# Petition for Writ of Certiorari — Pi v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 825

## Text

‘ ‘ ¢ wr e
4 ; fieap.
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

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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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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:
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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0486%3A1. Public record. Not legal advice.