Appellees Brief — Muza v. California

PY "FILED

OCT 2 9196

JOHN F. DAVIS, C

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 29

Unitep States oF AMERICA,

Appellant,

—U.-—

CLARENCE EWwELt and Ronatp K. Dennis.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

BRIEF FOR APPELLEE CLARENCE EWELL

Davin B. Locxton

10th Floor, 111 Monument Circle

Indianapolis, Indiana 46204

Attorney for

Clarence Ewell, Appellee

Opinions Below

Constitutional Provisions Involved

Questions Presented

| ee

Summary of Argument

INDEX

ARGUMENT:

I.

Il.

Il.

IV.

Conclusion

The Appeal Does Not Present a Case or

Controversy and Should Be Dismissed ........

The District Court’s Decision That the Pro-

ceedings Against the Defendant Violated the

Sixth Amendment Right to Be Informed of

the Nature and Cause of the Accusation Is

Correct

The Appellee Was Deprived of His Right to

a Speedy Trial Under the Sixth Amend-

ment on the Charge of Selling Narcotics in

Violation of Title 26 U.S.C. 4704(a) WW... ....

A. The delay involved was substantial ........

B. The appellee has been prejudiced by the

delay

C. The delay and the resulting prejudice was

a resul of the Government’s conduct ....

The Second Indictment Charging a Violation

of 26 U.S.C. 4704(a) Violates the Double

Jeopardy Protection of the Fifth Amendment

Page

nw nd = =

12

14

22

23

27

30

37

41

INDEX

Page

CITATIONS

CASES:

Abbate v. United States, 359 U.S. 187 ...... 12, 30, 38, 39

Bayless v. United States, 147 F. 2d 169, reversed

on other grounds, 150 F. 2d 236 26

Beland v. United States, 100 F. 2d 289, certiorari

denied 306 U.S. 636 17, 18

Blockburger v. United States, 284 U.S. 299 ........ 15,17

Clay v. United States, 326 F. 2d 196 .................... 5, 34

Collins v. Markley, 346 F. 2d 230 8, 34, 38

Downum v. United States, 372 U.S. 734 ............ 29

Fahy v. Connecticut, 375 U.S. 85 20

Fiswick v. United States, 329 U.S. 211 ................ Bs

Frankel v. Woodrough, 7 F. 2d 796 26, 28

Glasser v. United States, 315 U.S. 60 .................. 20

Gore v. United States, 357 U.S. 387 .................-- 4,17

Griffin v. California, 380 U.S. 609 36

Hallman v. United States, 208 F. 2d 828 ........ 15, 20, 21

Hanrahan v. United States, 348 F. 2d 363 -........... 26

Harris v. United States, 359 U.S. 19 ...................- 17

Hurtado v. California, 110 U.S. 516 .-................... 29

Hutchinson v. United States, 345 F. 2d 964 -....... 17

In Re Neilson, 131 U.S. 176 38

Jackson v. United States, 325 F. 2d 477 ............ 5, 34

Jackson v. United States, 9/13/65 (C.A.D.C.) 25

Lauer v. United States, 320 F. 2d 187 ........ 5, 6, 8, 29,

31, 32, 33, 34, 35, 36, 38

Nickens v. United States, 323 F. 2d 808 ............ 15, 19

Petite v. United States, 361 U.S. 529 .................... 30, 38

Petition of Provoo, 17 F.R.D. 183 (D. Md.),

affirmed 350 U.S. 857 ................-.- 15, 22, 27, 28, 29, 31

Pointer v. Texas, U.S. , 13 L.Ed. 2d 923 15

Pollard v. United States, 352 U.S. 354 -..0......... 38

Ponzi v. Fessenden, 258 U.S. 254 26

Powell v. United States, 8/30/65 (C.A.D.C.) -.... 24, 25

Rivera v. United States, 318 F. 2d 606 ................ 5, 32

INDEX ili

Page

Ross v. United States, 349 F. 2d 210 ........ 15, 16, 19, 21,

24, 25, 28

Smith v. United States, 360 U.S. 1 .................... 25

Taylor v. United States, 238 F. 2d 259 ........ 15, 19, 26,

27-28

United States v. Ball, 163 U.S. 622 26

United States v. Brest, 266 F. 2d 879, certiorari

denied 362 U.S. 912 26

United States v. Cruikshank, 92 U.S. (2 Otto)

542 15

United States v. Debrow, 346 U.S. 374 ................ 5, 15, 32

United States v. Dennis, 242 F. Supp. 166 ........ 1

United States v. Ewell, 242 F. Supp. 451 -........... 1

United States v. Lustman, 258 F. 2d 475, certio-

rari denied 358 U.S. 880 28

United States v. Morgan, 346 U.S. 502 ................ 33

United States v. Sabella, 272 F. 2d 206 ................ 39

United States v. Seeger, 303 F. 2d 478 ................ 15

United States v. Tateo, 377 U.S. 463 -................... 26, 35

United States v. United States Smelting, R € M

Co., 339 U.S. 186 23

United States v. Wilkins, 348 F. 2d 844 0... 20

Ward v. United States, 346 F. 2d 423 000... 28

Williams v. United States, 250 F. 2d 19 ..000... 28

CONSTITUTION, STATUTES AND RULES:

United States Constitution:

Article 3, Section 2 1, 2, 9,14

Fifth Amendment . 2, 3, 6, 12, 24, 26, 30,

37, 38, 39, 40, 41

Sixth Amendment 2, 3, 5, 6, 8, 9, 10, 13,

14, 15, 16, 19, 21, 22, 23, 24,

25, 26, 27, 30, 31, 33, 37, 38, 41

Be ee es 7

18 U.S.C. 4208(b) 4

21 U.S.C. 174 ...... 2, 3, 4, 5, 6, 7, 12,

16, 17, 20, 31, 39

ee

26 U.S.C. 4704(a) 2, 3, 4, 5, 6, 8, 10,11,

12, 16, 17, 18, 19, 20, 22, 23,

24, 25, 30, 31, 33, 36, 37, 38

26 U.S.C. 4705(a) 2, 3, 4, 5, 6, 7, 8,9,

12, 18, 20, 31, 37, 38, 39

26 U.S.C. 7237(a) 33

26 U.S.C. 7237(b) 4,7

26 U.S.C. 7237(e) (1) 4,7

26 U.S.C. 7237(d) ...... 4,7

“Ss 2 eh 5, 32, 33, 35

Revised Rules of the Supreme Court of the

United States:

Rule 15(1) (ce) (1) 9,13

OTHER:

“In Gideon’s Wake: Harsher Penalties and the

‘Successful’ Criminal Appellant.” Van Al-

styne, 74 Yale Law Journal 606 (1965) ............

—

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 29

Unitep States or AMERICA,

Appellant,

| ro

CLARENCE Ewe.u and Ronayp K. Dennis.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

BRIEF FOR APPELLEE CLARENCE EWELL

Opinions Below

The opinions of the district court are reported at 242

F. Supp. 451 (S.D. Indiana), United States v. Ewell; and

at 242 F. Supp. 166 (S.D. Indiana), United States v. Dennis.

Constitutional Provisions Involved

Article 3, Section 2 provides in pertinent part:

“The judicial Power shall extend to all Cases, ... ;—

to Controversies to which the United States shall be

Spars...”

—

2

The Fifth Amendment provides in pertinent part:

« .. nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb;.. .”

The Sixth Amendment provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial . . ., and to be

informed of the nature and cause of the accusa-

Geta-v-+-<"

Questions Presented

1. The Government has limited this appeal to that part

of the district court’s judgment dismissing Count IT of a

three-count indictment on the grounds that the defendant’s

right under the Sixth Amendment to a speedy trial was

denied him. The district court also found that the pro-

ceedings violated the right under the Sixth Amendment

to be informed of the nature and cause of the accusation.

In view of the fact that this independent ground for dis-

missing the indictment is unchallenged by this appeal, is

there a case or controversy required by Article 3, Section 2

of the Constitution to give this Court jurisdiction?

2. In its first proceeding against the defendant, the

Government limited its prosecution to a one-count indict-

ment charging a violation of 26 U.S.C. 4705(a). After the

judgment on that indictment was set aside, the Government

caused Ewell to be reindicted on the original and two addi-

tional counts stemming from the same alleged sale of nar-

cotics. These new counts charged violations of 26 U.S.C.

4704(a) and 21 U.S.C. 174. The Government delayed in-

forming the defendant of the charges over fifteen months.

3

This entire time the defendant was in the custody of the

Government. Under these circumstances, was Eweu denied

his right under the Sixth Amendment to reasonable notice

of every element of the charges he must be prepared to

defend?

3. The defendant was arrested and jailed on December

12, 1962, and charged with an illegal sale of narcotics which

allegedly occurred on October 31, 1962. The defendant was

not indicted for violating 26 U.S.C. 4704(a), which is the

subject of this appeal, however, until March 26, 1964, even

though he had been in the custody of the Government since

the day of his arrest and could have been indicted on this

charge at any time. The question is whether the Govern-

ment’s delay in charging the defendant with a violation of

96 U.S.C. 4704(a) resulted in a denial of his Sixth Amend-

ment guarantee of a speedy trial on this charge.

4. In the original proceeding the Government caused the

Grand Jury to indict the defendant for a sale of narcotics

in violation of 26 U.S.C. 4705(a). Fifteen months later

the Government caused the defendant to be indicted on

two additional counts charging violations of 26 U.S.C. 4704

(a) and 21 U.S.C. 174. These new counts admittedly grew

out of the same sale alleged in the first indictment. The

question is whether this successive prosecution of the de-

fendant for the same act is barred by the double jeopardy

clause of the Fifth Amendment.

Statement

On December 10, 1962, a complaint was filed charging the

appellee, Clarence Ewell, with a violation of Title 26 US.C.

4705(a), which makes it a felony to sell narcotics to one

os

4

who does not possess a written order form issued by the

Secretary of the Treasury.’ The appellee was arrested on

December 12, 1962, and was remanded to jail after a com-

missioner’s hearing when he was unable to post bond (R.

14-15).

A single sale of narcotics (heroin) may constitute a vio-

lation of three statutes. Proof of a single sale will support

a prima facie case for violations of 21 U.S.C. 174 (concern-

ing illegally imported narcotics), and 26 U.S.C. 4704(a)

(selling not in nor from the original stamped package), as

well as 26 U.S.C. 4705(a). See Gore v. United States, 357

U.S. 387. The Government chose not to proceed under the

first two sections and on December 14, 1962, an indictment

was returned charging the appellee with violating 26 U.S.C.

4705(a) alone. The indictment did not set forth the name

of the alleged purchaser. Ewell pleaded guilty on Decem-

ber 18, 1962, and was sentenced as a second offender’ to

the minimum sentence of 10 years, pursuant to 26 U.S.C.

7237(b), (c)(1) and (d) (R. 15-18).

On January 17, 1963, the Court of Appeals for the

Seventh Circuit, in an unrelated case emanating from the

same district court as this case, held that an indictment

1The factual situations of Clarence Ewell and Ronald K. Dennis

are practically identical. The only material differences are the

dates of occurrences. Ewell preceded Dennis at every stage of the

proceedings. For the sake of simplicity, this Brief is written on

the basis of the facts concerning Clarence Ewell only; and, where

there is a difference other than one of time, it will be indicated by

footnote. No counsel has been appointed for Ronald K. Dennis

in this appeal. It is the understanding of this counsel that Ronald

K. Dennis could not be located in order to sign a petition for

appointment of counsel. As used in this Brief, “appellee” and

“defendant” refers to Clarence Ewell unless otherwise indicated.

2Dennis was not a second offender and was sentenced to the

minimum term of five years after a commitment for study under

18 U.S.C. 4208(b) (R. 46-50).

under 26 U.S.C. 4705(a), which does not allege the name

of the purchaser is defective because it violates the Sixth

Amendment requirement that the accused be informed of

the nature and cause of the accusation, and that such an

indictment would not permit the defendant to plead bis

conviction as a bar to further prosecution for the same

offense. Lauer v. United States, 320 F. 2d 187 (C.A. 7).

In spite of the fact that the Government’s Brief (p. 9, n. 5)

states the Lawer decision was contrary to a prior decision

of this Court, United States v. Debrow, 346 U.S. 374, and

one of the Ninth Circuit, Rivera v. United States, 318 F.

2d 606, 607 (C.A. 9), and was deemed to be incorrect (Brief,

p. 15), the Soliciter General permitted the decision to stand

unchallenged.

On November 6, 1963, Ewell moved to vacate his convic-

tion pursuant to 28 U.S.C. 2255 on the basis of the Lauer

decision. The motion was granted on January 13, 1964.

By the time the appellee’s section 2255 motion was granted,

according to the Government’s Jurisdictional Statement

(p. 3, n. 3) and Brief (p. 9, n. 5), two additional circuits

that had had occasion to consider the ruling in Laver had

rejected it. Clay v. United States, 326 F. 2d 196 (C.A. 10)

(December 24, 1963); Jackson v. United States, 325 F. 2d

477 (C.A. 8) (December 20, 1963). In spite of this, the

Government did not appeal the decision setting aside the

appellee’s conviction. On the contrary, appellee was ar-

rested upon his release on a new complaint based on the

same sale which had formed the basis of the original con-

viction. This time the complaint charged 1 violation of

26 U.S.C. 4704(a) as well as 4705(a). After a probable

cause hearing before the United States Commissioner, the

appellee was remanded to jail for failure to post bond (R.

18-21).

—,

6

On March 26, 1964, the Grand Jury returned an indict.

ment against Ewell based on the transaction involved in

the original indictment. However, this time three separate

crimes were charged. Count I charged a sale without an

order form in violation of 26 U.S.C. 4705(a); Count II

charged a sale not in nor from the original stamped package,

in violation of 26 U.S.C. 4704(a); and Count I1I charged

dealing in illegally imported narcotics in violation of 21

U.S.C. 174 (R. 20-22). The defendant now faced a maxi-

mum penalty of 100 years and $60,000 fine, or both; where-

as, under tthe original indictment the maximum sentence

faced by Ewell was 40 years and a fine of $20,000 or both.

These charges faced for the first time came more than

seventeen months after the offense.

Ewell pleaded not guilty on arraignment. A motion to

dismiss the indictment was filed on the grounds it violated

the provisions of the Tifth and Sixth Amendments (R.

22-23). On July 13, 1964, the district court denied the

motion on the Fifth Amendment ground of double jeopardy,

but dismissed the indictment on two Sixth Amendment

grounds. The court stated that Ewell’s Sixth Amendment

right to a speedy trial and the right to be informed of the

nature and cause of the accusation had been violated by

the combined events stated above (R. 25-26).*

The opinion of the court noted that while Ewell had

served almost nineteen months of his sentence, because of

the Lauer decision Ewell had no choice but to attack his

judgment and sentence immediately. The court also found

that the Government:

* The Government, both in its Jurisdictional Statement and its

Brief, completely ignores that part of the opinion holding that

the inclusion of the two additional counts in the second indictment

violated this Sixth Amendment right of an accused to be informed

of the nature and cause of the accusation.

_

7

“. .. for some reason unknown of record other than

the expressed concern of the prospective liberation of

a number of similarly convicted narcotic felons, caused

the Grand Jury in March, 1964, to reindict Mr. Ewell

for three narcotic offenses allegedly occurring on the

same date growing out of the same transaction whereas

the first indictment was for one narcotic offense al-

legedly occurring on the same date and apparently the

same transaction referred to in the three offenses in

the three-count indictment” (R. 25).

The court observed that Ewell was not a belligerent

offender and also expressed the view that none of the time

he had already served and would serve until his trial could

be eredited to any sentence he might receive if found guilty

because of Title 26 U.S.C. 7237(b), (c)(1), and (d), and

Title 18 U.S.C. 3568 (R. 25).

The Government petitioned for rehearing on July 22,

1964 (R. 26-28), and for the first time stated that “in recog-

nition of the inequity to this defendant arising from the

fact that under the mandatory sentencing provisions of

26 U.S.C. 4705(a) and 21 U.S.C. 174, the Court may not

give credit for the time already served” (R. 35) the At-

torney General had authorized the Government to offer

to dismiss Counts I and III of the indictment if the court

would reverse its decision and Ewell would plead guilty

to Count II or would be found guilty on Count Il, which

might result in a minimum sentence of five years without

probation or parole. After oral argument, the district court

denied the Petition for Rehearing on J uly 30, 1964* (R. 39).

‘The Government did not offer to dismiss Counts I and III

under any circumstances in the Dennis case.

2 Ge nn

8

Although the district court dismissed the indictment con-

sisting of three counts, the Government, in its Jurisdic-

tional Statement, has limited the appeal to “that portion

of the order of the district court in each case which dis-

missed the second count of each indictment, charging a

violation of 26 U.S.C. 4704(a)” (Jur. St., p. 5). The appeal

was also limited to that part of the district court’s judg-

ment which was based on the Sixth Amendment right to

a speedy trial. That part of the decision which was based

on the right to be informed of the nature and cause of the

accusation is not brought before the Court (Brief, pp. 1-2;

Jur. St., p. 2). The reason given for limiting the appeal

to Count II was so that there would be no question as to

the right of the district court, in fixing sentence, to take

into consideration the time already served by the appellee

(Jurisdictional Statement, pp. 5-6, Brief, p. 5).

On May 11, 1965, six days before this Court noted prob-

able jurisdiction in this case, the Seventh Circuit sitting

En Bane overruled Lauer holding that the emission of the

name of a purchaser from an indictment charging a viola-

tion of Title 26 U.S.C. 4705(a) was not a defect of such

a fundamental nature as to render a judgment of convic-

tion vulnerable to collateral attack. Collins v. Markley, 346

F. 2d 230 (C.A. 7).

Summary of Argument

I. The district court dismissed Count II of a second in-

dictment against Clarence Ewell charging a violation of

26 U.S.C. 4704(a) on the grounds that under all of the

circumstances the rights guaranteed him by the Sixth

Amendment (a) to a speedy trial, and (b) to be informed

of the nature and cause of the accusation, had been vio-

lated. The Government has limited its appeal to the ques-

tion of the denial of the right to a speedy trial, and the

second ground for the trial court’s decision is not men-

tioned in the Government’s Jurisdictional Statement or

Brief.

This Court is precluded from considering any questions

except those raised by the Jurisdictional Statement or

fairly comprised therein. Rule 15(1)(c)(1), Revised Rules

of the Supreme Court of the United States. By not ap-

pealing the district court’s decision concerning the right

to be informed, the Government has left unchallenged an

independent basis on which the trial court’s dismissal of

the indictment must be sustained. The question raised by

the Government is moot because any decision of this Court

concerning the defendant’s right to a speedy trial would

not affect his freedom and would be nothing more than an

advisory opinion. This appeal does not, therefore, present

a case or controversy as required by Article 3, Section 2

of the Constitution and should be dismissed.

II. The trial court’s decision that the combined events

of the proceedings against the defendant violated his right

to be informed of the nature and cause of the accusation

is clearly correct.

The Sixth Amendment entitles the accused to reasonable

notice of every element of the charges which he will be

required to defend. While delay in bringing charges obvi-

ously prejudices the defendant in the defense of such

charges, the cases recognize that any delay is most severe

in a narcotics case. In Ewell’s case the Government origi-

nally charged him only with selling narcotics to one who

did not possess the proper order form in violation of 26

U.S.C. 4705(a). When Ewell successfully set aside that

conviction, the Government reindicted him and added two

additional counts to the second indictment, one of which

10

was Count II, the subject matter of this appeal, charging

Ewell with selling narcotics not from nor in the original

stamped package in violation of 25 U.S.C. 4704(a). The

delay in informing Ewell that he must defend this new

charge was fifteen months, even though the new charge

grew out of the same allegdd transaction that was the

basis of the first indictment. This delay severely prejudiced

him in his ability to defend the new charge. The reason is

obvious. Under the charge in the first indictment, the pres-

ence or absence of a stamped package was irrelevant.

Under the new charge, however, the defendant would have

to prove the existence of a Stamped package in order to

rebut the presumption that the sale of unstamped narcotics

was made from an unstamped package. The defendant was

in prison, unaware of this proposed charge and, therefore,

unable to adequately prepare a defense when and if the

Government informed him of the new charge.

This prejudice resulting from the delay is undenied. Be-

cause there has been prejudice, whatever reason there may

have been for the delay is irrelevant. This case presents

a perfect example of the reason for the Sixth Amendment

right to be informed of the nature and cause of the accusa-

tion.

III. The dismissal of Count II on the grounds that the

combined events violated the defendant’s right to a speedy

trial is clearly correct.

The delay involved was substantial under the cireum-

stances. The defendant was arrested on December 12,

1962, and was not indicted under the charge in question

until March 26, 1964, in spite of the fact that he was in the

custody of the Government this entire period. The defen-

dant’s right to a speedy trial is not affected by the fact that

i

11

he is in jail on another conviction. Furthermore, the period

to be measured by the speedy trial protection is begun

when the prosecution is first instituted and is not affected

by the filing of a second indictment charging different vio-

lations arising from the same act. The Government’s at-

tempt to break the total period of delay into several lesser

periods and hold these periods up to the speedy trial guar-

antee is completely unsupported by the law and the facts.

The uncontroverted fact is that the defendant was incar-

cerated over fifteen months before he was first charged with

a violation of 26 U.S.C. 4704(a).

The Government has not met its burden of showing that

the defendant was not prejudiced by the delay, and the

facts clearly show that he was prejudiced. The defendant

was prejudiced by the restraint upon his liberty, by the

harassment of successive prosecution based on the same

act and by the accompanying notoriety and anxiety re-

sulting therefrom. The defendant was most severely preju-

diced, however, in his ability to defend the new charge

because of the fifteen-month delay. The Government does

not deny the existence of this prejudice.

While the defendant is not required to show that the

delay and prejudice was the result of purposeful conduct,

nevertheless this appeal would never have reached this

Court and the delay and prejudice resulting to the de-

fendant would not have occurred except for the conduct

of the Government, whether or not it was purposeful.

As the district court found, it was the combined events

of the proceedings by the Government which denied the

defendant his right to a speedy trial.

IV. In the original proceeding, the Government caused

the Grand Jury to indict the defendant on only one count

- —_—_—

12

charging a sale of narcotics in violation of 26 U.S.C. 4705

(a). Fifteen months later, after the defendant success-

fully set aside that conviction, the Government indicted the

defendant on the original count plus two additional counts

charging violations of 26 U.S.C. 4704(a) and 21 U.S.C.

174. These new counts admittedly grew out of the same

sale alleged in the first indictment. There is no question

that had these two counts been included in the first indict-

ment no constitutional right would have been violated.

However, to permit prosecutions for these alleged viola-

tions to be brought at a later date for any reason gives the

Government the power to subject the defendant to longer

sentences for the same act. In this case the trial court

held this tactic was used to discourage other similarly con-

victed defendants from attacking their convictions. Under

the reasoning in Abbate v. United States, 359 U.S. 187,

196-199 (Separate Opinion), the addition of Count IT to

the second indictment is clearly barred by the double jeop-

ardy clause of the Fifth Amendment.

ARGUMENT

I.

The Appeal Does Not Present a Case or Controversy and

Should Be Dismissed.

The ultimate finding of the district court was (R. 25):

“The rights of Mr. Ewell under the Sixth Amendment

of the United States Constitution quoted in part as

follows has been violated by the combined events re-

cited herein:

‘In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial . . . and io be

13

informed of the nature and cause of the accusa-

tion ...’” (Emphasis added.)

The holding obviously was not only that the defendant

had been denied his right to a speedy trial, as stated by

the Government (Jur. St., p. 2, and Brief, pp. 1-2), but also

that Ewell had not been informed of the nature and cause

of the accusation as well. In other words, the court found

that the proceedings violated two independent rights guar-

anteed by the Sixth Amendment. The question raised by

the Government’s appeal is the following:

“The question presented is whether the District Court

erred in dismissing the subsequent indictments on the

ground that, because of the time each appellee had

already served on the sentence set aside under 28

U.S.C, 2255, retrial on new indictments was barred by

the Sixth Amendment guarantee of a right to a speedy

trial” (Jur. St., p. 2).

and in the Brief:

“.. the question is whether, under these circumstances,

the Sixth Amendment’s guaranty of a speedy trial re-

quires dismissal of the new indictments” (Brief, p. 2).

No mention is made in the Government’s Jurisdictional

Statement or Brief of the right of the accused to be in-

formed of the nature and cause of the accusation.

Rule 15(1)(¢)(1) of this Court precludes consideration of

any question except those set forth in the Jurisdictional

Statement or fairly comprised therein. The district court’s

opinion found the denial of two independent constitutional

guarantees, and the question concerning the right to be in-

formed of the nature and cause of the accusation cannot be

fairly comprised in the speedy trial question as it is phrased

14

in the Jurisdictional Statement. The fact that the Govern-

ment’s Brief makes absolutely no mention of this second

ground confirms that there was no intent to appeal this

aspect of the judgment. Thus, the finding of the trial court

that the appellee was denied his right to be informed re-

mains unchallenged.

Therefore, whether this defendant was also denied his

right to a speedy trial is a moot question. Any decision by

this Court concerning the right to a speedy trial would

not affect the defendant’s freedom and would be purely

an advisory opinion. This appeal does not present a case

or controversy as required by Article 3, Section 2, of the

Constitution and should be dismissed.

Il.

The District Court’s Decision That the Proceedings

Against the Defendant Violated the Sixth Amendment

Right to Be Informed of the Nature and Cause of the

Accusation Is Correct.

Even if the Government had properly presented the ques-

tion to this Court as to its correctness, the holding of the

district court that the addition of Count II to the second

indictment violated the Sixth Amendment right to be in-

formed of the nature and cause of the accusation is correct,

both on the basis of the facts disclosed by the record and

as a matter of law.

The district court held this right was “violated by the

combined events” (R. 25), of the entire proceeding against

Ewell. To overturn this findimg, it is necessary for the

appellant to show that the combined events set forth by

the district court did not resultt in prejudice to the defen-

dant and did not violate his right to be informed. It is

submitted that the Government cannot meet this burden.

15

The Sixth Amendment clause in question entitles the ac-

cused to be advised of every element of the charges against

him to which it will be necessary for him to prepare a de-

fense. United States v. Debrow, 346 U.S. 374, 377, 378;

United States v. Cruikshank, 92 U.S. (2 Otto) 542, 558;

United States v. Seeger, 303 F. 2d 478, 482 (C.A. 2); Hall-

man v. United States, 208 F. 2d 825, 827 (C.A.D.C.). This

Court has recently reiterated that this Sixth Amendment

right to reasonable notice of a charge against a defendant

is basic in our system of jurisprudence. Pointer v. Texas,

— U.S. ——, 13 L.Ed. 2d 923, 927, and it has been well

recognized by the courts that any delay in charging and

trying a defendant prejudices him in his ability to defend

himself. Petition of Provoo, 17 F.R.D. 183, 198 (D. Md.),

affirmed 350 U.S. 857; Taylor v. United States, 238 F. 2d

259 (C.A.D.C.); Ross v. United States, 349 F. 2d 210

(C.A.D.C.). In narcotics cases, any delay is extremely

prejudicial to the defense of the charges for three reasons.

These are (1) the nature of the statutes involved, which

do not create an offense for selling narcotics forbidden

per se, but merely penalize a sale which violates their tech-

nical requirements, Blockburger v. United States, 284 U.S.

299, 302; (2) the technique used by the Government in

enforcing these statutes;° and (3) the presumption of guilt

contained in the statutes.®

5In Nickens v. United States, 323 F. 2d 808, 813-14 (C.A.D.C.),

Judge Wright stated the following in a concurring opinion:

“Narcotics addiction poses a serious problem for society, but

the solutions at times attempted to raise other dangers. As

Mr. Justice Roberts observed, ‘The efforts . . . to obtain

arrests and convictions have too often been marked by repre-

hensible methods,’ methods which he termed a ‘prostitution

of the criminal law.’ Since addicts ordinarily become known

16

An examination of the proceedings found by the district

court to violate the Sixth Amendment requirement to in-

form the accused of the nature and cause of the accusation,

reveals how all these factors have worked to prejudice the

defendant severely.

to the police in the course of repeated offenses, the addict on

the street lives always in fear of arrest at the discretion of

the police. Since the addict is continually in possession of

narcotics, proof of a new offense is easily come by. As here,

it is the practice for the police themselves to arrange for a

sale to be made. The arrangements are often made through

some informant, an addict himself, who is working his peace

with the police by entrapping fellow addicts. In this way

narcotic arrests, as distinguished from arrests for other offenses

are shaped by the police, at a time of their choice, against a

suspect of their choice, before witnesses of their choice. Thus,

the Government has almost total control of the evidentiary

situation.

“Total control of the evidentiary situation by the Government,

of course, makes for an airtight case. But when delay in

prosecution intervenes, this airtight trap may blindly close

on the wrong man. Error becomes more possible with each

passing day, and a person caught by mistake in this airtight

trap may indeed be helpless. The danger of grave injustice

is magnified in a case such as this where the identification

is predicated on a single sale, and where, as is customary,

the Government uses an addict as its informant. Since the

possibility of abuse of the Government’s control over the evi-

dence exists, the court must remain vigilant to scrutinize

delay, for ‘(t)he preservation of the purity of its own temple

belongs only to the court.’”

See also Ross v. United States, 349 F. 2d 210 (C.A.D.C.).

®26 U.S.C. 4704(a) states: “The absence of appropriate tax-

paid stamps from narcotic drugs shall be prima facie evidence

of a violation of this sub-section by the person in whose possession

the same may be found.” 21 U.S.C. 174 states: “. .. Whenever

on trial for a violation of this section the defendant is shown

to have or to have had possession of the narcotic drug, such

possession shall be deemed sufficient evidence to authorize con-

viction unless the defendant explains the possession to the satis-

faction of the jury.”

17

As previously noted, the Government initially could have

caused the Grand Jury to indict Ewell for violations of 26

U.S.C. 4704(a) (selling narcotics neither from nor in the

original tax-stamped package), and 21 U.S.C. 174 (dealing

in unlawfully imported narcotics), along with the crime

actually charged. Blockburger v. United States, 284 U.S.

299; Gore v. United States, 357 U.S. 387; Harris v. United

States, 359 U.S. 19. For some unknown reason the Gevern-

ment did not.’ When Ewell successfully set aside the orig-

inal conviction, the Government caused him to be arrested

on a new complaint filed even before he was released from

prison (R. 20). This new complaint which came some fif-

teen months after the date of the alleged crime was the

first notice the defendant had that he might have to defend

himself of a charge under 26 U.S.C. 4704(a), and after the

Government had indicated affirmatively by its course of

conduct that he would net be required to do so. The in-

dictment was returned on March 26, 1964, over fifteen

months after the date of the original arrest (R. 21).

The mere proof of a sale of narcotics not in a stamped

package will support a conviction if unrebutted. Harris v.

United States, 359 U.S. 19, 23; Beland v. United States,

100 F. 2d 289, 291 (C.A. 5), certiorari denied 306 U.S. 636.

*Two possible explanations for the Government’s failure to do

so are (1) the insufficiency of evidence on the other counts, and

(2) that the penalty prescribed for a violation of only one statute

was adequate punishment for the particular defendant. This

latter theory finds support in Judge Bazelon’s discussion on the

relation of the Government’s choice as to the number and nature

of counts it prosecutes a defendant on, and the role played by

the particular defendant in the narcotic traffic. Hutchinson v.

United States, 345 F. 2d 964, 972-977 (C.A.D.C.). The prejudice

resulting from the subsequent inclusion of these counts in the

second indictment if either of these reasons motivated the Gov-

ernment’s decision is obvious.

18

On the other hand, since 26 U.S.C. 4705(a) is only violated

by selling narcotics to someone who does not possess the

proper order form, the fact that a defendant may have sold

the narcotics in or from a stamped package is irrelevant

to the defense of this particular charge.

It is easy to imagine how any delay could result in serious

prejudice to a defendant in a situation similar to Clarence

Ewell’s. Thus, one in legal possession of a stamped packa,e

might sell narcotics from this package to a person who may

or may not possess the proper order form. This seller is

subsequently charged, arrested and indicted for selling nar-

cotics to a person who did not have the proper form in viola-

tion of 26 U.S.C. 4705(a). It is only reasonable for this

defendant to assume that since this is the charge the Gov-

ernment has caused the Grand Jury to indict him on, in

view of the Constitutional requirement to be informed of

every element of the case against him, this is the only

charge he must be prepared to defend. Thinking the

stamped package irrelevant to his defense, it is not pre-

served.

For some reason he is later charged with selling narcotics

not from nor in the stamped package in violation of 26

U.S.C. 4704(a). It may then be extremely difficult to rebut

the presumption that the narcotics were not sold from a

stamped package. The Government could make its case

merely by proving a sale of unstamped drugs with the testi-

mony of the purchaser, Beland v. United States, 100 F. 2d

289, 291 (C.A. 5), certiorari denied 306 U.S. 636, but if

the purchaser did not know where the narcotics th ‘efen-

dant sold him came from, or could not remember ether

or not the defendant had a stamped package, it would be

virtually impossible for the defendant to rebut the statu-

tory presumption. The prejudice to the defense of the

19

charges under 26 U.S.C. 4704(a) in this circumstance would

be grave indeed.

The degree of prejudice varies with the particular cir-

cumstances and depends, among other things, on the length

of the delay and the strength of the Government’s evidence

against the defendant. Ross v. United States, 349 F. 2d 210

(C.A.D.C.) ; Nickens v. United States, 323 F. 2d 808 (C.A.

D.C.) ; Taylor v. United States, 238 F. 2d 259 (C.A.D.C.).

In the present example, for instance, if the defendant was

arrested in the act of selling the drugs and was searched

on the spot, the prejudice resulting from the failure to in-

form him of prosecution under the “stamped package”

statute would be lessened. On the other hand, if the arrest

was made at a date subsequent to the sale in question, the

prejudice would be greater.

In the case of Clarence Ewell, the arrest was made some

six weeks after the alleged violation and he was not charged

with violating 26 U.S.C. 4704(a) until some fifteen months

later. During this interval, there was no mention of any

violation of 26 U.S.C. 4704(a) and Ewell was in jail un-

able to prepare a defense to any new charges the Govern-

ment might bring.

Because the record before this Court does not contain evi-

dence against Ewell, it is important to reiterate that the

district court, on the basis of the entire record of all of the

proceedings involved, including the Government’s evidence

presented at the disposition proceeding (R. 16), found

that the combination of all of the circumstances violated

the defendant’s Sixth Amendment right to be informed

of the nature and cause of the accusation (R. 24-25). The

relevant question before the district court was not whether

there was actual prejudice to the defendant, but whether

20

there was a reasonable possibility of prejudice. Fahy y.

Connecticut, 375 U.S. 85, 86-87; Glasser v. United States,

315 U.S. 60, 75-76; United States v. Wilkins, 348 F. 2d

844, 864 (C.A. 2). Implicit in the judgment of the district

court is the finding of at least the possibility of prejudice

in defending the new charge under 26 U.S.C. 4704(a).

In Hallman v. United States, 208 F. 2d 825 (C.A.D.C.), the

facts were similar to the instant case. The defendant was

indicted on a five-count indictment, three of which charged

violations of the same three statutes contained in this de-

fendant’s second indictment.’ The first count charged a

sale “to James Fair” not in pursuance of a written order,

and the second and third counts charged a “stamped pack-

age” violation and “a dealing in illegally imported nar-

cotics” violation and no purchaser was named in either of

these counts. At the beginning of the trial, it was apparent

that the Government was not going to prove that the sale

was to James Fair but to another employee of the Bureau

of Narcotics. The trial court then dismissed Count 1, but

refused to dismiss the second and third counts on the

ground that under these counts it was immaterial who the

purchaser was. The Court of Appeals reversed the district

court and stated the following at page 827:

“The Constitution requires that the accused be informed

‘of the nature and cause of the accusation’ (Amend-

ment VI), and the cases interpret that to mean that

he must be so definitely informed as to be enabled to

present his defense. The test, say the courts, is whether

the accused was misled. Counsel in the case at bar

said and says she was misled. That position is well

founded, we think, in view of the specific designation

826 U.S.C. 4705(a) ; 26 U.S.C. 4704(a); 21 U.S.C. 174.

“=

21

of James Fair in the first count and the statement in

the other counts that the capsules were the same in all

counts. That latter statement was misleading under the

circumstances of the case.” ®

While the harm in Hallman was the result of a mistake,

it cannot be argued here that the prejudice to the defendant

Ewell was the result of a mistake, for the decision not to

include a count charging a violation of the “stamped pack-

age” provision in the first indictment must be presumed

to have been an informed decision on the part of the Gov-

ernment, and the finding of the district court that the two

new counts were added to the second indictment because of

the “expressed concern of the prospective liberation of a

number of similarly convicted narcotic felons” (R. 25) is

unrebutted.

Furthermore, it is no argument that the Government only

included this count in the second indictment after the de-

fendant was successful in setting aside the first (Govern-

ment Brief, pp. 9-13). The relevant fact is the Govern-

ment could have included this count in the first indictment.

It chose not to. The Sixth Amendment right to be informed

of the nature and cause of the accusation was abridged at

that time and the prejudice to the defense grew with each

passing day. Any reason the Government could offer for

* While the court in Ross v. United States, 349 F. 2d 210

(C.A.D.C.), found a denial of due process, it did so because it

did not wish to limit the holding to the more specific language

of the Sixth Amendment on the particular facts of the case.

Nevertheless the court found that a 7-month period from the

date of the alleged offense until the filing of a complaint was an

unreasonable delay “in apprising appellant of the charge against

him ...,” (p. 211), and the effect of that delay was to adversely

affect the ability of the defendant to defend himself against the

charge.

T

its delay in charging this defendant is irrelevant since the

harm done by this failure is totally unrelated to any par-

ticular reasons for this delay. Petition of Provoo, 17 F.R.D.

183, 202 (D. Md.), affirmed 350 U.S. 857. To hold otherwise

would make this requirement of the Sixth Amendment

meaningless.

The defendant, therefore, maintains that the finding of

the district court that the combined events violated the

Sixth Amendment right to be informed of the nature and

cause of the axcusation is clearly supported by the facts

and the law and could not have been overturned by the

Government on the basis of the record before this Court

even had the Government attempted to do so.

ITI.

The Appellee Was Deprived of His Right to a Speedy

Trial Under the Sixth Amendment on the Charge of Selling

Narcotics in Violation of Title 26 U.S.C. 4704(a).

The Government has appealed to this Court only that

portion of the district court’s judgment dismissing Count

IL of a three-count indictment. The reason given is that

under the sentencing provisions which apply to Count I

and Count III the defendant may not receive credit for

the time previously spent in jail on the first indictment

(Jur. St., pp. 4-6, Brief, p. 5). The Government has left

unchallenged the holding that the defendant was denied

his right to a speedy trial on Count I and Count III of the

indictment. It, therefore, appears that serious questions

concerning the “law of the case” exist in considering the

appeal of Count Il. However, in recognition of the fact

that this is merely a discretionary rule of practice as far

—"

23

as this Court is concerned, United States v. United States

Smelting, R € M Co., 339 U.S. 186, 199, the defendant will

not take the Court’s time with an extended brief and argu-

ment of this principle. However, this Court can dispose

of this appeal on the ground that there is no material dif-

ference between Count II and the other two counts, and

the district court’s decision is, therefore, controlling on

the question of whether the defendant was denied his right

to a speedy trial on Count II.

There can be no question, however, that the district court

was correct in finding that the combined events of the pro-

ceedings concerning the charge in Count JI of the second

indictment violated the Sixth Amendment guarantee of the

right to a speedy trial.

A. The Delay Involved Was Substantial.

The issue raised by the Government’s limited appeal is

whether under the circumstances there has been a delay in

charging, indicting and bringing the defendant to trial on a

charge of violating 26 U.S.C. 4704(a). The defendant

maintains that there has been a substantial delay. The

Government’s arguments (Brief for the United States, pp.

7-13) concerning delay fail to give recognition to the fact

that the period in question is measured from the date of

the alleged violation in October of 1962, and the defendant’s

arrest and incarceration in December of that year, until

the date the indictment was returned on March 26, 1964.

The Government also attempts to break down the period

of delay into lesser periods and hold these shorter periods

up to the touchstone of the speedy trial guarantee. The

defendant contends that this is obviously an improper

approach.

ASR AE SITS AON AINE NES NNT AE SNR, REI AIRC ES Be a

24

1. The period of time from the commission of the alleged

crime, October 31, 1962, until the defendant was formally

charged with a violation of 26 U.S.C. 4704(a) on January

13, 1964 was almost fifteen months. The Government argues

that for Constitutional purposes under the Sixth Amend-

ment this period has been traditionally governed by the

statute of limitations (Brief for the United States, p. 7).

That is simply not the law. The cases cited by the Govern-

ment (Brief, pp. 7-9) do not hold that the right to a speedy

trial is never violated so long as the defendant is charged

within the period of the statute of limitations. The Gov-

ernment would vest the sole authority to interpret what

constitutes a speedy trial in Congress. A 75-year limita-

tion period would presumably require a court to consider

only the date of the crime and the date of the complaint

and disregard the facts of a particular situation. This

argument overlooks the fact that the judiciary alone has

the power to interpret the Constitution.

Congress may reduce the period in which a defendant

may be tried to less than the Constitution requires—it can-

not extend that period, and in determining the Constitu-

tional issue, each case must be decided on its own facts.

It has recently been held that a delay of even seven months

between the alleged commission of a crime and the formal

complaint where a narcotics violation is involved violated

the due process clause of the Fifth Amendment. Ross v.

United States, 349 F. 2d 210 (C.A.D.C.).2° Other cases, on

1° This Court of Appeals found that, on the basis of the record

of the hearing on prejudice in the district court, the defendant

made a plausible claim of prejudice in view of the weak case of

the Government. In support of the decision, the court cited all

speedy trial cases and specifically rejected the argument that the

period in question was controlled by the statute of limitations.

Powell v. United States, 8/30/65 (C.A.D.C.), decided after Ross

—

25

other facts, have upheld or reversed convictions dealing

with other periods for other crimes; in each case, however,

the issue was resolved on the basis of the facts there pre-

sented, and not by reference to an inflexible standard.

The important fact is that Clarence Ewell was in Gov-

ernment custody, in jail or prison for over fifteen months

until he was first charged with a violation of 26 U.S.C.

4704(a). There can be no showing that this delay was

“necessitated by the requirements of effective law-enforce-

ment” as the Government argued unsuccessfully in Ross,

supra, at p. 213. The delay in charging the defendant was

substantial under the circumstances and the defendant was

prejudiced by it.

2. The Court has recently stated that the period from

arrest until the return of the indictment is covered by the

protection of the Sixth Amendment. Smith v. United

States, 360 U.'s. 1, 10. The period in this case was over

fifteen months (BR. 15-21). All of this time the defendant

was in custody. The Government argues that the time from

the original arrest until the first indictment is a short one

(two days), and the time from the arrest on the charges

contained in the second indictment, January 13, 1964, until

the indictment was brought on March 26, 1964 is not sub-

stantial, and concludes that there was, therefore, no substan-

found no denial of due process in examining a delay of five

months. The majority recognized in this case, however, that the

statute of limitations governed this period only “to some extent.”

Jackson v. United States, 9/13/65 (C.A.D.C.), followed Powell

for the reason that the defendant failed to make any attempt to

show how he was prejudiced by a five-month delay. The test did

not require a preponderance of the evidence, but merely “some

showing.” None of these cases treated the statute of limitations

as affecting the right to a speedy trial.

26

tial delay (Brief for the United States, pp. 7-13). There is

no support in logic or law for this argument. The period

of time relevant for speedy trial purposes where the defense

of a charge is prejudiced by the passage of time begins

when the prosecution is first instituted and is not affected

by the filing of a new indictment charging different viola-

tions arising from the same act. Hanrahan v. United States,

348 F. 2d 363, 367 (C.A.D.C.). The relevant period in this

ease, therefore, begins with the defendant’s arrest on

December 12, 1962 (R. 15).

The Government cites United States v. Ball, 163 U.S. 622,

672 and United States v. Tateo, 377 U.S. 463, 465 in sup-

port of the proposition that the period of time from the

date of the original conviction until the defendant success-

fully sets aside the judgment and conviction on collateral

attack cannot be considered. These cases are Fifth Amend-

ment cases and are not concerned with the prejudice in

defending new charges resulting from delay. The reliance

on Ball and Tateo illustrates the Government’s misconcep-

tion of the facts. These cases are distinguishable because

the defendants in both situations were faced with defending

only those charges which were lodged against them by the

original indictment. Bayless v. United States, 147 F. 2d

169 (C.A. 8), reversed on other grounds 150 F. 2d 236 and

United States v. Brest, 266 F. 2d 879, 880 (C.A. 3), cert.

denied 362 U.S. 912 are distinguishable for the same reason.

The defendant has the right to a speedy trial even if he

is in jail on another charge. Ponzi v. Fessenden, 258 U.S.

254, 264; Taylor v. United States, 238 F. 2d 259, 261 (C.A.

D.C.); Frankel v. Woodrough, 7 F. 2d 796, 798 (C.A. 8).

To exclude from the protection of the Sixth Amendment a

delay which resulted from even bona fide error in the

27

original proceeding by holding it to be a justifiable burden

for the accused to bear would be inconsistent with the policy

of a speedy trial to protect the accused from harm. As the

court in Provoo recognized, the degree of prejudice or detri-

ment suffered by the accused is unrelated to any particular

reason for delay. 17 F.R.D. 183, 202 (D. Md.), affirmed

350 U.S. 857. The delay in charging and indicting Clarence

Ewell was substantial under the circumstances.

B. The Appellee Has Been Prejudiced by the Delay.

If any difference is found between Count II and Count

III, it must go to the question of the prejudice to the defen-

dant. This is so because the history of these two counts

is identical (R. 20-26) and the only possible difference be-

tween the counts relative to the speedy trial issue is in their

respective sentencing provisions. The Government’s state-

ment that this appeal is limited only to the dismissal of

Count Il so that there is no question as to crediting the

time the defendant has already served to any new sentence

(Jurisdictional Statement, pp. 5-6) indicates that the Gov-

ernment considers this prejudice which would exist under

Count I and Count III to be the only material difference

between those counts and Count II. Therefore, if the pos-

sibility of some prejudice can also be found to exist under

Count II, it would seem that the Government must concede

that there has been a denial of a speedy trial under Count IT

as well, in view of its failure to appeal the dismissal of

Counts I and III.

The case law under the Sixth Amendment is unclear as to

whether the Government had the burden of showing in the

district court that the defendant was not prejudiced by

a delay. Our reading of Petition of Provoo, 17 F.R.D. 183,

203 (D. Md.), affirmed 350 U.S. 857 ; Taylor v. United States,

28

238 F. 2d 259 (C.A.D.C.) ; United States v. Lustman, 258 F.

2d 475, 478 (C.A. 2), cert. den. 358 U.S. 880 and Williams

v. United States, 250 F. 2d 19, 21 (C.A.D.C.) indicates that

the Government bears this burden. In any event the Gov-

ernment made no such showing, and it is clear that the

trial court found as a matter of fact that the prejudice

to the defendant denied him his right to a speedy trial. In

view of this factual finding, the burden in this Court is

certainly on the Government to demonstrate clearly that

the defendant in fact was not prejudiced." The record fully

supports the decision of the district court that there was

such prejudice.

1. First, the appellee was prejudiced simply by the im-

prisonment of some nineteen months while awaiting trial

on Count II. The restraint on liberty alone has been held

to constitute prejudice. Petition of Provoo, 17 F.R.D. 183,

203 (D. Md.), affirmed 350 U.S. 857; Frankel v. Woodrough,

7 F. 2d 796 (C.A. 8). The district court found that the fact

that the some nineteen months already spent in jail could

not be credited to the minimum sentence he originally gave

the defendant was particularly prejudicial and obviously

so did the Government.”

11Qn the basis of the record brought before this Court, the

defendant maintains there can be no such showing. For this

reason alone, the decision of the district court should be affirmed,

or in the alternative, the Court should remand the appeal to the

district court for further hearings on the matter of prejudice as

was done in Ward v. United States, 346 F. 2d 423 (C.A.D.C.);

Ross v. United States, 349 F. 2d 210 (C.A.D.C.).

12The Government in its Petition for Rehearing stated the

following (R. 35):

“In recognition of the inequity to this defendant arising from

the fact that under the mandatory sentencing provisions of

29

Under Count II, this latter prejudice admittedly would

not carry as severe a penalty since the minimum manda-

tory sentence for a second offender is five years. However,

Ewell cannot actually receive any credit on this five-year

sentence and has lost the “good time” he received under

the invalid sentence.”

All consideration of these sentencing provisions aside,

it is submitted that this lengthy restraint on Ewell’s free-

dom is prejudice enough to sustain the district court’s

opinion.

2. The defendant is prejudiced by the harassment of a

second criminal prcceeding against him and the accompany-

ing notoriety and anxiety resulting therefrom. Downum

v. United States, 372 U.S. 734, 736; Hurtado v. California,

110 U.S. 516, 522; Petition of Provoo, 17 F.R.D. 183, 198

(D. Md.), affirmed 350 U.S. 857. Ewell ran the gauntlet

once and thought that he was paying his debt to society

pursuant to a valid judgment and sentence. As a result of

the Lauer decision, he felt compelled to move to set aside

the judgment only to find himself forced to defend a prose-

cution on two additional charges. The harassment result-

26 U.S.C. 4705(a) and 21 U.S.C. 174, the Court may not

give credit for time already served .

This was repeated in the Jurisdictional Saucon, pp. 5-6, as

the reason only the dismissal of Count II is questioned by ‘this

appeal.

*8 Tt can also be argued that since the maximum sentence under

Count II is twenty years, Ewell is prejudiced because he might

not receive any credit on any new sentence for the district court

is not presently required to give eredit under existing law and

there is nothing to prohibit him from giving Ewell the maximum.

30

ing from these trials seriatim for offenses arising from

the same act standing alone is prejudice enough.

3. The most severe prejudice resulting from the pro-

ceedings against the defendant has been the prejudice in

the defense of the charges against him under Title 26

U.S.C. 4704(a) contained in Count Il. The prejudice re-

sulting from this delay has been treated in detail at pages

14 through 20 supra, and will not be re-examined here.

It not only violates the independent constitutional right

contained in the Sixth Amendment to be informed of the

nature and cause of the accusation as found by the district

court (R. 25-26) but is also severe enough to sustain a find-

ing of a denial of a speedy trial. The Government has not

denied its existence.”

On the basis of the Record and the Brief of the United

States, the finding of prejudice implicit in the decision

below remains not only unimpeached but is clearly sup-

ported.

C. The Delay and the Resulting Prejudice Was a

Result of the Government’s Conduct.

The defendant maintains that there has been a substan-

tial delay and that the delay has severely prejudiced the

defendant. Under the Sixth Amendment it is only neces-

14Tt has been stated by this Court that successive prosecutions

such as this are prohibited by the double jeopardy clause of the

Fifth Amendment. Abbate v. United States, 359 U. S. 187, 196-201

(Separate Opinion) ; Petite v. United States, 361 U.S. 529, 533

(Separate Opinion).

15 Instead, the Government has confined its argument to the

prejudice resulting under Counts I and III (Brief, pp. 19-22) ;

the dismissal of said counts it has not chosen to appeal.

31

sary to show that a delay is purposefu) or oppressive or

results in prejudice to the defendant. Petition of Provoo,

17 F.R.D. 183, 203 (D. Md.), affirmed 350 U.S. 357; Gov-

ernment’s Jurisdictional Statement, p. 7.*%* While the dis-

trict court judgment is clearly supported without subsidiary

evidentiary findings as to the cause of the delay, the situ-

ation which the district court found to violate the defen-

dant’s Sixth Amendment rights was a direct result of the

conduct of the Government in making four separate deci-

sions at various stages in the proceedings.

1. The Government did not indict the defendant for vio-

lations of 26 U.S.C. 4704(a) and 21 U.S.C. 174 at the origi-

nal Grand Jury proceeding in December, 1962. While it

had the option to do so for some reason unknown of record

it chose not to in this case.” Because the other two counts

were omitted, the defendant was justifiably led to believe

that the count under 26 U.S.C. 4705(a) would be the ex-

tent of the Government’s prosecution against him. The

defendant was at no point advised that other charges might

be later filed. The Government does not contend that the

other charges were brought as the result of any new evi-

dence. This was the first of four decisions by the Govern-

ment which led to the prejudice of the defendant.

2. The Government did not appeal the decision of the

Seventh Circuit Court of Appeals in Lauer v. United States,

320 F. 2d 187 (C.A. 7). According to the Government,

*° The Government’s subsequent statement in its Brief, pp. 13-14,

that a delay between arrest and indictment will amount to a

denial of a speedy trial only if it is purposeful or oppressive and

results in prejudice to the defendant is not supported by the cases.

** See note 7, p. 17 supra.

32

Lauer was contrary to a prior decision of this Court, United

States v. Debrow, 346 U.S. 374, and one of the Ninth Cir-

cuit, Rivera v. United States, 318 F. 2d 606 (Brief, p. 9,

n. 5) and was believed to be incorrect (Brief, p. 15). It was

also a decision of far-reaching effect, particularly in the

Seventh Circuit. Yet the Government chose not to appeal.**

The decision to allow what the Government felt to be a

bad precedent, contrary to law, to remain unchallenged as

the law in the Seventh Circuit with the belief that it had far-

reaching consequences was the second decision of the Gov-

ernment which led to the defendant’s ultimate prejudice,

for as the district court found (R. 24-25), in light of Lauer

the defendant had no choice but to attempt to set aside

his conviction immediately.

3. Congress saw fit to implement the “great writ” of

habeas corpus by passing Title 28 U.S.C. 2255, which gives

a defendant a right to petition the sentencing court to

set aside his judgment and conviction. After Lawer held

in effect that a conviction on an indictment identical to

Clarence Ewell’s could be set aside pursuant to this sec-

tion on the ground that it failed to charge an offense and

could not be pleaded in bar to a subsequent prosecution

18 The Government states that it did not petition for certiorari

because few cases were expected to be affected by Lauer. (Brief,

p. 15, n. 12.) However, in the same petition for re-hearing cited

by the Government in this note, the following argument was made

to the Seventh Circuit:

“We would like to point out to the court that if the instant

opinion remains the law, such opinion might well lead to

numerous collateral attacks by narcotic violators since it is

not uncommon to omit the name of the narcotics purchaser

from the indictment.”

(Page 9 of printed petition for re-hearing filed July 17, 1963.

See 320 F. 2d at 191.)

33

for the same offense, Ewell thereafter proceeded to file

a similar motion.”* It is suggested that Ewell and his coun-

sel could have ignored the Lauer case and could have elected

to serve the remaining 8% years of the sentence and

let the conviction remain unchallenged (Brief, pp. 16-17).

Such a contention is patently unreasonable. It would re-

quire the defendant and his counsel to disregard the fact

that he had no way of showing who the purchaser of the

drug was if the Government chose to reindict him a second

time on a narcotics charge alleging the same city and date.

This suggestion also overlooks the fact that this Court has

recognized that a conviction has other effects which may

extend beyond the term of the sentence imposed thereon.

United States v. Morgan, 346 U.S. 502, 512-513; Fiswick

v. United States, 329 U.S. 211, 220-223. As the district

court found (R. 25) the defendant really had no choice but

to attack this invalid judgment immediately.

When the district court granted the defendant’s section

2255 motion on January 13, 1964, the Government had the

opportunity to appeal this decision to the Seventh Circuit.

It did not.

As noted in the Government’s Brief (p. 9, n. 5) and

Jurisdictional Statement (p. 3, n. 3), by this time two cir-

* The Government suggests that there would be no problem in

pleading the conviction on the first indictment as a bar to further

prosecution for the same offense because the burden would be on

the Government to rebut a plea of double jeopardy. (Brief, pp.

16-17.) This argument is unsupported and conflicts with the

Government’s present position that the defendant has the burden

of proving prejudice under the Sixth Amendment in this instant

case.

*° For instance, 26 U.S.C. 7237(a) provides for harsher penalties

for third as well as second offenders for a violation of 26 U.S.C.

4704(a). This effect was specifically noted in Morgan, supra.

34

cuits had had the opportunity to consider the ruling in

Lauer and had rejected it. Clay v. United States, 326 F. 2d

196 (C.A. 10); Jackson v. United States, 325 F. 2d 477

(C.A. 8). Furthermore, the Government argues that the

defendant’s situation was not clearly controlled by Lauer

(Brief, pp. 16-17). Though the district court’s decision in

Ewell v. Markley, January 13, 1964 (R. 19-20) was the first

decision dealing with a collateral attack which relied on

Lauer, and was from the Government’s point of view just

as wrongly decided, the Government chose not to appeal

it to the Seventh Circuit. This decision closed the pos-

sibility that the original indictment might have been rein-

stated by the Court of Appeals or by this Court on further

appeal, and caused the defendant to lose his “good time”

credit and the fifteen months already served on his sentence

on the first indictment. This was the third decision by the

Government which resulted in the ultimate prejudice to the

defendant.

4. The Government caused the defendant to be indicted

on two new grounds in addition to the count contained in

the original indictment (R. 21-22), including the one which

is the subject of this appeal. By delaying until this time

to first charge the defendant with these two new violations

the Government’s action has severely prejudiced the de-

fendant in the defense of these new charges. (See this

Brief, pp. 14-20 supra.) Furthermore, while Ewell had

received a sentence of ten years and no fine on the original

conviction, Ewell now faced the possibility of a 100-year

1 Had the Government appealed this decision, it appears it

would have been successful in obtaining a reversal, for the Seventh

Cireuit reversed Lauer in a case subsequent to Ewell’s, Collins

v. Markley, 346 F. 2d 230 (C.A. 7).

35

term and a $60,000 fine under the new indictment. As the

trial court found, this action was apparently motivated by

the “express concern of the prospective liberation of a num-

ber of similarly convicted narcotics felons . . .” (R. 25).

It would thus appear that the Government in its concern

over the effect of the Lauer decision decided, in lieu of

appealing that decision, to discourage other defendants’

reliance upon it by the re-prosecution with additional

counts of defendants who successfully attacked their con-

victions. Whether this was actually the intent of the Gov-

ernment makes little difference, for the effect of this course

of action was obviously to discourage similarly situated

defendants from exercising their right under 28 U.S.C.

2255 on the basis of Lauer.

The Government perhaps may have the right not to ap-

peal a decision which it considers incorrect and a dangerous

precedent, such as Lauer. Where it voluntarily chooses not

to do so, however, the Government must recognize and

assume responsibility for the prejudice which may result

from the “inconsistencies in the developing law” which the

trial court found to exist here (R. 25). The burden and

the risk of such prejudice must be borne by the Govern-

ment, not the accused. To permit the Government, in effect,

to collaterally attack a decision which it has chosen not to

appeal and thereby discourage defendants from exercising

their statutory right to attack their convictions collaterally

on the basis of that decision, is against the best interests

of society at the very least. One cannot help but note that

the language in United States v. Tateo, 377 U.S. at 466

quoted by the Government (Brief, p. 11) with but a slight

modification could be paraphrased as follows:

=

—y

From the standpoint of the defendant, it is at least

doubtful that Appellate Courts and district courts

would be as zealous as they are now in protecting

against the effects of improprieties at the trial or pre-

trial stage if they knew that reversal of a conviction

would place the defendant in a worse situation than he

was prior to availing himself of the rights afforded him.

The conduct of the Government in this instance would ap-

pear to simultaneously work against society’s interest in

erasing bad precedents and society’s interest in giving the

defendant a means to set aside an unlawful conviction.

There is also a distinct possibility that the Government’s

action is unconstitutional on the ground that it makes the

exercise of constitutional and statutory rights costly to

the defendant who exercises them. Griffin v. California,

380 U.S. 609, 614."

This question aside, there is no doubt that the defendant’s

situation as it was examined by the district court could

only have resulted from the four decisions of the Govern-

ment listed above. As if walking through a maze having

only one path, the Government took the only turn at each

of four intersections which could have led to the defen-

dant’s prejudice. Had it originally indicted the defendant

under 26 U.S.C. 4704(a), or had it appealed Lauer and

overturned it, had it appealed the district court’s decision

to set aside Ewell’s judgment and conviction to the Seventh

22 For a persuasive argument that action by government or court

which puts a defendant in a worse situation than he was before

a successful appeal or a collateral attack is unconstiiutional on

several grounds. See “In Gideon’s Wake: Harsher Penalties and

the ‘Successful’ Criminal Appellant.” Van Alstyne, 74 Yale Law

Journal 606 (1965).

_—

Cireuit and then to this Court if necessary, or had it re-

indicted Ewell only on 26 U.S.C. 4705(a), this case would

not now be here.

37

Whether each of these decisions was part of a purpose-

ful attempt to deny the defendant his constitutional rights,

or might possibly be justified on some independent ground

completely removed from any consideration of this par-

ticular defendant is immaterial.** There is no denying that

the situation which the district court found to violate the

defendant’s rights to a speedy trial and to be informed

of the nature and cause of the accusation against him was

a direct result of the voluntary conduct of the Government.

It is this conduct, and the resulting prejudice, which re-

quires the affirmance of the decision of the district court.

IV.

The Second Indictment Charging a Violation of 26 U.S.C.

4704(a) Violates the Double Jeopardy Protection of the

Fifth Amendment.

It was argued in the district court that the prosecution

under the second indictment violated the double jeopardy

clause of the Fifth Amendment as well as the Sixth Amend-

ment (R. 3). The district court ruled against the defendant

on that question. The defendant maintains that the pro-

ceedings, in addition to violating the Sixth Amendment

rights to a speedy trial and to be informed, also constitute

double jeopardy.

*8 The finding of the district court that the only known reason

for the three-count second indictment was “the expressed concern

of the prospective liberation of a number of similarly convicted

narcotic felons” (R. 25) remains uncontroverted by the Govern-

ment.

38

It is recognized that the defendant does not have the

right to appeal the adverse decision of the district court

concerning double jeopardy directly to this Court, but,

since every fact needed to decide this issue is in the record

presently before this Court, the defendant new requests that

if the Court does not find any violation of Sixth Amend-

ment rights, to now consider this question. This Court has

discretion to do so if it desires. Pollard v. United States,

352 U.S. 354, 359.

The proceeding in the district court shows that the origi-

nal indictment against the defendant was in one count

charging a violation of 26 U.S.C. 4705(a). The Govern-

ment has appealed the dismissai of Count IT in the second

indictment charging a violation of 26 U.S.C. 4704(a).™*

It has been stated by this Court that successive prosecu-

tions arising out of the same act are prohibited by the Fifth

Amendment even though the prosecutions are under differ-

ent Federal statutes and require different elements of

proof. Abbate v. United States, 359 U.S. 187, 196-199

(Separate Opinion) ; Petite v. United States, 361 U.S. 529,

533 (Separate Opinion); see also Jn Re Neilson, 131 US.

176. The reasoning of these opinions is that the Fifth

Amendment protects the individual from the harassment

of successive trials for the same criminal acts. Mr. Justice

24In view of the Seventh Circuit opinion in Collins v. Markley,

346 F. 2d 230 (C.A. 7), overruling Lauer and holding that the

omission of the name of a purchaser from an indictment charging

a violation of Title 26 U.S.C. 4705(a) was not a defect of such a

fundamental nature as to render a judgment of conviction vulner-

able to collateral attack, it appears that the district court did not

have jurisdiction to set aside Ewell’s original conviction. It thus

might also be argued that Ewell’s first indictment has been valid

all along and the second indictment under 4705(a) clearly places

the defendant twice in jeopardy.

39

Brennan reasoned in Abbate that to allow successive prose-

cutions for the same act would, in effect, remove the dis-

cretion in sentencing a defendant to consecutive or con-

current terms from the hands of the trial court and put it

in the hands of the prosecution. Without the protection of

the Fifth Amendment, the Government could use such a

weapon to harass and wear down the defendant with trials

seriatim.

In United States v. Sabella, 272 F. 2d 206 (C.A. 2), this

reasoning was applied to a case factually similar to the

present one. In that case the defendant had pleaded guilty

to a charge of selling narcotics in violation of 26 U.S.C.

4705(a) and was sentenced to four years in prison. It was

subsequently discovered that Congress had inadvertently

omitted to prescribe punishment for a violation of this sec-

tion and, at the time the defendant was sentenced a cor-

rective law was not yet in effect. The defendant filed a

habeas corpus petition to set aside the sentence after serv-

ing approximately seven months in prison. The order of

the court through inadvertence set aside not only the sen-

tence but the judgment as well. The defendant was re-

indicted eight days later and charged with a violation of

21 U.S.C. 173, and 174 although this prosecution was ad-

mittedly for the same acts involved in the first indictment.

Referring to the language in Abbate, the district court held

that the second indictment violated the double jeopardy

clause of the Fifth Amendment and stated the following

(p. 212):

“The Fifth Amendment guarantees that when the gov-

ernment has proceeded to judgment on a certain set

fact situation, there can be no further prosecution of

the fact situation alone: The defendant may not later

40

be tried again on that same fact situation, where no

significant additional fact need be proved, even though

he be charged under a different statute. He may not

again be compelled to endure the ordeal of criminal

prosecution and the stigma of conviction. These are

the plain and well understood commands of the Fifth

Amendment in forbidding double jeopardy. Here there

was one sale of narcotics. The Government should have

but one opportunity to prosecute on that transaction.

Although in such a prosecution it may join other

charges based on the same fact situation, it may not

have the succession of trials seriatim.”

The present prosecution against the defendant Ewell

points out an additional reason why the Government should

not be allowed to indict a defendant on subsequent counts

not included in the original indictment. Here, whether by

design or not, the Government has used the two additional

counts held back from the first prosecution to increase the

possible punishment under the second indictment. This

conduct also makes it extremely difficult to defend against

the new charges because of the delay involved. As the dis-

trict court found (R. 25), this action can only have the

effect of discouraging collateral attack. See this Brief,

pages 34-37 supra.

The prosecution under Count II is therefore barred by

the Fifth Amendment.

41

Conclusion

For the reasons stated, the defendant respectfully sub-

mits that this appeal should be dismissed because it does

not present a case or controversy.

For the reasons stated, the defendant further respect-

fully submits that this Court affirm the judgment below on

the grounds that:-

A. The defendant has been denied his ~ 7h* ‘o be in-

formed of the nature and cause of the == © ©.‘on guar-

anteed by the Sixth Amendment.

B. The defendant has been denied his right to a speedy

trial guaranteed by the Sixth Amendment.

C. The proceedings against the defendant under the sec-

ond indictment violate the double jeopardy clause of

the Fifth Amendment.

Respectfully submitted,

Davi B. Locxton

10th Floor, 111 Monument Circle

Indianapolis, Indiana 46204

Attorney for

Clarence Ewell, Appellee

October 1965

)