# Brief for the United States — United States v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0381%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1975 - **Citation:** 420 U.S. 332 ## Text $$$ KA SPT 5 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 14 20 23 26 36 a S22 LO en eee II 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 ul 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 v. 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 3 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 4 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 5 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 ; 7 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 8 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 — _— ‘ 9 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 11 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.” > : © p Es & 3 ¥ i; ‘ x k % * MARAT OT TS be LR PIS AD at Fn 12 “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.). ns r\> ~ os YANN ELLER LITE NTS ASEM IR I ai a crn een re 13 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 ol SPREE te SHEL REE A I STEER RIL IME OPAL Pde 14 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 I 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 15 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 oy 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 a 16 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 | ; 17 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 19 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 20 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. II 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 21 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 TI res Pe SA POPS LER PEP AAD Ln 22 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 | 24 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 — ee 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 <5 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 * * *.” 28 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 30 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 31 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 32 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. 34 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 35 ‘ 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 i 7 37 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. = < H 1 4 38 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. ey : $. % ¥ . a i Fs » : Pena ed ekprgtaninta er GABE LPR ORES 40 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. # 41 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 42 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. Henry E. Perersen, © 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0381%3A5. Public record. Not legal advice.