Brief for the United States — United States v. Jenkins

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INDEX

NE I or ee a onan can 1

MI oo ie nc hake encanneenen 1

Rene SI co ce eee 2

Constitutional provision and statute involved __ _ -

RE ig ek hue bloc eiwcksenee ones

Argument:

II. Since the Double Jeopardy Clause was

intended to limit the number of times

a defendant could be tried for the same

offense, it does not baranappealhere__ | 18

III. The decisions of this Court do not con-

strue the Double Jeopardy Clause as

barring an appeal from an acquittal

where a new trial is not sought __ ______- E

A. The cases relied upon by the a

court of appeals are not con- :

wos ere... B.... 25 ;

1. United States v. Ball, 163 é.

ae Os 26 a

2. Kepner v. United States, ;

re Us. 00. 29

3. Fong Foo v. United States, 4

UL a 31 :

4. United States v. Sisson, :

00 OS. WY... 33 :

a) z

558-040—74—-—1 :

Argument—Continued

III. THE DECISIONS, ETC.—Continued

B. Decisions of this Court in anal-

ogous situations uphold the

appealability of post-jeopardy

orders terminating criminal

POON... ic

oe eae ERD ARCS PORREI MOS ard (patel RDO coon ee °

CITATIONS

Cases:

Abbaiev. United States, 359 U.S. 187_______-

Bryan v. United States, 338 U.S. 552_______-

Ehlert 7. United States, 402 U.S. 99______- 5,

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

17, 25, 31, 32,

Formar v. United States, 361 U.S. 416______-

Green v. United States, 355 U.S. 184___ 18, 23

Hoag v. New Jersey, 356 U.S. 464_______.__-

Illinois v. Somerville, 410 U.S. 458_________-

Lange, Ex parte, 18 Wall. 163____---_-.__--

Kepner v. United States, 195 U.S.100______-

17, 18, 19, 23, 25, 29, 30,

Musser v. United States, 414 U.S. 31_______-

North Carolina v. Pearce, 395 U.S. 711

Palko vy. Connecticut, 302 U.S. 328

Trono v. United States, 199 U.S. 521________

United States v. Ball, 163 U.S. 662__________

» 16,17, 23, 25, 26, 29, 31, 32, 34, 35,

United States v. Bramblett, 348 USS. a

United States v. Brewster, 408 U.S. 501______

United States v. Costellonos, 478 IF’. 2d 749____

United States v. Esposito, 192 lk. 2d 6, certio-

rari denied, 414 U.S. 1135

Pare

33, 36

, 24, 30

31, 36

13, 14

36, 39

Cases—Continued Page

United States v. Findley, 489 I’. 2d 970____-- 35-36

United States v. Green, 350 U.S. 415___-__--- 39

United States v. Howard, 432 }*. 2d 1188 - ---- 24

United States v. Jorn, 400 U.S. 370___--_-___- 13,

23, 24, 32, 35

United States v. Maze, 414 U.S. 396_._.--._- 38

United States v. McGrath, 412 U.S. 936_-____- 38

Unite’ States y. Mercado, 359 I’. Supp. 604,

«* ned, 478 F. 2d 1108_.._....___- 6, 14, 15, 16

United States v. Russell, 459 IF. 2d 671,

rovereen, O20 41.0 Seu. c nn... 0d. ss 38

United States v. Sanges, 144 U.S. 310. ______- 28

United. States v. Seeger, 380 U.S. 163_______- 38

United States v. Sisson, 399 U.S. 267_______- 7

9, 12, 13, 14, 17, 25, 26, 32, 33, 34, 35, 36, 39, ul

United States v. Smith, 331 U.S. 469_________ 16

United States v. Taleo, ert A ak OR es 24

United States v. Weinstein, 452 I. 2d 710,

certiorari denied sub nom. Grunberger v.

United States, Os U.S. O87... kk 39, 41

Uniied States v. Zissblatt, 174 i°. 2d 740, appeal

damineed G56 4).5. Wt... ck 40

Wade ¥v. Buel, Ge US. WA. cc ee 24

Will v. United States, 389 U.S. 90_..___----- 33

Constitution, statutes and rule:

United States Constitution:

FU AMI 6 a oe cc passim

Criminal Appeals Act, 18 U.S.C. 3731, as

amended by Omnibus Crime Control and

Safe Streets Act of 1970, Title III, 84 Stat.

BO os oc ows hk ee oe 2-3,

6, 9, 33, 34, 35, 36, 37, 41

OD UB i. An Gee ee oc 3,13

Ru gee), Fol. BR. CM. Fo 13

SA RAR EDR ANS

i ae Ped 3 TORE pl AEC ANT ee t4%

Miscellaneous: ‘Seis

1 Annals of Congress 434___---...--------- 21

4 Blackstone’s Commentaries, (Chase Ed.) - - -- 18

Double Jeopardy—Mistrial, 6 L. Ed. 2d 1510

i ec aes nae ue ohn oe eee ns 24

l'riedland, Double Jeopardy (1969)_--_ 19, 20, 21, 25

2 Hale, Pleas of the Crown (Dougherty ed.

eo reer n nce ockeninaeninn 20

IV Hawkins, Pleas of the Crown (1795 eds : em 19

Kirk, “Jeopardy” During The Period Of The

Year Books, 84 U. Pa. L. Rev. 602 (1934)_ 19, 20

S. Rep No. 91-1296, 91st Cong., Ist Sess__-- 35

Myers and Yarborough, Bix Verari: N ew

Trials and Successive svosscutions, 74 Harv)

So TRO A Se sk cece ee 25

Miller, Appeals by the State in Criminal Cases;

Be Oe Tn Be Un kc cence cus i

Sigler, Double Jeopardy (1969) _-_----------- 22, 25

21 Viner, A General Abridgment of Law And

BOO CIOES CB cv ence bascedcuccdncns se 20

Yn the Supreme Gourt of the Anited States

OctoseR TERM, 1974

No. 73-1513

Unirep STATES OF AMERICA, PETITIONER

RoNALD S. JENKINS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A,

pp. la-41a) is reported at 490 F. 2d 868. The opinion

of the district court, in the form of ** Findings of Fact

and Conclusions of Law” (Pet. App. B, pp. 42a-52a),

is reported at 349 F. Supp. 1068. °

JURISDICTION

The judgment of the court of appeals was entered

on December 11, 1973 (Pet. App. C, pp. 53a-54a). A

timely petition ‘for rehearing was denied on

February 6, 1974 (Pet. App. D, pp. 55a-d6a). By

order of February 28, 1974, Mr. Justice Marshall ex-

(1)

SANT a eee ee: |

pa ee ott

tended the time for filing a petition for a writ of

certiorari to and including April 7, 1974 (a Sunday).

The petition was filed on April 8, 1974, and was

granted on May 28, 1974, along with the petition

United States v. Wilson, No. 73-1395, and the cases

were set down for argument in tandem. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause bars the

United States from appealing an order of the district

court dismissing an indictment, after a trial without

a jury, where the district court found that the defend-

ant committed the acts charged in the indictment but

concluded as a matter of law that the defendant had

established an affirmative defense, and where the error

of the district court can be corrected without a retrial.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Fifth Amendment to the United States Con-

stitution provides, in pertinent part:

* * * nor shall any person be subject for the

same offence to be twice put in jeopardy of life

or leh * * *.

18 U.S.C. 3731, as amended by Title ITT of. the Omni-

bus Crime Control and Safe Streets Act of 1970, 84

Stat. 1890, provides, in pertinent part:

In a criminal case an appeal by the United

States shall lie to a court of appeals from a

decision, judgment, or order of a district court

dismissing an indictment or information as to

any one or more counts, except that no appeal

shall lie where the double jeopardy clause of

the United States Constitution prohibits

further prosecution.

* J * # * +

The provisions of this section shall be lib-

‘evaly construed to effectuate its purposes.

STATEMENT

1. In an indictment returned in the United States

District Court for the Eastern District of New York,

respondent, a registrant under the Universal Military

Training and Service Act, was charged with having

“knowingly failed and neglected to perform a duty

required of him under and in the execution of said

Act and Regulations, by knowingly refusing and fail-

ing to submit to induction into the armed forces of the

United States, after notice had been given to the

defendant by Local Board No. 50, exercising jurisdic-

tion in that behalf, requiring the defendant to report

for induction on the 24th day of February, 1971,”

in violation of 50 U.S.C. App. 462(a) (App. 3).

Although the essential facts of the case were undis-

puted, respondent made no motion to dismiss the

indictment prior to trial. Instead, on July 8, 1972,

indicating his intention to proceed to trial, respondent

filed a number of papers including a motion concern-

ing the voir dire of prospective jurors, requests to

“harge the jury, a trial memorandum of law, and a

motion for a judgment of acquittal (App. 1, 4). Subse-

quently, gn October 3, respondent waived a jury trial, -

and the case was tried and concluded before the dis-

trict court on that day. Three weeks later, on Octo-

SO at hn fe nO Seah

ber 24, the district court filed a document entitled

“*Findings of Fact and Conclusions of Law’’ (Pet.

App. B, pp. 42a-52a). The court found that, as charged

in the indictment, “the Local Board mailed to de-

fendant * * * an Order to Report for Induction on

February 24, 1971,” which was received by him, that

only thereafter did the defendant make a conscien-

tious olgjector claim, and that “Tt}he defendant did

not report for induction on February 24, 1971” (id.

at 43a—44a).’ The district court then proceeded to

discuss respondent’s defense to the indictment, “that

‘at the time of his alleged commission of the crime,

The “Findings of Fact” were as follows:

“1. The defendant, RONALD S. JENKINS, is charged in a

one count indictment with violation, of 50 U.S.C. App. § 462(a),

for failure to comply with an induction order to report and

submit to induction into the Armed Forces.

“2. Defendant registered with Local Board No. 50, Brooklyn,

New York, on September 23, 1966.

' “3. On October 19, 1966, the defendant was placed in Class

2-S by the Local Board and such ¢lassification remained on an

annual basis until November 18, 1970, when he was placed in|

Class 1-A by the said Local Board No. 50.

“4. On January 20, 1971, the defendant was given a pre-

induction physical at the Armed Forces Examination and En-

trance Station, and was found to be medically qualified for

induction.

“5, On February 4, 1971, the Local Board maiied*to defends ~

ant an SSS Form 252, an Order to Report for Induction on

February 94, 1971.

“G6. On February 17, 1971, after receiving his induction

notice, the defendant wrote to the Local Board and requested

SSS Form 150 for a conscientious objector classification.

“7. On February 23, 1971, the defendant went in person to

the Local Board and requested Form 150. He was advised to

write a short statement as to his beliefs, which he did, and he

was told to report for induction on the next day beeause his

PALL N CLL ARAL LOE ELE LLL ILE ALLA EAE LLL ponte IOS ARE SEAL ATC IATIEMA, 3 Ca aeunuene

viz., his refusal to submit to induction, the law of the

Second Circuit [since overruled by Eiilert v. United

States, 402 U.S. 99] was such that he was entitled to

a postponement of his induction to enable the Board

to pass on his claim for C.O. status” (Pet. App. B,

p. 44a), a claim which he had concededly asserted for

the first time after receiving his notice to report for

induction (id. at 43a). Finding the law of the Circuit

at the time to be as stated, the court concluded that

“the defendant JENKINS would be [prejudiced] by

a retroactive application of Eblert’’ (id. at 50a). Ac-

cordingly, the district court concluded that it **¢an-

not permit the criminal prosecution of the defendant

under these circumstances without seriously eroding f

fundamental and basic equitable principles of Jaw” ;

(id. at 52a). Under the heading “‘Conclusions of Law,

the district court stated that “*[t]he indictment in this

case is dismissed and the defendant is discharged” :

(ibid.). ~~

request for a postponement of his induction had been denied. .

“8. The defendant did not report for induction on February

24, 1971.

“9, The defendant’s SSS Form 150 was received by the Local

Board on March 30, 1971.” pra ee

2 The district court made no express finding that Jenkins had

in fact relied on “the applicable law of the Second Circuit.”

The reason for the absence of such finding is that neither the

respondent nor the draft counselor with whom he consulted, and .

who was called to testify as to respondent's sincerity (App. 70),

testified that they had relied on “the applicable law of the Sec-

ond Circuit.” Respondent's claim boiled down to the argument

that the local board was bound to follow “the applicable law of

. the Second Circuit” (even though tnat “law” was subsequently

held to be erroneous) and that the lawfulness of the local board's ,

action must be viewed in light of the Second Circuit's wnderstand- :

ing of the law at the time.

558 o00-—-7¢---—-6

CCI a ESA TOE

See VENT EE SHILA EIS

2. Since the order of the district court here con-

Hicted with the holding of the district court in United

States v. Mercado, 359 F, Supp. 604 (S.D.N.Y.),

Which was then pending on appeal from a judgment

of conviction, the Solicitor General authorized an Rp-

peal to the court of appeals pursuant to the Criminal

Appeals Act, 18-ES.C.- 3734 Phe cottrt-of-appeals—

stated that Congress intended to authorize an appeal

from an order of the district court terminating a crim-

inal prosecution in all cases in which an appee!

would not violate the Double Jeopardy Clause (Pet.

App. A, p. Ga) : ;

Appellant asserts, and appellee does not dis-

pute, that Congress intended to extend the.

Government's right of appeal in criminal cases

as far as it constitutionally could. If the lan-

guage of the statute left any doubts on that score,

they would be set at rest by the report of the

Senate Committee on the Judiciary, 91st Cone.

2d Sess., No. 91-1296, at 4-13. The appeal here

will ther efore lie unless the Double Jeopardy

clause prevents interference with appellant's

acquittal.

But the majority (over the dissent of Judge Lum-

bard) held that an appeal was barréd in this case by

the Double’ Jeopardy Clause, The court reasoned that.

“for double jeopardy purposes,” the district court

judge had acquitted the respondent (id. at 25a-26a) :

His ruling was based. on facts developed at

trial, which were not apparent on the face of

* Indeed, in Mercados 478 F. 2d 1108, the Second Circuit seem-

ingly vindicated our position on the merits in the present case

(see /nfra, pp. 14-15).

the indictment, and which went to the general

issue of the case. The dissent here contends

that the district court's findings of fact were

largely undisputed ‘and not relevant to. the

pivotal legal issue in question. However, the

discussion section of the district court's opin-

ion makes it clear that it was relying on the

precise circumstances of Jenkins” case to con-=

clude that-the Supreme-Court’s decision in Ehi-

ert should not be applied retroactively to him.

The district court was not construing the stat-

ute, which had been authoritatively interpreted

in Ehlert, and holding that Jenkins did not

come within it as a matter of law. It was hold-

ing that the statute should not be applied to

him as a matter of fact.

Although a reversal of the order of the district court

would not have necessitated a retrial, but only a di-

rection to the district court to enter a judgment in

accordance with its findings, the court in effect held

that the appeal itself placed respondent in jeopardy

a second time. In reaching this contusion, the ma-

jority r@hed principally on what it characterized (Pet.

App. A, p. 16a) -.as the “dictum” in United States v.

Ball, 163 U.S. 662, 671, that an acquittal can ‘not be

reviewed, on error or otherwise, without putting [the

defendant] twice in jeopardy, and thereby violating

the Constitution.’ While the court of appeals found

that this dictum had been followed in subsequent

cases (Kepner v. United States, 195 U.S. 100; Fony

Foo v. United States, 369 U.S. 141; and United States

Vv. Sisson, 399 U.S. 267), it suggested that a “[rje-

examination of the dictum in Ball * * * may well be

ns ld a |

desirable, particularly now that the Double Jeopardy

clause has been extended to the states.”” It concluded,

however, that “this is far beyond our power as an

inferior court’? (Pet. App. A, pp. 29a-3Ga, n. 20).

Judge Lumbard, who dissented from the holding of

the majority, concluded that “the Double Jeopardy

Cluuse is not an abstract rule, but one that should be

adapted and applied in light of the totality of cireum-

stances of each particular case” (Pet. App. A, pp. 40a-

dla):

An ‘unalte:able rule that the Double Jeopardy

Clause bers all government appeals from ac-

quittals, fails to weigh against the individual’s

very proper interest in not experiencing the

anxiety, expense, and harassment that a second

trial brings,) the equally considerable interest

of society inthe fair, just, and sensible adminis-

tration of criminal justice. Only last term, the

Supreme Court in Jilinois. v. Somerville, 410

U.S. 458 (1973), rejected the notion that techni-

cal errors resulting in a mistrial should bar re-

prosecution. In such cases, the ‘ends of public

justice” demand that “the purpose of iaw, to

protect society from those guilty, of erimes

[not] be frustrated by denying courts power

to put the defendant to trial again”. 410 U.S. at

470.

I believe that the “ends of\publie justice” will

not be served if we permit a defendant who is

clearly guilty to go free because of the

trial judge’s erroneots interpretation of the

controlling law. That Jenkins is guilty would

appear to be indisputable in light of our deei-

sion in United States v. Mercado, 478 F. 2d

1108) (1973), in whieh we held without res-

ervation that even prior to United States v.

Ehlert, the law of this circuit was that an in-

dividual had to report for induction although

his post-induction notice claim for conscientious

objector status was still pending.

Accordingly, I would vacate the order of the

court below and remand for a proper applica-

tion of the law. [Footnote omitted. ]

ARGUMENT

TI. INTRODUCTION AND SUMMARY

This case presents a narrow but important issue

with respect to the government’s right of appeal in

criminal cases. Because of the recent amendment to

the Criminal Appeals Act (18 U.S.C. 3731, as

amended by 84 Stat. 1890), the answer is controlled

directly by the Double Jeopardy Clause of the Fifth

Amendment * and involves none of the familar de-

bates about the correct definition of a motion in arrest

of judgment or a motion in bar. See, eg.,

United States v. Sisson, 399 U.S. 267. Partly because

of the prior statutory history, the constitutional ques-

tion tendered here has never been directly resolved by

this Court. Certainly, it is not foreclosed by Sisson, a

*So much is common ground. Nor is a contrary position

tenable: the Criminal Appeals Act. 18 U.S.C. 3731, now allows the

governnent to appeal from any “decision, judgment. or order of a

district court dismissing an indictment or information,” whatever

the ground, except only “where the double jeopardy clause of the

United States Constitution prohibits further prosecution.”

Whatever its correct characterization, the district court’s action

in this case, which dismissed the indictment, is within the

Statute. See our brief in Serfauss v. United States, No. 73-1424,

at pp. 12-19.

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decision controlled by statutory restrictions, now re-

tneved, and otherwise distinguishable.

On the other hand, the case invokes no novel doe-

trine. We eschew the temptation of a full reexamina-

tion of the double Jeopardy principle, because the

limited compass of the issue presented does not require

it. In the present setting, there is no occasion to define

the boundaries of the principle that a factual determi-

nation on the merits which acquits the defendant—

Whether made by a Jury ora judge—insulates him from

further proceedings. The only submission we make here

ix that a purely legal error thatcan be isolated from any

fact finding is correctable by appeal without inplicating

the Double Jeopardy Clause—at least if correction does

not require retrial of any fact already found.’

The question does not, of course, arise in the usual

case that reaches a conclusion. In a trial to a jury,

after the return of a general verdict, the problem pre-

sented here occurs only if the jury convicts and the

judge thereafter enters a contrary judgment. So, also,

in a case tried to the court alone, an unexplicated |

acquittal does not raise the issue that concerns us

here. The rule we postulate reaches only those situa-

tions in which the factual] determination and the legal

conclusion are clearly separated, and correction of the

error of law leaves the findings of fact undisturbed.

“In stating the question so narrowly, we should not be under-

stood to foreclose a broader argument. Specifically, we do not

concede that the Double Jeopardy Clause bars every govern-

mers appeal which. if successful. would require a retrial. See

footnote 16, infra. But, because whether a new trial must follow

an appeal is always a relevant consideration, we focus on that

circumstance in this case.

But, when those conditions are met,+we submit the

Double Jeopardy Clause does not bar the govern-

ment’s appeal, regardless of when the error of law

tities 1

Ste ends chr ded

occurred (whether before, during or after trial), and—

regardless of the label attached (a dismissal of the

indictment, a directed verdict, a judgment of acquit-

tal, or the sustaining of a motion in arrest). If we

are right, it follows that the district court ruling here

is appealable, notwithstanding that it 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” (see Pet. App. A, p. 26a)—

provided only that the appeal does not distur) any of

the underlying facts found.

Accordingly, before defending our thesis, it is es-

sential to establish that the district court’s action

sought to be appealed was, indeed, a pure decision of

law, and was one that can-be corrected without retrial.

If we seem to belabor the point, it is only because the

majority opinion helow appears to cast doubt on both

those premises by characterizing the dismissal as a

“holding that the [Selective Service] statute should

not be applied to [the defendant] as a matter of fact’’

(Pet. App. A, p. 26a, emphasis added),° and by suggest-

ing that a new trial might be necessary if the govern-

ment’s appeal succeeded (Pet. App. A, p. 28a).

1. Admittedly, the district judge made a factual

determination. As it happens, the only facts that mat-

° Elsewhere in its opinion, the court of appeals apparently

acknowledges that we challenged only a ruling of law. See Pet.

App. A, pp. 28a-29a, 3la. °

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-induetim. would not be postponed on account of

_ ter were undisputed and might have been stipulated

* before trial or recited in the indictment. In the event.

they were disclosed in the trial: What controls, how-

ever, is that these critical facts were expressly articu-

lated in findings entered by the district court—quite

distinct from the ruling of law—and were not sought

to be challenged on appeal. Of course, these facts- were

the predicate for the court’s’ order. But they remain:

’ wholly. separate and can be left undisturbed while the

legal issue is tested. The case is precisely the same as

if the findings of fact had been entered by a special

jury verdict—or by the judge at an earlier date—

and the court subsequently ruled, as a matter of law,

that they foreclosed conviction.

The separateness of the factual findings is entire Iv

clear in this case. This is not one of those situations

Aan which the result turned on credibility or demeanor

or assessing 2 mental attitude (e. g., “willfullness”” or

“sincerity’’). Compre United States y. Sisson, supra,

399 US. at 277-278, 286-287, 288, 289. Here, the facts

relevant to the legal ruling were w holly objective and

impersonal. The character and beliefs of the defend-

ant were irrelevant. Indeed, the result. is governed

solely by the timing of undisputed events.

Shortly stated, the facts were these: respondent was

found to have railed to report for induction after

having been classified T- A, after having received his

hotice to report, and after having been told that his

belated conscientious objector claim: made for the first

fine subsequent to’ receipt of the induction notice

‘

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(Pet. App. B, pp. 43a-44a). The only legal question

posed and resolved by the district judge (erroneously,

we say) was whether, given the sequence of these ac-

tions, respondent violated 50 U.S.C. App. 462(a). The

district court ruled in the negative. That ruling, we sub-

mit, was plainly one of law, no iess than this Court’s

contrary -holdings in Ehlert, supra, and Musser v.

United States, 414 U.S. 31.

2. Because the decision from which the appeal was

taken is a pure legal ruling, we could perhaps argue,

as Judge Lumbard concluded below (Pet. App. A, pp.

32a-39a), that it is more properly described as a ‘‘dis-

missal.” effectively arresting judgment, than an “acquit-

tal.”” We acquiesce in the characterization given by

the majority below only because Sisson teaches us that

a final disposition on the merits that looks beyond the

face of the record and-ie—bottomed’ on facts ad-

duced at trial, is an “acquittal.’”’? But, of course, so

categorizing the decision does not end the inquiry, any

more than does the trial judge’s choice of rubric. See

United States v. Jorn, 400 U.S. 470, 478, n. 7; United

States v. Sisson, supra, 399 U.S. at 279, n. 7.

At all events, we must not be misunderstood to

accept that this “aequittal” is of a kind with a gen-

eral jury verdict of ‘‘not guilty” or the equivalent of

an unexplicated conclusion of a judge sitting alone as

trier of fact.’ On the contrary, the ruling appealed

here is of the same charactev as an order arresting

‘his will not ordinarily occur in a non-jury trial, since Rule

23(c) of the Federal Rules of Criminal Procedure requires the

judge “on request [to] find the faccs specially ”

558-040—74——-3

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PETAR Is, ME

judgment for failure of the indictment tc state an

offense, or a judgment ordered on special jury find-

ings, or, indeed, the decision of an appellate court.

That here the judge both found the facts and drew

the legal conclusion, and incorporated both in the

same document, is irrelevant—so long as we can

clearly distinguish the exercise of each function, leav-

ing the first untcuched and challenging the other. As

we havi: shown, there is in this case no arguable diffi-

culty in severing the legal error.

3. We turn now to the question whether a successful

appeal by the government would require a'retrial. We

think not. Indeed, it seems to us plain that the findings

of fact already entered by the district court will com-

pel the entry of a judgment of conviction, without any

further proceedings, if the legal ruling is reversed on

_appeal (as we say it must be under Ehlert and Mus-

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ser). In our view, the findings already made—resolv-

ing every sonible issue on the merits—leave no rcom

for any other course.

To be sure, the court of appeals, adverting to its

earlier opinion in United States v. Mercado, 478 F.2d

1108, 1111 (C.A. 2), suggests that respondent might

still have available to him the defenise that, in failing

- to report for induction, he “in fact reasonably relied

in good faith on the [pre-Ehlert] case law or upon

the knowledge that local boards in [the Second Cir-

cuit] * * * would consider a belated conscientious objec-

tion claim”’ (7bid.). But, even accepting the validity of

such a defense in a proper case,* it is-foreclosed to re-

spondent. First, just as in Mercado itself (where the

‘conviction was affirmed), “[t]here has been no show-

ing that he in fact was iware of or relied upon the

case law * * *”? (ibid.). Respondent never suggested

such an excuse, although both he and his “counselor”

testified at the trial (see n. 2, supra, p. 5). Moreover,

whatever respondent knew of Second Circuit law when

he belatedly advanced his conscientious objector claim,

he well knew, before he committed the offense of fail-

ing to report for induction, that the board had re

fused to delay or excuse his reporting as scheduled.

As the district court expressly found, “he was told to

report for induction on the next day because his re-

.quest for a postponement of his induction had been

denied” (Pet. App. B, p. 44a). Nor has respondent ever

disputed this fact. Thus, at the relevant time, he can-

not have been under any misapprehension.

At all events, however, respondent has estopped him-

self by advancing no such claim at trial. This was not

a case prematurely ended before the defendant had

opportunity to make his full defense, He put in all the

* Both in this case and in JZercado, the court of appeals

merely suggests, very tentatively, the possibility of such a

defense. Indeed, in Mercado, the court first rejected the sug-

gestion for that case and cited other decisions to the effect that

the “erroneous belief that an induction order is invalid” nor-

_ mally constitutes no defense, and only then commented that

“perhaps there is room for, flexibility in enforcement of this

rule to avoid injustice in a particular case” (478 F. 2d at 1111).

Sell

evidence and made all the arguments he deemed ap-

propriate, and, on that basis, the trier of fact—here

the judge—reached factual conclusions. Normally—

absent newly discovered evidence—that would be the

end of the matter. Overlooking an arguable defense

based on facts always available is no ground for a new

trial. It would not be where a decision arresting judg-

ment is overturned on appeal. No more is it here. But

even if respondent were ultimately to obtain a new

| trial, that would be at his own instance, on grounds

which he might equally have advanced if convicted—

not a consequence of any ruling in the present appeal.

Thus, under settled ‘principles, the possibility that

respondent could obtain a new trial by virtue of the

Mercado dictum in no way implicates the Double

Jeopardy Clause. See United States v. Smith, 331

U.S. 469, 474; United States vy. Ball, supra, 163 U.S.

at 672.

It follows, we submit, that the government’s appeal,

if successful, will require no retrial, nor even any re-

opening of the case td allow additional evidence. If the

district court’s legal concluston was erroneous, there

is no escaping the entry of a judgment of conviction

on the findings of fact already made. .

4, The premises established, we return to our sub- ‘

mission that the Double Jeopardy Clause does not bar

the government’s appeal of a legal ruling that leaves

all factuai determinations undisturbed and provokes

no second trial. The balance of our brief is devoted to

showing that the rule we suggest is consistent with the

‘original understanding of tie constitutional provision

and with the decisions of this Court in analogous situ-

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ations, and that the cases relied upon by the court below

would mandate no different result.

We begin (infra, pp. 18-24) by briefly sketching the

background against. which the Double Jeopardy.

Clause was adopted, concluding tha the English com-

mor. law, at its most restrictive, did not bar correction

of legal error when no second trial ensued. The sparse

legislative history of the Fifth Amendment, we

note, is not inconsistent. Nor is there anythiag to the

contrary in the jurisprudence of this Court, which

repeatedly stresses that the double jeopardy provision

is concerned with a second trial or ‘second

punishment for the same offense.

Next (infra, pp. 25-36), we examine in detail those

decisions of this Court that the majority below deemed

dispositive: Ball, Kepner, Fong Foo and Sisson. We

notice many distinctions, but focus on the critical dif-

ference that in each of them the ruling challenged,

unlike here, was at least partly a factual determina-

tion on the merits, and that, in the first three cases,

the government was effectively seeking a retrial.

Finally (infra, pp. 37-41), we analogize our case to

two other situations which, the Court has consistently

held, do not implicate the Double Jeopardy Clause. One

is the recognized appeal by..the government from a

decision arresting judgment after conviction. We sug-

,gest it can make no difference, in terms of the values

underlying the double jeopardy principle, whether

that post-conviction ruling is based on the allegations

of the indictment or on facts disclosed at trial. The

other comparable situation is appellate review by this

Court, of a decision of a court of appeals reversing a

conviction on grounds such as the district judge in-

voked here. In that situation as well as in ours, the ac-

tion setting aside the conviction is based on facts ad-

duced at trial that bear on the merits and is, therefore,

presumably an “e¢quittal.”” We perceive no reason why

the Double Jeopardy Clause should be deemed to bar

review in one case and not the other.

II, SINCE THE DOUBLE JEOPARDY CLAUSE WAS INTENDED TO

LIMIT THE NUMBER OF TIMES A DEFENDANT COULD BE

TRIED FOR THE SAME OFFENSE, IT DOES NOT BAR AN

APPEAI, HERE

1. The starting point for any inquiry into the pur-

pose of the Double Jeopardy Clause must be the com-

mon law rule that served as the backdrop for the

Framers of the Constitution (see Kepner v. United

States, 195 U.S. 100, 125). The most succinet state-

ment of that rule, and one “which greatly influenced

the generation that adopted the Constitution,’’® is

found in 4 Blackstone’s Commentaries, Ch. XXVI, p.

33) (Tucker ed.). There, in deseribing the common

law plea of autrefots acquit, Blackstone observed:

[T]he plea of the auterfoits acquit, or a former

acquittal, is grounded on this universal maxim

of the common law of England, that no man is

to be brought into jeopardy of his life, more

than once, for the same offence. And hence it is

allowed as a consequence, that when a man is

once fairly found not guilty upon any indict-

ment, or other prosecution, before any court

having competeut jurisdiction of the offence,

he may plead such acquittal in bar to any sub-

* (rreen v. United States, 355 U.S. 184. 187.

sequent accusation for the same crime. [Emphé-

sis added. ]

The same theme is reflected in IV Hawkins, Pleas of

the Crown 312 (1795 ed.) :

The plea of auterfoits acquit is grounded on

this maxim, that a man shall not be brought

into danger of his life for one and the same

offense, more than once. From whence it is

generally taken, by all the books, as an un-

doubted consequence, that where a man is once

found ‘‘not guilty” on an indictment or appeal

free from error, and well commenced before any

court which hath jurisdiction of the cause, he

may, by the common law, in all cases whatso-

ever plead such acquittal in bar of any subse-

quent indictment or appeal for the same crime.

[Emphasis added.] *

The thrust of these commentaries is that the com-

mon law double jeopardy principle barred a second

trial on the same facts only if (a) the first acquittal

was ‘‘fairly found”’ or ‘‘free from error,’’ and (b) the

subsequent proceedings involved a fresh indictment

or accusation. This is, of course, analogous to the prin-

ciple of rcs judicata that governs civil litigation. The

rule was summed up bv Mr. Justice Holmes, dissent-

ing, in 2Zepner v. United States, supra, 195 U.S. at

134: ‘‘[E]verybody agrees that the [double jeopardy]

principle in its origin was a rule forbidding a trial

~The “appeal” to which Tlawkins made reference was not

the process of appellate review of trial errors, but rather the

quasi-criminal proceeding which could be commenced at com-

mon law by a private party. See Friedland, Double Jeopardy

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

Books, 82 U. Pa. L. Rev. 602, 605-606 (1934).

tae

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in a new and independent case where a man already

had been tried once. But there is no rule that a man

may not be tried twice in the same case.”’

That was, apparently, the English practice, at least

until 1660: the Crown could have a new trial after an

acquittal if the original trial entailed gross errors of

law. 2 Hale, Pleas of the Crown 247 (Dougherty ed.

1800). To be sure, several cases decided in the late 17th

century suggested that the Crown could not seek a

new trial after a verdict of acquittal (Pet. App. A,

pp. 9a-10a). However, it is not entirely clear that this

rule had anything to do with policies reflected by the

double jeopardy principle. Instead, it may have de-

veloped—in Judge Friendly’s words—as ‘‘an inde-

pendent principle” (Pet. App. A, p. 14a), reflecting the

concern that, if a new trial were permitted after an

acquittal, the prosecutor ‘‘would see where he failed

before, and might use ill means to prove what he

failed before.’’ 21 Viner, A General Abridgment Of

Law and Equity 478-479 (1793 ed.) ; see also Fried-

land, Double Jeopardy 285-286 (1969). At the same

time, the law continued to permit retrial after a mis-

trial had been declared for whatever reason; it was

only the verdict of the jury that was a bar to subse-

quent prosecution, and jeopardy was deemed to at-

tach only to the verdict. Kirk, “Jeopardy” During The

Period Of The Year Books, 82 U. Pa. L. Rev. 602,

603 (1934).

Thus, while the full contours of the English double

jeopardy principle may not have been clearly marked

at the time of the adoption of the Constitution, it is

reasonably clear that, at most, it barred a second trial

21 -

for the same offense, and then probably only if the

subsequent trial resulted from a fresh indictment. At

all events, however, the common law principle affords

respondent no shield in our case, since the present ap-

peal would not place him in jeopardy of a second trial,

either on the indictment upon which he was tried or

upon a subsequent indictment.”

2. The legislative history of the Double Jeopardy

Clause, which is fully explored in the majority opinion

below (Pet. App. A, pp. 12a=14a), actually casts little

light on the view of English common law principles

that the Framers intended to adopt. The original ver-

sion of the Double Jeopardy Clause, as introduced by

James Madison in the House of Representatives,

provided: ‘‘No person shall be subject, except in

cases of impeachment, to more than one punishment or

one trial for the same offence.’’ 1 Annals of Congress

434. An unsuccessful effort was made in the House of

Representatives to strike the word “trial”’ from the pro-

posed amendment. Id. at 753. Representative Benson

of New York objected to Madison’s language because

he thought it changed the existing law, which allowed

a defendant to be tried a second time upon reversal of

his original conviction. Ibid.? Although the original

version of the Double Jeopardy Clause, as proposed

1 Indeed, it appears that where a trial judge entered a judg-

ment. of acquittal upon special findings returned by a jury, an

appeal was permitted at common law. Friedland, swpra, at 287,

n. 4. That is, in effect, the situation here.

2 That an appeal could be taken by a defendant from a judg-

ment of conviction, and that he could be retried if suecessful,

was well established at common Ipw. See Friedland, supra, at 240.

ee]

Piscine is BABS

BAP WUEIOO RE Sy eee a oh ANA

by Madison, was approved without change by the

House of Representatives, the Senate rejected that

language without recorded explanation in favor of the

more traditional common law expression, employing

the term ‘‘jeopardy” rather than specifying ‘more

than one triai, or one punishment.” See generally,

Sigler, Double Jeopardy 30-31 (1969).

This somewhat sparse ‘legislative history,’’ as the

‘court of appeals acknowledged, ‘‘leave[s] it open to

argue that the framers did not regard the crown’s

inability to appeal an acquittal after a trial on the

merits as part of the common law concept of double

jeopardy but rather as an independent principle, to be

followed for a century [in England] but not incor-

porated in the clause * * *.” (Pet. App. A, p. 14a).”

Although we shall address ourselves to the con-

clusion of the court of appeals that “any uncertainty

as to the disposition of this case [based on the history

of the Double Jeopardy Clause] is resolved, as far as

we are concerned, by Supreme Court decisions * * *”

(Pet. App. A, p. 14a), it suffices to reemphasize that the

uncertainty that does exist regarding the intent of the

Framers of the Double Jeopardy Clause involved only

the question whether a new trial could be obtained on

appeal after an acquittal; and that there is not the

™ Although the court of appeals added that “the- general

flavor of the debate, especially the emphasis on the defendant’s

right to a retrial, is somewhat to the contrary” (Pet. App. A,

p. 14a), we note that this somewhat inconclusive debate was in

the House of Representatives, while the final version of the

Double Jeopardy Clause was drafted in the Senate.

aciiaeineeiiietiiaaeatnen _)

slightest support for thd view that such an appeal was

barred wnere, as here, no retrial is sought. Indeed,

from Ex parte Lange, 18 Wall. 163, 169, to IUinois v.

Somerville, 410 U.S. 458, every opinion of this Court

which has spoker ts the issue of the scope of the

Double Jeopardy Clause has discussed it in terms of

the protection against being twice tried or punished

for the same offense."* And, in Green v. United States,

355 U.S. 184, the Court explained that because the

Double Jeopardy Clause protects against 2 second

trial, “the Government cannot secure a new trial by

“Ti North Carolina v. Pearce, 395 U.S. 711, the protection

afforded by the Double Jeopardy Clause was sui-marized as

follows (395 U.S. at 717) :

* * * [T]he Fifth Amendment guarantee against double

jeopardy * * * has been said to consist of three separate

constitutional protections. It protects against a second pros-

ecution for the same offense after acquittal. It protects

against a second prosecution for the same offense after

cor.viction. And it protects against multiple punishments

for the same offense.

see also Heptier v. United States, supra, 195 U.S. at 130-131,

33, holding that the protection of the Double Jeopardy Clause is

against “beiug again tried for the same offense,” and construing

Tnited States v. Ball, 163 U.S. 662, as holding “that to try a

man after a verdict of acquittal is to put him twice in jeopardy.

a the verdict was not followed by judgment” ; Ntroud

. United States, 251 U.S. 15, 18, holding that “[t]he protee-

a: afforded by the [ Double Jeopardy Clause] * * * is against a

second trial for the same offense”: Green y. United States, 355

U.S. 184, 187-188, stating that the Double Jeopardy Clause was in-

tended “to protect an individual from being subjected to the

hazards of trial and possible conviction more than once for an

alleged offense”: United States v. Jorn, 400 U.S. 470, 479, hold-

ing that the Double Jeopardy Clause prohibits the state from

subjecting individuals “to repeated prosecutions for the same

offense.”

— eee i

a PY LPP Ce $2 5 LE RPL EAD iy RPE

means of an appeal even though an acquittat may ap-

pear to be erroneous” (355 U.S. 188; emphasis added ).””

Accordingly, we submit that, looking to the purpose

of the Double Jeopardy Clause, as revealed by its

common law origins, the conclusion must be that the

present appeal, which dves not involve a retrial, is not

barred.’* Perhaps so, the majority argued below, but

a different result is dictated by decisions of this Court.

We now turn to examine that contention.

1° Green Aid not invoive an appeal by the United States.

16 Even if a successful appeal -vould necessitate a retrial, we

do not agree that the Double Je@pray. Clause would necessarily

bar the appeal. The protection against being tried twice for

the same offense is not absolute, and it has yielded under vary-

ing circumstances to “the public's interest in fair trials designed

te end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689;

Illinois v. Somerville, 410 U.S. 458; see also cases collected in

Anno: Double Jeopardy—M istrial, 6 L. Ed. 2d 1510-1519 (1962)..

Thus. in addition to the settled construction of the Double Jeop-

ardy Clause permitting a defendant to be tried again and again

when earlier trials have terminated prior to verdict (see e.g.,

United States y. Castellanos, 478 F. 2d 749 (CLA. 2) and cases

there cited), it is well settled that a defendant may be retried for

the same offense where his conviction has been reversed on appeal.

Here again, other considerations of policy ha,» been held to

outweigh the policies reflected by the Double Jeopardy Clause.

United States v. Jorn, supra, 400 U.S. at 484; United States v.

Tateo, 377 U.S. 463, 466. Finally, it appears settled that, when the

court of appeals reverses a judgment of conviction because of

the insufficiency of the evidence, it may in its discretion direct

a new trial, even though its determination plainly is an “ac-

quittal” within the generally accepted definition of that term.

Bryan v. United States, 3388 U.S. 552, 560; United States v.

Tuteo, supra, 7 US. at 467; see also United States v. Howard,

432 F. 2d 1188. 1191 (C.A. 9), which sets out the criteria for the

exercise of such discretion.

Accordingly. most scholars and commentators have argued

that an appeal from a verdict of acquittal, undertaken not to

ee ee ee ee ee

‘

Ill. THE DECISIONS OF THIS COURT DO NOT CONSTRUB THE

DOUBLE JEOPARDY CLAUSE AS BARRING AN APPEAL FROM

AN ACQUITTAL WHERE A NEW TRIAL IS NOT SOUGHT

A. THE CASES RELIED UPON BY THE COURT OF APPEALS ARE NOT

CONTROLLING HERE

Although acknowledging its own doubts whether

the Double Jeopardy Clause was intended to bar an

appeai from an acquittal, even where a new trial was

sought, the majority below deemed itself bound by

decisions of this Court to dismiss our appeal in this

cuse. In reaching that conclusion, the court below re-

lied upon the dictum in United States v. Ball, supra, 163

U.S. at 671, to the effect that a “verdict of acquittal * * *

could not be reviewed * * * without putting [a defend-

ant] * * * twice in jeopardy,’’ and on what it character-

ized as the holling of three other cases (Kepner Vv.

United States, 195 U.S. 100; Fong Foo v. Untted States,

369 U.S. 141; end United States v. Sisson, 399 U.S. 267).

“We cannot see * * * in the circumstances here pre-

sented,’’ the court of appeals observed, “[how] the

give the prosecutor a second try at proving what he failed to

prove before, but to secure an opportunity to obtain a verdict

free from substantial legal error, should not be barred by the

Double Jeopardy Clause. See Friedland, supra, at 310; Mayers

and Yarbrough, B’s Verari: New Trials and Successive Prosecu-

tions. T4 Harv. LL. Rev. 1 (1960) ; Miller, Appeals by the State in

Criminal Cases, 36 Yale LJ. 486 (1927): Sigler, supra, at 114.

Such appeals, as Mr. Justice Cardozo wrote for the Court in Palko

v. Connecticut, 302 U.S. 319, 328, do not involve an attempt “to

wear the accused out by a multitude of tases with accumulated

trials.”

Of course. as We have already stated, the important and un-

resolved questions surrounding this issue need not be reached

here, since a second trial is not sought.

RAN ees ak 2 ANAT ROA x

a eer ee

Government can thread a way through this thicket so

long as these decisions stand.” (Pet. App. A, p. 29a).

The “thicket,” we submit, is not nearly so dense as

he majority below suggests. In fact, there is not a

single holding of this Court that sustains the conclusion

of the court of appeals that an appeal from a post-jeop-

ardy order terminating a criminal prosecution is barred

by the Double Jeopardy Clause, merely because the

order was “‘based on facts developed at trial * * * which

went to the general issue of the case,” where the error

may be corrected without a second trial (Pet. App. A,

p. 26a). Whether or not each of these cases was correctly

decided on its own facts, none of the four cases relied

upon by the court of appeals involved our problem. Ig-

noring other differences, the critical distinction is

that—unlike our situation—the further proceedings

disallowed in each of those cases, except for Sisson,

would have required setting aside factual determina-

tions on the merits andy would have necessitated a new

trial. To be sure, the cases also contain some broad lan-

guage that can be stretched to reach our case ; but to do su

we submit, would not be faithful to the context in which

the words were writtén. :

What, then, are these cases, said to be controlling

here? We consider them chronologically.

1. United States v. Ball, 163 U.S. 662

Three men were indicted and tried for murder;

two were convicted by a jury and one (Ball) was

acquitted. The corvictions of Ball’s co-defendants

were reversed on appeal on the ground that the indict-

ment was fatally deficient in failing to allege that the

victim died within a year and a day of the assault. A

proper indictment was then returned against Ball,

who had been acquitted, as well as his two co-defend-

ants, and all three were retried and convicted. The

Court reversed the conviction of Ball on the ground

that a subsequent indictment was barred by the Double

Jeopardy Clause.

Speaking to the issue ‘‘for the first time,’’ the

Court announced the rule “that a general verdict of

acquittal upon the issue of not guilty to an indictment

undertaking to charge murder, and not objected to

before the verdict as insufficient in thau vespect, is a

bar to a second indictment for the same killing” (163

U.S. a@669). While it was also held that Ball’s two

co-defendants, who had initially been convicted, could

be tried again after their convictions had been re-

versed, the Court held that ‘‘Ball’s acquittal by the

verdict of the jury could not be deprived of its

legitimate effect by the subsequent reversal by this

court of the judgment against the other defendants

upon the writ of error sued out by them only’ (id.

at 670). And the Court added that such a verdict

barred a second trial even if the judgment entered

thereon wis void (because entered on a Sunday).

So far, obviously, Ball entailed nothing remotely

relevant to our case. All the Court decided was that

an unappealed acquittal that had become final must

stand. But in disposing of the issue before it, the

Court inserted a gratuitous remark, which we italicize

in the following passage (163 U.S. at 671) : |

EYE OS EE Pa SP Ged

Si CASON eam ASM ALLA PEO BITE LSAT B, CLAIM G8

As to the defendant who had been acquitted

by the verdict duly returned and received, the

court could take no other action than to order

his discharge. The verdict of acquittal was final,

and could not be reviewed, on error or other-

wise, without putting him twice in jeopardy,

and thereby violating the Constitution. How-

ever it may be in England, in this country a

verdict of acquittal, although not followed by

any judgment, is a bar to a subsequent prosecu-

tion for the same offence. 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; 2 Lead. Crim. Cas. 532.

However, even this dictum (and it is plainly that)

does not earry all the weight it has been asked to

bear.”

17Of the three cases cited by the Court in this passage. not

one involved the issue whether the Double Jeopardy Clause

barred an appeal from a judgment of acquittal. Indeed, United

States vy. Sanges, 144 U.S. 310, the only opinion of this Court

mentioned, merely held that in the absence of a statute, the

United States could not appeal from an adverse (pretrial) judg-

ment in a criminal case. Indeed, Sanges strongly suggested

that such an appeal—even from a judgment entered on “a ver-

dict of acquittal”—could be taken if a statute authorized it. In

an opinion by Mr. Justice Gray, who also wrote the opinion

in Ball, the Court in Sanges concluded (144 U.S. at 318) :

* * * [T]he decisions above cited conclusively show

that under the common law, as generally understood 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 judg-

ment has been rendered upon a verdict of acquittal, or

upon a determination by the court of an issue of law. In

The Court was addressing itself to ti.e issue whether

a general jury verdict of acquittal—when not followed

by a valid judgment entered upon it—could be invoked

as a bar to a ‘‘subsequent prosecution for the same

offense,.’’ In that context, the statement that an ac-

quittal cannot be ‘‘reviewed on error or otherwise”

suggests no more than that a second trial—in Ball’s

situation the inevitable outcome of a successful gov-

erninent appeal—cannot be forced on an acquitted

defendant by any means. That is, of course, not our

case; here no factual determination need be’ dis-

turbed nor any new trial had.

2. Kepner vy. United States, 195 U.S. 100

In Kepner, also invoked by the court of appeals, the

dervendant had been tried in the Philippines without a

jury and acquitted by the trial judge. Under Philip-

pine law an appeal was authorized from such an ac-

quittal, and the appellate court had the authority to

make de novo findings of fact on appeal. Citing

United States v. Ball, supra, the Court held that such

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 provision

for a review of the judgment at the instance of the

government.

‘* For the reasons touched upon briefly in footnote 16, supra,

we do not accept this correct statement of the Ball dictum as a

correct statement of the law. However, since respondent. will

not face a new trial'if the district court’s action here is ulti-

mately reversed, the issue of the correctness of the dictum need

not be argued further in the present case.

THERON IELTS

APSR T MAT PETG NON

ASE ATR SN ERG

Se OIN Te ERIE EN

: .

a eRe Ne

a procedure is barred by the Double Jeopardy Clause

(195 U.S. at 133):

The Ball case, 163 U.S., si.pra, establishes

that to try a man after a verdict of acquittal is

to put him twice in jeopardy, although the ver-

dict was not followed by judgment. That is prac-

tically. the case under consideration, viewed in

the most favorable aspect for the Government.

The court of first instance, having jurisdiction

to try the question of the guilt or innocence of

“the accused, found Kepner not guilty; to try

him again upon the merits, even in an appellate

court, is to put him a’ second time in jeopardy

for the same offense * * *.

We note, first, that Kepner did not involve the

Double Jeopardy Clause, but the construction of an.

Act of Congress, applicable to the Philippines, which

incorporated the double jeopardy principle. While it

is true that the opinion treats the statutory provision

us having the same effect: as the Fifth Amendment

(195 U.S. at 124), this Court has subsequently admon-

ished that such language is to be regarded as dictum

and is not “conclusive’’ in cases ‘‘where the inter-

pretation of the Fifth Amendment is necessarily de-

cisive”’ (Green v. United States, 355 U.S. 184, 197, n.

ae Accord: Hoag v. New Jersey, 356 U.S. 464, 478,

. 3 (dissenting opinion of Mr. Justice Binelee):

Abbate v. United States, 359 U.S. 187, 198, n. 2 (sep-

arate opinion of Mr. Justice Brennan).

Ir. Green the Court was referring to Trono v. United States,

199 U.S. 521. a case decided a year after Kepner, which also

involved an: interpretation of the statutory double jeopardy

provision applicable in the Philippines.

0 LYM IEPA LL SE AWEE LAA NOPE II

ee ee ae ee

At all events, Kepner cannot be read to bar every

appeal from an acquittal. As the Court itself noted, the

case was “ practically” the same as Ball in that a sec-

ond trial “upen the merits” was sought to be justified.

Indeed, under Philippine law, the “review” was effec-

tively a trial de novo: the appellate tribunal weighed

the credibility of witnesses, made new findings of fact,

and entered a judgment of conviction. It requires né

elaboration to distinguish that situation from ours, in

which, we repeat, no factual determination is chal-

lenged and no retrial is necessary. Kepner tells us.

only two things: (1) that an unexpiicatcd acauittal by

a judge sitting as trier of fact enjoys the same status

as the “not guilty” verdict of. a jury; (2) that a see-

ond trial after such an acquittal! is equally barred |

whether it takes place in a higher court on the original

indictment or in the court of first instance on a fresh

accusation. That teaching does not help respondent

here.

" 3. Fong Foo y. United States, 369 U.S. 141

Fong Foo involved the entry of a judgment of ac-

quittal in the middle of the government’s case, based

upon the “supposed lack of credibility in the testi-

mony of the witnesses for the prosecution” and the

“supposed improper conduct on the part of the Assist-

ant United States Attorney who was prosec.ting the

case” (369 U.S. at 142). Although there was no statute

authorizing an appeal from such a ruling, the United

States obtained a writ of mandamus from the court

of appeals directing the district court to vacate the

judgment of acquittal and to retry the defendant. In

RESEENIEE EP RR

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reversing the order of the court of appeals, this Court

held that the “constitutional provision [that no person

shall ‘be subject for the same offence to be twice put in

jeopardy of life or limb’] is at the very root of the

present case, and * * * that th[is] guaranty was vio-

lated when the Court of Appeals set aside the judg-

ment of accuittal and directed that the petitioners be

tried again for the same offense’ (369 U.S. at 143;

emphasis added).

Plainly enough, that case is distinguishable from

ours. There, unlike here, the judgment attacked, albeit

entered by the judge, involved a factual determination

on the merits that could not be set aside without re-

quiring a second trial. In those circumstances, the

Court held, the “final judgment of acquittal” could not

be disturbed even if the judge’s intervention was er-

roneous, premature, even unauthorized.” The result—

which appears to give greater weight to labels than the

Court has more recently condoned (see United States

v. Jorn, supra, 400 U.S. at 478, n. 7; United States v.

Sisson, supra, 3999 U.S. at 279, n. 7)—may be ques-

In Fong Foo, the United States did not challenge before

this Court the dictum in #a// that an appeal could not be taken

from an acquittal, but argued only that this rule was inappli-

cable where the district court had no power to enter such judg-

ment and, therefore, the “supposed acquittal, being a nullity.

will not support a plea of autrefois acquit’ (Br. 25, No. 64,

October Term 1961). After this argument was rejected (and we

beieve properly), the Court simply relied upon the uncontested

dictum in Ball that an appeal, which would place the defend-

ant in jeopardy of a second trial, could not be taken from an

acquittal.

- i * na 8 SS eee ome |

tioned.** But, for present purposes, it is enough to say

that Fong Foo is not our ease, if only because there a

new trial must have followed a successful appeal.

4. United States vy. Sisson, 399 US. 267

The last case upon which the majority below relied

is United States v. Sisson. There, after a jury had

convicted the defendant of failing to report for induc-

tion, the district court terminated the prosecution on

the basis of its conclusion that the evidence was insuf-

ficient to sustain the defendant’s guilt. This Court

held that this was in effect an acquittal and that an

appeal to this Court was not authorized under the old

*1 Tt cannot be without some significance in this regard that

Foug Foo has been cited in but one opinion of this Court in

the more than twelve yesrs since it was decided (Will v. United

Ntates, 389 U.S. 90); and, in that opinion, it was cited in a

manner which suggests that the Court viewed the decision in

Fong Foo as reflecting little more than the proposition that, as

a matter of policy, appeals by the United States in criminal

cases are not favored “at least in part because they always

threaten to offend the policies behind the double jeopardy pro-

hibition, ef. Fong Foo v. United States, 369 U.S. 141 (1962),”

(589 U.S. at 96), and that, in the absence of a statute authorizing

an appeal (389 U.S. at 97, n. 5), “[m]Jandamus * * * may never

be employed as a substitute for appeal in derogation of these clear

policies. E.g.. Fong Foo v. United States, 369 U.S. 141

(1962) * * *” (389 U.S. at 97). Of course, even the suggestion in

W7? that appeals by the United States in criminal cases are “some-

thing unusual, exceptional, ems not favored” (389 U.S. at 96) is

undermined by the present Criminal Appeals Act and its declara-

tion that its provisions are to be construed liberally to effectuate

its purpose of permitting an appeal in all cases in which the

Constitution permits (18 U.S.C. 3731).

A TY PREY RE IPS NOAM

Criminal Appeals Act, which then permitted the gov-

ernment to appeal, af ‘dict, only from a “decision

arresting a judgment of conviction for insufficiency of

the indictment.”

Of course, insofar as Sisson merely construes

restrictions, now removed, in the appeal statute, it

cannot govern here. But, as the majority below noted,

the opinion goes further—without apparent Yeason.

First, the Court characterized the district judge’s rul-

ing as ‘‘an acquittal” because it was “bottomed on fac-

tual conclusions not found in the indictment but in-

; stead made on the basis of evidence adduced at the

: trial” (399 U.S. at 288). Later, the Court repeated the

Ball dictum about review “on error or otherwise,”

substituting “acquittal” for the words “verdict of

acquittal” in the original (id. at 289-290). Putting

these two passages together, the court below concluded

that Sisson ruled our case (Pet. App. A, pp. 23a-25a).

We submit that exercise is too facile.

We must remember that there was, after all, no

PER ST cers

18 Mig Rn eis oN AOR NS EAR AGE AE

E * The whole of the constitutional aside is comprised in the

: following text and note (ibid.) :

“Quite apart from the statute, it is, of course, well settled that

‘ an acquittal can ‘not be reviewed. on error other otherwise, with-

out putting [the defendant] twice in jeopardy, and thereby

2 violating the Constitution. ... [I]n this country a verdict of

acquittal, although not followed by any judgment, is a bar to

a subsequent prosecution for the same offence,’ United States v.

Ball, spre 163 US. 662, 671 (1896).5 #

“!8 This principle would dictate that after this jurisdic-

tional dismissal, Sisson may not be retried.”

alte

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fe PORECA MY OA ons

ot ids

occasion to make a constitutional ruling in Sisson, and

the passage invoked must he treated as gratuitous. Be-

sides, the opinion does no more than reproduce the

Ball dictum, which, as we have shown, speaks only to

the situation where setting aside an acquittal requires

a new trial—which was not what the Sisson appeal

sought. Nor is the footnote cited by the majority below

(399 U.S. at 290, n. 18) relevant here. Of course the

Double Jeopardy Clause as construed in Ball would

bar retrial on a new indictment if the judicial acquit-

tal is allowed to become final. But that does not bear

in any way upon the constitutional propriety of per-

initting an appeal that, if successful, would trigger no

new trial. Finally, we are cautioned by three members

of the Sisson court, dissenting, to doubt whether the

inajority “really mean[t] to suggest that Congress.

could not constitutionally authorize an appeal in a

case precisely parallel to this one in accordance with

currently sought legislation [the present Section

3731)” * (399 U.S. at 328, n. 4 (dissenting opinion of

Mr. Justice White, joined by the Chief Justice and

rte eh

TEL RPL

“The Government bases its claim that this Court has juris-

aieti ‘tion to review the District Court's decision exclusively on the

‘arresting judgment’ provision of the Criminal Appeals

Act * * ** (399 U.S. at 278-279; emphasis supplied).

** Tt is plain from the legislative history of the 1971 amend-

ments to the Criminal Appeals Act that Congress intended to

overrule the construction that Sisson placed on the old Criminal

Appeals Act. (“One example of the kind of case which would

thereby be made appealable is the Sisson case.” S. Rep. No. 1296,

st Cong.. 2d Sess.. p. 11; footnote omitted).

ER ie MAN BRC SIM SEB a5. nl SB Tide Pha Be LO di BMI ic it ABOU CB isp aay Sets

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Mr. Justice Douglas)).** See also United States v.

Findley, 439 F. 2d 97u (C.A. 1), cited with approval

in United States v. Brewster, 408 U.S. 501, 506, where

the Court of Appeals for the First Circuit character-

ized the rationale of Sisson as ‘tan approach not in

terms of double jeopardy, but in terms of the kind of

error [former] section 373L was intended to cover’’

(439 F. 2d at 973).

B. DECISIONS OF THLS COURT IN ANALOGOUS SITUATIONS UPHOLD THE

APPEALABILITY OF POST-JEOPARDY ORDERS TERMINATING CRIM-

INAL PROSECUTIONS

Having closely examined each of the four cases in-

voked by the majority below, we conclude that noth-

ing stands in the way of our submission. But that is

not all. Well settled doctrines, consistently approved

by this Court, suggest affirmatively that our appeal

does not violate the Double Jeopardy Clause. We refer

to the practice of this Court in reviewing court of ap-

peals decisions that reverse convictions and to the

“In United States v. Jorn, 400 U.S. 470, Mr. Justice Harlan.

who wrote the opinion in Sisson, gave substance to the skepti-

cism expressed by Mr. Justice White. In the only portion of

the Jor: opinion which commanded a majority of the Court

(400 U.S. at 489. n. 2). Mr. Justice Harlan not. only spoke of

Sisson as articulating the criterion of an “acquittal” for the

purposes of assessing this Court's jurisdiction over an appeal

under old 18 U.S.C. 3731 (400 U.S. at 478, n. 7), but he also

suggested—without eavisioning any apparent constitutional dif-

ficulties—that an appeal could be taken from a post-jeopardy

dismissal of an indictment under the newly amended Criminal

Appeals Act (400 U.S. at 477, n. 6).

Eg TARO LT

long-standing rule allowing appeals from decisions

arresting judgment.

In dismissing our appeal here, the court of appeals

expressly grounded its decision on the circumstance

that the order of the district court 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” (Pet. App. A, p. 26a). Yet that is

vrecisely what occurs every time a petition for cer-

tiorari is granted to review a judgment of a court of

appeals that directs dismissal of an indictment based

on the application of legal principles to facts developed

at trial. For example, in United States v. Russell, 411

U.S, 423, a case illustrative of many others,” the court

of appeals, relying on evidence developed at the trial,

set aside a judgment of conviction on the group that(id.

at 424) “an undercover agent supplied an essential chem-

ical for manufacturing the methamphetamine which

formed the basis of respondent’s conviction,” concluding

that this constituted er.crapment as a matter of Jaw. 459

F. 2d 671, 673 (C. 4. 9). Following the definition of

the court below in this case, that ruling is as much an

“acquittal” as the district court’s action here. Yet,

when this Court decided Russell on the government’s

petition for certiorari, there was no suggestion that

the Double Jeopardy Clause stood in the way. Indeed,

the Court long ago declined ‘‘to subscribe to * * * a

theory”? which would bar such relief from an order

* See. ¢.g.. United States v. Maze, 414 U.S. 295: United

States v. McGrath, 412 U.S. 936; United States v. Seeger, 380

U.S. 163.

SCE II WIMMER ARI RIEL RW RR NEG

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pate tases ge he

of the court of appeals. Forman v. United States,

361 U.S. 416, 426.

The reason such appellate review does not implicate

the policies reflected by the Double Jeopardy Clause

is that the trier of fact has found that the defendant

has committed the acts charged in the indictment, and

a “retrial” is not necessary to correct the legal error

of the court of appeals; therefore, the appeal does

not put the defendant in jeopardy of a second trial.”

The same rationale likewise explains the long rec-

ognized practice of appeals from district court orders

in arrest of judgment. See, e¢.g., United States v.

Green, 300 U.S. 415; United States v. Bramblett, 348

U.S. 503; United States v. Esposito, 492 F. 2d 6 (C.A.

7), certiorari denied, 414 U.S. 1135. While such post-

vuilty-verdict orders are for historical reasons entered

solely for defects that appear on the face of the ree-

ord—typically the insufficiency of the indictment to

state an offense (see United States v. Sisson, 399 U.S.

26 Since the order of the court of appeals merely directs that

the judgment of conviction be set aside and that the indict-

ment be dismissed, and since the petition for certiorari may be

granted before the district court acts, it could be argued that

the Double Jeopardy Clause is not violated because no final

judgment has been entered on the court of appeals’ ‘determina-

tion that the evidence is insufficient to warrant conv ction. Such

a technical argument, however, not only has nothing whatever

to do with the policies reflected by the Double Jeopardy Clause,

but it cannot be reconciled with the holding that it is the deter-

mination by a jury that the evidence is insufficient to establish

guilt—“although not followed by any judgment”—which gives

rise to the bar of the Double Jeopardy Clause. United States v.

Ball, supra. 163 U.S. at 671. (Of course, even where a district court

sets aside a guilty verdict and directs an “acquittal”, that order

cannot be considered final until the time to appeal has run).

sane ies

WET AS CCR

267, 280-287) *--it is difficult to understand on what

basis the Double Jeopardy Clause can be construed

to permit an appeal from a district court order in

arrest of judgment, but to bar such an appeal from

other, similar post-guilty-verdict orders that accept

as true the facts found by the trier of fact and rest

on a legal determination that entry of a judgment of

conviction is not justified.

The point is forcefully made by Judge Learned Hand

in United States v. Zisblatt, 172 F. 2d 740, 743 (C.A.

2), appeal dismissed, 336 U.S. 934, a case in which the

district court entered an order dismissing the indict-

ment on the merits after a guilty verdict had been

returned:

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

verse the dismissal and enter a judgment of

conviction upon the verdict would violate the

defendant’s,, constitutional privilege. Had the

trial judge directed a verdict, so that it would

have been necessary upon reversal to subject

the defendant to trial before a second jury, that

would be “double jeopardy’’, but, although the

Constitution gives an accused person the benefit

of any mistakes in his favor of the first jury

he encounters, whether it has passed upon his

guilt or not, it does not extend that privilege

to mistakes in his favor by judges. Indeed, were

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

* * * direct a verdiet of acquittal for legal insufficiency of the

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

was to recommend royal clemency, which was granted as a

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

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

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

>»

the opposite true, all appeals from decisions in

arrest of judgment would be constitutionally

futile hecause no judgment of conviction could

be entered when they were reversed. So long as

the verdict of guilty remains as a datum, the

correction of errors, of law in attaching the

proper legal consequences to it do not trench

upon the constitutional prohibition.”

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

(C.A. 2), certiorari denied sub xom. Grunberger Vv.

United States, 406 U.S. 917, where the court of ap-

peals, per Friendly, C. J., held that the issuance of

a writ of mandamus directing the district court to

vacate a post-judgment-of-conviction order dismissing

an indictment on the basis of facts adduced at the

trial “‘will not subject [the defendant] to retrial in

violation of his right to be protected against double

jeopardy” (452 F. 2d at 712-713; emphasis supplied ).

Accordingly, there can be no question that, had the

~ district court here entered a judgment of conviction,

and had the court of appeals reversed on the same

legal ground that the district court employed, the

Double Jeopardy Clause would not have barred fur-

ther appellate review by this Court. Similarly, as

Judge Lumbard stressed here in dissent (Pet. App. A,

28 Having concluded, however, that it was without jurisdic-

tion to hear the appeal because a direct appeal to this Court

was mandated by the “motion in bar” provision of former

Section 3731, the court of appeals certified the case to this

Court. The appeal was dismissed on the motion of the Solicitor

General solely on the ground that the statute did not authorize

an appeal from a post-jeopardy order. See United States v.

Sisson, supra, 399 U.S. at 306.

pp. 3la-41a), no double jeopardy claim would have been

arguable if the facts found had been alleged in the in-

dictment and the district judge, after trial, had con-

cluded that the charge did not state an offense. We fail

to appreciate what considerations of policy, or argu-

ments of logic, distinguish those cases from ours.

CONCLUSION

The judgment of the court of appeals should be

reversed and the cause remanded for determination }

of the merits of the appeal from the order of the &

district court. f

Respeétfutty sthmitted. i

Rosert H. Bork, i

Solicttor General. :

Henry E.. PETERSEN, 4

Assistant Attorney General.

ANDREW L. FREy, z

Lovis F. CiarporNe, E

Assistants to the Solicitor General. :

Epwarp R. Korman, 4

Attorney. e

SEPTEMBER 1974. :

S$. GOVERNMENT PRINTING OFFICE. 1976 3

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.