Brief for the United States — United States v. Wilson

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

$$$ KA SPT

Onininte beloW «6-6 icsce ood nn eset nse snoscds

DN toca g as a ionamin ewe ese

Question presented _--_--_----------------------

Constitutional provision and statute involved ___ -

Statement:

1. The Pretrial Motions and Hearings---_--_--

Re ig te | i meee oven ne ee ea

3. The Post-trial Motions and the Dismissal

of the Indictment... .......-..........

4. The Appeal to the Court of Appeals--_-_-

Argument: .

I. INTRODUCTION AND SUMMARY.

Il. ANORDER TERMINATING A PROS-

ECUTION BECAUSE OF UNNEC-

ESSARY DELAY IN INDICTMENT

IS NOT AN ACQUITTAL-.--_.__----

A. This Dismissal Was Not an Ac-

quittal Under the Common Law

Definition of the Concept-____-

B. The Dismissal Was Not an Ac-

quittal Under the Established

Construction of the Double

Jeopardy Clause by this Court __

C. The Consistent Application of the

Sisson Definition of Acquittal

in the Courts of Appeals Shows

that Respondent Was Not Ac-

I osc liss e oacelnenks

1. Post-trial orders________-

2. Pretrial orders_._____---

ss ere ecat elec a tues

555-673—74—-1

S22 LO en eee

CITATLONS

Cases: 7 Page

Fong Foo v. United States, 369 U.S. 141 ------- 27

Forman v. United Siates, 361 U.S. 416------- 17

Gori v. United States, 367 U.S. 364__-------- 27

Green v. United States, 355 U.S. 184__------- 23

Illinois v. Somerville, 410 U.S. 458-_ - -------- 28

Kepner v. United States, 195 U.S. 100_-_- 28, 26, 33

Serfass v. United States, No. 73-1424_______- 15, 40

United States v. Ball, 163 U.S. 662___--- 14, 26, 33

United States v. Clay, 481 F. 2d 133--------- 41

United States v. Crutch, 461 F. 2d 1200_------- 41

United States v. Dibrizzi, 393 F. 2d 642-_----- 5,8

United States v. Dooling, 406 F. 2d 192, certi-

orari denied sub nom. Persico v. United States,

i i i a) Sn are ee ere 12, 37, 38

United States v. Giacalone, 477 F. 2d 1273__-_- 41

United States v. Hill, 473 F. 2d 759 - ------- 41

United States v. Jenkins, 490 F. 2d 868, certi-

orari granted, May 28, 1974, No. 73-1513. 16,

18, 19, 25, 39

United States v. Jorn, 400 U.S. 470.--------- 28,

29, 30, 32, 33, 34, 35, 36

United States v. Leininger, 494 F. 2d 340_---- 41

United States v. Lewis, 492 F. 2d 126_--.---- 41

United States, v. Marion, 404 U.S. 307_.----- 9.

19, 21, 22, 28

United States v. Maze, 414 U.S. 395_-------- 17

United States v. McDaniel, 482 F. 2d 305- - - - 39

United States v. McFadden, 462 F. 2d 484---- 39

United States v. Miller, 491 F. 2d 638_----- 41

United Stgtes v. Ponto, 454 F. 2d 657-------- 40

United States v. Richter, 488 F. 2d 170_------ 41

United States v. Rothfelder, 474 T°. 2d 606,

certiorari denied, 413 U.S. 922___--------- 41

United States v. Russell, 411 U.S. 423-.------- 17

SSN ARE

Cases—Continued Penk

United States v. Sisson, 399 U.S. 267________ 11,

12, 13, 18, 20, 28, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40

United States v. Tateo, 377 U.S. 463_________ 36

United States v. Velazquez, 490 F. 2d 29,

petition for a writ of certiorari pending,

No. 73-6493____ 2 41

United States v. Weinstein, 452 F. 2d 704,

certiorari denied, sub nom. Grunberger v.

United States, 406 U.S. 917_.-___ == 26, 37, 38, 39

United States v. Whitted, 454 F. 2d 642______ 38

United States -». Zisblatt, 172 ¥. 2d 740,

appeal dismissed, 336 U.S. 934___________. 17

Constitution, statutes and rules:

United States Constitution:

First Amendment_________-.-_-_--__-_ 30

Fifth Amendment_________-__-_-__-____ 8. 2,3

Sixth Amendment_______-___________ 3

18 U.S.C. 8731-228 2, 11, 12, 13, 34

29 U.S.C. 501 (c)__.-- 2-2 3,5

84 Stat. 1890__._- 8-8 2,14

Rule 29, Federal Rules of Criminal Procedure. 311,

32, 33

Rule 48(b), Federal Rules of Criminal Pro-

cedure. ........-.----.-----2- 9

Miscellaneous: y

4 Blackstone’s Commentaries, “ Ch. XXVI

CO aes entrees ee weeeenne 23

Friedland, Double Jeopardy (1969) _.____- a... 24, 25

IV Hawkins, Pleas of the Crown (1795 ed.) ___- 23, 24

Kirk, “Jeopardy” During the Period of the

Year Books, 82 U. Pa. L. Rev. 602________ 24

Viner, A General Abridgment of Law and Equity

OTD OO) oes ete eee eee eee 25

S. Rep. No. 91-1296, 91st Cong. 2nd Sess____ 12,14

iia Ie er Daveses

Jn the Supreme Court of the United States

OctToBER TERM, 1974

No. 73-1395

Unitep STATES OF AMERICA, PETITIONER

GrorGE J. WILson, Jr.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUiT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The Judgment Order of the court of appeals dis-

missing the appeal (Pet. App. A) is reported at 492

F. 2d 1345. The opinion of the court of appeals deny-

ing the petition for rehearing (Pet. App. B) is re-

ported at 492 F. 2d 1345. The memorandum and order

of the district court are reported at 357 F. Supp. 619

(Pet. App. D).

JURISDICTION

The judgment of the court of appeals was entered

on September 21, 1973. A timely petition for rehear-

ing was denied on January 15, 1974. On February 6,

1974, Mr. Justice Brennan extended the time for filing

(1)

RMA FET

a petition for a writ of certiorari to and including

March 16, 1974. The petition was filed on March 10,

1974, and was granted on May 28, 1974, along with

the petition in United States v. Jenkins, No. 73-1513,

and the cases were set down for argument in tandem

(App. 222). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause of the Fifth

Amendment bars an appeal by the United States from

‘an order of*the district court, entered after a jury ver-

dict of guilty, dismissing an indictment on the ground

of unnecessary pre-indictment delay.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Fifth Amendment to the United States Con-

stitution providés in pertinent part:

~ * * * nor shall any person be subject for the

same offence to be twice put in jeopardy of

life or limb * * *.

18 U.S.C. 3731, as amended, 84 Stat. 1890, provides

in pertineat part:

In a criminal case an appeal by the United

- States Shall lie to a court of appeals from a

decision, judgment, or order of a district court

~dismissing an indictment or information as to

any one or more counts, except that no appeal

shall lie where the double jeopardy clause of the

United ‘States Constitution prohibits further

" prosecution.

* * * * *

The provisions of this section shall be liber-

ally construed to effectuate its purposes.

PR PEE TREN ACD ET ST Sane SEP PED

ee ROI

al FE Big NR” A RES

STATEMENT

In an indictment returned on October 28, 1971, in

the Eastern District of Pennsy'vania, respondent,

George J. Wilson, Jr., was charged with having con-

verted to his own use funds of a labor organization, in

violation of the Labor-Management Reporting and

Disclosure Act of 1959, 29 U.S.C. 501(¢c). The indict-

ment alleged that on or about November 1, 1966, re-

spondent, financial secretary and business manager of

Local 367 of the International Brotherhood of Elec-

trical Workers (App. 76, 82), had converted $1,233.15

in funds belonging to the Union, through a check is-

sued by two officers of the Union, Robert Schaefer and

Robert L. Brinker, for the purpose of paying the cost

of a wedding reception for his daughter (Pet. App. B

4a).

| 1. THF PRETRIAL MOTIONS AND HEARINGS

On December 23, 1971, respondent filed a motion

to dismiss the indictment on the ground that the delay

in bringing him to trial violated the Speedy Trial

Clause of the Sixth Amendment and the Due Process

Clause of the Fifth Amendment. At pretrial hearings

on February 17 and March 14, 1972, respondent ar-

gued that the indictment should be dismissed because

Schaefer and Brinker, the signatories to the check in

issue, Were no longer available to testify. Brinker had

died in 1968 (App. 30), and Schaefer was suffering

from aterminal illness (App. 15, 34).

The only witness at the February 17 pretrial hear-

ing was Special F.B.I. Agent Joe Hargis, who testi-

fied about the conduct of the investigation of this and

ee eens aT Te

WANES, waa

other cases involving respondent. He stated that the

F.B.1.’s investigation began in April 1968 and con-

tinued through July 1970, although the aspect of the

investigation concerned with the instant charges was

substantially complete by June 1969 (App. 20, 21,

26, 32). He also testified that by early 1970 a grand

jury was investigating the matter (App. 29) and that

he discussed the case with the United States Attor-

ney’s office in Jate 1970-and early 1971 (App. 29-30).

He denied that his investigation had revealed that

Schaefer was terminally ill (App. 27), and he stated

that Brinker had died before he could interview him

(App. 27). After the hearing, the district court denied

the motion to dismiss the indictment.

At a hearing‘held on March 14, 1972, to reconsider

the motion to dismiss the indictment, Mrs. Jean Sip-

pel, the Local’s office secretary, testified that lists of

checks were brought to her by Miss Gloria Hunt,

secretary of Easton Arms, Inc., a non-profit ¢orpera-

tion created by the Local to carry out a public housing

project, and that she would prepare cheeks marked

“re Easton Arms” from this list and submit them,

along with the list, to Brinker and Schaefer, who

would sign the checks and corresponding vouchers

(App. 39-41). She testified that the check for the wed-

ding reception had been filled out by her and proc-

essed in this manner. The United States Attorney

argued, accordingly, that since Brinker’s and Schae-

fer’s signatures were perfunctory, their inability to

testify could not be prejudicial to respondent’s case

(App. 48).

LAD OE Me 8A aed IAC PELE LOLOL PR BOR 0 AL EELS NENG EA

SPF ARIA EEA AIR AIPA RALLIES ONE EI Rs DREN TENGE IGE SRDS I EGR E DLE LAE MED OPP ESS IEEE S80

AES BE ae

Respondent testified that he had discussed the wed-

ding with Brinker and Schaefer in June 1966 with

reference to the guest list and that about 80 percent

of those invited were connected with the union-spon-

sored housing project (App. 53). He also stated he

never directed Mrs. Sippel to issue the check (App.

54) and that he discovered the bill for the reception

had been paid during a conversation with Schaefer

and Brinker about Thanksgiving or Christmas 1966.

According to his testimony, they stated in regard to

the bill: “Don’t worry about it, it’s paid,’’ adding,

‘* Well, it’s part of promotion. It could have been just

another political thing” (App. 54).

Following the hearing, respondent’s motion to dis-

miss the indictment was again denied,’ and the case

proceeded to trial (App. 64).

2. THE TRIAL

It was established at trial that on June 25, 1966,

a wedding reception was held for respondent’s daugh-

1In denying the motion, the district court relied on Unjted

Ntates vy. Dibrizzi, 393 F. 2d 642 (C.A. 2), in which the

court of appeals stated in respect to a prosecution under 29

Us.C. 501(c) (/d. at 645):

“Here, appellant maintains that the expense items for which

the Government showed the union was billed and which the

union paid were authorized and adopted by it with knowledge

of all the facts and without any fraudulent misrepresentations

having been made by him. However, the Government adduced

at the trial enough evidence’ from which the jury could have

found beyond a reasonable doubt that the items were per-

sonal non-business expenses and in no way incurred in further-

ance of the union's business. Therefore, the jury could reason-

ably have inferred, in turn, that appellant intended to receive

(Continued)

555-67 3—74——--2

ELIE OD I, LIT MOE IE PEGE SEELEY GME OLENA TY PEE BE TONE PCARNE A Is Me Re Oni a ae ener e ee wae lial

Oe és

~ . 2 'S ms * . é. Sok Key A ie x

Prititerstisrcocaser assis Siitaie eee Manche Sa Gece

;

ter at the Easton Motor Hotel (App. 98). The man-

ager of the hotel explained that the cost of the wed-

ding reception had been $2,233.15, of which $1,000

had been pre-paid in the form of a deposit by

William Burke, the Local’s attorney, on June 20,

1966 (App. 96-98,163). He also testified that, follow-

ing the reception, a bill for the balance of the cost

of the reception, $1,233.15, had been made out in

the name of respondent and had been sent to his

home (App. 97, 102; G-3, App. 214). The manager

stated that if a bill were not paid within thirty days,

it was the policy of the hotel to repeat the billing

each thiry days thereafter (App. 97-98, 104). The

bill was finally paid by a union check for $2,024.09

dated November 1, 1966, and endorsed by Schaefer,

the president of the Local, and Brinker, its treas-

urer (App. 98-99, 207) *. The check was marked “re

Easton Arms, Ine.,” a reference to the non-profit

(Continued)

and knew he was receiving union funds for purely personal

expenses. Thus, viewing the evidence, as we must, most favor-

ably to the Government, * * * it appears to us that the jury

quite reasonably drew the inference that this intelligent ap-

pellant was acting wilfully. Even if appellant may have estab-

lished that his expenses were, as he claims, authorized and

adopted by the union, such does not absolve him of his crimes:

the reach of §501(c) is not limited to union officers who en-

gage in stealthy larcenies or devious embezzlements but ex-

tends to an officer who ‘unlawfully and wilfully abstracts or

converts to his own use’ the funds of a labor organization.

When one sends the union a voucher known to be an improper

one, and then receives payment of the voucher, the crime is

completed. * * *”

2Mrs. Sippel again testified regarding the Local's procedures

for issuing checks; the testimony was substantially the same

as that given at the pretrial hearing (App. 76-81, 86-91).

: ony — - _ 7 ’ " . | OVA PILED LNAI IEA TOAD ele |

7 ;

corporation created by the Local to build a million-

dollar public-housing project, backed by a govern- Z

ment-insured loan obtained by the corporation from

a trust company (App. 78, 153, 169).* Although the

manager of the hotel was unable’ to recall who di-

rected it to do so (App. 106), the hotel applied

$790.9 J4 of the amount to the account of William

Burke and $1,233.15 to satisfy the balance outstand-

ing for the wedding reception (App. 98-100; 7”

e App. 215).

| Respondent testified that he had aipointed Brinker

and Schaefer to office jobs, under which they had au-

thority to endorse Union checks, and that they were

responsible to him as his assistants for their activity

in that capacity (App. 174-175) ; * he maintained, how-

ever, that he had ever authorized anyone to issue the

Union check used to pay his bill for the wedding re-

ception (App. 164). Respondent also stated that he

had reimbursed Burke for the $1,000 deposit, that

*The project. a low-to-moderate-income apartment complex

known as Kennedy Gardens, was, according to respondent's

testimony, being constructed by the Union for the community

| in the anticipation that the building eventually would revert ;

| back to the non-profit corporation and could ‘be used for the

Union’s pension fund (App. 147, 150). Respondent, Brinker.

Schaefer, and Burke served on the Board of Directors of

Easton Arms, Ine. (App. 80, 177-178). It was common for, |

certain expenses of Easton Arms. Inc., eventually amounting

_ to about thirty to forty thousand dollars, to be advanced by

the Union (App. 80).

* These office jobs were distinct from the official Union posi-

tions held by Brinker and Schaefer, and their function in is-

suing the checks was unrelated to their official positions. In

their office capacities, they served as respondent's agents (App.

113-114). .

i — , PIES SPLEEN SEEMS TEE ALLAN ED SINTON te ae ear sas sanoagaaae lil

Wx P =.

5 Sa PO RAL IRM

about Thanksgiving or Christmas of 1966 Brinker had

told him that the bill for the balance had been paid,

and that he had assumed’ that Burke had paid it

(App. 196, 163-164). He maintained, however, that he

did not know that the bill had been paid from union

funds until he read about his indietment 1 in the local

newspaper (App. 164).

‘Respondent further testified that it was often neces-

sary for him to “wine * * * and dine”’ prominent persons

at the Easton Arms Hotel to obtain their support for the

housing .project (App. 157) and that these expenses

were paid by the Union, which would be reimbursed by

Easton Arms, Inc., when funds beeame available

(App. 116-117, 157-158). Moreover, in addition to cer-

tain members of the Union, persons who were in gov-

ernment positions and could. be helpful in obtaining

tenants and approval for additional units for the

Kennedy Gardens project had been invited to his

- danghter’s wedding reception (App. 162).

-Respondent also offered testimony of Agent Hargis

regarding the course and duration of the pre-indict-

ment investigation (App. 197-204).

At the close of the prosecution’s tase-in-chief, re-

spondent moved for a directed verdict of aequittal on

the ground that none of the witnesses had testified

that respondent had given instructions directing pay-

ment of the hotel bill (App. 131; Pr. 109-110). The

district court, again citing United States v. Dibrizzi,

supra, denied the motion, concluding that there was

sufficient evidence to go to the jury (Tr. 110-113).

After the return of the guilty verdict, the judge

denied a renewed motion for a judgment of acquittal

App. 206).

App. 206)

ISIWOL MII’ A ODS IAGPROMELEN, IHL OE TRIPLES SES IESE ALE ILA BLP NG ION,

ee ee

LE LOBED

Ae er, 53g DO: STS h

o. 9S Lea AOL OM IAEA LL ONL DGEBA LAGE LE! BOGE OSA APE

i amet —

_— ‘

3. THE POST-TRIAL MOTIONS AND THE DISMISSAL OF THE

INDICTMENT

On March 23, 1972, respondent filed post-trial’

motions for arrest of judgment, judgment of acquittal,

and a new trial. Each of these motions again asserted,

inter alia, the alleged unreasonable delay in presenting

the charges to the grand jury as a ground for relief

(App. 217, 219, 221). Each of the motions likewise

incorporated by reference respondent’s pretrial

motion to dismiss the indictment (App. 218. 220, 221).

On April 18, 1973, the district court entered an

order dismissing the indictment pursuant to Rule

48(b), Fed. R. Crim. P.’ After discussing the criteria

set forth in United States v. Marion, 404 U.S. 307,

regarding the circumstances under which an indict-

ment may be dismissed for pre-indietment delay, the

district court held that the pre-indictment delay in

this case deprived respondent a fair trial. Tn reaching

tuis conclusion, the district court took “notice of the

facts brought out in the testimony of the case con-

cerning the potential testimony of Mr. Schaefer’

(Pet. App. D, 14a-l5a) :

"8 The district court’s order, which was appended to its mem-

orandum (Pet. App. D, 1la-15a), was inadvertently omitted from

our appendix to the petition for certiorari. It stated:

“AND NOW, this 18th day of April, 1973, it is hereby Or-

dered that the above captioned case is Dismissed with prejudice

pursuant to Rule 48(b) of the Federal Rules of Criminal Pro-

cedure.” aioe

We note that. as a technical matter, Rule 48(b) applies only to

post-arrest, pre-indictment delay. United States vy. Marion. SUprO,

404 U.S, at 319 n. 11. Accordingly, it would not be applicable herve.

Sein ipunih.s Sena bes ata ak ass

PAPO METAR nny

10 |

Mr. Wilson, the defendant, stated (40-41 of

the Notes of Testimony of the pre-trial hearing

held on March 14, 1972) that the signing of all

union checks was in the hands of Mr. Brinker

and Mr. Schaefer. During the trial (N.T. 133-

134) the defendant indicated that he never in-

volved himself with bookkeeping or the in-

ternal 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 Government’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). Also, Mrs. Jean Sippel,

the office secretary for the [.B.E.W. and the in-

dividual who prepared the checks for the sig-

nature of Mr. Brinker and Mr. Schaefer stated

that at no time had a check prepared by her

been sent back without being signed. Other tes-

timony 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 district court concluded (Pet. App. D 15a) :

[T]he unreasonable delay was substantially

prejudicial to the case of Mr. Wilson in that

the only witness who could explain the cireum-

stances of the check became terminally ill dur-

ing the period of unreasonable delay. Althoug::

the government 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. Because of

the unreasonable delay, substantial prejudice

a Yaak DSL NOTED ane

resulted which violated the defendant’s due

process rights under the Fifth Amendment.*

The district court made no effort to reconcile this

order with its pretrial order denying the motion to

dismiss. Although the district court did allude to evi-

dence heard at the trial, it failed to indicate what that

evidence added to facts already disclosed at the pre-.

trial hearing. Moreover, the district court likewise

made no effort to reconcile its finding regarding the

significance of Mr. Schaefer’s testimony with its

charge to the jury, under which the jury could have

convicted whether or not Mr. Schaefer or Mr. Brinker

was expressly ordered by respondent to write the

check (Tr. 275-276).

4. THE APPEAL TO THE COURT OF APPEALS

The United States filed a notice of appeal pursuant

to the Criminal Appeals Act, 18 U.S.C. 3731, which

authorizes an appeal to the court of appeals from an

order of the district court dismissing an indictment

‘except * * * where the double jeopardy clause of

the United States Constitution prohibits further pros-

ecution.”” On September 21, 1974, the court of ap-

peals, relying upon United States v. Sisson, 399 U.S.

267, held that “the district court’s order [was] not ap-

pealable * * * under 18 U.S.C. 3731’’ and entered a

° The district court concluded that respondent had not been

prejudiced by unreasonable delay due to the unavailability of

Brinker, who died in 1968 (Pet. App. D 14a) :

““ * * Mr. Brinker died prior to 1970 and consequently his

‘testimony would have no bearing on the question of prejudice

during the period of unreasonable delay which commenced in

late 1970.”

‘

MARAT OT TS

be LR PIS AD at Fn

“Judgment Order” dismissing the indictment (Pet.

App. A).

On the assumption that the court of appeals was

relying on that portion of Stsson that had construed

the old Criminal Appeals Act ‘‘as confining the Gov-

ernment’s right to appeal—except for motions in ar-

rest of judgment—to situations in which a jury has

not been impaneled’’ (399 U.S. at 302-303), a petition

for rehearing or rehearing en banc was filed, since it

was plain from the legislative history that Congress

intended to overrule Sisson when it amended the

Criminal Appeals Act (18 U.S.C. 3731) to permit

appeal from a dismissal of an indictment except where

the Double Jeopardy Clause prohibits further prosecu-

tion.’ Moreover, on the authority of cases such as

United States v. Dooling, 406 F. 2d 192 (C.A. 2),

certiorari denied sub nom. Persico v. Untted States,

395 U.S. 911, which held that it was improper for a

district court judge to grant a post-trial motion to

dismiss an indictment on the same grounds examined

and rejected prior to trial, and that mandamus was

available to set aside such a dismissal, a petition for

a writ of mandamus was filed as an alternative to the

petition for rehearing.

On January 15, 1974, the court of appeals denied

the motion for rehearing in a six page opinion (Pet.

App. B 3a-9a).° Rather than relying on a con-

7 See S. Rep. No. 91-1296, 91st Cong.,2nd Sess., p. 11:

‘Qne example of the kind of case which would thereby be

made appealable is the Sisson case”.

’The petition for rehearing en banc was denied with one

judge dissenting (Pet. App. C 10a). The court of appeals also

denied the application for a writ of mandamus (¢did.).

r\>

os YANN

ELLER LITE NTS ASEM IR I ai a crn een re

struction of Section 3731, the court of appeals held

that the post-conviction dismissal for unnecessary

delay in prosecution was an acquittal and that further

appellate review was barred by the Double Jeopardy

Clause. |

The court of appeals held that, regardless of label,

“t]he trial judge’s disposition is an ‘acquittal’ if it is

‘a legal determination on the basis of facts adduced at

the trial relating to the general issue of the case’ ”’

(Pet. App. B 6a). Although the basis of the

dismissal had nothing directly to do with the general

issue in the case (the defendant’s guilt or innocence),

the court of appeals held that, since the facts relied on

were also relevant to a determination of the general

issue, the dismissal was in fact an acquittal (Pet. App.

5 6a): .

While there may be occasions where an ap-

peal may lie from a district court’s dismissal of

an indictment or information because further

prosecution is not barred in the double jeopardy

clause, we cannot agree that this is such a ease.

Here the record indicates that defendant filed

post-trial motions for arrest of judgment, judg-

ment of acquittal, and for a new trial. The dis-

trict court, in reaching its legal determination,

relied on facts adduced at trial relating to the

general issue of the case.

Having concluded that the order was an ‘‘acquit-

tal,’’ the court of appeals, relying on United States v.

Sisson, supra, 399 U.S. 267, held that appellate review

was barred even though the only relief sought was an

order vacating the dismissal and directing the entry of a

judgment of conviction (Pet. App. B 6a) :

555-673--71——_3

+ a

PEND PRES TAROT RMON ee SOLE: my IRI acer RMR

SPREE te

SHEL REE A I STEER RIL IME OPAL Pde

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

well settled that an acquittal can “‘not be re-

viewed, 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 fol-

lowed by any judgment, is a bar to a subsequent

prosecution for the same offence,” Unitedaa

States v. Ball, 163 U.S. 662, 671 (1896).

ARGUMENT

INTRODUCTION AND SUMMARY

The Criminal Appeals Act, as amended by the

Omnibus Crime Control and Safe Streets Act of 1970

(84 Stat. 1890), was expressly intended to authorize

a government appeal from an order of the district

court terminating a criminal prosecution in any case

in which appeal would not violate the Double Jeop-

_ardy Clause. The Act, as the court of appeals held in

this case, “establish[es] the double jeopardy clause

as the only bar to appeals by the United States from a

dismissal of an indictment or information”? (Pet.

App. B 6a).°

® The original version of the 1970 amendment to the Crim-

inal Appeals Act proposed by the Senate Judiciary Committee,

unlike the final version, was not pegged specifically to the

Double Jeopardy Clause. Instead, it provided for an appeal

from all orders terminating a criminal prosecution “except

that no appeal shall lie from a judgment of acquittal” (S. Rept. No.

91-1296, supra, at 1). The Senate Report defined a “true

acquittal” as one “based upon the insufficiency of the evidence

to prove an element of the offense” (id. at 24). See also letter

of Solicitor General Erwin N. Griswold, responding to a request

[Continued ]

“ — ai

eects

ace 2b po AERTS ee BOD RI TEAL RIPLAN S

The only issue presented ih this case, therefore, is

whether the Double Jeopardy Clause bars an appeal

from an order, entered after a jury verdict of guilty,

dismissing an indictment because of unnecessary pre-

indictment delay. The conclusion of the court of

appeals that such an appeal is barred by the Double

Jeopardy Clause was based on its determination: (1)

that the Double Jeopardy Clause bars an appeal from

a judgment of acquittal entered notwithstanding a

jury verdict of guilty, even when a successful appeal

would not result in a retrial but merely in the entry

of a judgment of conviction in accordance with the

verdict of the jury, and (2) that a post-conviction

order dismissing an indictment, which was not based

on the sufficiency of the evidence, is an acquittal. We

submit that both of those determinations were erron-

eous.

1. The issue whether the Double Jeopardy Clause

bars an appeal from an order terminating a criminal

prosecution in favor of the accused does not, in our

view, depend on the label attached to the order, but

upon whether the relief sought would improperly

subject a defendant to a second trial. Our brief

in Serfass v. United States, No. 73-1424, explores

this issue in the context of a pretrial order dismissing

[ Continued ]

from Senator John L. McClellan for his views on the proposed

amendment (7d. at 33):

“As stated above, S. 3132 closes these gaps by allowing

the Government an appeal from any dismissal except one

amounting to a ‘judgment of acquittal’, that is, a factual

judgment that the defendant is not guilty of the crime charged

and is thereby er.titled to protection against double jeopardy.”

tone ea |

SATE It

Wis Mise A Oca Caria RD at HY

RC Te RU vitge EUY Pe ee ee ee

5, A Riot See Bi are Dads tt

fete

pall patina tei ioe Na

2 wen a

SORES RES LITH AT

an indictment on the merits. There we show that, even

though such a pretrial order has been or could be

characterized as an “acquittal,”? an appeal by the

United States does not violate the Double Jeopardy

Clause because the defendant had never been placed in

initial jeopardy by the commencement of a trial. Ac-

cordingly, even though the appeal seeks a reversal of

the order of dismissal and a remand for trial, the de-

fendant cannot complain that he is being placed in

jeopardy of a second trial for the same offense.

Tn the instant ease and in United States v. Jenkiis,

No. 73-1513, on the other hand, the order dismissing

the indictment was entered after trial. But since in

both cases the appeal seeks a remand to the district

court for further proceedings that would not involve

a retrial, it follows similarly that the defendant ¢an-

not complain that he is in jeopardy of being tried

twice for the same offense. Indeed, for years this Court

entertained direct appeals from post-verdict orders

in arrest of judgment, where the relief sought was

an order compelling the entry of a judgment of con-

viction in accordance with the verdict of the trier of

fact.

Moreover, had the district court here entered a

judgment of conviction, and had it been the court

of appeals that directed dismissal of the indictment

on the ground of pre-indictment delay, there would

he no question about the right ef the United States,

consistent with the Double Jeopardy Clause, to seek

further review by way of a petition for rehearing or

a petition for a writ of certiorari. Indeed, this Court

;

has declined to ‘‘subscribe to * * * a theory” that

would bar such relief from an order of the court of

appeals (Forman v. United States, 361 U.S. 416, 426)

and has repeatedly entertained petitions for writs of

certiorari from orders c.’ courts of appeals directing

the dismissal of indictments on the merits after a

judgment of conviction had been entered.” There is

no reason, as a matter of law or policy, why different

rules should apply simply because it is a district court

that has directed the dismissal of an indictment under

similar circumstances. As Judge Learned Hand wrote

for the court of appeals in United States v. Zisblatt,

172 F. 2d 740, 743 (C.A. 2), appeal dismissed, 336 U.S.

934:

* * * [T]he question becomes whether to re-

verse the dismissal and enter a judgment of

conviction upon the verdict would violate the

defendant’s constitutional privilege. Had the

trial judge directed a verdict, so that it would

have been necessary upon reversal to subject

the defendant to trial before a second jury,

that would be “double jeopardy”, but, although

the Constitution gives an accused person the

benefit of any mistakes in his favor of the first

jury he encounters, whether it has passed upon

his guilt or not, it does not extend that privilege

to mistakes in his favar by judges. Indeed,

were the opposite true, all appeals from deci-

sions in arrest of judgment would be constitu-

tionally futile because no judgment of convic-

tion could be entered when they were reversed.

- Bg.. United States v. Maze, 414 U.S. 395: United States v.

Fussell, 411 U.S, 423.

18 ~

So long as the verdict of guilty remains as a

datum, the correction of errors of law in attach-

ing the proper legal consequences to it do not

trench upon the constitutional prohibition.

Our brief in United States v. Jenkins, No. 73-1513,

which was set down by this Court for argument in

tandem with the instant case, fully discusses this issue

and sets forth our arguments in support of the view

that the Double Jeopardy Clause does not bar an

appeal from a post-jeopardy dismissal of an indict-

ment after the finder of fact has determined that the

defendant committed the acts charged in the indict-

ment, even where the order may be properly charac-

terized as an acquittal. We shall, therefore, rely on

our brief in Jenkins with respect to that issue and

concentrate our argument in this brief on the alterna-

tive claim that, even assuming an appeal by the United

States from a post-verdict judgment of acquittal is

barred by the Double Jeopardy Clause, a dismissal

of an indictment for unnecessary delay in prosecution

is not an acquittal.

2, The issue whether a judge’s action amounts to

3 an acquittal, as Mr. Justice White has observed, ‘‘ad-

: nits of no single answer, but depends on the reasons

: for making the inquiry in the first place.” United

States v. Sisson, 399 U.S. 267, 328-329 n. 4 (dissenting

opinion). We have already stated our view that, in

4 terms of the “reason for making the inquiry here,”

- it is irrelevant what label is attached to the judgment

of the district court; the critical issue is whether a

successful appeal will result in a retrial. Accordifigly,

to the extent that it may be said that the Double

EIR AO PT ROROPE RR BE a eINET OE TBARS irl RF OM OE RE So eS RE

Se ORE BERN DINE ILS BES PRE! APE ERE y VBE AEP ALCE ELAS BRIO LS

Jeopardy Clause bars an appeal fron a judgment

of “acquittal,” it does so only where the “acquittal ” has

been returned by the trier of fact, and a ruling against

‘the defendant on appeal would require a retrial.

While there is dictum in some opinions suggesting

that an appeal from an ‘‘acquittal’’ would be barred even

where such a retrial would not be necessary,”

the common thread that runs through every state-

ment or restatement of the rule, is that, to be unappeal-

able, the judgment of acquittal must have been based

upon a determination that the defendant has not been

proven guilty of the crime for which he has been tried.

Under that settled definition, it is plain that the

order in this case, terminating the prosecution on

the groundg of unnecessary delay in indictment, which

“rested on grounds that had nothing to do with guilt

or innocence or the truth of the allegations in the

indictment” (United States v. Marion, supra, 404 U.S.

at 312), was not an acquittal. And, indeed, even these

courts of appeals which have held that a pretrial dis-

missal on the merits is an ‘‘acquittal’’ and therefore

not appealable have consistently entertained appeals

from pretrial dismissals based on unnecessary delay.

Largely because an appeal from a judgment of acquittal

entered upon « verdict of not guilty by a jury of necessity

involves a request for a second trial, it has become common

shorthand to say that the Double Jeopardy Clause bars

‘an appeal from a judgment of acquittal; as sometimes

happens, the reason for the rule has been ignored on occasion,

and there is in. fact »uthority, at least by way of dictum, that

an acquittal entered notwithstanding a verdict of guilty by

a jury could not be appealed without violating the Double

Jeopardy Clause even though a retrial is not sought. As pre-

viously indicated, we deal with this in our brief in Jenkins.

ne LANNE HY Te RCT

PALE prey

Largely ignoring this crucial element in the defini-

tion of an “acquittal,” the court of appeals here relied

upon language, taken out of context, from United

_ States v. Sisson, supra, 399 U.S. at 289-290 n. 19, to

the effect that a judge’s dispositicn is an “acquittal” if

it is “a legal determination on the basis of facts ad-

duced at the trial relating to the general issue of the

ease” (Pet. App. B 6a). It is apparent in context that

the Court in Sissén did not intend to formulate any

new definition of an acquittal, but merely to restate

the rule that the termination of a prosecution after

trial based on a resolution of the general issue in the

ease in favor of the defendant is an acquittal. How-

ever, the court of appeals here construed the language

literally, finding it to mean that an acquittal results

any time the order terminating the prosecution after

trial is based upon evidence heard at the trial, without

regard to whether the dismissal is based upon a deter-

mination that a defendant has not been proven guilty.

Such a definition of the term “acquittal’’ is contrary

t+ every authority “that has considered the concept,

going back even to Blackstone’s famous statement of

the double jeopardy principle.

AN ORDER TEKMINATING A PROSECUTION BECAUSE OF UN-

NECESSARY DELAY IN INDICTMENT IS NOT AN ACQUITTAL

The order of the district court terminating the

prosecution in this case on the ground of unnecessary

pre-indictment dela; was not based upon a determi-

nation that the evidence presented to the jury was

i Ae RE SG (Me

insufficient to establish respondent’s guilt; indeed, the

district court twice denied respondent’s motion for a

directed verdict of acquittal (once after the close of

the prosecution’s case-in-chief and again after the re-

turn of the guilty verdict; see supra, p. 8). Moreover,

United States v. Marion, supra, 404 U.S. 307, makes

clear, if any authority is necessary, that an order

terminating a criminal prosecution on the ground of

unnecessary delay does not involve a determination of

the defendant’s guilt or innocence. In Marion the

district court had granted a pretrial motion to dismiss

the indictment on the ground of unreasonable delay in

bringing the indictment, stating that the defense of

the case was “bound to have been seriously prejudiced

by the delay of at least some three years in bringing

the prosecution that should have been brought in 1967,

or at the very latest early 1968’’: (404 U.S. at 310).

This Court, construing the old Criminal Appeals Act,

concluded that the order of the district court could be

appealed. In doing so, it rejected the notion that the

district court’s ruling could be considered a determi-

nation relating to the guilt or innocence of the accused

(404 U.S. at 312):

The motion to dismiss rested on grounds that

had nothing to do with guilt or innocence or

the truth of the allegations in the indictment

but was, rather, a plea in the nature of con-

fession and avoidance, that is, where the

defendant does not deny that he has committed

the acts alleged and that the acts were a crime

but instead pleads that he cannot be prosecuted

because of some extraneous factor, such as the

PTET

eR TRE APT NAN

res

Pe SA POPS LER

PEP AAD Ln

running of the statute of limitations or the

denial of a speedy trial. —

Moreover, while the Court observed in Marion that

a determination whether a defendant suffered actual

prejudice as a result of unnecessary delay must some-

times await the events at trial,” it seems clear that

the determination of this issue after trial has no more

to do with a defendant’s guilt or innocence than a

pretrial dismissal of an indictment on the same ground

would have. Indeed, it is apparent that events at trial

in the instant case disclosed very little in addition to

what had already been disclosed at the pretrial hear- -

ings. What happened, quite simply, is that the district

judge changed his mind. The issue therefore is whether

_ this order is converted into an unappealabie “acquit-

tal’ for the purposes of the Double Jeopardy Clause

merely hecause the district court relied upon evidence

heard at the trial that was also, quite fortuitously,

relevant to'the general issue of respondent’s guilt or

‘ innocence. That it is not so converted emerges piainly

from a consideration of the history of the Double

Jeopardy Clause and the cases that have construed it.

12 The Court stated (404 U.S. at 326):

“In J’ rht of the’ applicable statute of limitations, however.

these possibilities [‘inherent’ in any extended delay; that

memories will ‘dim, witnesses become inaccessible, and evidence

be jost’] are not in themselves enough to demonstrate that

appellees cannot receive a fair trial and to therefore justify

the dismissal of the indictment. Events of the trial may dem-

onstrate actual prejudice, but at. the present time appellees’ due

process claims are speculative and premature.”

OD at te

iti mama Aig V0 LOO EG A CLOSE: LENO LALO Dic his BAMA EM ME LAA BRARYL ALE ALE LL A AGIOS LE

‘A. THIS DISMISSAL WAS NOT AN ACQUITTAL UNDER THE COMMON

LAW DEFINITION OF THE CONCEPT

A The starting point for the, Fie inquiry is the

definition of acquittal under thé common law rule,

which the framers intended to perpetuate in the Dou-

ble Jeopardy Clause. See Kepner v. United States,

195 U.S. 100, 125. The most succinct statement of

that rule, and one “which greatly influenced the gener-

ation that adopted the Constitution,” ” is found in

4 Blackstone’s Commentaries, Ch. XX V1, pp. 335-336

(1900). There, in describing the common law plea of

autrefoits acquit, Blackstone observed :

*** TT The plea of autrefoits acquit, or a former

acquittal, is grounded on this universal maxim of

the common Jaw of England, that no man is to

be brought into jeopardy of his life more than

once for the same offence. And hence it is

allowed as a consequence, that when a man is

once fairly found not guilty upon any indict-

ment, or other prosecution, before any court

having competent jurisdiction of the offence, he

may plead such acquittal in bar of any subse-

quent accusation for the same crime. [Empha-

sis added. ]

Similarly, [V Hawkins’ Pleas of the Crown (1795 ed.)

« "described the common law plea of “former acquittal’’

as resting on a determination that the defendant was

not guilty (pp. 311-312):

The plea of autrefoits acquit is grounded on this

maxim, that a man shall not be brought into

3 Greeny. United States. 355 U.S. 184, 187-188.

et |

danger of his life for one and the same offense,

more than once. From whence it is generally

taken, by all the books, as an undoubted conse-

quence, that where a man ts once found “not

guilty’? on an indictment or appeal free from

error, and well commenced before any court

which hath jurisdiction of the cause, he may,

by the common law, in all cases whatsoever

plead such acquittal in bar of any subsequent

indictment or appeal for the -ame crime.

[Emphasis added. ]

More specifically, Hawkins observed (id. at 316) :

Yet it seems, that no other discharge of an

indictment will bar an appeal, and no other

discharge of an appeal will bar an indictment,

but only an acquittal by battle, or an acquittal

by verdict on the general issue, finding the de-

fendant’s innocence; as where it finds him not

guilty on such an issue, on an indictment or

appeal of any felony whatsoever; or where it

finds him guilty of homicide se defendendo, ov

per infortunium, on an indictment of murder.”

[Emphasis added. |

While this common law plea of ‘‘former acquittal”

was essentially an application of the doctrine of res

judicata and did not therefore bar an appeal, ‘an in-

dependent principle”’ evolved that the Crown could not

seck anew trial after an acquittal (by appeal or by mo-

4 The “appeal” to which Hawkins made reference was not

the contemporary American process of appellate review of trial

errors, but rather the quasi-criminal trial proceeding which could

be commenced at common law by a private party. See Friedland.

Double Jeopardy 8 (1969) ; Kirk, “Jeopardy” During The Period

Of The Year Books, 82 U. Pa. I. Rev. 602, 605-606.

LAREN ALLO SOE LE SEN AE

—

rh he

ag 1

tion in the trial court).” ” Friedland, Double Jeop-

ardy 285-286 (1969). The underlying basis of this rule

was apparently the concern that, upon a new trial, the

prosecutor “would see where he failed, and might use

ill means to prove what he failed before.’’ 21 Viner,

‘A General Abridgment of Law and Equity 478-479

(1793 ed.). But, of course, whatever validity there is

to this consideration of policy, it is unrelated to the

correctness of characterizing the order here as an

“acquittal”; moreover, the policy underlying this

aspect of the common Jaw rule is inapplicable to the

instant case since a retrial is not being sought.

In sun, it is plain that, under the definition of “ae-

quittal” as that term was applied at common law

in determining the scope of the protection afforded

by the “universal maxim * * * that no man is to be

brought into jeopardy of his life more than once for

the same offense,” an order terminating a prosecution

on the ground of unreasonable delay in indictment,

after a guilty verdict, is not an acquittal.” As we

“CE United States v. Jenkins, 490 F. 2d 868, 873-S74 (CA. 2),

certiorari granted May 28, 1974 (No. 73-1513), where Judge

Friendly wrote: i

“The history [of the Dovole Jeopardy Clause] may leave it

open to argue that the framers did not regard the crown’s

inability to appeal an acquittal after a trial on’ the merits as

part. of the common law concept of double jeopardy but rather

as an independent principle, to be followed for a century [in

England] but not incorporated in the clause, although the general

flavor of the debate * * * is somewhat to the contrary.”

“In England [under the common law] the judge could not

even direct a verdict of acquittal for legal insufficiency of the

evidence: his only power, at least in cases involving felonies.

was to recommend royal clemency, which was granted as a

[ Continued ]

Be tometer

42 petri

oe is Sat aed

SPC

“a Se

ORO PINS LLB EOAD LL OTLAI TTS WEEN CWP PRG Bey

PROS Ne Fe ee

now show, the Double Jeopardy Clause has in this

respect been construed in the same manner as the

English common law principle.

B. THE DISMISSAL WAS NOT AN ACQUITTAL UNDER THE ESTABLISHED

CONSTRUCTION OF THE DOUBLE JEOPARDY CLAUSE BY THIS COURT

.The leading case, in which it was first stated that a

“verdict of acquittal was final, and could not be re-

viewed, on error or otherwise, without putting [the

defendant] twice in jeopardy,” was United States v.

Ball, 163 U.S. 662, 671. Ball involved a “verdict of the

jury, after a trial upon the issue of guilty or not guilty”’

(id. at 670), and it was in this context that it was held

“that a general verdict of acquittal upon the issue of not

guilty to an indictment * * * is a bar to a second

indictment for the same -[offense]” (7d. at 669)."

A similar definition of an “acquittal” was employed

in Kepner v. United States, supra, 195 U.S. 100, which

involved an appeal from a judgment of acquittal after

a trial without a jury. There, in discussing the Ball

case, it was stated (195 U.S. at 133):

The Ball case, 163 U.S., supra, establishes that

to try a man after a verdict of acquittal is to

put him twice in jeopardy, although the verdict

was not followed by judgment. That is practi-

cally the case under consideration, viewed in

the most favorable aspect for. the Government.

[Continued ] ‘

matter of course.” United States v. Weinstein, 452 F. 2d 704,

715 (C.A. 2), and authorities cited, certiorari denied sub nom.

Grunberger v. United States, 406 U.S. 917.

17 Since a subsequent prosecution, rather than an appeal, was

involved in Ball, the statement regarding the nonappealability of

an acquittal (163 U.S. at 671) is dictum.

2 RGN ANA WNP ARE SAGA PRN OEE LE EH

327

The court of first instance, having jurisdiction

to try the question of the guilt or innocence of”

the accused, found Kepner not guilty; to try

him again upon the merits, even in an appellate

court, is to put him a second time in jeopardy

for the same offense * * *. [Emphasis added. ]

Thus, the essence of the concept of “acquittal’”’ has

long been recognized as involving the failure of the

prosecution to submit convincing evidence establish-

ing the existence of every element of the offense, ée.,

the prosecution’s failure to adduce sufficient evidence

of the defendant’s guilt. As United States v. Marion

(discussed more fully at pp. 21-22, supra) clearly holds,

a motion to dismiss on grounds of pre-indictment

delay has “nothing to do with guilt or innocence or

the truth of the allegations in the indictment * * *.”’

404 U.S. at 312. It is thus unquestionably not an “acquit-

tal’’ under the established meaning of the term.

The court of appeals in the instant case ignored

both the common law definition of an acquittal and the

oft-cited opinions in Ball and Kepner in concluding,

without a functional analysis of the nature of the dis-

trict court’s action, that the dismissal for pre-indictment

delay was an acquittal. It relied upon the Court’s re-

formulation of the concept in United States v. Sisson,

supra, 399 U.S. 267, reiterated in United States v. Jorn,

supra, 400 U.S. 470, 478 n. 7:

[T Jhe trial judge’s disposition is an ‘‘acquittal”

if it is “a legal determination on the basis of

facts adduced at the trial relating to the general

issue of the case * * *.”

We do not dispute that it is literally true that the

evidence on which the district court relied in dismiss-

ing the indictment was ‘‘adduced at the trial” (it was,

of course, also adduced at the pretrial hearings) and

that (quite coincidentally) it related “to the general

issue of the case’’ as well as to the quite distinct issue

on which the judge ruled in dismissing the indictment.

We do urge that the court of appeals’ literal applica-

tion of the Sisson-Jorn formulation erroneously ex-

tended the concept to cireumstances to which it was

never intended to apply.

When examined in context, we submit ‘that the

Court’s real meaning could be more precisely, albeit

less elegantly, stated by the addition of the following

bracketed phrase to the definition of ‘‘acquittal’’:

“* * * an ‘acquittal’ * * * is ‘a legal determination

[of the general issue of the case] on the basis of

- facts adduced at the trial relating to the general issue

of the case.’ ” ™ As so stated, it is clear that the fortui-

tous circumstance that the facts relied on for dismissal

are also relevant to the issue of guilt or innocence is

not controliing, so long as guilt or innocence is not

the basis of the trial court’s ruling.. This view is

entirely consistent with Sisson and Jorn.

In Sisson, where the offense was a refusal to submit

to induction into the armed services, the defendant

claimed before trial that he was a conscientious

objector to military service in Vietnam. At trial,

1S Of course, in Sisson and Jorn the Court did not need the

added phrase because, as we show below, it was not relevant to

the discussion of the concept of acquittal in those cases.

atoll i Fest ERAN AOR LEAT TOAST IIS IAL BN LG EE CLLEGE LI IAS OY ES AR TOD TCL SE eer _

Sisson based his defense principally upun his conten-

tion that American participation in the conflict was

illegal but presented evidence in support of his consci-

entious objection claim as well. After a guilty verdict,

the district court granted what it termed a motion

in arrest of judgment, holding that the Free Exercise

Clause of the First Amendment prohibited Sisson’s

conviction for refusal to submit to induction. The

judge recited the facts of the case and explained that

Sisson’s testimony and demeanor as a witness gave

support to his claim of conscientious objection to serv-

ice in Vietnam.

On appeal, this Court rejected the district court’s

characterization of its order as an “arrest of judg-

ment” (which would have been appealable under the

terms of the old Criminal Appeals Act) and described

it instead as an acquittal. In explaining why the post-

guilty-verdict order was the equivalent of a judgment

of acquittal, the Court analogized the case “‘to one in

which a jury was instructed” that it was obligated to

return a verdict of not guilty if it found that the de-

fendant was “sincere” and had been governed in his

refugal to report for induction “by conscience as a

martyr obedient to an orthodox religion” (399 U.S. at

289). Had the jury returned a verdict of not guilty

upon this charge—even though the charge was erro-

neous—‘its verdict of acquittal could not be appealed

under [former] § 3731” or, according to the Court’s

dictum, the Double Jeopardy Clause (tbid.).

The Court then explained the bearing of its hypo-

thetieal case on a case like Sisson, in which the dis-

# peices |

SNR eT

naib a 4 Si Mi eS

PI ave 5 WARE OES OER RA TEs Ri REP

trict court emtered the judgment after a guilty verdict

(id. at 290; footnote omitted) :

There are three differences between the hypo-

thetical case just suggested and the case at

hand. First, in this case it was the judge—not

ihe jury—who made the factual determinations.

This difference alone does not support a legal

distinction, however, for judges, like juries, can

accuit defendants, see Fed. Rule Crim. Proc.

29, Second, the judge in this case made his deci-

sion after the jury had brought in a verdict of

guilty. Rules 29(b) and (c) of the Federal

Rules of Criminal Procedure, however, ex-

pressly allow a federal judge to acquit a crimi-

nal defendant after the jury ‘returns a verdict

of guilty.” And third, in this case the Distrtet

Judge labeled his post-verdict opinion an arrest

of judgment, not an acquittal. This character-

ization alone, however, neither confers juris-

diction on this Court, see n. 7, supra, nor makes

the opinion any less dependent upon evidence

adduced at the trial. In short, we see no dis-

tinction between what the court below did, and

a post-verdict directed acquittal.

The emphasis on Rule 29 is significant, because a

district court may grant a judgment of acquittal pur-

suant to Rule 29 only “if the evidence is insufficient

to sustain a conviction.” And it was for this reason

that the Court observed in Sisson that ‘‘what the

District Court did in this ease cannot be distinguished

from a post-verdict acquittal entered on the ground

that the Government did not present evidence suffi-

cient to prove fan essential element of the offense }

that Sisson was insincere’’ (399 U.S. at 299).

a oe Sie

The single sentence from the opinion in Sisson,

which was quoted in Jorn and formed the basis for

the holding of the court of appeals below, appeared

in a footnote to the textual discussion set forth

above analegizing the district court’s order in “arrest

of judgment’’ to a judgment of acquittal pursuant to

Rule 29. Mr. Justice White’s dissenting opinion had

criticized the analogy, contending that the appeal-

ability of the order should be governed by what the

district court actually did, not what it might have

done. It was in rejoinder to that criticism that the

Court observed (399 U.S. at 290 n. 19): -

Our conclusion does not, as suggested in dis-

sent, post, at 327 (dissenting opinion of MR.

JUSTICE WHITE), rest on the fact the Dis-

trict Court “might have” sent the case to the

jury on the instruction referred to in the text,

~ but instead on what it Aid do—ie., render a

legal determination on the basis of facts ad-

duced at the trial relating to the general issue of

the case, see, infra, at 301. Neither dissenting

opinion explains what ‘‘large and critical’’ dif-

ference, post, at 329, exists between its expan-

sive notion of what constitutes a decision arrest-

ing judgment and a post-verdict acquittal en-

tered by the judge after the jury has returned

a verdict of guilty pursuant to Fed. Rule Crim.

Proc. 29. * * * [Emphasis added.]

It is apparent in context that the phrase “legal

determination on the basis of facts adduced at the trial

relating to the general issue’’ merely described the

legal determination that must be matle on a Rule 29

motion for a judgment of acquittal, i.c., whether the

evidence is sufficient as a matter of law to establish

each of the essential elements of the crime. This is

entirely consonant with the traditional definition of

acquittal at common law and as described in Ball

and Kepner; it has, moreover, nothing to do with

expanding the concept of acquittal to cover actions

taken on a basis other than the establishment of guilt

or innocence.

There is nothing in the brief reference to Sisson in

Jorn that supports a contrary conclusion. Jorn in-

volved an appeal from an order dismissing an infor-

mation on double jeopardy grounds after a district

judge had improperly and unilaterally declared a mis-

trial to permit several witnesses to consult with their

attorneys in order to determine whether they should

waive their privilege against self-incrimination and

testify. Justices Black and Brennan, who concurred

in the judgment affirming the dismissal, concluded

“that the Court lacks jurisdiction over this appeal

under [former] 18 U.S.C. § 3731 because the action

of the trial judge amounted to an acquittal of appellee

and therefore there was no discretion left to the trial

judge to put appellee again in jeopardy” (400 U.S

at 488; emphasis added). Responding to this ar sume -

Mr. Justice Harlan wrote (id. at 478 n. 7):

It is clear from the record in this case that

Judge Ritter’s action cannot, as two members of

the Court suggest, be classified as an ‘‘acquittal”

for purposes of this Court’s jurisdiction over the

appeal under 18 U.S.C. § 3731. * * *

Of course, as we noted in Stsson, supra, at 290,

the trial judge’s characterization of his own

action cannot control the classification of the

ieee ee amen ee

PSR MY 2G EEA OEE 10

action for purposes of our appellate jurisdiction.

But Sisson goes on to articulate the criterion of

an “acquittal” for purposes of assessing our

jurisdiction to review: the trial judge’s disposi-

tion is an “acquittal” if it is “a legal determina-

tion on the basis of facts adduced at the trial

relating to the general issue of the case * * *.”

Sisson, supra, at 290 n. 19. The record in this

case is utterly devoid of any indication of

reliance by Judge Ritter on facts relating to the

general issue of the case, thereby surely distin-

guishing this case from Sisson, and, ene would

think, under the very reasoning of Sisson,,com-

pelling the conclusion that whatever else Judge .

Ritter may have done, he did not ‘‘acquit” the

defendant in the relevant sense.

It is apparent, first, that the “relevant sense” in

which it was necessary to determine if the district

court’s order in Jorn was an “acquittal,” was for pur-

poses of the statutory inquiry whether the subsequent

order dismissing the indictment was appealable under

former Section 3731, which had been construed in

light of its peculiar legislative history (United States

v. Sisson, supra, 399 U.S. at 289). On the other hand,

the issue in this case is whether an appeal from the

order dismissing the indictment is constitutionally

barred. Moreover, the holding in Jorn is plainly con-

sistent with the definition of an acquittal in the sense

here relevant. The district court’s declaration of mis-

trial in Jorn had not entailed ‘‘a legal determination”

that the “facts adduced at the trial relating to the

general issue of the case” were insufficient to estab-

lish the defendant’s guilt, and accordingly it was held

site shuts SND gk Aa

Wa sae Sie nil

Peed ni & RON PPR MOG 1.

that the order declaring the mistrial was not an

“acquittal.”

We do not believe it can be suggested, in light of

the context from which the definition of an acquittal

in Sisson was taken, that the Court in Jorn meant to

imply that any order setting aside a judgment of con-

viction is an acquittal (for the purpose of the Double

Jeopardy Clause) if the district court relied on evi-

dence heard at the trial, even though the district court

may be satisfied that the evidence is sufficient to sus-

tain con:iction. Indeed, if this were the import of the

holding in Jorn, then every time a district court judge

set aside a judgment of conviction and ordered a new

trial in the interest of justice because of an error that

may have been made at trial, 7.¢c., an erroneous charge

or admission of evidence, or because of newly discoy-

ered evidence, such an order setting aside the verdict

of conviction would be an “acquittal” simply because

the district court may have considered evidence it

heard at the trial.” The Court in Jorn could hardly

have intended such a result. ,

” Of course. such an order is not different in any material

way from an order of the court of appeals reversing a judg-

ment of conviction and ordere#’a retrial. And the same con-

sideratiens of policy that permit au retrial after such a reversal

(see United States vy. Tateo, 377 U.S. 463, 466), plainly permit

a retrial where the district court acts prior to an appeal. Simi-

larly, here, the order of the district court, entered after a judg-

ment of conviction, was not different in any material way from

an order of the court of appeals reversing a conviction because

of unnecessary delay in prosecution, and since further ap-

pellate review may be sought from such an order, there would

seem to be no rational justification for a holding that an

appeal from the order of the district court is barred by the

Double Jeopardy Clause.

EOP ELLER LELSSE PEEVE LIE: ILI E NIE LL ERIE SA LILIES L LE ELLE LAS LTD EBT NEE ES MEE

‘

In sum, it is submitted that, in the sense here rele-

vant, the order of the district court was not an “acquit-

tal’? under the clear holdings of this Court.” More-

over, as we now show, our reading of these holdings—

including that of United States v. Sisson—is sup-

ported by every court of appeals decision that has

considered the issue other than that in the instant case.

» Fong Foo v. United States, 369 U.S. 141, is another case

in which a termination of the trial in favor of the defendants

by the district court, labeled an “acquittal” by that court and

so treated by this Court, was held to be unreviewable. Arguably,

Fong Foo is a case that, by treating the trial court's termina-

tion of the trial shortly after commencement of the prosecu-

tion’s case as an acquittal, strays somewhat from the concept

of acquittal as it has otherwise been recognized. Ilowever, the

judgment of “acquittal” was based at least! in part on the

district court’s determination that the witnesses were not testify-

ing truthfully, and its view that, apparently, a conviction could

not be obtained in light of their testimony because the proof

of guilt would necessarily ‘be insufficient (see concurring opinion

of Harlan, J., 369 U.S. at 143-144: Fong Foo record, No. 64,

Oct. Term 1961. at 364. 377. 573-574).

While the result in Fong Foo is consistent with our position

here, we do not agree with the opinion’s rationale placing control-

ling significance upon the label the district court attached to its

preverdict order. The Court's opinion clearly indicated that,

had the district court said it was declaring a mistrial rather

than entering a judgment of acquittal, a retrial would have

been permitted. It distinguished Gori v. United States, 367

U.S. 364, which involved a mistrial, on the ground that “| t]he

trial [in Fong Foo] did not terminate prior to the entry of

judgment * * *. It terminated with the entry of 4 final judg-

ment of acquittal * * *.” (369 U.S. at 143).

The clear import of this reasoning is that by labeling his

order an “acquittal” ’, even if there is no authority to enter such

an order and it is not, based on the sufficiency of the evidence,

a district judge can insulate ‘sis action from further review.

This reasoning has been explicitly rejected in United States vy.

(Continued)

ne oe

FI LEER IE LIED LEAL OEL IIE IE ISSN, LIL LOB NS SLD SI EPOD LOO TINGE CEL OCGA Tip Oe SEDO MD iP

€. THE CONSISTENT APPLICA‘SION OF THE SISSON DEFINITION OF AC-

QUITTAL IN THE COURTS OF APPEALS SHOWS THAT RESPONDENT WAS

NOT ACQUITTED

Apart from the instant case, Ze courts, of appeals

have without exception construed the definition of

“acquittal” stated in Sisson to mean a determination

that the evidence at trial was insufficient to establish

the defendant’s guilt beyond a reasonable doubt. This

definition has not only been applied to orders setting

aside guilty verdicts returned by the trier of fact, but

to pretrial orders in those circuits that have held that

an acquittal may not be appealed even w here jeopardy

has not attached.

1. Post-trial orders

Perhaps the leading post-trial-order case permitting

appellate review of an order dismissing an indictment

‘is United States v. Weinstein, supra, 452 F. 2d 704,

certiorari denied sub nom. Grunberger v. United

(Continued) é‘

Sisson, supra, 399 U.S. at 279 n. 7; the appropriate inquiry is

whether, under the principles governing the permissibility of

retrials after a trial has been terminated prior to verdict, the

defendant, may be subjected to a second trial (if that is the

remedy sought on appeal). Compare United Btates vy. Jorn,

400 U.S. at 478 (plurality opinion), with ///inois v. Somerville,

$10 U.S. 458. |

Moreover, if labels are controlling, then Fong Foo would

not justify dismissal of the appeal here, since the district court

did not enter a judgment which it denominated an “acquittal.”

Of course, Fong Fvo is also distinguishable from this case

because there, as this Court observed, “the Court of Appeals

set aside the judgment of acquittal and directed that the peti-

tioners be tried again for the same offense” (369 U.S. at 143).

As’ we stated at the outset, no such relief is requested here.

AAA ae aL ae Lae te AMEE AP SE, AMP

States, 406 U.S. 917. There, the district court entered

a post-conviction order dismissing an indictment in

the “interests of justice.” Even thought the dismissal

had been based on evidence heard at the trial that re-

lated to the general issue in the case, the court of

appeals held that “‘[t]he issuance of the writ [of man-

damus] in this proceeding will not subject [the de-

fendant] to retrial in Violation of his right to be

protected against double jeopardy” (452 F. 2d at 712-

713). Rejecting the claim that Sisson required that the

order of the district court be treated as an acquittal,

Chief Judge Friendly stated for the court (id. at 714;

emphasis added) : *

[D]efendant’s reliance on the Sisson holding

that an appellate court will look at What a dis-

trict court did rather than at what it said it was

doing, 399 U.S. at 270, 90 S. Ct. 2117, 26 L.Ed.

2d 608, is misplaced. What the judge did in

Sisson was entirely plain. He refused to enter

judgment on a verdict because, in his view, the

Constitution prohibited him from doing so. This

was, in truth and fact, a judgment of acquittal;

the judge believed that, with the evidence taken

in the light most favorable to the Government,

it still would not support a conviction. The

Supreme Court held that such a judgment of

acquittal could not be transformed into the

rather technical concept of an arrest of judg-

ment, to wit, “the act of a trial judge refusing

to enter judgment on the verdict because of an

** See also United States vy. Dooling, 406 F. 2d 192 (C.A.

2), certiorari denied sub nom. Persico y. United States, 395

US. 911.

error appearing on the face of the record,”

399 U.S. at 280, 90 S. Ct. at 2125, simply by

his calling it such. It would be a far cry from

this to hold that the order here in question was

a judgment of acquittal, which the judge repeat-

edly said he did not intend to enter, could not

« rightly have entered and, in all probability,

had lost the power to enter.

Similarly, in United States v. Whitted, 454 F. 2d

642, the Court of Appeals for the Eighth Circuit

entertained jurisdiction of an appeal in cireum-

stances virtually identical to the instant case. There

the district court; based in part on evidence heard

at the trial (see 454 F. 2d at 643), had dismissed

the indictment on the ground that it could not be

sure whether the indictment against the defendant

was returned on the basis of the evidence before

the grand jury or on the basis of possible bias and

prejudice against him (such a motion had been re-

jected prior to trial). Relying upon United States v.

Weinstein, supra, and United States v. Dooling, supra,

the court of appeals reversed the order dismissing the

indictinent. Moreover, it stated that on remand “[a]

judgment of acquittal would be appropriate only if

the evidence at trial had been insufficient to sustain

Whitted’s conviction” (454 F. 2d at 646).

In United States v. Jenkins, supra, 490 F. 2d 868,

certiorari granted May 28, 1974 (No. 73-1513), the

Second Circuit applied the same standard. While it

22 See also United States v. McDaniel, 482 F. 2d 305 (CLA.

8).

we a eee Pt

was there held that the order disiuissing an indict-

ment after a non-jury trial was an acquittal, the ques-

tion was determined by the criteria we urge here.

Judge Friendly, writing for the court of appeals in

Jenkins, observed (490 F. 2d at 880): “Sisson held

that when a guilty verdict has 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 judgment of conviction”’

(emphasis supplied).” See also United States v.

McFadden, 462 F. 2d 484, 486 (C.A. 9), which cites

Sisson in holding that when a post-trial order ‘‘goes

to the general issue’’ it “must be held to be a judg-

ment of acquittal.” .

In sum, except for the holding below, the courts

of appeals have construed Sisson to define an acquittal

as a post-trial order ‘‘entered on the ground that the

Government did not present evidenge sufficient to

prove [an essential element of the offense}’”-¢399 U.S.

at 299). They reject implicitly the proposition, adopt-

ed below, that an “acquittal” results from the mere

fact that the district court relies on evidence heard

at the trial in setting aside an indictment (after con-

* Jenkins was charged with knowingly failing to report for

induction as ordered. The district court dismissed the indict-

ment after trial on the ground that Jenkins was not legally

bound to obey the order because the local board had refused

erroneously to reopen his classification to consider a post-

induction-order claim for treatment as a conscientious objector.

Like S/sson, and unlike this case and United States v. Wein-

ctein, supra, the district court in Jenkins held—in effect—that

the evidence was insufficient to warrant a conviction.

Pena ed

ekprgtaninta er

GABE LPR ORES

viction) on grounds that do not relate to the suffi-

ciency of the evidence.

2, Pretrial orders

A number of courts of appeals have held that an

appeal from a judgment of acquittal is barred by the

Double Jeopardy Clause even if the judgment was

entered before any trial has begun. While we believe

that these decisions have erroneously applied the bar

of the Double Jeopardy Clause to pre-jeopardy orders

terminating a criminal case,” the definition of acquit-

tal employed in those cases is otherwise consistent

with our reading of Sisson. Thus, even those courts

of appeals that have held that an appeal may not be

taken from a pretrial acquittal have entertained ap-

peals from pretrial orders terminating prosecutions

for unreasonable delay.

For example, while the Court of Appeals for the

Seventh Circuit has held (relying on Sisson) that a

pretrial dismissal “on the merits’? was an acquittal

from which an appeal is barred by the Double Jeop-

ardy Clause (United States v. Panto, 454 F. 2d 657,

663-664), this principle was deemed ‘‘inapplicable” to

a pretrial order terminating a prosecution because of

unnecessary pre-indictment delay, clearly implying

that the order was found not to be an acquittal.

United States v. Clay, 481 F. 2d 133, 137 n. 11 (C.A.

7). Similarly, while the Court of Appeals for the

Fifth Circuit has held that “[t]he present law of

double jeopardy precludes retrial [and an appeal }

24 See our brief in Serfass v. United States, No. 73-1424.

when the district court has ruled in favor of the de-

fendant on facts going to the merits of the case if

these facts were adduced at an evidentiary hearing”

(United States v. Lewis, 492 F. 2d 126, 127), it stated

in United States v. Miller, 491 F. 2d 638, 641 n. 1,

that “an appeal from the dismissal of an indictment

because of pre-indictment delay was not barred by

double jeopardy.”

Again, while the Court of Appeals for the Sixth

Circuit has held that if an “indictment is dismissed as

a result of a stipulated fact or the showing of evi-

dentiary facts outside the indictment, which facts

would constitute a defense on the merits at trial * * *,

[it] operate[s] as an acquittal’ for purposes of deter-

mining appealability (United States v. Rothfelder,

474 F. 2d 606, certiorari denied, 413 U.S. 922; em-

phasis supplied), it has likewise entertained appeals

from pretrial orders terminating prosecutions for un-

necessary delay or on other grounds not relating to

the defendant’s guilt or innocence. United States v.

Giacalone, 417 F. 2d 1273; United States v. Leininger,

494 F. 2d 340.”

All of these cases demonstrate adherence to the tra-

ditional definition of an. acquittal as a termination of

the prosecution in favor of a defendant ‘‘on the

merits” of the charge, that is, that the evidence is

25 Compare, also, United States v. Hill, 473 F. 2d 759 (CLA.

9), with United States v. Richter, 488 F. 2d 170 (C.A. 9);

United States v. Velazquez, 490 F. 2d 29 (C.A. 2), petition

for a writ of certiorari pending (No. 73-6493), with United

States v. Crutch, 461 F. 2d 1200 (C.A. 2).

" pis NPN Ht SR! Poy

insufficient to sustain a conviction. There is no rea-

son in law or policy to depart from that definition

here.

CONCLUSION

The judgment of the court of appeals should be

reversed and the cause remanded for determination of

the merits of the appeal from the order of the distritt

court. |

Respectfully submitted:

Rotert H. Bork,

Solicitor General.

Assistant Attorney General.

AnpREW L. Frey,

Deputy Solicitor General.

Epwarp R. Korman,

Attorney. |

- Avaust 1974.

U.S GOVERNMENT PRINTING OFFICE: 1974

ed Oe oA mmr mer ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.