# Respondents Brief — United States v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0381%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 332 ## Text 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 s 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 yereed ww eens LoS Ta AS A, SRR RTA EA RMSE LDMOS Re Rene or RAS 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 as ep mma pgtTy Pe “y, Waer OLGA IE IIE IS F RRSP "V/ 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 - ; 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 ERATE LT RENTAL MANNE re TE St apace SS LRN a adch a Te C IE BR ED! ht hal MIE oe Leta we eS pe i . i: ’ a a ba i ile siaksict eerie» aa ea Soe 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