Petition for Writ of Certiorari — Pi v. United States

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No. D4 UN 2 4 1999

IN THE

Supreme Court of the United States

PETER PI and COR-BON

CUSTOM BULLET COMPANY,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

STEPHEN J. DUNN

Counsel of Record

STEPHEN J. Dunn, P.C.

Attorney for Petitioners

3290 West Big Beaver Road

Suite 121

Troy, Michigan 48084

(248) 643-8130

152926 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Where an indictment has been dismissed because the

defendant did not commit the offense charged, does the

doctrine of res judicata bar re-indictment of the defendant

upon the same facts but a different -harge?

ll .

STATEMENT PURSUANT TO RULE 29.6

Petitioner, Cor-Bon Custom Bullet Company, has no

parent companies and there are no publicly held companies

that own 10% or more of its stock.

il

TABLE OF CONTENTS

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Parties to the Proceeding ...........secccceces

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Constitutional and Statutory Provisions .........

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Reasons for Granting the Writ .................

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II.

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The Petition Should Be Granted Because The

Sixth Circuit’s Opinion Below Abjures The

Supreme Court’s Holding In Oppenheimer

And Limits The Common Law Doctrine Of

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The Petition Should Be Granted Because The

Court Of Appeals’ Opinion Is Not Well-

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The Petition Should Be Granted Because The

Holding Of The Court Of Appeals Does Not

Reflect Sound Public Policy. ............

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12

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Anselmo v. Hardin, 253 F.2d 165 (3d Cir. 1958) .. 5

Chicot County Drainage Dist. v. Baxter State Bank,

RS ee er re Pret ee 5

Dunn vy. United States, 284 U.S. 390 (1932) ...... 8,9

Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394

Se <5 3s ween eeu es biedeeessdesueereeeen 12

Lane v. Peterson, 899 F.2d 737 (8th Cir.), cert.

denied, 498 U.S. 823 (1990) ................ 5

Lee v. United States, 432 U.S. 23 (1977) ........ 11

Lipscomb v. United States, 226 F.2d 812 (8th Cir.

1955), cert. denied, 350 U.S. 971, reh’g denied,

pe St, | ere rae 4

The Queen v. Miles, 24 Q.B.D. 423 (1890) ....... 5,6

Robinson v. United States, 284 F.2d 775 (Sth Cir.

SE. bo dw nent dekanesue rae ree: 9,10

Serio v. United States, 203 F.2d 576 (Sth Cir.), cert.

Gented, 346 U.S. GET (IDS) onc cc ccccccccces 5

Vv

Cited Authorities

Page

United States v. Oppenheimer, 242 U.S. 85 (1916)

cee bue count see eesunegudtscesevneeseentes passim

United States v. Perrone, 161 F. Supp. 252

RS a ere enn sro 9

United States v. Rabinowich, 238 U.S. 78 (1914) 3

United States v. Root, 366 F.2d 377 (9th Cir. 1966),

cert. denied, 386 U.S. 912 (1967) ............ 8

United States v. Senak, 477 F.2d 304 (7th Cir.), cert.

Gontad, 444 U3. GEG CIFTS) ccvccccecesceses 8

United States v. Woodell, 285 F.2d 316 (4th Cir.

SEE beaceceecdsceaesseenasereee eee 9

Wilson v. United States, 166 F.2d 527 (8th Cir. 1948)

teak eede etude eet sedeieit ree 12

Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir.

SOE civccces treaneeseeukvea ieee 5

Yawn v. United States, 244 F.2d 235 (Sth Cir. 1957)

Oba bead a4 nae hee ee ee 5,7

Statutes:

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vi

Cited Authorities

Page

20 Waa B VOUS 6600008 ends as eee ee 1,11

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United States Constitution:

Peek PE os sve ckaesudeeeseess eee 6

Rule:

. 8 ee SS eee ee 10

Other Authorities:

§ 29d of the Bankruptcy Act of 1898, Act of July 1,

1898, c. 541, § 29d, 30 Stat. 544 ............. 3

Summary Jurisdiction Act, 1879, 42 & 43 Vict. c.

2) PePrererrrr rrr re er rn ee 5

vil

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Sixth Circuit Dated And Filed

Pa US, TOD oc ccccceseusestuscucuseseees« la

Appendix B — Order Of The United States District

Court For The Eastern Division Of Michigan,

Southern Division Dated And Filed January 7,

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]

Petitioners, Peter R. Pi and Cor-Bon Custom Bullet

Company, Inc., respectfully request that a writ of certiorari

be issued to review the judgment of the United States Court

of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported at United States vy. Pi, __ F.3d

__, 1999 WL 198418 (6th Cir. 1999) (App. A). The order

of the District Court in United States y. Pi, Crim. No. 97-

CR-80681 (E.D. Mich. Jan. 7, 1998) (App. B) is

unpublished.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on April 12, 1999. The

jurisdiction of this Court is involved under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

This case turns upon the correct application of the

common law doctrine of res judicata. There are no

constitutional or statutory provisions directly involved in

this case.

STATEMENT OF THE CASE

On or about June 26, 1997, Peter R. Pi and his company,

Cor-Bon Custom Bullet Company, were indicted for

willfully failing to collect, account for and pay the tax on

2

shells and cartridges, in violation of 26 U.S.C. § 7202. But

Mr. Peter Pi and his company did not have a duty to collect,

account for and pay the tax in question, so they moved to

dismiss the indictment. The United States consented to

dismissal of the indictment. The District Court dismissed

the indictment.

Then the United States had Mr. Pi and his company

again indicted. The second indictment charged Mr. Pi and

his company with willfully attempting to evade or defeat

the tax on shells and cartridges or the payment thereof, in

violation of 26 U.S.C. § 7201 (the Government characterizes

the second indictment as the “first superseding indictment,”

but this is incorrect, as the first indictment was dismissed).

The same facts underlie both indictments; only the legal

theories are different.

Mr. Pi and his company moved to dismiss the second

indictment as res judicata. The District Court denied that

motion, and the defendants appealed. The Sixth Circuit’s

opinion affirming the District Court limits the common law

doctrine of res judicata and rejects this Court’s opinion in

United States v. Oppenheimer, 242 U.S. 85 (1916).

Accordingly, Mr. Pi and his company petition this Court

for a writ of certiorari.

3

REASONS FOR GRANTING THE WRIT

I.

THE PETITION SHOULD BE GRANTED BECAUSE

THE SIXTH CIRCUIT’S OPINION BELOW

ABJURES THE SUPREME COURT’S HOLDING IN

OPPENHEIMER AND LIMITS THE COMMON LAW

DOCTRINE OF RES JUDICATA.

In United States v. Oppenheimer, 242 U.S. 85 (1916),

a grand jury indicted Oppenheimer for conspiracy to commit

bankruptcy fraud. Oppenheimer moved to quash the

indictment on the ground that the one-year statute of

limitations of § 29d of the Bankruptcy Act of 1898, Act of

July 1, 1898, c. 541, § 29d, 30 Stat. 544, 554, had expired

on the offense. The Government apparently consented to

the motion to quash. The District Court granted the motion.

Then this Court issued its opinion in United States v.

Rabinowich, 238 U.S. 78 (1914), which held that the one-

year statute of limitations of § 29d of the Bankruptcy Act

of 1898 did not apply to the offense of conspiracy to commit

bankruptcy fraud. Then the Government had Oppenheimer

indicted again on the same facts, and Oppenheimer moved

to quash the second indictment. Oppenheimer argued that

the dismissal of the first indictment was res judicata as to

the second. This Court agreed with Oppenheimer. Writing

for a unanimous Court, Justice Holmes said:

It cannot be that a judgment of acquittal on the

ground of the statute of limitations is less a

protection against a second trial than a judgment

upon the ground of innocence, or that such a

4

judgment is any more effective when entered

after a verdict than if entered by the

Government’s consent before a jury is

empaneled.

242 U.S. at 87. Indeed, the present case is a better one than

Oppenheimer for application the doctrine of res judicata.

In the present case, the first indictment was dismissed not

because the statute of limitations had expired upon the

offense charged, but because the defendants did not commit

the offense charged.

Res judicata precludes not only matters that were

adjudicated in the earlier proceeding, but also matters that

might properly have been presented in that proceeding. In

Lipscomb v. United States, 226 F.2d 812 (8th Cir. 1955),

cert. denied, 350 U.S. 971, reh’g denied, 350 U.S. 1003

(1956), a prisoner moved under 28 U.S.C. § 2255 to vacate

his conviction. The Eighth Circuit noted that the movant

had filed an earlier motion seeking the same relief albeit

upon different contentions, and that the District Court had

denied the earlier motion. In holding that the denial of the

first motion was res judicata as to the second, the Eighth

Circuit said:

The same relief was sought in [the earlier] motion

as in the motion here under consideration and

the contentions now presented could have been

urged in that proceeding as there is no claim that

they arose subsequent thereto and the decision

in that proceeding is binding on the defendant

not only as to the contentions there made but as

to all other contentions which could have been

made.

5

In the course of our opinion in Mitchell v.

Village Creek Drainage Dist., 8 Cir., 158 F.2d

475, 477, it is said:

It is elementary that res judicata

may be pleaded as a bar not only as

respects matters actually presented to

sustain or defeat the right asserted in

the earlier proceeding but also as to any

other available matter which might

have been presented to that end.

[Citations omitted].

226 F.2d at 816-17. See also Chicot County Drainage Dist.

v. Baxter State Bank, 308 U.S. 371, 378 (1940); Anselmo v.

Hardin, 253 F.2d 165, 168 (3d Cir. 1958). Put another way,

a final judgment on the merits in one action is res judicata

as to another action between the same parties or their privies

if the two actions arise out of the same nucleus of operative

fact. E.g., Lane v. Peterson, 899 F.2d 737, 742 (8th Cir.),

cert. denied, 498 U.S. 823 (1990); Woods v. Dunlop Tire

Corp., 972 F.2d 36, 38-39 (2d Cir. 1992). See also Yawn v.

United States, 244 F.2d 235, 237 (Sth Cir. 1957) (quoting

Serio v. United States, 203 F.2d 576, 578 (Sth Cir.), cert.

denied, 346 U.S. 887 (1953) (“[T]he same facts can not be

twice litigated by the same sovereign against the same

defendant”’)).

In The Queen v. Miles, 24 Q.B.D. 423 (1890), cited by

Justice Holmes in Oppenheimer, Miles was charged with

unlawfully assaulting and beating Charles Living. The case

against Miles was discharged under the Summary

Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 16, whith

provides in part:

6

If upon the hearing of a charge for an offense

punishable upon summary conviction, the Court

of Summary Jurisdiction think that, though the

charge is proved, the offense was in the particular

case of so trifling a nature that it is inexpedient

to inflict any punishment, or any other than a

noncriminal punishment[,] ... [t]he Court,

without proceeding to conviction, may discharge

the information.

Later, Miles was indicted on a five-count indictment

arising out of the same incident with Living. Count one

charged Miles with unlawfully and maliciously wounding

Living. Count two charged Miles with inflicting great bodily

harm upon Living. Count three charged Miles with

assaulting Living, and beating, wounding, and ill-treating

him, thereby occasioning to him great bodily harm. Count

four charged Miles with beating, wounding and ill-treating

Living. The fifth count had been dismissed. The Queen’s

Bench Division was of the unanimous opinion that the later

indictment had to be quashed because of the earlier

adjudication upon the same facts.

Similarly, in the case before the Court, the same facts

underlie both indictments. Only the legal theories are

different. As the adjudiciation in the earlier case was res

judicata as to the later case in Miles, the dismissal of the

first indictment is res judicata as to the second indictment

in the case before the Court.

The Court of Appeals in this case limited the doctrine

of res judicata in criminal cases to the bounds of the Fifth

Amendment protection against double jeopardy: “The

doctrine of res judicata bars subsequent litigation between

7

parties on matters that have previously been fully and finally

adjudicated because of the double jeopardy clause guarantee

against being twice put to trial for the same offense.” Slip

Op. at 6-7. If this position is the law, then dismissal of an

indictment pretrial can never have res judicata effect. The

Supreme Court expressly rejected this position in

Oppenheimer:

The safeguard provided by the Constitution

against the gravest abuses has tended to give the

impression that when it did not apply in terms,

there was no other principle that could. But the

Fifth Amendment was not intended to do away

with what in the civil law is a fundamental

principle of justice (Jeter v. Hewitt, 22 How. 352,

364), in order, when a man once has been

acquitted on the merits, to enable the

Government to prosecute him a second time.

242 U.S. at 88. Similarly, in Yawn v. United States, 244

F.2d 235, 237 (Sth Cir. 1957), the Fifth Circuit said that

“(w]hile res judicata is related to double jeopardy and in

certain cases my have an identical effect, [citations omitted],

it may have determining effect in situations where double

jeopardy is unquestionably inapplicable.”

Because the Court of Appeals in this case elected not

to follow the Supreme Court’s holding in Oppenheimer,

thereby limiting the common law doctrine of res judicata,

this Court should grant the Petition.

8

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE COURT OF APPEALS’ OPINION IS NOT

WELL-FOUNDED IN LAW.

The Court of Appeals relied upon three cases and a court

rule in holding that the dismissal of the first indictment was

not res judicata to the second. The opinion in United States

v. Senak, 477 F.2d 304 (7th Cir.), cert. denied, 414 U.S.

856 (1973), does not disclose the factual allegations of the

two indictments. Moreover, the only ground relied upon by

the defendant in moving to dismiss the second indictment

was double jeopardy; res judicata is not mentioned in the

opinion.

United States v. Root, 366 F.2d 377 (9th Cir. 1966),

cert. denied, 386 U.S. 912 (1967), was a prosecution for

the kidnapping of Frank Sinatra, Jr. Count One of the

indictment charged conspiracy. Count Two charged

interstate transportation of the kidnap victim. Counts Three

through Five charged separate transmissions in interstate

commerce of ransom communications, and aiding and

abetting. Count Six charged possession of the ransom

money. The District Court correctly held that dismissal of

Count One was not res judicata as to the remaining counts.

Obviously, the conspiracy count in Root involved facts (an

agreement and an overt act in furtherance thereof) different

from those of the target offenses, and therefore that the

dismissal of Count One could not have res judicata effect

as to Counts Two through Six. It is well-settled that where

counts of the same indictment charge offenses involving

different facts, an acquittal on one count is not res judicata

as to the others. E.g., Dunn v. United States, 284 U.S. 390,

9

393 (1932) (Holmes, J.). See also United States v. Woodell,

285 F.2d 316, 317 (4th Cir. 1960); United States v. Perrone,

161 F. Supp. 252, 260-61 (S.D.N.Y. 1958). These cases

have absolutely no relevance to the present case because

District Court below dismissed all of the counts of the first

indictment. Moreover, all eighteen counts of the first

indictment below involve exactly the same facts.

In Robinson v. United States, 284 F.2d 775 (Sth Cir.

1960), the United States indicted Robinson for illegal

possession and concealment of non-tax-paid whiskey. The

indictment resulted from information reported to the United

States Attorney’s office in Jacksonville by a local police

officer, Anderson. Anderson had seized the whiskey on a

search warrant, arrested Robinson, and initiated a criminal

proceeding against Robinson in the Florida courts. The

United States District Court of the Southern District of

Florida stayed its hand and dismissed the indictment on

“grounds of public policy.” The District Court found that

“it would be unseemly for both the state and federal

governments to move forward at the same time against the

same man for what amounted to the same crime.” 284 F.2d

at 775.

Some time later the United States Attorney learned that

he and the Federal District Court had been misinformed as

to the facts on which its dismissal was based. The true facts

were Called to the attention of the Federal District Court,

and Robinson was re-indicted. In affirming Robinson’s

conviction, the former Fifth Circuit said:

We note that the motion to dismiss the first

indictment did not attack the indictment with

respect to its sufficiency or with respect to any

10

point that might exculpate the defendant. The

objection was based on principles of comity. The

court’s application of the principles was based

on misinformation. See United Sates v. Janitz, 3

Cir., 1947, 161 F.2d 19 and Untied States v.

Gaskin, 1944, 320 U.S. 527, 64S. Ct. 318, 88 L.

Ed. 287.

284 F.2d at 776. In the case presently before the Court, in

contrast, there are no principles of comity at issue. Nor was

the District Court below misinformed in dismissing the first

indictment. Rather, the District Court dismissed the first

indictment in this case because the defendants did not

commit the crimes charged.

Finally, the Court of Appeals said that “Fed. R. Crim.

P. 12(h) provides that an indictment dismissed because of

a defect may be superseded by a new indictment.” Slip.

Op. at 7. Fed. R. Crim. P. 12(h) provides in pertinent part:

If the court grants a motion based on a defect

in the institution of the prosecution or in the

indictment or information, it may also order that

the defendant be continued in custody or that bail

be continued for a specified time pending the

filing of a new indictment or information.

(Emphasis added). The Supreme Court recognized this

principle in Oppenheimer: “Of course the quashing of a bad

indictment is no bar to a prosecution upon a good one. ...

242 U.S. at 87. But in the same sentence the Court said that

“a judgment for the defendant upon the ground that the

prosection is barred [by the statute of limitations] goes to

his liability as a mater of substantive law and one judgment

”

11

that he is free as matter of substantive law is as good as

another.” /d. An indictment might be defective, for example,

if it omits an element of the offense charged. E.g., Lee v.

United States, 432 U.S. 23 (1977). But the first indictment

below was fair on its face. It set forth 26 U.S.C. § 7202

verbatim eighteen times. In dismissing the first indictment,

the District Court freed defendants therefrom as a matter of

substantive law. Clearly, the dismissal of the first indictment

in this case is res judicata as to the second. Because the

Court of Appeals’ opinion is not well-founded in law, this

Court should grant the Petition.

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE HOLDING OF THE COURT OF APPEALS

DOES NOT REFLECT SOUND PUBLIC POLICY.

Peter Pi’s family suffered the uncertainty of an

indictment which threatened the liberty of their husband,

father and breadwinner. Peter Pi lived with the uncertainty

of not knowing what would happen to his business in the

event he lost his liberty. Then the indictment was dismissed

as a matter of substantive law.

The Government is the master of its indictment. It could

have indicted Peter Pi under 26 U.S.C. §§ 7201 and 7202

or under § 7201 alone. It chose to indict under § 7202 alone.

That indictment was dismissed as a matter of substantive

law. The Government should live with the consequences of

its election.

Now Peter Pi and his family are again under the cloud

of a prosecution. The Government has re-indicted Peter Pi

on the same facts but a different charge.

12

Res judicata is “a rule of fundamental justice and

substantial justice, ‘of public policy and private peace,’

which should be cordially regarded and enforced by the

courts.” Federated Dept. Stores, Inc. v. Moitie, 452 U.S.

394, 401 (1981). See ulso Wilson v. United States, 166 F.2d

527, 529 (8th Cir. 1948).

Because the failure of the Court of Appeals to give

effect to the doctrine of res judicata is unsound in public

policy, this Court should grant the Petition.

CONCLUSION

The doctrine of res judicata requires parties to litigate

all of their claims against each other in one proceeding.

This important doctrine serves the interests of judicial

economy and private peace. The Court of Appeals’ opinion

abjures this Court’s opinion in United States v.

Oppenheimer, 242 U.S. 85 (1916), and limits the common

law doctrine of res judicata. Accordingly, Mr. Pi and his

company respectfully request that this Court grant their

Petition for a Writ of Certiorari.

Respectfully submitted,

STEPHEN J. DUNN

Counsel of Record

STEPHEN J. Dunn, P.C.

Attorney for Petitioners

3290 West Big Beaver Road

Suite 121

Troy, Michigan 48084

(248) 643-8130