was allowed December 8, 1914. On June 1, 1915, the Supreme Court over-
ruled Judge Hough, sustained the Government demurrer, and held that
the three-year statute of limitations applied. Meanwhile, during the
period when the Rabinowich case appeal was pending in the Supreme
Court, the second Oppenheimer indictments were found, December 21, 1914.
Criry r ‘ Bee APE te Fasc A RES
| eee aoe
24
governs this case; and Judge Pope, in his opinion
here, written in 1916, by merely referring to and
adopting the erroneous decision of Judge Thomas on
the former indictment can not defeat the right of
plaintiff in error to have the construction of the con-
spiracy statute reviewed here.
‘¥.
A decision upon a special plea in bar when the de-
fendant has not been put in jeopardy is subject to
review here, whether or not it involves the con-
struction of the statute upon which the indictment
is based.
Defendant in error contends that under the Criminal
Appeals Act a writ of error can be had on a decision
sustaining a special plea in bar only when the validity
or construction of the statute upon which the indict-
ment is based is involved, quoting an excerpt from
the opinion of this Court in United States v. Kissel
(1910), 218 U. S. 601, 606, in support. The conten-
tion is without merit, and the expression quoted is
wholly misconstrued. The language employed in
the third clause of the act is plain and unambiguous,
and gives the Government the right to a review by
this Court of any decision “sustaining a special plea
in bar when the defendant has not been put in
jeopardy.” In the Kissel case, as well as in the
Keitel case cited therein, many points were advanced
by the Government upon which a review was sought,
and lengthy and elaborate briefs were filed covering
matters of which no review was authorized by the
—
Criminal Appeals Act. Discussing these, this Court
in effect stated that it would consider only the particu-
lar character of decisions designated by that statute,
saying (pp. 606-607):
pt
We deem it unnecessary to state the plead-
ings with more particularity, because the only
ques'ion before us under the act of March 2,
1907, c. 2564, 34 Stat. 1246, is whether the
plea in bar can be sustained. That this court
is confined to a consideration of the grounds
of decision mentioned in the statute when an
ndictment is quashed was decided in United
States v. Keitel, 211 U.S. 370, 399. We think
that there is a similar limit when the case
comes up under the other clause of the act,
from a ‘‘judgment sustaining a special plea
in bar, when the defendant has not been put
in jeopardy.” This being so, we are not con-
cerned with the technical sufficiency or re-
dundancy of the indictment, or even, in the
view that we presently shall express, with any
consideration of the nature of the overt acts
alleged.
While this language is clear, the sense in which
it was employed is even more distinctly emphasized
in the Keitel Case (1908), 211 U. S. 370, 398-399:
In other words, that the purpose of the
statute was to give the United States the right
to seek a review of decisions of the lower court
concerning the subjects embraced within the
clauses of the statute, and not to open here
the whole case. We think this conclusion
arises not only because the giving of the ex-
—
ceptional right to review in favor of the
United States is limited by the very terms of
the Statute to authority to reexamine the
particular decisions which the statute em-
braces, but also because of the whole context,
which clearly indicates that the purpose was
to confine the right given to a review of the
decisions enumerated in the statute, leaving
all other questions to be controlled by the
general mode of procedure governing the
same.
26
¥.
The indictment in this case alleges that an addi-
tional overt act was committed by the defendant in
error less then one year before it was brought, and
as limitation begins to run from the commission of
the last overt act and not from the date of the for-
mation of the conspiracy, the decision of Judge
Thomas discharging the defendants under the for-
mer indictments on the plea of the one year bar can
have no application in this case and necessarily can
not become the law of the case or constitute res
adjudicate.
All the overt acts set out in the first indictments
were alleged to have occurred in the year 1912 and
the conspiracy was charged to have been effected
in that year. The indictment in this case charges
(R. 20, 21):
And further, in pursuance of and to effect
the object of said conspiracy and in order
to aid and assist the said Jacques Samuels,
Joseph Samuels, Abraham Samuels, Charles
Hepner, Herman J. Dietz, and Herman
H. Oppenheimer, in continuing the conceal-
27
ment from said trustee in bankruptcy of the
money and property belonging to the said
estates in bankruptcy of the said Joseph
Samuels & Co., so concealed from said trustee
in bankruptcy, the said Herman H. Oppen-
heimer, in a bankruptcy proceeding in-
stituted and pending in the United States
District Court for the Southern District of
New York, to have the said Jacques Samuels
and one Benjamin Lesser, individually and as
copartners, doing business under the firm name
of Abrahams & Lesser, adjudged bankrupts
under the bankruptcy laws of the United
States, and of which copartnership the said
Jacques Samuels was a member and principal
owner, was examined before the said Macgrane
Coxe, Esquire, referee in bankruptcy, in sup-
port of an application made by the said
Herman H. Oppenheimer for an allowance as
the attorney for the said copartnership of
Abrahams & Lesser and the said Jacques
Samuels as a member of said copartnership;
and the said Herman H. Oppenheimer did, then
and there, on the 19th day of January, 1914,
willfully and falsely testify, in substance and
effect, that he had, since the latter part of July,
1912, and up to the said 19th day of January,
1914, received no money or property in said
bankruptcy action so pending against Joseph
Samuels & Co., individually and as a copart-
nership as aforesaid, as compensation for legal
services, except that he, the said Herman H.
Oppenheimer, had received an agreement to
be paid compensation in addition to whatever
am
allowance might be made to him by the court for
such services out of the estates in bankruptcy
of said Joseph Samuels & Co., individually
and as a copartnership, as aforesaid, whereas,
in truth and in fact, the said Herman H.
Oppenheimer did, on or about the 1st day of
September, 1912, receive from the said Jacques
Samuels a promissory note in and for the sum
of $897.36, with interest, made by the Universal
Textile Company, a customer of said Joseph
Samuels & Co., dated July 20, 1912, payable
iwo months after date, to the order of Joseph
Samuels & Co., and did thereafter, on September
11, 1912, receive payment therefor in the
sum of $897.36, which said promissory note
and its proceeds was the property of the said
copartnership of Joseph Samuels & Co. and
would, in the due administration of the said
estates in bankruptcy, have belonged to the
said estates in bankruptcy; against the peace
of the United States and their dignity and
contrary to the form of the statute of the
United States in such case made and provided.
(Sec. 37 U.S. C. C. and sec. 29b of the bank-
ruptcy act.)
28
The alleged false statement of the defendant in
error in the hearing before the referee in bankruptey
was made in continuance of the result of the con-
spiracy and with the intent to deprive the estate of
the bankrupt of a portion of its assets. Had the
defendant in error testified truly that he had received
and collected the note for $897.36, the referee forth-
with would:have ordered him to return the money to
29
the trustee of the bankrupt’s estate. His denial
served to continue the result of the conspiracy and
reduce the assets of the estate. Under the circum-
stances, the plea of limitations sustained by Judge
Thomas had no application and could not constitute
res adjudicata here.
It is well settled that in a case of continuing con-
spiracy limitation runs from the commission of the
last overt act.
Brown v. Elliott (1912), 225 U. 8. 392, 401:
And where during the existence of the con-
spiracy there are successive overt acts, the
period of limitation must be computed from
the date of the last of them of which there is
appropriate allegation and proof, and this
although some of the earlier acts may have
occurred more than three years before the
indictment was found.
The alleged false statement made by the defendant
in error before the referee in bankruptcy, who was
endeavoring to ascertain what had become of the
assets of the estate, constituted an overt act, con-
tinued the conspiracy and the result thereof, and
Judge Pope was clearly in error when he stated that
the previous indictments and the one here under
consideration were legally identical. They were not
United States v. Kissel (1910), 218 U. 8. 601, 607,
608:
The argument, so far as the premises are
true, does not suffice to prove that a con-
spiracy, although it exists as soon as the agree-
61958—16—3
ONES
30
ment is made, may not continue beyond the
moment of making it. It is true that the
unlawful agreement satisfies the definition of
the crime, but it does not exhaust it. It also
is true, of course, that the mere continuance
of the result of a crime does not continue the
crime. United States v. Irvine, 98 U.S. 450.
But when the plot contemplates bringing to
pass a continuous result that will not con-
tinue without the continuous cooperation of
the conspirators to keep it up, and there is
such continuous cooperation, it is a perversion
of natural thought and of natural language to
call such continuous cooperation a cinemato-
graphic series of distinct conspiracies, rather
than to call it a single one.
* * * * *
A conspiracy is constituted by an agree-
ment, it is true, but it is the result of the agree-
ment, rather than the agreement itself, just
as a partnership, although constituted by a
contract, is not the contract but is a result of
it. The contract is instantaneous, the partner-
ship may endure as one and the same partner-
ship for years. A conspiracy is a partnership
in criminal purposes. That as such it may
have continuation in time is shown by the
rule that an overt act of one partner may be
the act of all without any new agreement
specifically directed to that act.
—
31
Vi.
This point is suggested by the brief of the defendant
in error on his motion to dismiss:
The contentions of the defendant in error that (1)
the errors assigned are insufficient, and (2) that
the writ of error and citation are defective, because
the names of all parties indicted are not specifically
mentioned therein, are not sustained by the au-
thorities cited.
(1) The errors assigned are simply and clearly
stated, and afford sufficient basis to support the
points previously argued in this brief.
(2) The defendant in error cites a number of civil
cases to show that the citation and writ of error
should have contained the names of all parties who
are jointly indicted for the offense charged. In civil
cases it is axiomatic that all necessary parties to the
original cause of action shall be included, either by
name or notice given, in an appeal on the merits.
When necessary parties who are cast in a civil action
do not desire to appeal and some of their co-defendants
do, it has been held that the service of notice upon
their co-defendants by the party or parties who did
desire to appeal, or the appearance of all defendants,
was necessary; and most of the cases cited by the
defendant in error are to this effect. Those cases
have no application here.
It is elementary that the Government may indict
a number of parties for an offense, and if, upon in-
vestigation, it be concluded that some of them can
not be convicted upon the testimony which can be
;
32
adduced, or that the Government may need the testi-
mony, induced by promise of immunity to some who
are really guilty but less culpable than others, upon
which to convict the more guilty actors, it has
always been held allowable for the Government to
dismiss or nol. pros. such of the defendants indicted
as it chose. This is the rule in the trial courts.
Necessarily, the same rule obtains in the matter of
writs of error brought by the Government. In this
particular case six people were indicted; only two
plead to the indictment, viz, Herman H. Oppenheimer
and Herman J. Dietz (R. 44, 45). The opinion and
decision of Judge Pope (R. 47) styled the case, ‘“ The
United States of America, Plaintiff, v. Jacques Samuels,
Joseph Samuels, Abraham Samuels, Herman J. Dietz,
Charles Hepner, and Herman H. Oppenheimer, Defend-
ants, No. 7-278.” The caption of the order of Judge
Hand (R. 49) was in the saine style, and yet the last
paragraph of that order read:
Ordered and adjudged, that the motion to
quash made by the defendant, Herman H. Op-
penheimer, be granted, and the indictment is
hereby quashed and the defendants allowed to
go without day thereunder.
Naturally, the court had no power to discharge
defendants, who had, so far as the record discloses,
neither been arraigned nor even entered appearance
before it. The citation in error (R. 51) was indorsed,
“United States of America v. Herman H. Oppenheim-
er, et al.” The writ of error (R. 1) runs as to Her-
ate
33
man H. Oppenheimer et al., and is indorsed (R. 2) in
like style.
The Government chose only to bring its writ of
error as to Herman H. Oppenheimer, one of the six de-
fendants indicted, one of the two entering appearance,
and the only one mentioned by name in the court’s
order of discharge. That was its privilege; the other
defendant arraigned, Herman J. Dietz, was not a neces-
sary party to this proceeding, and the time within
which writ of error might have been perfected as to
him has long since expired. The principle that gov-
erns in all of the civil cases cited by the defendant in
error has no bearing here. The citation and the writ
of error, while they did not bear the names of all the
parties indicted, nor even of the two arraigned in the
preliminary proceeding, were amply sufficient to
bring the defendant in error before this Court, and
the right of the United States to do so can not be de-
feated by the citation of a number of decisions in civil
cases involving the presence of necessary parties to
the suit when the appearance of Herman H. Oppen-
heimer alone is necessary to the prosecution of this
writ of error.
In a criminal proceeding, while jointly brought
and tried, each party charged stands upon his own
defense. A number may be jointly indicted; some
acquitted, the indictment dismissed as to some,
others convicted, some of them appeal, and others
accept sentence and decline to do so. Any con-
victed man may appeal, but he is under no
a
34
compulsion of law to do so because his fellow con-
victs may. Neither is the Government under any
legal obligation to bring writs of error as to all de-
fendants obtaining a favorable decision on a pre-
liminary plea because it brings the matter up as to
one or more. The right of the Government to come
to this Court, circumscribed as it is, can not be fur-
ther abridged by applying the legal principles gov-
erning civil proceedings to its only remedy in crimire|
cases. No defendant was sought to be brought be-
fore this Court save Herman H. Oppenheimer, and
he is properly here.
CONCLUSION.
It is respectfully submitted that the case should
be reversed and the defendant ordered to stand for
trial.
CHARLES WARREN,
Assistant Attorney General.
A. J. CLoprTon,
Attorney.
OcTOBER, 1916.
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: See bee sirgrs 2 hPL E Le SC I ES NT NAR ei EER REE LE eh te oer M
ESR ES EE ABREU.
Pir Ate a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.