Respondents Brief — United States v. Wilson
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SUMMARY OF ARGUMENT ..........-+-- Sr SGN ae ee pre
Pe 5 ow os oo ok CARD Oh a Ei 400 ORS
I, The Double Jeopardy Clause Bars an Appeal From
a Judgment of Acquittal Entered Notwithstand-
ing a Jury Verdict of Guilty, Even When a Suc-
cessful Appeal Would Not Result in a Retrial, But
in the Entry of a Judgment of Conviction and
SOE TOON 6 Cin b's rr tpn dt besas vb tule
II. Historical Background of the Double Jeopardy Clause
III. The Decisions of This Court Bar an Appeal From
an Acquittal Where a New Trial Is Not Sought
(A) The Cases Relied Upon by the Court of
Appeals in United States v. Jenkins, No.
73-1513, Are Controlling 2... .c0cissocess
1. United States v. Ball, 163 U. S. 662 .....
2. Kepner y. United States, 195 U. S. 100 ..
3. Fong Foo v. United States, 369 U. S.'141
4. United States y. Sisson,/399 U. S. 267 ..
5. Price v. Georgia, 398 U. S. 323 ........
IV. Petitionér’s Submission Is Not Supported by Deci-
sions of This Court or Others in Analogous
Be LOPE eee Pere Sera kiseee wes
V. Summary—Application of Double Jeopardy Clause
VI. An Order Terminating a Prosecution Because of Un-
necessary Delay in Indictment Is an Acquittal
Under the Facts in This Case ................
A. The Common Law Definition of an Acquittal
B. The Dismissal Was an Acquittal. Under the
Established Construction of “he Double
Jeopardy Clause as Enunciated by This
ON iis ei ea
INDEX (Continued).
-
Page
C. The. Application of the Sisson Definition of
Acquittal in thie Courts of Appeals Has Been
Consistent and Requires a Finding That Re-
spondent Was Acuitted ..........+-600+- 35
VII, Summary—Definition of Acquittal ......,,..+.++. 38
ConcLusion eencueiceevuese ebeciusatavabevies ehecteve’s 40
asd 4
we
OT.
Soto nm ee
CITATIONS.
Cases: ee Page
Bartkus v. Illinois, 359 U.S. 121 .....-....3 Gicuennioeex re 9,19.
Fong Foo v. United States, 369 U.S. 141 .....-..00-065 15, 16, 34
Forman v. United States; 361 U.S. 416 .......-- cscs eeeeees 22
Gréen v. United States, 355 U.S. 184 ......00ecccccccccees 14
Kepner v..United States, 195 U.S. 100 ..:.......+0 eee 14, 26, 28
Price v. Georgia, 996 U. S. 323.0... ccc cccvccccccccvceves 16, 20
United States v. Ball, 163 U.S. 662 .........++44- 12, 13, 14, 20, 27
United States v. Dooling, 406 F. 2d 192 (2nd Cir.) cert. den.
sub nom. Persico v. U. S., 395 U.S. 91) «0... 0 -eeeeeee 36
United States v. Jenkins, 490 F. 2d 868 ........--. eee eeeee 36, 37
United States v. Jorn, 400 U. S. 370.............4. 28, 33, 34, 37, 38
United States v. Marion, 404 U.S. 307 .........0-eeeeceeee 6, 27
United Stites v. Mand, 414 U.S. 995 20.0552. e se cccconee - a
United States v. McFadden, 309 F. Supp. 502 ............ 37
United States v. McGrath, 412.U. S. 936 ..........22--e00- 22
United States v. Russell, 459 F. 2d 671, reversed, 411 U. S.
ribo div esr Gukesnccdscvees Lsscpieth reduces 21
United States v- Sanges, 144 U.S. 310 ........-..200-eeee 3,12
United States v. Seeger, 380 U.S. 163 .........02 cee eeeeeee 22
United States v. Sisson, 399 U. S. 267 ....3,4, 17, 19, 20, 24, 25, 28,
31, 32, 33, 34, 35, 37, 38, 39
United States v. idee 452 F. 2d 710, certiorari denied
sub nom. a v. United States, 406 U. S. 917
24, 35, 36, 41
United States v. Whitted, A BON ae ere 36
United States v. Zissblatt, 174 F. 2d 740, appeal dismissed
SU 308 0 Tekan nS 23
NPN ENTE FT ie | ee ee
P
MPRA MANA AY UY
PSE AARNE SPORE RAI TIT SATU REM NT
‘
CITATIONS (Continued).
Constitution, Statutes and Rules:
United States Constitution : : *
Fifth Amendment ............-.0 eee e eee e et eee cence passim
Criminal Appeals Act, 18 U. S. C. 3731, as amended by
Omnibus Crime Control and Safe Streets Act of 1970,
Tae 300, Bt Stak, WES og 5s kee 2, 5, 17, 18, 31,32
Fed. R. Crim. P.: .
Beg Opes ere re ree eee Ae a 32
Ee ee re ee rer 17
WOT. SO Ae POO oo nik heroes ee ee 17
Miscellaneous:
| Aameis of Comme 40... oscil 10
Batchelder, Former Jeopardy, 17 Am. L. Rev. 735 .......... 10
Black’s Law Dictionary (Fourth edition) ........2........ 39
4 Blackstone’s Commentaries {Tucker 3 os 10
2 Cooley’s Blackstone (4th Ed. 1899) ............2 00 ee eee 10
2 Hawkins, Pleas of the Crown (8th Ed. 1824) ............ 10
1V Hawkins, Pleas of the Crown (1795 ed.) .............. 10
Myers and Yarborough, Bix Vexari: New Trials and Succes-
sive Prosecutions, 74 Harv. L. Rev. 1 (1960) ........... 10
1 Pollock and Maitland, A History of English Law ...... eas 10
4
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PYPER SANS LEMOS PY LEN IEE LS EOE ONT BRS TS ETE N LE IY EOP REE PTE SET MILE NTS PM
IN THE
Sopeaiias Court of the United States
-Goreiek ‘Term, 1973.
, No. 73-1395.
UNITED STATES OF AMERICA, '
Petitioner, 4
Vv.
Ee MeN wn ner
GEORGE J. WILSON, JR.
BRIEF FOR THE RESPONDENT.
—_—_——
Ld
;
Dee A ee
Philip D. Lauer, Esquire, counsel appearing on behaif
of the Respondent, George J. Wilson, Jr., hereby presents
Respondent’s Brief on the merits of the issues presented by
the United States of America as Petitioner in its Brief.
Respondent relies on the statements of the Petitioner
with respect to the opinions below, jurisdiction, questions
presented, constitutional provision and ate involved,
and statements of facts.
BYE LTA AE ES
:
b
:
2 Summary. of Argument
SUMMARY OF ARGUMENT.
The Criminal Appeals Act, 18 U. S. C. 3731, provides
for an appeal by the United States to the Court of Appeals
‘*from a decision, judgment, or order of a District Court
dismissing an indictment . . . except that no appeal should
lie where the Double Jeopardy Clause of the United States
Constitution prohibits further prosecution.’’ We are not
here concerned with principles of statutory construction,
but rather with a determination as to the circumstances
under which the Double Jeopardy Clause so ‘‘prohibits
further prosecution’’ that a Government appeal is im-
proper.
The District Court in this matter, after presiding over
a trial resulting in a jury verdict of guilty, entered a
post-trial order dismissing the indictment on the basis of
unreasonable and prejudicial pre-indictment prosecutorial
delay. The opinion of the Judge specifically referred to
testimony heard at trial, and the trial testimony was
clearly relevant to the general issue of the case.
Petitioner contends that the matter appealed is purely
an error of law and, as such, would not result in a retrial
if appellate relief were granted. From this, Petitioner
concludes that the Double Jeopardy Clause is not impli-
cated, since Petitioner reads that clause as prohibiting
only second trials. It should be noted that, in arguing
this matter, Respondent has responded directly to the con-
tentions contained in Petitioner’s brief in United States
v. Jenkins, No. 73-1513, which brief was incorporated by
reference in Petitioner’s brief.
The ruling of the Court below cannot be neatly char-
acterized as a purely legal ruling, which can be reviewed
and, presumably, changed without implicating the Double
Jeopardy Clause.
SEE SS ASR I OL CE AE FANS EE
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Summary of Argument’ 3
In making this determination, one must consider the
historical background of the Double Jeopardy Clause, and
it appears that the basic principles are among the oldest
and best known in this and other systems of jurisprudence.
Tracing history, while informative, does not clearly dispose
of the question presented. However, any doubt has been
resolved by the decisions of this Court, and the compelling
reasoning of those decisions.
In reviewing those decisions, it is apparent that, since
United States v. Sanges, 144 U. S. 310 (1892), the first
ease directly concerned with Government appeals in crimi-
nal cases, through the present time, this Court has jeal-
ously protected criminal defendants from appeals following
verdicts of acquittal. The distinction sought by Petitioner,
which would exclude from the operation of this principle
all cases in which the Judge’s decision may be classified
as legal and reversible without necessity of retrial, finds
no support in any of these cases.
The development -of the common law of this country
has proceeded to the point described in United States v.
Sisson, 399 U. S. 267. Although that case was decided
under the old Criminal Appeals Act, it was also decided
on double jeopardy grounds, equally applicable under the
new Act. As noted herein, that portion of the opinion
dealing with the double jeopardy question was the only
portion of the opinien on which the Court clearly stood
together.
The general acceptance of the non-appealability of an
acquittal is demonstrated! by numerous other decisions of
the Courts of Appeals. _~
The Petitioner next contends that the order termi-
nating the prosecution in this case was not an acquittal.
Once again, tracing both the common law and the decisions
of this Court, it is apparent that the order entered in this
soba
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4. Summary of Argument
matter was the functional equivalent of an acquittal.
Further, it meets the specific tests established by Umited
States v. Sisson, supra, for discerning acquittals. There
is no reason for a change in that test, and it is submitted
herein that the judgment of the Court below was an
acquittal, and therefore not appealable.
PEELE TROL IILL LO LE
ER sii ; EE PT
Argument 5
ARGUMENT.
I. The Double Jeopardy Clause Bars an Appeal From a
Judgment of Aquittal Entered Notwithstanding a Jury
Verdict of Guilty, Even When a Successful Appeal
Would Not Result in a Retrail, But in the Entry of a
Judgment of Conviction and Sentence Thereon.
This case submits for the consideration of your Hon-
orable Court an extremely important issue dealing with
the meaning of the Double Jeopardy Clause of the United
States Constitution and the statutory construction of the
recently amended Criminal Appeals Act,.18 U. S. C., Sec-
tion 3731. It is submitted that the allowance of an appeal
by Petitioner from the order of the District Judge will
place the Respondent twice in jeopardy in violation of
the clear import of the Crimine] Appeals Act and the
United States Constitution.
It, is admitted that the amendment to the Criminal
Appeals Act accomplished by the Omnibus Crime Control —
and Safe Streets Act of 1970 was brought about in order
to permit appeals in a broader variety of cases. The Gov-
ernment was not, however, given an unfettered right to
appeal, but was given the right to appeal ‘‘from a decision,
judgment, or order of a District Court dismissing an indict-
ment . . . except that no appeal shall lie where the Double
Jeopardy Clause . . . prohibits further prosecution.”’
Thus it must be determined, in each case, whether the ef-
fect of the appeal would be to violate the Double Jeopardy
Clause.
While reserving the right to argue that the Double
Jeopardy Clause does not bar every appeal which would
require a retrial if successful, the fundamental position
taken by Petitioner is that a purely legal error, made by a
6 Argument
District Court in entering an order equivalent to an acquit-
tal, may be reviewed without violating the Double Jeopardy
Clause. The argument turns on two related legal conclu-
sions: That the matter appealed is purely an error of law,
and, as such, will not result in a retrial if appellate relief
is granted. It is submitted that such conclusions cannot
be applied to the case at bar, and, even if applicable, the
prohibitions of the Double Jeopardy Clause cannot be
avoided.
‘1. In its brief in United States v. Jenkins, No. 73-1513,
upon which Petitioner relies in its argument on this issue,
Petitioner characterizes the decision from which the appeal
was taken as a purely legal ruling. Such characterization
is clearly justified in that case, since the order entered by
the District Judge, sitting without a Jury, was accompanied
by specific findings of fact and conclusions of law. The
decision in Jenkins is clearly not one ‘‘in which the result
turned on credibility or demeanor or assessing a mental
attitude . . . the facts relevant to the legal ruling were
wholly objective and impersonal.’’ (Br. 12).
Although a determination that it only seeks to attack
an erroneous legal ruling is important to the Petitioner’s
argument, such a finding in the instant case would ignore
the character of the opinion of the District Judge. After
reviewing the criteria of United States v. Marion, 404 U.S.
307, regarding the circumstances under which an indict-
ment may be dismissed for prejudiceal, pre-indictment
prosecutorial delay, the Court concluded that Respondent
had been prejudiced by such delay, and thus deprived of a
fair trial. In so-concluding, the District Judge took
‘‘notice of the facts brought out in the testimony of
the case concerning the potential testimony of Mr.
Schaefer (Pet. App. D, 14a-15a): Mr. Wilson, the De-
fendant, stated (40-41 of the Notes of Testimony of
a
ee
APOE EB AIP ERE, TOPE NE GOO OL PGS OD. LEER ECPI ELE LIE DOL ES ROO IY NLT ere |
Argument 7
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 internal affairs
of the office. Finally, Mr. Wilson stated that he
ordered no one to write-the check in question (N. T.
164-165).
On the 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 I. B. E. W. and the individual who prepared the
checks for the signature of Mr. Brinker and Mr.
Schaefer stated that at no time had a check prepared
by her been sent back without being signed. Other
testimony established that Mr. Wilson controlled the
union (N. T. 17), and that Mr. Schaefer and Mr.
Brinker were office help who owed their job to the
Defendant (N. T. 80, 181).”’
The District Court concluded (Pet. App. D 15a):
‘The unreasonable delay was substantially preju-
dicial to the case of Mr. Wilson in that the only wit-
ness who could explain the circumstances of the check
became terminally ill during the period of unreasonable
delay. Although the Government contends thaf 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 im-
portance to the trial. Because of the unreasonable
delay, substantial prejudice resulted which violated
the Defendant’s due process rights under the Fifth
Amendment.’’
3
i
IEP EAE LIME DOI LAM DA PRI LR COLLEEN GO LIEGE FABRE DBE AN PRIESTER OW, ELLE EE AERIS, TE YEE ES Resin |
Argument
Admittedly the decision of the District Court was legal
insofar as it concluded, on the basis of applicable law,
that the Petitioner had unreasonably delayed in presenting
the indictment, and that the Respondent had been preju-
diced thereby. However, the decision is clearly not purely
legal since the legal conclusions are predicated upon
factual determinations resolved in favor of the Respondent.
In particular, the facts adduced at both the pre-trial
hearing and trial were certainly not without dispute. The
Government’s testimony would apparently contend that
the investigation was not complete as of the date upon
which the Trial Court said it was complete, since the FBI
agent testified that the matter was thereafter referred to
various governmental agencies for consideration. Re-
spondent testified that he had no knowledge of the pay-
ment of the check at the time of its payment, but the Gov-
ernment presented testimony to establish that bills had
been sent to Respondent’s home. It was the clear import
of the testimony of Jean Sippel that Messrs. Schaefer and
Brinker were merely rubber stamp union officials. whercas
the testimony of other Government witnesses, and the Re-
spondent, demonstrated that these persons had complete
responsibility in the area of the payment of bills.
It is submitted that the ruling of the District Judge
constituted a resolution of mixed questions of law and fact.
An appeal by Petitioner must, of necessity, question the
legal conclusion and the factual determinations supporting
those conclusions.
2. Petitioner next contends that, although the Trial
Judge’s ruling has been labeled an ‘‘acquittal’’, its legal
component may still be reviewed separately and distinctly
from the findings of fact, leaving one untouched and chal-
lenging the other. For the reasons set forth above, this
necessary dissection cannot so readily be accomplished
here.
7, *
PEIERIAIL AA AOA BS REEL ONE LIS IES LES IER ED BEL ALOE IO I IIL EEE LP TE PS
Argument 9
3. The question of whether a successful appeal by Peti-
tioner will require a retrial is likewise more complex in this
matter than in Jenkins. However, it is conceded that, upon
a reversal of the order of the District Judge, the judgment
of conviction would be entered without a second trial, unless
some subsequent action on Respondent’s other post-trial
motions would so require.
4, The balance of the Petitioner’s brief with respect to
this issue, and the responses herein contained, examines the
background of the Double Jeopardy Clause, decisions of
this Court dealing with double jeopardy, and attempts at
analogizing the issues submitted to other situations held not
to implicate the Double Jeopardy Clause. As will be shown
herein, the rule urged upon this Court by Petitioner results
from the narrowest possible reading of the historical back-
ground in subsequent cases dealing with the Double
Jeopardy Clause. The order of the District Judge, if it
‘constitutes an acquittal, terminated the jeopardy of Re-
spondent; to now require him to suffer a reversal of that
status, and resumption of jeopardy, constitutes putting him,
for a second time, ‘‘in jeopardy’’, whether or not a retrial
will result.
II. Historical Background of the Double Jeopardy Clause.
1. The scholarly attempts of Appellate Judges and
brief writers, in this and related cases, to track the history
of the protection against double jeopardy reveal substantial
agreement that the concept is, at least, extremely old and
firmly rooted in the jurisprudence of most legal systems.
As stated by Justice Black, the ‘‘(f) ear and abhorrence of
governmental power to try people twice for the same con-
duct is one of the oldest ideas found in western civilization.”’’
Bartkus v. Illinois, 359 U. S. 121, 151 (1959) (Black, J., dis-
senting). As also noted by Justice Black, the idea of limit-
ing the exposure of a Defendant to one trial and one punish-
~—— v
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; j
RO ILO A IEN ELEN SCORE EER LEED TZE I PESTO CBRNE ASO ieee emcee ssa peanal
Js sseer iste Wiaes Shay ES REE SES
t%
10 Argument
ment survived even the Dark Ages through the Canon Law
and other christian writings. Bartkus v. Illinois, 359 U. S.
121, 152, n. 4 (1959) (Black, J., dissenting). In fact, the
avoidance of a second punishment was at the heart of the
dispute between Thomas Becket and King Henry Il. 1
Pollock and Maitland, A History of English Law 448-49
(2d ed. 1899). It has become so fundamental as to be char-
acterized as one of the universal principles of ‘‘reason,
justice, and conscience, of which Cicero said: ‘Nor is it one
thing at Rome and another at Athens, one now and another
’ in thé future, but among all nations it is the same.’ ’’ Batch-
elder, Former Jeopardy, i7 Am. L. Rev. 735.
This concept has come to be considered so fundamental
tu the English common law as to be described as a ‘‘uni-
versal maxim of the common law.’’ 2 Cooley’s Blackstone
(4th Ed. 1899), 335, 336. Ultimately, as indicated in Peti-
tioner’s brief in Jenkins (Br. 18, 19), this developing con-
cept became embodied in the pleas of auterfoits acquit and
auterfoits convict. 4 Blackstones Commentaries, Ch. XXVI,
p. 335 (Tucker ed.) ; IV Hawkins, Pleas Of The Crown 312
(1795 ed.). These common law pleas had as their objective
the absolute bar of a second trial. 2 Hawkins, Pleas Of The
Crown 515-29 (8th ed. 1824). In fact, the policy became so
strong that upon conviction for a felony there could be no
writ of error and request for new trial by the Defendant.
Myers and Yarborough, Bia Vexari: New Trials and Suc-
cessive Prosecutions, 74 Harv. L. Rev. 1, 4 (1960). Indeed,
the original draft of the Fifth Amendment as submitted to
the House of Representatives contained a protection for the
Defendant from ‘‘more than one punishment or one trial
for the same offense . . .’’ 1 Annals of Congress, 434
(1789-1791). The debate which followed indicated the fear
of the members of that body that that language might
permit the English rule to become the law of the United
States. Id. at 753.
OL ERE PES AT ARPS IRN LRP AON AMP 4 Lome £
Argument 11
The specific question of the appealability of an acquit-
tal is fully explored in the majority opinion of the Court of
Appeals in Jenkins (Jenkins, Pet. App. A, pp. 12a-14a).
This much is clear: There is ample evidence to suggest that
the draftsmen of the Bill of Rights intended to include in
the protection guaranteed therein the common law protec-
tions as they existed at that time. It is certainly reasonable
to conclude that the framers intended to include the in-
ability of the sovereign to appeal an acquittal after a trial
on the merits. However, as suggested in the opinion below
in Jenkins, any doubt is resolved by the decisions of this
Court since the adoption of the Bill of Rights.
It is important to note at this point that such an
analysis of the Double Jeopardy Clause, while instructive
as to the reasons for the existence of such protection and,
to a lesser extent, to the content of same, the specific prob-
lem submitted in Petitioner’s brief was not known to the
common law at that time, and must be governed by the
development of the case law in this country since that time.
The insistence of the Petitioner that th. Double Jeopardy
Clause and’its antecedents can only be read to protect
against a second trial is supportable by the common law by
reason of its limited development at the time of the adop-
tion of the Bill of Rights. However, the application of
those common law principles in the case law of this Court
dictates, we submit, a result contrary to that proposed by
Petitioner. :
III. ‘The Decisions of This Court Bar an Appeal From an
Acquittal Where a New Trial Is Not Sought.
(A) The Cases Relied Upon by the Court of Appeals |
in United States v. Jenkins, No. 73-1513, Are
-€ontrolling.
In Petitioner’s brief in Jenkins, upon which Petitioner.
relies with regard to these issues, Petitioner contends that
MOORE 8 9 NEE nieen mao tsa BR Ea awren maaan asserts
a
et pe eR eee
Argument
the.cases relied upon by the Court of Appeals do not bar
an appeal in the issue presented. With this contention
we disagree. To so hold would be to overlook the clearest
of intentions and statements as expressed by this Court
in those opinions. :
1. United States v. Ball, 163 U.S. 662.
_ Prior to considering this case, one must look to its
antecedents. The Supreme Court first considered govern-
ment appeals in criminal cases in 1892 in United States v.
Sanges, 144 U. S. 310 (1892). In that case, the Govern-
ment sued out a writ of error upon a judgment for Defend-
ants sustaining their demurrer to the indictment. In
dismissing the writ, this Court held that:
‘*. , . under the common law, as generally under-
stood and administered in the United States, and in.
the absence of any statute expressly giving the right
to the state, a writ of error cannot be sued out in a
criminal case after a final judgment in favor of the
defendant, whether that judgment has been rendered
upon a verdict of acquittal, or upon a determination
by the court of an issue of law. In either case, the
defendant, having been once put upon his trial and
discharged by the court, is not to be again vexed for
the same cause, unless the legislature, acting within
its constitutional authority, has made express provi-
sions for a review of the judgment at the instance of
the government.’’ 144 U. S. at 312. |
_In so holding, this Court reviewed with approval
numerous state court decisions yefusing to allow the Gov-
ernment to seek review of a judgment in favor of a
defendant, whether that judgment was entered by way of
acquittal or on a question of law. Although several state
Argument 13
courts had done so on the basis of the Doubie Jeopardy
Clause of the Fifth Amendment, most such decisions were
founded more broadly on the developing common law of
the United States. Indeed, several pages of the opinion
are devoted to reviewing such decisions, and the common
law of this country at that time seems overwhelmingly to
have precluded Government appeals in such cases, and
not just retrials. Although the Double Jeopardy Clause
was not specifically cited as compelling this holding, the
reasoning behind this principle appears to have pervaded
the common law of this country and influenced this decision
in particular.
It is in this context, then, that U. 8. v, Ball, supra,
was decided. As noted in the Petitioner’s brief in Jenkins
(Br., 27-29), this Court specifically held that a general
jury verdict of acquittal could be invoked as a bar to a
subsequent prosecution for ihe same offense, regardless of
whether judgment had been entered on the acquittal.
However, given the status of American common law at
that time, the dictum applicable to this case cannot be
dismissed so readily ‘as the Petitioner would urge. In
this regard, the Court stated (163 U. S. at 671):
‘As to the defendant who had been acquitted by
the verdict dulyyweturned and received, the court could
take no other action than to order his discharge. The
verdict of acquittal was final, and could not be re-
viewed, on error or otherwise, without putting him
twice in jeopardy, and thereby violating the Consti-
tution. However it may be in England, in this country
a verdict of acquittal, although not followed by any
judgment, is a bar to a subsequent prosecution for
- the same offense. United States v. Sanges, 144 U. S.
310; Commonwealth v. Tuck, 20 Pick. 356, 365; West
v. State, 2 Zabriskie, (22 N. J. Law,) 212, 231; 1 Lead.
Crim. Cas. 532.’’
8 RELIES OR PPG SU LY
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14 Argument
Although dictum, the’ italicized portion of this quote
clearly and accurately states the common law and, perhaps
prophetically, begins to reveal the narrowness of Peti-
tioner’s position. Rather than being merely the gratuitous
and "presumably accidental dictum pictured by Petitioner,
this language recognizes the status of the current common
law andthe fundamental meaning-ef the Double Jeopardy
Clause.
2. Kepner v. United States, 195 U.S. 100.
Kepner was acquitted by a rial Judge in the Philip-
pines of a charge of embezzlement. The Government. ap-
pealed to the Supreme Court of the Philippines, which
reversed, found the Defendant guilty, and senienced hin.
In its review, the Court was directly confronted with the
question of whether a provision of an act of Congress,
embodying the Double Jeopardy Clause, prevented an
appeal by the Government. __S
In he'ding that the Double Jeopardy Clause prevented
the appeal, the Court treated the statutory provisions as
identical in effect to the Fifth Amendment. Although, as
noted in Petitioner’s brief in Jenkins (Br. 30), this Court
has admonished that such language is dictum and not
conclusive, Green v. United States, 355 U.S. 184, 197, n. 16,
the reasoning of this Court in applying these principles
cannot be abandoned.
Quoting with approval and at seniytie from United
States v. Ball, supra, this Court refused to aliow the appeal:
‘““The Ball case, 163 U. S., supra, establishes that
to try a man after a verdict of acquittal is to put him
twicesin jeopardy, although the verdict was not fol-
lowed by judgment. That is practically the case under
consideration, viewed in the most favorable -aspect for
the Government. The Court of first instance, having
Argument 15
jurisdiction to try the question of tne 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 * * *.”’
Apparently since the review by the Philippines appel-
late court would consist of a de novo consideration of the
entire matter, the Petitioner concludes that this case does
no more than preclude a retrial. However, as stated in the
opinion of the Court of Appeals in Jenkins, supra (Jenkins,
Pet. App. A. p. 29a), ‘* (s)ince under Philippine practice no
further preceedings were required below, the decision belies
any view that the Double Jeopardy Clause protects only
against the vexation of a second trial.’’ Jeopardy having
attached and terminated, appellate review is seen as placing
Defendant twice in jeopardy. The fact that such review
consisted, under Philippine practice, of a de novo con-
sideration, although supportive of the results reached, was
not, and cannot be viewed to be, the sole basis for same.
3. Fong Foo v. United States, 369 U S. 141.
The factual background for this case is adequately
treated in Petitioner’s Brief in Jenkins (Br., 31). It is
admitted that this case is distinguishable from the case at
bar, since the District Judge’s decision in that case could
not be corrected without a second trial. However, it is
worthy of note, and was noted by the Court of Appeals in
Jenkins, for several compelling reasons.
First, the decision barred a retrial because of the entry
of a directed acquittal, even where the judgment was clearly
entered on the basis of an error of law. This is difficult
to square with Petitioner’s argument that it should be al-
lowed to correct purely legal errors by apneal, except for
~~
We BREN NETREGS |
“16 A rgument
the added fact that no retrial will be required in the instant
case.
Surely, the result cannot turn on the timing of the trial
judge in entering his erroneous ruling. It is apparently
the Petitioner's position that, had Judge Davis entered his
ruling (the equivalent of an acquittal) at any point prior
in time.to the jury verdict, it would be barred from seek-
ing review. ‘Can Respondent be said to stand in greater
jeopardy where no verdict was entered, as in Fong Foo?
Clearly not. The Double jeopardy clause is not a simple,
mechanical device to prevent only retrials in such cases.
— “In United States v. Ball, 163 U.S. 662, 669 (1896),
this Court observed:
“The Constitution of the United States, in the
Fifth Amendment, declares, ‘Nor shall any persen be
subject (for the same offense) to be twice put in
jeopardy of lifeyor limb.’ The prohibition is not
against being twice punished, but against being twice
put in jeopardy .. .”’ (Emphasis added.) The
‘“twice put in jeopardy’’ language of the Constitution
thus relates to a potential, i.e., the risk that an accused
for a second time will be convicted of the ‘‘same~
: offense’ for which he was initially tried.’’ Price v.
: Georgia, 398 U. S. 323, 326 (1970).
ee ~~
tee
Although this construction is most clearly applicable
to cases in which the appeal will require a new trial, it
cannot be said to be limited to such cases. In fact, the
concept has equal application in this case, where the allow-
ance of the appeal will clearly expose Respondent to entry
of judgment of conviction in a case on which he has been
tried and, in effect, acquitted.
j
S26 AER TLE TES TIT | Ea
sil : “ . , pen es
Argument 17
4. United States v. Sisson, 399 U. S. 267. ?
In this case, the Defendant had been charged with a
¢ violation of 50 U. S. C. App. Section 464(a) by failing to
obey an order to submit to induction. Certain pre-trial
motions were made and dismissed, and the District Court
held a trial before a Jury which resulted in a verdict of
guilty. The Defendant moved to arrest the judgment,
F. R. Cr. P. 34, alleging essentially that the Court lacked
jurisdiction because of ihe illegality of the Viet Nam war.
Avoiding this claim altogether, the District Judge entered
' an order allegedly arresting judgment on the grounds that
the District Judge was satisfied that the Defendant had
genuine and sincere oral objections to combat service in
Viet Nam, further holding that to compel him to render
such service would violate the Free Exercise provisions
of the First Amendment and the Due Process Clause of the
Fifth Amendment.
First let us note that there are certain rather. obvious
parallels between the Sisson case and the case at bar. In
both cases, pre-trial motions for dismissal had been dis-
missed; juries had been empaneled and the case tried to
verdict ; verdicts of guilty were rendered in both cases; the
Trial Court in both cases entered an order, in response to
post-trial motions, terminating the prosecution; the post-
trial orders in both cases were founded, at least in part,
upon evidence adduced at the time of trial.
It is likewise clear that there are certain fundamental
differences between the Sisson case and the one at bar. in
the Sisson ease, the Court concluded, in part, that an appeal
would not be permitted because the language of Section
3731 of the Criminal Appeals Act did not, st that time,
allow for such appeals. Since the Criminal Appeals Act
has been amended, and some of these restrictions removed,
we are confronted with a fundamentally different statute.
erence nee Qs FESR ER INSEL EIR IE PS : S LENGE PORE COOH z |
18 Argument
However, the opinion goes further, and it is respectfully
submitted that the additional language of the opinion was
not, as characterized in Petitioner’s Jenkins brief, ‘‘with-
out apparent reason”’ (Br. 34). Rather, as noted in the
opinion of the Court below in Jenkins, the aaditional lan-
guage in the opinion, to which reference is made below,
was the only portion of the opinion in which Justice Harlan
wrote for a clear majority.
The relevant language set forth hereinafter makes clear
that the Court considered, and relied upon, the Double
Jeopardy Clause in reaching its decision, and did not simply
conclude the non-appealability of the District Court’s rul-
ing on the basis of the absence of a specific statutory au-
thority. Justice Harlan said (399 U.S. at 288-90) :
“The same reason underlying our decision that
this was not a decision arresting judgment—i.e., that
the disposition is bottomed on factual conclusions not
found in the indictment but instead made on the basis
of evidence adduced at the trial—convinces us that the
decision was in fact an acquittal rendered by the trial
court after the jury’s verdict of guilty.”’
‘Justice Harlan then stated a hypothetical case, similar
in factual content to the facts in Sisson, except that, in the |
hypothetical, the trial judge instructed the jury to acquit
the Defendant if it made the same factual findings which
the Court had made in reaching its post-trial opinion.
Justice Harlan concluded that, if the jury had thereafter
acquitted, there could be ‘‘no doubt that its verdict of ac-
quittal could not be appealed under Section 3731 no matter
how erroneous the Constitutional theory underlying the in-.
structions,’’ 399 U.S. at 289 (emphasis in original).
If any doubt remained as to whether the opinion 4zalt
solely with the construction of the Criminal Appeals Act,
SPST PLEO LEE DI LE OO ES BLO
it was resolved when J ustice Harlan stated (399 U. 8. at
289) :
‘*Quite
apart from the statute, it is, of course, well
settled that an acquittal can ‘not be reviewed, on error
Me! |
. .
&
Argument 19
ok SPOKEN OI RRL UR IEA IM
or otherwise, without putting [the defendant] twice in 5
jeopardy, and t
iereby violating the Constitution. . .
In this country a verdict of acquittal, although not fol-
lowed by any jud
gment, is a bar toa subsequent prose-
cution for the same offense,’’ United States v. Ball,
163 U. S. 662, 671 £1896).
As note
d in the opinion of. the Court of Appeals
(Jenkins Pet. App. A, Pp. 24a), the ‘passage quited from
Ball was the very one that Mr. Justice Day had cited in
roposition that the.Dovble Jeopardy Clause
Fong Foo.’
_ Kepner for the p
prohibited an ap
peal by the Government after acquittal ina :
criminal case, and that the Court had again relied on in
,
It is important to note that this Court, in Sisson, was t
also confronted with a situation in which, if the appeal were é
successful, no re
‘“‘the jury’s Vv
trial would result. As stated by Mr. Justice
White in dissent, a reversal on the basis that the trial
judge’s legal theory was incorrect would have meant that
erdict. of guilty—with judgment no longer
PERSON ALTE ES
‘arrested’—simply remains in effect.”” 399 U. S. at 329.
The situation was ‘totally analogous to the one here sub- ;
mitted, and was resolved against the allowance of an appeal. i
It appears that the issue here submitted, viz., that the £
Amended Criminal Appeals Act entitles the Government to :
appeal every acquittal which can be demonstrated to be the
result of an error of law, has been rejected by this court ‘
in Sisson. ° i
As will be noted below, this Court in Sisson also dealt 3
at length with the question of whether the action of the ©
t
<n gaan SAARI AE CN LOE ALR GS LLL ERE LLL AAI LID
20 . Argument
/
District Judge constituted an acquittal. It is submitted
that the Court’s action in this case constituted an acquittal.
5. Price v. Georgia, 398 U.S. 323.
Although this case is not considered in either the brief
or opinion below in U. S. v. Jenkins, it has been considered
by the Court of Appeals in this case, and will be discussed
briefly herein. “ - .
In this case, in an opinion rendered during the same
month as that in United States v. Sisson, supra, this Court
held, in part, that a retrial of a criminal defendant, after
that defendant had obtained a revers.’ of his prior convic-
tion, was permissible and did not implicate the Double
Jeopardy Clause. However, the Court also held that, after
an implicit acquittal on a charge of first degree murder at
the second trial, and a conviction thereat of voluntary man-
slaughter, the defendant could not, after reversal of his
conviction, again be tried on -the greater offense, since the
first verdict had constituted an acquittal on that greater
offense.
“Thus far, the decision is in complete accord with the
law as understood and stated by both parties in these pro-
ceedings, and is not directly relevant to the issues sub-
mitted. However, what is relevant is the approval indi-
cated by this Court of the language in United States v. Ball
indicating that the ‘‘prohibition (against double jeopardy )
is not against being twice punished, but against being twice
put in jeopardy . . .’’ (emphasis added). U.S. v. Ball,
163 U. S. 662, 669. The Court then stated, in language ex-
tremely important to the issue presented, the following:
‘The ‘twice put in jeopardy’ language of the Con-
stitution thus relates to a potential, i.e., the risk that
an accused for a second time will be convicted of the
‘same offense’ for which he was initially tried.’’ 398
U.S. at 326.
ES NPE TE EUR SLL AL LI IGOED
Argument. 21
Once again, although this Court was confronted with a
question of the permissibility of a second trial, both the
reasoning and language used i prohibiting such trial indi-
cate that the Double Jeopardy Clause was not intended, and
has not been applied, to simply prevent in any mechanical
way second trials after first trials at which jeopardy has
attached. Rather, as indicated above, the double jeovardy
provisions of the Constitution relate to a host of situations
which can result in an accused suffering the risk or poten-
tial of a conviction for an offense for which he was initially
tried and either acquitted or convicted.
IV. Petitioner's Submission Is Not Supported by Decisions
. of This Court or Others in Analogous Situations.
In its brief in United ‘States v. Jenkins, No. 73-1513,
upon which Petitioner relies in this matter, Petitioner con- .
cludes that the case law dealing with the appealability of
other types of post-jeopardy orders supports its submis-
sion in this case. In so doing, Petitioner submits that, be-
cause appeals are allowed from orders of courts of appeals
reversing convictions and from orders of a district court
arresting judgment, logic compels the a‘lowance of an
appeal from an order of the type entered by the District
Judge in this case.
Petitioner first contends that it is the practice of this
Court to review court of appeals decisions that reverse
convictions in the District Court. Initially, it must be
noted that there is some question as to whether the double
jeopardy claim has even been raised in most such cases.
In particular, in the cases cited in the Government’s brief
as supporting this proposition, there do not appear to have
been, in the opinions or briefs of counsel, any difcussions
of potential double jeopardy claims. United States v. Rus-
sell, 411 U. S. 423; United States v. Maze, 414 U. 8. 395;
a
AEA OAK SNE NE NET
22 Argument
United Statés v. McGrath, 412 U. S. 936; United States v.
Seeger, 380 U. S. 163. .
Further, although Petitioner correctly notes that this
Court rejected one such double jeopardy claim in Forman
v.. United States, 361 U. S. 416, the double jeopardy claim
in that case was rejected for a totally different reason. In
that case, the Defendant had been convicted, and the Court
of Appeals initially reversed the conviction and directed
the District Court to enter judgment of acquittal. How-
ever, upon rehearing, the order of the Court-of Appeals
was modified, and an order was entered directing a new
trial. In that decision, this Court held that when the
Petitioner : :
“é
. opened up the case by appealing from
his conviction, he subjected himself. to the power of
the appellate court to direct such ‘appropriate’ order
as it thought ‘justified under the circumstances.’ Its
original direction was subject to revision on rehear-
ing. The original opinion was entirely interlocutory
and no mandate was ever issued thereon. Tt never
became final and was subject to further action on re-
hearing. . . . The petition on rehearing operates to
suspend the finality of the . . . court’s judgment, pend-
ing further determination whether the judgment should
be modified so as to alter its adjudication of the rights
of the parties.’’ (citations omitted). 361 U.S. at 427.
It is interesting to note that, although the Court re-
jected a double jeopardy claim in that case, it did so on the
Dasis of a finding that no acquittal had ever effectively
been entered. Further, it is submitted that the proper rule
in such cases should be that an order of a Court,of Appeals,
directing a true verdict of acquittal, is not appealable.
However, even assuming the appealability of such an order,
~_
Md IOI WI a
PW Mal GOR
inp ca SEM “AA: AA - hai Sm A EOL PEA
Argument 23
such orders are not truly analogous to orders of a District
Judge accomplishing an acquittal or its equivalent. This
is so because, in so doing, the District Judge is sitting as
a true finder of facts. In particular, his decision, to the
extent that it resolves factual issues, is a product of all
of the occurrences during the taking of testimony. The
District Judge has available te him not’ only the words
of the witnesses, but their demeanor, appearance, and all
other tests normally used by finders of fact in resolving
factual issues. This is clearly not true in the case of a
‘Court of Appeals, and it could well be argued that, if some
distinction is to be made, a factual determination by the
District Judge should be accorded greater authority. It
can also clearly be argued that, where the verdict of guilty
remains as the last word of the Trial Court, all proceedings
in the Appellate Courts simply constitute review of that
finding, and cannot be considered to have been reversed
until the review process is complete. Such is not the case
in this case, where the order of the District Court, despite ©
a verdict of guilty, is one terminating the prosecution and,
we contend, equivalent to a verdict of acquittal.
Petitioner further relies upon the opinion of Judge
Learned Hand in United States v. Zisblatt, 172,F. 2d 740
(C. A. 2), appeal dismissed, 336 U. S. 934. However,
in that case the Court of Appeals for the Second Circuit
svecifically did not hold that an appeal from a post-convic-
tion order of the District Court dismissing an indictment
- under the Statute of Limitations was not barred by the
Double Jeopardy Clause. Rather, that Court hele that
they had no jurisdiction to hear the. appeal, and certified
the case to the Supreme Court. Judge Learned Hand
characterized the decision of the District Court as a judg-
ment sustaining a ‘‘special plea in bar’’, and thus poten-
tially appealable directly to the Supreme Court. Judge
Hand also recognized a potential double jeopardy claim:
aay ety
Ve
ae
PHRASE ry
BEA RISE LSI RETEST IIT SR Be
24 Argument
‘‘However, . . . the motions, which he did enter-
tain and dentally ape) were all made after the
trial had begun and, therefore, after the defendant
had—literally at any rate—‘been put in jeopardy’.
There is, therefore, a good argument for saying that
no appeal lies to the Supreme Court.’’? (172 F. 2d at
742).
Nor can Petitioner take comfort from U. S. v. Wein-
stein, 452 F. 2d 704, cert. denjed, sub noni. Grunberger v.
U. S., 406 U. S. 917, upon which Petitioner also relies in
its Brief in Jenkins (Br. 40). In that case, the Second anaes tae
Circuit Court of Appeals granted a petition by the-Gov-—.
ernment for writ of mandamus to the trial Judge, direct-
ing him to vacate his post-verdict, post-conviction order
dismissing the indictment. In so doing, the Court specif-/
ically found that there had been no acquittal, and did so
using the principles enunciated in U. S. v. Sisson, 399 U.S.
267. The factual bases for such a finding were obvious:
a judgment of conviction had been entered prior to the
Judge’s order; the Judge himself repeatedly refused to
acquit the Defendant; the Judge stated his correct belief
that he had no ‘‘right’’ to direct acquittal for the reasons
stated. Looking ‘‘at what (the) District Court did rather
‘than at what it said it was doing’’, U. S. v. Sisson, 399
U. S. at 270, the Court found that no acquittal had been
accomplished and that no double jeopardy would ensue
from its order.
Accordingly, it is respectfully submitted that there
is no support for the issue submitted in any of these areas,
and the appeal a by Petitioner in this case should be
barred.
V. seeinary-kintionion of Double Jeopardy Clause.
In summary, the position urged by Petitioner consti-
tutes an unworkable and corstitutionally unacceptable ap-
th
MG LOT ROE STOEL INCL IECES LEIS, LC LLP E MD A RELI Te —
gue Pees ‘3 * TOGA MEEGILEDELE SLE OY Keres ESLER SOE IE DLO GEL MARL EO AOE OE BNI EA IG
Argument
proach to determining the appeal of an Order, and the
application thereto of the Double Jeopardy Clause. We do
serious harm to the fair administration of criminal justice
if we so belabor the fair and obvious meaning of the con-
cepts here in issue that they are no longer capable of
predictable and reasonable application. Petitioner has pre-
sented numerous cases thus far in the Brief, all of which
demonstrate that there is a reasonable Double Jeopardy
standard, and that it is generaily understood as precluding
government appeals in cases such as the instant one.
We believe that Judge Friendly, in eonsidering this
issue in U.-S.-v. Jenkins, supra,,said it best when, in dis-
cussing the Sisson opinion, he stated (490 F. 2d 878):
‘These pages of the Sisson opinion seem to us to
he dispositive of the irstant case. In essence the
iudge’s post-trial ruling in Sisson had made the, jury
trial a nullity and had resulted in a trial to the judge,
who had rendered a judgment of acquittal on the
merits: Even though this action was based on an erro-
neous legal ground, the Double Jeopardy clduse pre-
vented a new trial. Indeed, we. have aiready inter-
preted Fong Foo and Sisson to mean ‘precisely this.
United States v.. Weinstein, 452 F. 2d 704, 709: (2 Cir.
1971), cert. denied, 406 U. S. 917 (1972).” ‘
Further, 490 F’. 2d 879:
‘“The Government argues that’a reversal here
would not require Jenkins to undergo the burden of a
second trial, since the judge would simply be directed
*to alter his erroneous conclusions, . . . and Jenkins’
only vexation would lie in being convicted rather than
acquitted. We are not certain tue matter is quite that ‘
simple... . But apart from that, the absence of need
for a second trial would not distinguish Sisson. As
_ Mr. Justice White pointed out in dissent, a reversal
al
| eiiaiaiad idl cade S Bee oot
26 Argument
there on the basis that the trial judge’s legal theory
was incorrect would simply have meant that ‘the jury’s
verdict of guilty—with judgment no lenger ‘‘ar-
rested’’—simply remains in effect.’ 399 U. S. at 329.
Furthermore, although what we must decide is the case
before us, the Government has sought a ruling limited
to bench trials where an acquittal plea can be traced to
a demonstrable error of law and no further evidentiary
hearing is needed. It asserts that the amended Crim-
inal Appeals Act entitles it to appeal every acquittal
which can be demonstrated to be the result of an error
of law by the judge. Boldly facing up to its problems,
the Government contends that the Double Jeopardy
clause shoulé be read to permit a retrial even on an
erroneous instruction, a position Justice Harlan re-
jected out-of-hand in Sisson, 399 U.S. at 289. We think
that, so long as Kepner and Sisson stand, the clause
forbids a retrial whenever the trier of the facts has
rendered a legal determination of innocence ‘on the
basis of facts adduced at the trial relating to the gen-
eral issue of the case.’ 399 U.S. at 290 n. 19.””
VI. An Order Terminating a Prosecution Because of Un-
necessary Delay in Indictment Is an Acquittal Under
the Facts in This Case. |
The Petitioner next turns to its contention that the
Order entered by the District Judge, terminating the pros-
ecution on the ground of unnecessary pre-indictment delay,
prejudicial to Respondent, did not constitute an acquittal.
In so doing, Petitioner urges that, despite the fact that this
determination was predicated upon evidence heard at trial
and relevant to the general issue of guilt or innocence, the
Order cannot be characterized as an unappealable ‘‘acquit-
tal’’ for the purposes of the double jeopardy clause.
SR RIES IO TET ES
wor —
Argument 27
The reliance of Petitioner upon U. S. °. Marion, 404 ¢
U. S. 307, is inapposite. In that case, the District Court
granted a pre-trial motion, dismissing the indictment on
the ground of unreasonable delay, and finding substantial
prejudice to the Defendant. This Court, in determining
that the Order could be appealed, necessarily found that,
since the Order had been entered pre-trial, and sinee the
Order could not be considered as a determination relating
to the guilt or innocence of the accused, such a determina-
tion would have to await the evidence presented at trial.
This is a substantially diferent situation. from the case at
bar, where the Order followed the completion of trial testi-
mony, and was substantially predicated on that testimony.
A. The Common Law Definition of an Acquittal.
It is conceded that the common law understanding of
an acquittal contemplated a finding of ‘‘not guilty’’ on the
general issue of guilt or innocence. In so conceding, how-
ever, it is to be noted that the common law precedents relied
upon by Petitioner are devoid of any language which would
~ preclude the definition of an acquittal urged by Respondent ,
and applied most recently by this Court.
B. The Dismissal Was an Acquittal Under the Estab-
lished Construction of the Double Jeopardy Clause
as Enunciated by This Court.
Once again, Petitioner’s discussion of this topic is re-
plete with case references in which a consideration of the
definition of acquittal did not require, a resolution of the
‘ssue here submitted. For instance, in United States v.
Ball, 163 U. S. 662, the Defendani had been acquitted by a
jury verdict. It was this acquittal which barred his sub-
sequent prosecution and trial. The Court was not called
upon to define, and did not define, this concept. Similarly,
EPA FERN LINE ENE NFER MITT RNS Re Sat ERI
28 Argument
in Kepner v. United States, supra, although the Court held a
verdict of acquittal to bar a subsequent prosecution, the
Court did not attempt to define the meaning of the concept
of ‘‘acquittal’’. It is true that, in applying this concept to-
these cases, the Court recognized an acquittal as involving
the failure of the prosecution to submit convincing evidence
establishing the existence of the elements of the offense.
It cannot be concluded, however, from the authority pre-
sented by Petitioner, that the failure to consider factual
settings such as the one presented somehow precludes a
finding that the order in this case was an acquittal. To the
contrary, the more recent decisions of this Court would
seem to dictate that the order of the District Judge below
a was, in effect, an acquittal for double jeopardy purposes.
; In the instant matter, the Court of Appeals, in con-
3 cluding that the dismissal by the District Judge was an
: acquitf#l, relied upon this Court’s statement of that con-
3 cept in United States v. Sisson, supra, 399 U.S. 267, as
: adopted in United States v. Jorn, 400 U.S. 470, 478 n. 7:
: “(T]he trial judge’s disposition is an ‘acquittal’
2 if it is ‘a legal determination on the basis of facts
adduced at the trial relating to the general issue of
the case. . .’”’
ov)
~
¥
%
:
‘
a
&
4
Petitioner concedes that it is true that the evidence
on which the District Court relied in dismissing the indict-
ment was ‘‘adduced at the trial’? and that it related to
the ‘‘general issue of the case.’’ In so doing, however,
Petitioner also contends that the same evidence was ad-
duced at the pre-trial hearings, and that the fact that the
evidence was related to the general issue of the case was
wholly fortuitous.
With regard to the first contention, that the evidence
was also adduced at the pre-trial hearings, it is respect-
SEAR CES SERA LES, EEE Tee ae
Argument ; 29
fully subrsitted that the evidence presented at the trial ‘
was spstantially greater in volume and effect than that
presented at the pre-trial hearings, and that the testimony
relied upon by the Court at trial was not simply a restate-
ment of the pre-trial testimony. In, the opinion below,
the District Judge referred to the testimony as follows
(Pet. App. D, p. 144A):
“The Court takes notice of the facts brought out 4
in the testimony of the case concerning the potential
testimony of Mr. Schaefer. ... During the trial (N. T.
133-134) the defendant indicated that he never involved
himself with bookkeeping or the internal affairs of
the office. Finally, Mr. Wilson stated that he ordered
no one to write the check in question (N. T. 164-165).
On the 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. ha
62)... . Other testimony established that Mr. Wilson
controlled the union (N. T. 17), and thet Mr. Schaefer
and Mr. Brinker were office help who owed their jobs
to the defendant (N. T. 80, 181).
_.. The Court finds that the unreasonable delay
was substantially prejudicial to the case of Mr. Wifson
in that the only witness who could explain the cireum-
stances of the check became terminally ill during the
period of unreasonable delay. Although the govern-
ment 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.’’
In addition, althcugh not specifically mentioned in the
opinion of the District Judge, there are considerable areas
of trial testimony relevant to both the issues decided by
a |
AEA E AOL ILE LS OMY ANE OY ES » - aaa ¥ 4
IL AE LILA LOA LIE EON
Fee sii
ae
30 Argument
the Court, and the general issues of the case. The entire
testimony of Jean D. Sippel (App., 76-91) deals with the
payment of the check which was the subject of the prose-
cution, the procedures followed for the preparation and
payment of such checks, the role in the union organization
of the Respondent and other officers, and other matters
relevant to both issues. The testimony of Fred Thompson
(App., 109-131) was likewise extremely rcdlevant to both
issues. -In particular, Mr. Thompson testified at some
length as to the extent to which Respondent was involved
in Public Relations activities relating to the non-profit
housing project conducted by the union (App., 121-125),
all of which testimony is obviously relevant and impcrtant
to the question of the Respondent’s intentions with regard
to the check (and thus the issue of guilt or innocence),
as weli as the issue of the necessity of the testimony of
Mr. Schaefer, the missing witness. It is to be noted that
Mr. Thompson did not appear as a witness at the pre-trial
hearings. Similarly, and perhaps most important, Re-
spondent himself testified in great detail as to all of these
matters at the time of trial (App., 135-196). (It is sig-
nificant to note that Respondent testified only at the second
pre-trial hearing, and his testimony on that occasion con-
sumed only 16 pages. See App.. 48-64.)
No useful purpose can be served by a complete review
of all of the trial testimony, and a comparison with the
pre-trial testimonyeafor much the same reasons that it is
impossible to divine the precise trial testimony upon
which the District Judge relied in entering his Order.
It is for precisely this reason, it is submitted, that the
Sisson definition of acquittal becomes necessary. Clearly,
there was a host of testimony at the trial relevant to these
issues, and, just as clearly, the trial testimony was sub-
stantially more complete and varied. If was likewise con-
A rgument 31
siderably more supporting of the Judge’s Order, particu-
larly with reference to the question of prejudice suffered
by the Defendant.
Turning to an examination of United States v. Stsson,
one notes initially that the cases are strikingly similar in
their factual background. In that case, as discussed above,
Defendant made certain pre-trial motions which were dis-
missed, and proceeded to a trial which resulted in a verdict
of guilty. Following the filing of post-trial motions, the
District Judge entered an order allegedly arresting judg-
ment on grounds which were legally erroneous. As noted
above, the Court concluded, in part, that an appeal would
not be permitted because of the language of Section 3731
of the Criminal Appeals Act did not, at that time, allow for
such appeals. . However, this was not the end of the de-
cision. As noted above, the Court also concluded, in the
only portion of the opinion in which Justice Harlan wrote
for a clear majority, that the order of the Trial Court in
that case had been an acquittal, and was therefore not ap-
pealable on double jeopardy principles.
In so holding, the Court decided, in language elsewhere
herein recited, as follows (399 U. S. at 288-90) :
“The same reason underlying our decision that
this was not a decision arresting judgment—i.e., that
the disposiiion is bottomed on factual conclusions not
found in the indictment but instead made on the basis
of evidence adduced at the trial—convinees us that the
decision was in fact an acquittal rendered by the trial
court after the jury’s verdict of guilty.’’
Also as noted above, Justice Harlan thereafter stated
a hypothetical case, similar in factual content to the facts
in Sisson. except that the Trial’ Judge instructed the jury
to acquit the Defendant if it, the jury, made the same
ceo Sy |
32 & Argument
factual findings which the Court had made in reaching its
post-trial opinion. Justice Harlan concluded that, if the
Jury had thereafter acquitted, there could be ‘‘no doubt
that its verdict of acquittal could not be appealed under
Section 3731 no matter how erroneous the consittutional
theory underlying the instructions’’ 399 U. &. at 289 (em-
phasis in original).
After considering the hypothetical, the Court consid-
ered the differences between the hypothetical case and the
ease before it, concluding that the differences did not com-
pel a different result.
The reference to Rule 29 of the Federal Rules of Crim-
inal Procedure in Petitioner’s Brief constitutes, in the
opinion of the writer, an exaggeration of the importance
of the reference to that Rule in the Sisson opinion. While
it is correct that a judgment of acquittal may be entered
pursuant to Rule 29 only ‘‘if the evidence is insufficient to
sustain a conviction,’’ it is not true, as is impliedly sug-
gested by Petitioner’s Brief, that an Order must clearly
quittal. Indeed, it is suggested that it is precisely because
the post-trial order in Sisson did not clearly express the
intent of the Judge that this Court determined that another
test must be used. That test must equally apply here. The
fact that the Judge did not specifically find the evidence
insufficient is not dispositive; the test for an acquittal ex-
pounded in Sisson is nonetheless met.
The alteration of the Sisson ruie suggested by Peti-
tioner (Br., 28) would, it is submitted, reduce the rule to
an inapplicable verity. There is no question that the re-
definition proposed by Petitioner would define an acquittal.
It would not, however, allow for its application in cases
where the essential tests of an acquittal have been met,
without specifically making the ultimate conclusion. Those
find the evidence insufficient in order to constitute an ac- .
CI BTM
Argument i 33
essential tests are those formulated in Sisson, viz.: legal
determination founded upon evidence adduced at trial,
which evidence goes to the general issue of the case.
In U. S.v. Jorn, supra, this Court was confronted with
an appeal from an order dismissing an indictment on double
jeopardy grounds after a District Judge had improperly
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several government witnesses to consult with their attor-
neys in order to determine whether they should waive their
privilege against self-incrimination and testify. On appeal
by the Government, this Court agreed that the ~District
Court’s judgment was appealable by the Government, and :
the judgment below was affirmed. k
While rejecting the position of Justices Black and :
Brennan, who concluded that the action of the Trial Judge ‘
amounted to an acquittal, Mr. Justice Harlan wrote (400 ;
U.S. at 478 n. 7): :
‘Tt is clear from the record in this case that Judge F
Ritter’s action cannot, as two members of the Court e
suggest, be classified as an ‘acquittal’ for purposes of
this Court’s jurisdiction over the appeal undér 18 4
U. S. C. Section 3731. * * *
Of course, as we noted in Sisson, supra, at 290, the
trial judge’sjcharacterization of his own action cannot
control the classification of the 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
disposition 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
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Argument
distinguishing this case from Sisson, and, one would
think, under the very reasoning of Sisson, compelling
the conclusion that whatever else Judge Ritter may
have done, he did not ‘acquit’ the defendant. in the
relevant sense.’’
It is apparent that, although concluding that the action
of the District Judge was not an acquittal, this Court ap-
plied the Sisson test for determining whether it was an
acquittal. In so doing, it was determined thet the action
did not constitute an acquittal because of the absence of any
indication that the Trial Judge relied upon facts relating to
the general issue of the case. Once again, this Court re-
fused to require the application of such a strict definition as
is urged by Petitioner.
This Court in Jorn did not mean to imply that a post-
trial order of a new trial following conviction would acquit
a Defendant. Certainly, no such result would be required
by the Sisson-Jorn definition of acquittal. Such an Order
does not terminate the proceedings at the trial level, and it
has frequently been held that, in consideration of a motion
for new trial following conviction, the Defendant is con-
sidered to have waived a double jeopardy claim with respect
to that motion. Thus, whether it be deemed an acquittal or
otherwise would be immaterial, and the prosecution would
continue. The fundamental distinction between these situa-
tions is readily apparent.
Finally, in Fong Foo v. U.S., supra, the trial Court’s
termination of the trial shortly after commencement of the
prosecution’s case was considered to be an acquittal and
thus not reviewable. Although the Petitioner contends that
this result is consistent with its position, it must be noted
that the trial Court’s ruling was deemed an acquittal even
though the prosecution’s case had not been completed.
Clearly, the trial Judge’s ruling could not have been con-
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Araument 35
sidered a determination of the insufficiency of the evidence,
since all of the evidence was not then in. Rather, this hold-
ing is consistent with the Sisson definition of acquittal, and
exemplary of the reasons for, and the rectitude of, that é
definition.
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C. The Application of the Sisson Definition of Acquittal
in the Courts of Appeals Has Been Consistent
and Requires a Finding That Respondent Was
Acquitted.
1. Post-Trial Orders. Petitioner again relies heavily
upon U. S. v. Weinstein, 452 F. 2d 704; cert. denied, sub
nom. Grunberger v. U. S., 406 U.S. 917. It is respectfully ;
submitted that the reliance of Petitioner upon this author- Hy
ity is inappropriate.
In Weinstein, as indicated above, the Court spvcifically
found no acquittal, and the Judge repeatedly refused to
acquit the Defendant. Further, the decision clearly refuses
to make a finding even resembling an a, snittal, and it was
the specific refusal of the District Judge i» characterize
his judgment as an acquittal which was most compelling
to the Circuit Court.
Indicative of the reasoning of the Circuit Court in
finding no acquittal is the following statement:
Soe ROSNY ARSE RAN IS
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‘‘We have the gravest doubt whether the judge’s
undoubted power to set aside of verdict and enter a
judgment of acquittal, F. R. Cr. P. 29(c) can survive
the entry of a judgment of conviction; the two actions :
seem antithetical. Beyond that, however, to charac- :
terize the judge's order dismissing the indictment as
one of acquittal would be to attribute to him a purpose
he repeatedly and rightly disclaimed. We have already
cited numerous instances of disclaimers; there are H
many more.’’ 452 F. 2d at 713. é
36 - Argument
In United States v. Whitted, 454 F. 2d 642, the Court
of Appeals for the Eighth Circuit was confronted with a
situation in which, following a jury verdict of guilty in a
perjury prosecution and the filing of post-trial motions, the
Trial Court dismissed the indictment because the indictment
may have been returned on the basis of bias and prejudice
against the Defendant. In reversing this decision, the Cir-
cuit Court relied heavily on United States v. Dooling, 406
F, 2d 192 (2nd Cir.), cert. denied, sub nom. Persico v.
United States, 995 U. S. 911 (1969), a second circuit case
in which a similar termination of a prosecution on extremely
tenuous grounds had been held to be the proper subject of
mandamus. Finding no authority for the entry of such an
order by a‘District Judge, the Circuit Court noted:
‘‘But as the second circuit has said, ‘. . . it does
not lie in (the district court’s) power to put an end to
the case by dismissal because of vague and unsubstan-
tiated doubts . . .’ We do not believe that the trial
court’s attempted justification for dismissing this in-
dictment amounts to anything more than ‘vague and
unsubstantiated doubts.’’’ 454 F. 2d at 646.
There is no dispute that the ruling of the District Court
was erroneous; however, the decision is singularly lecking
in support for any definition of acquittal, since tne concept
played no part in the opinion. Apparently, the issue was
never raised. Notwithstanding the statement of the Peti-
tioner to the contrary in its brief (Br., 38), the order of:
the Court of Appeals in this case was not based in any
way on U.S. v. Weinstein, supra; the references to W ein-
stein were merely ancillary.
Petitioner also seeks to rely on U. S. v. Jenkins, 490
F. 2d 868, cert. granted, May 28, 1974 (No. 73-1513) as
using the criteria for acquittal which it urges. We re-
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Argument 37
spectfully submit that this conclusion is based upon a mis-
reading of that decision. While it is true that, in summary,
Judge Friendly noted (290 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 con-
viction.’? (Emphasis supplied),
it must be noted that this opinion specifically noted and
approved the Sisson definition of an acquittal as an order
‘bottomed on factual conclusions not found in the indict-
ment but instead made on the basis of evidence adduced
at the trial.’? 490 F. 2d at 868. After concluding, on the
basis of the Sisson definition, that the Defendant had been
acquitted, Judge Friendly said further ‘‘(h)is ruling was
based on facts developed at trial, which were not apparent
on the face of the indictment, and which went to the
general issue of the case.’’ 490 F. 2d at 878. Clearly,
the Jenkins Court adopted the Sisson-Jorn formulation of
‘‘acquittal’’.
Similarly, U. S. v. McFadden, 462 F. 2d 484, relied
upon by Petitioner, cited Sisson in holding that Defendant
therein had been acquitted at a trial before a District
‘Judge who, after trial, entered an order dismissing the
indictment on the basis of the unconstitutionality of the
section of the Selective Service Law allegedly violated.
U. S. v. McFadden, 309 F. Supp. 502. This was not the
acquittal based merely on tlic insufficiency of the evidence
urged by Petitioner.
All of these cases demonstrate an adherence to, and
application of, the Sisson definition of acquittal as urged
by Respondent. That such an interpretation is workable
and reasonable can be gathered from a careful reading of
all these cases.
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38 | | Argument
? 2. Pre-Trial Orders. Petitioner reviews in its Brief
a number of decisions involving pre-tria’ orders and de-
terminations considering whether those orders constituted
acquittals. While it is true that some of these decisions
have applied the ‘‘insufficiency of the evidence’’ test for
an acquittal urged by Petitioner, the application ‘of that
test was compelled in each case by the factual setting in
which the opinion occurred. Clearly, where the District
Judge’s action has been such as to constitute a conclusion |
that the evidence would be insufficient to convict, there has
occurred an acquittal. What is not clear, and what remains
unresolved be these cases, are the reasons for concluding
that acquittals occur only in such cases. Finally, it ap-
pears rather obvious that the Sisson-Jorn formulation of
acquittal will find limited application in pre-trial orders,
‘since that definition requires that the order be entered
on the basis of testimony adduced at trial.
VII. Summary—Definition of Acquittal.
Once again, Petitioner seeks to impose a mechanical
test for discerning acquittals. It would require, in each
case, a clear finding that the evidence presented had been
insufficient to sustain a verdict of guilty.
It is submitted that, while the Petitioner’s test clearly
defines the classic form of acquittal, the definition must
be more inclasive. The Sisson-Jorn definition provides a
simple, workable test for discerning an acquittal, and the
necessity of such a test is apparent from most of the cases
cited by Petitioner. In many of ‘these, no specifie finding
of the insufficiency of the evidence can be discerned; rather,
the Order consists of a termination of the prosecution for
reasons dealing with both law and fact, and with facts
relevant to the general issue and otherwise.
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Argument 39
In short, the definition of acquittal urged herein pro-
sides a barometer against which rulings of the District
Judges can be measured in determining their status as
acquittals.
The use of the definition of acquittal urged herein,
and previously adopted by this Court, is compelling also
for reasons of simple logic. While it is not either cus-
tomary or sufficiently sophisticated to be cited to this
Court with any degree of frequency, Black’s Law Die-
tionary is of some assistance in this regard. An acquittal
is there defined, with regard to crimes, as ‘‘the legal and
fy.mal certification of innocence of the person who has
been charged with a crime; a deliverance or setting free
of a person from a charge of guilt.”’ Black’s Law Dic-
tionary, Fourth edition. While this is, admittedly, a most
unreasonably simplistic definition, ‘t does, nonetheless,
indicate clearly the fundamecutal nature of acquittal, as
understood everywhere and t» everyone.
Clearly, we do not suggest that any termination of
a criminal proceeding favorable to the defense would con-
stitute an acquittal. However, where, as in Sisson, you
have a post-trial order terminating a prosecution on the
basis of facts heard at trial, which facts are relevant to
the general issue of the case, the Order can only be de-
scribed as an acquittai in the classic sense. To require
an acquittal to contain more is to elevate form over sub-
stance. Petitioner’s definition would allow appellate
Courts to inquire as to the reasons for a trial judge’s
rulings, and the facts upon which the Trial Court relied,
at least where the acquittal was accomplished by a memo-
randvm or opinion. This, it seems to the writer, is pre-
cisely the reason for the Sisson test. Appetlate Courts
should not be entitled to ‘‘second-guess’’ the reasoning
or reasonableness of the Order of the Judge presiding
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40 Conclusion
over the proceeding where the facts were found. So long
as his decision can reasonably be said to have been predi-
cated upon facts heard at the trial and relevant to the
general issue of the case, that decision should remain
undisturbed. There is no reason, in logic or law, to
conclude that such an Order is not an acquittal.
CONCLUSION.
The judgment of the Court of Appeals should be
affirmed.
Respectfully submitted,
Puiurp D. Laver,
Counsel for the Respondent.
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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.