Respondents Brief — United States v. Wilson

INDEX.

Page

REASONS FoR DENYING THE WRIT ............2.-02-000:- 2

ESSE SE EEG Ca POLE Ee Sa OG EO 9

TABLE OF CITATIONS.

Cases: Page

Fong Foo v. U. S., 369 U. S. 141 EES Tay DOOD Fees Peg 8

United States v. Ball, 163 U. S. 662 (1896) ............... 6

U. S. v. Esposito, — F. 2d — (No. 72-1825, June 12, 1973) 5

U.S. ¥. Jomkins, 990 F. 2d S68 (CrA. 2) 2.0... 00h cences 4,5,8

eee ee We a ee I, VO CISTI) onc cn ovecncdtcccccss 5

ee ee WE OD os vec covccccwesevses aos 8

U. S. v. McFadden, 462 F. 2d 484 (C. A. 9) .2....... 0.04 5

oe ree, 454-7, 26 G7... 5. ove ocr ceneeenceens 6

ee I OD Soe oo cbcldeceweocses 3, 4, 6, 8,9

U. S. v. Velazquez, C. A. 2, decided December 28, 1973, 14

og a aden io oc b o64 seb en ods ieudoe os 4,5

U. S. v. Weinstein, 452 F. 2d 704, cert. denied, sub nom.

Geanperger ¥. U. S., F0GGE S. 917 3. oe ccc cccccccsveces 3

U. S. v.. Whitted, 454 F. 24 642°%G, A. 9) .:............. 5

U. S. v. Zisblatt, 172 Fi2d 740 (C. A. 2), appeal dismissed, .

We Oke siviwgeese aie e cis icks ou ine Oa ip 2 .

Statute:

Criminal Appeals Act, 18 U. S. C. 3731, as amended by the

Omnibus Crime Control and Safe Streets of 1970 ...... 2,9

PORES PPT SIME LRN

ERE OE NS NSE RS CURE RTE GT AERTS IPS Fick POR Ens PSL

aS ONT RRR REPRO RE RIE Gi IRS TEE niet eal

" IN THE

Supreme Court of the United States

Octoszr Term, 1973. —

\

No. 73-1395.

-

UNITED STATES OF AMERICA,

Petitioner,

GEORGE J. WILSON, JR.

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Philip D. Lauer, Esquire, counsel appearing on behalf

of the Respondent, George J. Wilson, Jr., hereby presents

Respondent’s brief in opposition to Petitioner’s petition

for a writ of certiorari to the United States Court of Appeals

for the Third Circuit in this case.

Respondent relies on the statements of the Petitioner

with respect to the opinions below, jurisdiction, questions

presented, constituticnal provision and statute involved,

and statements of facts.

AS SATEE MISSES Se PSO SER Rl

2 Respondent’s Brief in Opposition

REASONS FOR DENYING THE WRIT.

_ The Criminal Appeals Act, 18 U. S. C. 3731, as amended

by the Qmnibus Crime Control and Safe Streets Act of

1970, provides for appeals by the United States from orders

of the District Court terrsinating criminal prosecutions in“

all cases in which an appeal would not violate the Double

Jeopardy Clause.

The holding of the ‘Court of Appeals in this matter

constitutes a well-reasoned and predictable application of

the appropriate legal principles, and does not, as alleged

by Petitioner, mark a ‘‘substantial departure from prior

holdings of this Court’’ and others. . Rather, the application

of the Douvie Jeopardy Clause, the Criminal Appeals Act,

and the federal law with regard to acquittals have corue

together to produce varying results, depending upox the

factual contexts to which they are applied. Thes: results

do not demonstrate, as alleged by Petitioner. any conflict

among the Courts of Appeals over their apyellate jurisdic-

tions, but rather represent the disparity which must be ex-

pected by reason of the factual varie‘tions.

1. There re ee meaningful conflict among the

Courts of Appeals r-garding the appealability of a post-

conviction rer dismissing an indictment. The various

Coz..s of Appeals have resolved the probiem of the appeal-

ability of each such order by a careful consideration in each

case of the applicability of the Double Jeopardy Clause.

The achievement of different results in different factual

settings has been mistaken by the Government for —-

in the principles applied.

In U.S. v. Zisblatt, 172 F. 2d 740 (C. A. 2), seen’ dis-

missed, 336 U. S. 934, the Court of Appeals for the Second

Circuit specifically did not hold, as stated by the Petitioner,

that an appeal from a post-conviction order of the District

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Respondent’s Brief in Opposition 3

Court dismissing an indictment under the Statute of Limi-

tations was not barred by the Double Jeopardy Clause.

Rather, that Court held that they had no jurisdiction to hear

the appeal, and certified the case to the Supreme Court.

Judge Learned Hand characterized the decision of the Dis-

triet Court as a judgment sustaining a ‘‘special plea in

bar’’, and thus potentially appealable directly to the Su-

preme Court. Judge Hand also recognized a_potential

Double Jeopardy claim:

‘However, . . . the motions, which he did enter-

tain and eventually gramted, were all made after th

trial had begun and, thererare, after the Defendant

had—literally at any rate—‘be2n put in jeopardy.’

There is, therefore, a good argun ent for saying that no

appeal lies to the Supreme Court.’’ (i172 F. 2d at 742).

U. S. v. Weinstein, 452 F. 2d 704, cert. denied, sub

nom. Grunberger v. U. S., 406 U. S. 917, demonstrates no

disparity in this area between the Second Circuit and any

other Circuit. In that case, the Second Circuit Court of

Appeals granted a petition by the Government for writ of

mandamus to the trial Judge, directing him to vacate his

post-verdict, post-conviction order dismissing the incict-

ment. In so doing, the Court specifically found that there

had been no acquittal, and did so using the principles

enunciated in U. S. v. Sisson, 399 U. S. 267. The factuel

bases for such a finding were obvious: a judgment of con.

viction had been entered prior to the Judge’s order; the

Judge himself repeatedly refused to acquit the Defendant;

the Judge stated his correct belief that he had no ‘‘right’’

to direct acquittal for the reasons stated. Looking ‘‘at

what (the) District Court did rather than a: what it saic.

it was doing’’, U. S. v. Sisson, 399 U. S. at 270, the Court .

found that no acquittal had been accomplished and that r.o

double jeopardy would ensue from its order.

mat

FSSA OSLO LIN HO a

4 Respondent’s Brief in Opposition

Among the more recent pronouncements of the Court of

Appeals for the Second Circuit, and demonstrating that that

Court has applied these doctrines according to the facts of

each case, are U. 5. v. Jenkins, 490 F. 2d 868 (C. A. 2), and

U. S. v. Velazquez, C. A. 2, decided December 28, 1973, 14

Cr. L. 2330. In the former case, the Defendant was tried

without jury, following which the trial Judge dismissed

the indictment. The Court of Appeals, after noting that

Congress intended to liberally allow appeals by the Govern-

ment unless prevented by the Double Jeopardy Clause, pre-

sented an exhaustive discussion of the Double Jeopardy

Clause. After reviewing U. 9. v. Sisson, supra, at length,

the Court of Appeals held: |

‘‘In essence the Judge’s post trial ruling in Sisson

had made the jury trial a nullity and had resulted in a

/ trial to the Judge, who had rendered a judgment of

\ acquittal on the merits. Even though this action was

based on an erroneous legal ground, the Double

Jeopardy Clause prevented a new trial... .

Although the District Judge here characterized his

action as a dismissal, it is clear from the analysis in

Sisson that for double jeopardy purposes he acquitted

the Defendant. His ruling was based upon facts de-

veloped at trial, which were not apparent on the face

of the indictment, and which went to the general issue

of the case. The dissent here contends that the District

Court’s findings of fact were largely undisputed and

not relevant to the pivotal legal issue in question. How-

ever, the discussion section of the District Court’s opin-

ion makes it clear that it was relying on the precise

circumstances of Jenkins’ case to conclude that the Su-

preme Court’s decision . . . should not be applied

retroactively to him. The District Court was not con-

struing the statute . . . it was holding that the statute

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Respondent’s Brief in Opposttion 5

should not be applied to him as a matter of fact.’’

U.S. v. Jenkins, supra, at 878.

In U. S. v. Valazquez, supra, the same Court held that

i an appeal would lie, because jeopardy had not attached

when the indictment was dismissed solely on motions sub-

mitted and decided prior to trial. Thus, the significant

inquiry in each case has been whether the Defendant has

been placed in jeopardy, a question whose answer must and .

did depend on the manner and time of termination of the

proceedings in the Trial Court.

In U. S. v. Whitted, 454 F. 2d 642 (C. A. 8), the Peti-

tioner has presented another example of a Court applying

identical legal principles in the identical manner. That the

result is again different from that rendered by the Third

Circuit Court of Appeals is, once again, a function of the

presence of substantially different circumstances. In

Whitted, the Eighth Circuit Court of Appeals was con-

fronted with a dismissal by a District Judge of an indict-

ment entirely on the basis of facts before him at the time

of a pre-trial denial of a similar motion. No reliance on

trial testimony: was shown. Clearly, this was not an ac-

quittal, since an acquittal has been defined in such cases as

‘’., legal determination on the basis of facts adduced at the

trial relating to the general issue of the case. . .’’ U.S. z

v. Jorn, 400 U. S. 470, 478, n. 7 (1971).

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. In U. 8. v. McFadden, 462 F. 2d 484 (C. A. 9), the

Court of Appeals for the Ninth Circuit considered a similar Be

dismissal of an indictment. In that case, finding that the ‘

| Trial Court had dismissed the indictment on the basis of f

evidence produced at trial, the Court of Appeals held that ..

the Court had acquitted Defendant, and that he could not =|

be retried. i

In U. S. v. Esposito, — F. 2d — (No. 72-1825, June 12, |

1973), the Court of Appeals for the Seventh Circuit allowed i

‘

3

Tig eNOS NE TELS . : e ry! aa :

6 Respondent’s Brief in Opposition

an appeal. However, as noted in the opinion of the Court

below (Petitioner’s brief, App. B., Page 8A), that Court

stressed its application of the principles of U. S. v. Sisson,

supra, but found no reliance by the Trial Judge on trial

evidence in his order. See also-U. S. v. Ponto, 454 F. 2d

647. .

The holding of the Court of Appeals in the instant

matter applies the same principles utilized by other Courts

of Appeals in the same manner. There exists no conflict

‘which requires resolution in this matter. The results 1eached

by the other Courts of Appeals cited by the Government

and herein were amply justified on their facts, and the

principles applied require no further amplification or ex-

planation.

_ 2. The contentions of Petitioner with regard to the

alleged misconstruction of the opinion of this Court in U. 8.

v. Sisson, supra, by the Court below are likewise without

merit.

Basically, Sisson involved a determination that a Dis-

trict Judge’s dcision did not constitute a motion in arrest

of judgment, but an acquittal. |

In so holding, the Court stated the following (399 U. S.

at 289-290) :

Quite apart from the statute, it is, of course, well

settled that an acquittal can ‘‘not be reviewed, on error

or otherwise, without putting (the defendant) twice in

jeopardy, and thereby violating the Constitution * * *.

(I)n this country a verdict of acquittal, although not

followed by any judgment, is a bar to a subsequent

prosecuiion for the same offense,’’ United States v.

Ball, 163 U. S. 662, 671-(1896).

Having established this standard, this Court held that the

decision before it was an acquittal (399 U. S. at 288-289):

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Respondent's Brief in Opposition 7

The same reason underlying our conclusion that

this was not a decision arresting judgment—i.e., that

the disposition is bottomed on factual conclusions not

found in the indictment but instead made on the basis

of evidence adduced at the trial—convinces us that the

decision was in fact an acquittal rendered by the trial

court after the jury’s verdict of guilty.

Accepting these principles, the Petitioner nonetheless

argues that the decision of the District Judge herein can-

not be characterized as an acquittal. Such a view of the

District Court’s decision in this matter clearly ignores the

reliance by the District Court on facts adduced at the trial,

as set forth in the District Court’s opinion, and reprinted

in the opinion of the Court below:

The Court takes notice of the facts brought out in

the testimony of the case concerning the potential tes-

timony of Mr. Schaefer . . . Durivig the trial (N. T.

133-134) the defendant indicated that ie never involved

himself with bookkeeping or the internal affairs of the

office. Finally, Mr. Wilson stated that he ordered no

one to write the check in question (N. T. 164-165).

On the (g)overnment’s side, it was established

that the bill from the wedding reception was sent to

the defendant’s home address and not to the union

(N. T. 62)... . Other testimony established that Mr.

Wilson controlled the union (N. T. 17), and that Mr.

Schaefer and Mr. Brinker were office help who owed

their jobs to the defendant (N. T. 80, 181).

. . . The Court finds that the unreasonable delay

was substantially prejudicial to the case of Mr. Wilson

in that the only witness who could explain the circum-

stances of the check became terminally ill during the

period of unreasonable delay. Although the govera-

LI ABER ADOT NG EDEL LLL LT OOP LLL R ELE LE LED EEN ELE IRENE BOLE A SES pecan arent eagelilie

8 Respondent’s Brief in Opposition

met contends that this is only a showing of potential

or speculative prejudice, there is an absolute certainty

as a signer of all checks that Mr. Schaefer would add

testimony of utmost importance to the trial. (Peti-

tioner’s brief, Appendix B, Page 7A). -

Although the District Court labeled the relief granted

as a dismissal of the indictment, we are cautioned by 7’. S.

v. Sisson, supra, at 279, to be guided by the legal effect of

the Court’s decision, and not the name given it.

Clearly, the decision of the District Court was an ac-

quittal, and U. S. v. Sisson was properly applied.

3. The Petitioner next contends that there is no basis

for holding that the Double Jeopardy Clause bars an appeal

where a verdict of guilty has been entered, and the Peti-

tioner seeks only to correct a legally erroneous order, éven

if it be characterized as an acquittal.

Petitioner’s reliance on U. S. v. Kepner, 195 U. S. 100,

is misplaced. Kepner held that an acquittal on the general

issue barred an Appellate Court from entering a judgment

of conviction on appeal. As noted in U.S. v. Jenkins, supra,

at 880:

‘*Since under Philippine practice no further pro-

ceedings were required below, the decision belies any

view that the Double Jeopardy Clause protects only

against the vexation of a second trial. (Fong Foo v.

U. S., 369 U. S. 141) held that a directed acquittal

barred a retrial even when it was plain that the ac-

quittal was occasioned by clear error of the Judge.

(U.S. v. Sisson, supra) held that when a guilty verdict

had been nullified by a Judge’s decision to acquit on

the merits, the Double Jeopardy Clause prevented an

Appellate Court from directing the entry of a judg-

ment of conviction.’’

7 Hae anti

Respondent’s Brief in Opposition 9

Despite the amendment to Section 3731, it is apparent

that an appeal will not lie where the Double Jeopardy

Clauce would prevent further prosecution. Sisson has spe-

cifically held an ‘‘acquittal’’, as therein defined, to be such

an event, and there appears no logical reason to conclude

that the definition of ‘‘acquittal’’ set forth by Justice

Harlan should be disturbed. That the Petitioner may be

precluded from seeking a reversal of what it alone deems

an erroneous order is but a necessary by-product of the

zealous protection afforded the Double Jeopardy Clause by

the Courts of this country.

CONCLUSION.

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

Putup D. Laver,

Counsel for Respondent.

*

AALS CAFS