# Respondents Brief — United States v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0381%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 332 ## Text 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 * SRR ibe wi i av # . Ah, SHE © Saki CE A>, ANGMAR PRI iP ROAM, 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 a NM SSSR of < * * . . £ a ~ sh ete OE ar Pe bi 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). RE EGE ASN PN DI MRT a . PRL AAP. AES PG IN ABET PLO OO ” ELLE RE LOL LRT HES wie SYP TI Aa ey POMS Li . 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): LAINE INNS Ge RAMA EBT NS HIS PLE ATLAS OES SP ORE EE LG OE EE, «EAE ‘ inne, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0381%3A3. Public record. Not legal advice.