Respondents Brief — United States v. Jenkins

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'N THE

| Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-1513

UNITED STATES OF AMERICA,

Petitioner,

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“a gent

RONALD S. JENKINS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

f CUNRS ET At tens eet

BRIEF FOR RESPONDENT

JAMES S. CARROLL, Esq. }

126 West 119th Street ,

New York, New York 10026 t

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Attorney for Responden:

Washington, 0.C. ¢ CLB PUBLISHERS’ « LAW PRINTING CO. « (202) 393-0625

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-1513

UNITED STATES OF AMERICA,

Petitioner,

*%

RONALD S. JENKINS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT

STATEMENT OF FACTS

1. This case was commenced with the return of an

indictment on December 21, 1971 charging Ronald

Stephen Jenkins with knowingly failing and neglecting

to perform a duty réquired of him under the Selective

Service Act and Regulations (Title 50 U.S.C., App.

§462(a)) by» knowingly and failing to submit — to

inducting into the armed forces of the United States,

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after notice had been given to the defendant by Local

Board No. 50 exercising jurisdiction in that behalf

requiring the defendant to report for induction on the

24th day of February, 1971. (Indictment No. 71 CR

‘ 1315 of the Eastern District of New York).

On January 13, 1972, Mr. Jenkins was arraigned

before Honorable Edward Neaher. 45 days were

requested for all pre-trial motions after Mr. Jenkins

pleaded not guilty. No pre-trial motions were ever filed

in this case and on May 23, 1972, the Government filed

its Notice of Readiness for Trial. (App. p. 1)

The trial date was adjourned several times and on

July 8, 1972, several papers concerning the upcoming

trial were filed. In addition to the motion for

judgment of acquittal, a motion concerning the voir

dire of the prospective jurors, requests to charge the

jury and a trial memorandum of law were filed. (App. 1

and 4). On July 14, 1972, the Government filed

opposition papers to the defendant’s voir dire and a

trial memorandum of law. (App. 2)

On September 22, 1972, a motion for an order to

substitute the prosecutor vas filed returnable for

September 25, 1972 (App. p.1). On September 25,

1972, the U.S. Attorney was substituted on the grounds

that the former U.S. Attorney Thomas Maher would be

a witness for the Government (App. p. 1.) On October

3, 1972, the case proceeded to trial with Paul Warburgh

representing the Government. In open Court, Mr.

Jenkins and his attorney stipulated to the waiving of a

jury trial and after a detailed catechism Honorable

Anthony Travia permitted Mr. Jenkins to waive jury

trial and proceed to trial before the Court without a

jury. (App. p. | and pp. 5-9).

(i) '

TABLE OF CONTENTS | 3

Page :

STATEMENT OF FACTS ........................ 1 .

ARGUMENT: :

THE COURT BELOW WAS CORRECT IN :

ITS DETERMINATION THAT IT DID NOT :

HAVE JURISDICTION TO HEAR AND :

DETERMINE THE APPEAL FROM THE

LOWER COURT’S JUDGMENT UNDER

TITLE 18, U.S.C., SECTION 3731 AND

THE DOUBLE JEOPARDY CLAUSE OF

THE FIFTH AMENDMENT ....-............. 9

CONCLUSION ................................ 37

TABLE OF AUTHORITIES

Cases:

Ball v. U.S., 140 U.S. 118 (1890) ................... 24

Ehlert v. U.S., 402°U.S. 99 (1971) ................ 7,13

Ex Parte United States, 242 US.27 ................. 29

Ex Parte United States, 287 US. 241 ................ 29

Fong Foo v. U.S., 369 U.S. 141 (1962)... . 9,28, 29, 30, 31, 34

Illinois v. Somerville, 410 U.S. 458 C973). co Sacer cewunna 29

Kepner v. U.S., 193 U.S. 100 (1904) ... 9,11, 20, 26,27, 28, 34

McCarthy v. Zerbst, 85 F.2d 640 (10th Circ. 1936) ...... 10

Troner v. US., 199 U.S.521 2.2.2... eee 33 ‘

United States v. Ball, 163 U.S. 662 (1896) .......... Passim ;

U.S. v. Brewster, 408 U.S. 501 (1972) ............ 9,14, 15

US. v. Findley, 439 F.2d 970 (First. Cir. 1971) ......... 17

U.S. v. Geary, 368 F.2d 144 (2nd Cir. 1966) ........... 13 :

US. v. Hill, 473 F.2d 759 (9th Cir. 1972) ...... 9,10, 14, 16

(ii)

Page

US. v. Jenkins, 490 F.2d 868 (1973) .............. 10, 30

USS. v. Jorn, 400 U.S. 470 (1971) .. 2.2.2... eee ee eee 29

US. v. McFadden, 462 F.2d 484 (Ninth Cir. 1972) ...... 17

US. v. Mercado, 478 F.2d 1108 (2nd Cir. 1973) ......... 21

USS. v. Ponto, 454 F.2d 657 (7th Cir. 1971) ......... 17,18

USS. v. Rothfelder, 474 F.2d 606 (Sixth Cir. 1973) ...... 17

US. v. Russell, 411 U.S. 423) 2.2.2.2... 22. e eee eee 35

US. v. Sisson. 399 U.S. 267 (1970) .......------. passim

U.S. v. Weller, 401 U.S. 254 (1971) «2.2... eee ee ee ees 14

US. v. Weller, 466 F.2d 1279 (9th Cir. 1972) ....... 14,17

Vaux’s Case, 4 Rep. 44 2... 0... ce wee eee eee 24, 26

Other Authorities:

United States Constitution, Fifth Amendment ........ passim

Criminal Appeals Act, 18 U.S.C., §3731 .........--. passim

Presidential Proclamation, 4313, September 16,

1974 (Weekly Compilation of Presidential Docu-

ments, Vol. 10, no. 38) 2... ee ee ee ee ees 23

Selective Service Rules and Regulations, 32 C.F.R.,

he ee 23

Title 18 U.S.C., § 3731 (1964 ed. Supp. U) . 8,9, 10,15, 17,32

Title 50 U.S.C., App., §462 ........... 2 eee ees 1,473,92

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The Government called two witnesses Elaine Morris,

the executive secretary of Selective Service Local Board

50 and Thomas Maher, Assistant U.S. Attorney in the

Eastern District of New York, who was formerly Chief

of the Legal Division of the New York City

Headquarters of the Selective Service System (App.

p. 80; pp. 10-45). Mrs. Morris’ testimony formed the

basis of the Findings of Fact of Judge Travia (App.

B42a).!

However, it is clear that Mrs. Morris testified on

certain points from her personal knowledge of the facts

of the case as well as reciting facts outlined in the file.

(App. p. 228).

Thomas Maher testified that at the time immediately

prior and directly after Mr. Jenkins’ induction date he

"The “Findings of Fact” were a: 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 classification 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 preinduction

physical at the Armed Forces Examination and Entrance Station,

and was found to be medically qualified for induction.

5. On February 4, 1971, the Local Board mailed to defendant

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

February 24, 1971.

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was the Chief of the Legal Division of Selective Service

Headquarters in New York City and that as part of his

official duties he had the occasion to become involved

in the case concerning Ronald Jenkins (App. p. 38).

The Local Board contacted his office in connection

with the Jenkins case on February 23, 1971, the day

before Mr. Jenkins’ induction date, and Mr. Maher gave

instructions to the Local Board not-to postpone Mr.

Jenkins induction date because it appeared on its face

that Mr. Jenkins was opposed to a particular war. (App.

pp. 40-43 especially). Thereafter, after Mr. Jenkins had

not reported for induction on February 24, 1°71 and

after Mr. Maher had discussed Mr. Jenkins’ case with

Mr. Jenkins’ attorney, the Selective Service file was

called into Selective Service Headquarters and the

decision was made to return the file to the local board

with instructions to refer the case to the U.S. Attorney

for prosecution. (App. p. 44). Mr. Maher testified from

his personal recollection of the facts with occasional

reference to the Selective Service file (App. p. 40,

testimony of Thomas Maher).

6. 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 because his 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.

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At the close of Mr. Maher’s testimony, the

Government rested and the case was recessed for lunch.

Directly prior to lunch, the following’ colloquy took

place:

THE COURT: We will go out to lunch and come

back.

MR. CARROLL: Fine. I just want to State at this

time I made a motion for judgement of acquittal,

but I would like to reserve that until the close of

my case.

THE COURT: First thing after lunch I was going

to ask you if you had any motions. So you can

repeat that then. (App. p. 46).

After the lunch break, after the Government was

granted leave to reopen its case briefly, for the purpose

of introducing an exhibit into evidence, the following

colloquy took place:

THE COURT: Your turn, Mr. Carroll. Do you

want to make any motions now at the close of the

prosecution?

MR. CARROLL: No, I would like to reserve my

right to make motions.

THE COURT: Defendant reserves all rights for all

motions ordinarly [sic] made at the close of the

prosecutions’s [sic] case and you may proceed with

your defense.

The defense put on three witnesses—Ronald Jenkins,

the defendant; Jerome Bibuld, Mr. Jenkins’ draft

counselor; and Mrs. Phyllis Bates, Mr. Jenkins’ mother.

Prior to Mr. Jenkins’ testimony there was discussion off

the record as to the possibility of a disposition before

the defense put on its case (App. p. 48).. However, Mr.

Jenkins insisted on going forward and trying the case

(App. pp. 48-49).

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Mr. Jenkins’ testified that after he received the

induction order in February 1971, he spoke to a draft

counselor,-Mr. Jerome Bibuld, and after speaking to

him about conscientious objection for some time, he

realized that he could not submit to induction, into the

armed forces, because he was opposed to war (App.

pp. 51-52). Thereafter, Mr. Jenkins requested a post-

ponement of his induction. Although the postponement

of induction was denied on February 23, 1971, Mr.

Jenkins was given a C.O. Form 150 which he completed

and returned. (App. p. 50). During the direct exami-

nation of Mr. Jenkins the Court intervened frequently

to determine whether Mr. Jenkins’ testimony was

credible or not (App. pp. 49-62). .

The next prospective witness was Jerome Bibuld, Mr.

Jenkins’ draft counselor. Mr. Bibuld’s testimony,

however, was never elicited, since the Government

requested an offer of proof which was proffered by

defense counsel and the offer of proof was denied by

the Court.? (App. pp. 70-75). -

Mrs. Bates the registrant’s mother testified to facts

relating to Mr. Jenkins’ claim that his medical

exemption was improperly denied and the defense

rested directly thereafter. After. the close of the

defendant’s case both sides rested and the court

The Government suggests in its brief at page 15 that “there

has been no showing that he in fact was aware of or relied upon

the case law...’ Respondent never suggested such an excuse,

although both he and his ‘counselor testified at the trial.” This is

belied, however, by the fact that Mr. Jenkins’ counselor did not

testify at the trial although he was called as a witness and that

the court precluded the line of questioning which would have

shown that Mr. Jenkins was aware of the case law in the Second

Circuit at the time and that he was relying upon this law).

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reserved decision and gave both sides the opportunity

to submit Findings of Fact and Conclusions of Law.

On October 24, 1972, the Court filed its Findings of

Fact and Conclusions of Law (See App. 2; App. B, pp.

42a-52a; and supra). At the conclusion of the

discussion, the Court stated that: “The indictment in

this case is dismissed and the defendant is discharged.”

The lower court warned, however, that:

“in closing this court must emphasize that its

decision with respect to the defendant must not be

overread. In this case, Jenkins would be clearly

prejudiced by any attempt to apply, retroactively,

the Supreme Court’s decision in Ehlert. This Court

cannot permit the criminal prosecution of the

defendant under these circumstances without

seriously eroding fundamental and basic equitable

principles of law. This is not to say, however, that

under other circumstances a retroactive reading of

Ehlert would not be warranted. (App. B. p. 52).

After exploring other cases from other circuits

dealing with the applicability of Ehlert, the court had

previously stated in its discussion, in finding that they

were not controlling that:

“Accordingly, those defendants would not be

prejudiced, as the defendant Jenkins would be by

a retroactive application of Ehlert; when they

refused induction, they had not been apprised of

the fact, through the interpretation of § 1625.2 in

that circuit, that they would have to be heard by

the Board on their claims.

The appeal to the Court of Appeals was commenced

on November 21, 1972 with the filing of a Notice of

Appeal by the Government. After argument by counsel,

the Court of Appeals dismissed the appeal stating that:

Sea 88 7

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“Although the district judge here characterized his

action as a dismissal, it is clear from the analysis in

Sisson that for double jeopardy purposes he

acquitted the defendant. His ruling was based on

facts developed at trial, whic:: were not apparent

on the face of 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’s

court’s opinion makes it clear that it was relying

on the precise circumstances of Jenkins’ case to

conclude that the Supreme Court’s decision in

Ehlert should not be applied retroactively to him.

The district court was not construing the statute,

which had been authoritatively interpreted in

Ehlert and holding that Jenkins did not come

within it as a matter of law. It was holding that

the statute should not be applied to him as a

matter of fact.”

2. This petition was filed by the Government on April

8, 1974, and was granted on May 28, 1974 along with

the petition in United States v. Wilson. No. 73-1393

and the two cases were set down for argument in

tandem. Respondent contends that under Title 18,

U.S.C., § 3731 the lower court did not have jurisdiction

to hear and determine the appeal from the district

court’s judgment.

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ARGUMENT

THE COURT BELOW WAS CORRECT IN

ITS DETERMINATION THAT IT DID NOT

HAVE JURISDICTION TO HEAR AND

DETERMINE THE APPEAL FROM THE

LOWER COURT’S JUDGMENT UNDER

TITLE 18 U.S.C., SECTION 3731 AND THE

DOUBLE. JEOPARDY CLAUSE OF THE

FIFTH AMENDMENT.

This case ‘presents no novel thesis ‘to be determined

by the court. In fact, except for the torture of the facts

to which the Government has subjected this case, the

essential legal issues have been determined time and

time again by this court and by lower courts. United

States v. Ball, 163 U.£. 662 (1896);' Kepner vy. United

States, 195 U.S. 10% (1904); Fong Foo vy. United

States 369 U.S. 141 (1962); United States y. Sisson,

399 U.S. 267 (1970); United States v. Brewster, 408

U.S. 501 (1972); United States v. Hill, 473 F.2d 759

(Ninth Circ. 1972). The Criminal Appeals Act, Title 18

U.S.C. section 3731 and the Double Jeopardy Clause of

the Fifth Amendment of the United States Constitution

forbid the Government from appealing from the district

court judgment in the instant case.

Title 18 U.S.C., section 3731 reads that:

“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

courts, except that no appeal shall lie where the

double jeopardy clause of the United States

Constitution prohibits further prosecution. . .The

provisions of this section shall be liberally

construed to effectuate its purposes.” |

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In Title 18, USC, section 3731, it appears that

Congress intended to extend the Government’s right to

appeal in criminal cases as far as it constitutionally

could. United States v. Jenkins; 490 F.2d 868 (1973)

(See Government’s Appendix A-5a); Report of the

Senate: Committee on the Judiciary, 91st Congress, 2nd

Session, No. 91-1296 at 9-13; Whether or not. the

Double Jeopardy Clause is coterminous: with section

3731, the appeal in this case is barred by the Double

Jeopardy clause and derivatively by Section 3731.

The general rule as to when a defendant has been put

in jeopardy is technical but settled. In United States vy.

Hill, 473 F.2d 759 (Ninth Circ. 1972) quoting from

‘AcCarthy v. Zerbst, 85 F.2d 640 (10th Cir. 1936), the

‘ court states at page 761:

“The general rule is that a person is not in

jeopardy until he has been arraigned on a valid

indictment or information has pleaded and a jury

has been impaneled and sworn; and where a case is

triedl [sic] to a court without a jury, jeopardy

begins after accused has been indicted and arraigned,

has pleaded and the court has begun to hear

evidence”

There is no doubt that jeopardy’ attached in. Jenkins’

case. He was indicted by a validly constituted Grand

Jury and the indictment was valid on its face; he

knowingly waived his right to trial by jury and

proceeded to trial before the court (See Appendix 5-9

and Statement of Facts, supra); witnesses were sworn

and testified and the trial proceeded to final judgment

without inte

It is well settle at a verdict of acquittal

cannot be reviewed by an appellate federal court

without violating the Fifth Amendment. United States

v. Sisson, supra; United States y. Ball, supra. This is

true whether the case is tried before the court and a

jury or the court acting as a fact finder. Kepner y.

United States, supra. Those cases dispose of the issue at

bar and your respondent would feel content to rest

after having cited them except that the Government has

called the continuing validity of these cases into issue

and their applicability to the instant case. Before

discussing the cases, however, the Government estab-

lishes its thesis.

The Government does not call into questions the

principle that a factual determination on the merits

which acquits the defendant, whether made by judge or

jury, insulates the defendant from further proceedings.

The Government, however, questions whether, if a

judge acquits a defendant on purely legal grounds

whether such an acquittal bars further review when a

retrial is not required (Petitioner's Brief, p. 10). The

Government contends that its thesis invokes no novel

doctrine. (Petitioner’s Brief, p. 10). However, it should

not go without notice that the zetitioner does not cite

a single case to support its 2s Cposition.

THE TRUE DISTINCTION BETWEEN FIND-

INGS OF FACT AND RULING ON THE

LAW.

The petitioner points out first in support of its thesis

that th: district judge made a purely legal ruling and

that the facts were not in dispute. Therefore, al! that is

necessary is for this Court to correct the district court’s

“erroneous” application of the law to the facts. There

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12

are several problems with this position not the least of

ich is whether a truly workable distinction can be

made between a decision on the facts and one on the

law.

There is no doubt, for example, that‘ the district

court considered the individual facts and circumstances

of Jenkins’ case and was not making a ruling that the

indictment was insufficient on its face as a matter of

law. Thus, as stated by the court of appeals the district

judge’s

“ruling was based on facts developed at trial which

were not apparent on the face of the indictment,

and which went to the general issue of the case’’.

A fact finder frequently makes rulings on the

applicability of facts to law. A jury being charged by

the court on the law with regards to the self defense

will make a determination as to whether the facts

support such a defense. Such a determination by a jury

would be reflected in a general verdict of guilty or not

guilty. This verdict, however, would not be articulated

in open court regardless of whether it was based upon

an erroneous interpretation of the law or not. As such,

it would be unassailable and could not be reviewed in

any subsequent proceeding. United States v. Ball, supra.

It is not illogical for it to be any different when the

fact finder is the court and not a jury. The court acting

as fact finder does not have the luxury of being mute

as to the rationale of how the law fits the facts found.

The court must submit findings of fact and conclusions

of law. However, the ultimate determination made after

discussion as in this case, is whether the particular

defendant is guilty or not guilty of the offense charged.

SAF LRA PIPL IIS TF ITD LE TIE WH LOE SY

14

stated, when they refused induction they had not been

apprised of the fact, through the interpretation of

§ 1625.2 in that circuit, that they would have to be heard

by the Board on their claims. App. B. p. 50A. One must

remember that Jenkins at the time of his failure to

submit to induction was represented by an attorney and

had previously consulted with a draft counselor. It would

not be outside of the facts for the district judge to

consider this in determining whether Jenkins had

knowledge of the law of the Second Circuit on February

24, 1971. This is in fact exactly what the district court

did. (App. B. p. 50a). This assessment of Jenkins’

knowledge or intent in not taking the symbolic one step

forward is completely contrary to the petitioner’s

assertion that the result did not turn on credibility or

demeanor. (Petitioner’s Brief; P. 12).

Another problem with Petitioner’s position, though,

is that the distinction between an acquittal on the facts

and a pure ruling on the law has not been previously

articulated by the Court. United States v. Sisson, supra;

United States v. Weller, 401 U.S. 254 (1971) on

remand 466 F.2d 1279 (9th Cir. 1972); US. ».

Brewster, supra. The foregoing cases stand for the

proposition that a reviewing court does not have

jurisdiction under 18 U.S.C. section 3731 when a

dismissal is based on evidence adduced at trial and not

on factual conclusions found in the face of the

indictment. When the general questions of guilt or

innocence to the charge are put in issue and the trial

judge dismisses the indictment, a subsequent appeal by

the Government violates the double jeopardy clause.

U.S. v. Hill, 473 F.2d 759 (9th Cir. 1972).

ALR Ba Ry

corte ° a OMS TARY paatadceeaes:

pages MSE RI ROMAN STE NS ONS RN II. AW ea ITED PS Ree ON ERS TAR

15

In United States v. Brewster, supra, the interpretation

of former section 3731 was in issue.*? The district court

on a. pre-trial motion had dismissed the indictment

against the former United States Senator defendant on

the ground that the Speech or Debate Clause of the

Constitution shielded him from prosecution for alleged

bribery to perform a legislative act. The Government

took a direct appeal to this court under former section

3731. Although the Court allowed the appeal, it stated

the rule under United States v. Sisson, supra (See

-discusison infra) to be that:

“‘an appeal does not lie from a decision that rests,

not upon the sufficiency of the indictment alone

but upon extraneous facts. If an indictment is

dismissed as a result of a stipulated fact or the

showing of evidentiary facts outside the indictment

which facts would constitute a defense on the

merits at trial, no appeal is available”

408 U.S. at p. 506.

It is unclear whether the decision in Brewster was

based upon §3731 as it then read or on the double

jeopardy clause itself. Its reliance upon Sisson and

AMON TIMI IA ARIE A IAMS ASE A PNET NEE OER PL ID eT ee aN EE re ae ae BRASS! aie

3Title 18 U.S.C. §3731 (1964 ed. Supp. U) provided in

pertinent part: “An appeal may be taken by and on behalf of

the United States from the district courts direct to the Supreme

Court of the United States in all criminal cases in the following

instances:

“From a decision or judgment setting aside, or dismissing

any indictment or information or any count thereof where

such decision or judgment is based upon the invalidity or

construction of the statute upon which the indictment or

information is formed.

“From the decision or judgment sustaining a motion in A

bar, when the defendant has not been put in jeopardy’’).

Tenn Wi ERs St ree ee a Re ON at nr Sakae ea Bee tenes), /

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particularly the quoted phrase in Sisson seems to

suggest otherwise. (See discussion of Sisson infra).

Other cases from the various circuits make it clear that

the distinction between an acquittal on the facts and a

pure ruling on the law has not been treated as

significant.

In United States v. Hill, supra, for example, the Ninth

Circuit Court of Appeals held tiat the double jeopardy

clause foreclosed review of the trial court’s dismissal of

an indictment prior to trial. After a pretrial hearing, the

trial court dismissed the indictment which had charged

the defendants with knowingly depositing obscene

advertisement in the mail. The dismissal was based on

the court’s determination that as a matter of law the

material was not obscene. The court of appeals, after

reviewing the general rule as to when jeopardy attached,

stated:

“Having considered the evidence, the court rules,

as a matter of law that the matter was not

obscene, The Court did not hold that the

indictments were defective. On their faces, they

were valid. What the Court held in substance, was

that the defendants before it were not guilty. 473

F.2d at p. 761.

In Hill, the court did not base its decision on an

attificial distinction between a decision on the facts and

a decision on the law. What was important to the court

and for double jeopardy purposes was that facts outside

of the indictment going to the general questions of guilt

or innocence of the charge were elicited at the hearing.

Also of importance are several cases from the various

circuits which deal with the appealability of district

court orders dismissing indictments in selective service

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17.

cases after consideration of facts contained in the

registrant’s file. The following decisions have held that

such a pretrial dismissal of an indictment is not

appealable. United States v. Ponto, 454. F.2d 657

(Seventh Circuit, 1971); United States v. Findley, 439

F.2d 970 (First Circ. 1971); U.S. »v. McFadden, 462

F.2d 484 (Ninth Cir. 1972); U.S. v. Weller, 466 F.2d

1279 (Ninth Circ. 1972); U.S. v. Rothfelder, 474 F.2d

606 (Sixth Cir. 1973).

In U.S. v. Ponto, supra, the Seventh Circuit Court of

Appeals convened in banc concluded that the Govern-

ment had no right to appeal from the pre-trial dismissal

of the indictment in two separate selective service cases.

The ruling was based both on §3731 and on the Soute

jeopardy clause.

After an extensive review of section 3731, since

amended, the court concluded:

““An objection to the local board’s classification of

a registrant can be raised as a defense to a

prosecution under 50 U.S.C. App. §462...The

motion in the instant case presented questions

concerning Ponto’s classification, which are raised

only by defense. The decision to dismiss by the

district judge was based on questions presented by

this defense. As such, it was a ruling on the merits

of the defense. ..

“Since the dismissal order was based on a

determination on the merits, it was an acquittal to

which jeopardy attached. ...Thus government

appeal from this ruling would violate the double

jeopardy clause of the Fifth Amendment since a

retrial on the charge would be prohibited. ...We

view this as an independent ground for holding

that the government may not appeal in this case

(Emphasis mine) 454 F.2d at p. 664.

‘

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SOTO RR ee “ 7 Fa EN POA Oe ES ETS fe eee ry

18.

There were three dissenting judges in the Ponto case.

They rested their opinions, however, on the fact that

jeopardy thad not attached since the trial had not

commenced. This of course is not the situation in the

present case.

In conclluding on this point, counsel reiterates that

the Petitioners position that the district judge had

made a purely legal ruling in dismissing the indictment

and that an appeal was therefore permissible is

untenable. Such a distinction is easy to articulate but

not viable; the district court judge went deeply into the

facts of tthe case and considered Ronald Jenkins’

intention and knowledge of the existing law in the

Second Circuit, in holding in Mr. Jenkins’ favor; the

district judge’s dismissal 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 guilt

or innocence and according to relevant authority such a

ruling cannot be reviewed by appeal or otherwise.

THE TURE CHARACTERIZATION OF THE

DISTRICT JUDGE’S RULING.

Judge Travia’s conclusion after extensive discussion

of Jenkins’ case was:

“The indictment in this case is dismissed and the

defendant is discharged.” Petitioner's App. B. p.

52A.

The characterization that the district court judge

gives to his action is only the beginning and not the

end of the inquiry as to what actually occurred. This is

the teaching of United States v. Sisson 399 U.S. 267

Ris SRT

bg iri ee ee

C=

as

19

(1970) in which the Court found that the district

judge’s characterization of his action as an arrest of

judgement was incorrect and that what had actually

occurred was that the district judge-had acquitted the

defendant. The court below agreed with this approach

and held that the district judge had acquitted Jenkins.

Apparently, the Government Goes not disagree with the

characterization of the court of appeals, but states that

whether the lower court’s action is a dismissal or an

acquittal is irrelevant for double jeopardy purposes.

(Government’s Brief, p. 13). The Petitioner analogizes

the action of the district judge as being of the same

character as an order arresting the judgment, a

judgment ordered on special jury findings or the

decision of the appellate court. (Government’s Brief, p.

14). With this, the government concedes too much.

In United States v. Sanges, 144 U.S. 310, it was held

that the Government could not appeal from a pretrial

dismissal of an indictment absent an enabling statute.

The Petitioner, conceding that the district judge’s action

was an acquittal, does not indicate under what

authority the Government is able to appeal from an

acquittal of the defendant. The Government cannot

have its cake and eat it too. Either the district judge’s

decision was a dismissal of the indictment with all of

the concomitant problems under United States vy.

Sisson, supra, or it was an acquittal from which no

appeal is allowed since there is no statute enabling the

Government to appeal from an acquittal.

In Sisson the Court explored whether the district

court judges action was actually an arrest of judgment.

The Court concluded that it was not an arrest of

judgment since a judgment can only be arrested on

PEN OI SLE LP NSA ANI ep

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20

the basis of error appearing on the face of the record

and not on the basis of proof offered at trial and that

. the court’s adverse decision was not for insufficiency of

the indictment. See Petitioner's Appendix A, p. 22a.

Clearly, the same considerations apply to the instant

case. According to Sisson and using the Criteria for

characterizing the judgment found in that case, the action

cf the district judge was not an arrest of judgment or a

dismissal of the indictment but an acquittal.

WHETHER A NEW TRIAL WOULD BE

REQUIRED IF THE CASE WERE

REVERSED.

The argument under this point is approached with

the same uneasiness that one might approach the

answer to the question “Are you still beating your

wife?” Thus, a yes Or no answer involves some

admission of wrongdoing. In- fact, whether a retrial

would be required on reversal or not is a misleading

question, since it is not relevant whether a retrial is

required or not for double jeopardy Purposes. As stated

in United States y. Ball, supra, a verdict of acquittal is

final and could not be reviewed on error or otherwise

without. putting an individual “twice in jeopardy and

thereby violating the Constitution”. Ball, supra at p.

671, Kepner vy. U.S., 195 U.S. 100 (1904),

J

*It certainly must be relevant to this inquiry, although not

dispositive, that at no time did counsel request the district court

to dismiss the indictment but was quite consistent in requesting

that the district judge acquit the defendant.

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Lig ROBE LE PRM ea LN DIP BANAL PG ACPI ARENT

21

If the Court is to determine that whether a retrial is

necessary or not is relevant for double jeopardy

purposes the respondent brings to light the following

~ considerations. The court below recognized that a

possible defense that could be raised on retrial is that

the registrant “reasonably relief in good faith on the

‘case law or upon the knowledge that local boards in

this circuit would consider a belated conscientious

objection claim.’”’ App. A, p. 28a, quoting from United

States v. Mercado, 478 F.2d 1108 at P. 1111 (2nd Cir.

1973). Respondent in no way waived this defense at

the lower court level as the Petitioner seems to suggest.

“In fact, at the trial the respondent called Jerome

Bibuld, Mr. Jenkins’ draft counselor as a witness. The

Government requested an offer of proof and when

counsel suggested that Mr. Bibuld would testify as to

his discussion with Mr. Jenkins with regards to his

conscientious objection claim, the court excluded the

witness’ testimony. The district court stated in support

of its decision:

“THE COURT: What do we need this testimony

for? Did they have the right to close off then and

not consider it? That to me is a question of law

here, not further proof.

MR. CARROLL: I object to that. I except to that.

THE COURT: I will deny the offer of proof if

that offer of proof is directed in that area of

adding testimony which would have, say, built up

his claim which had been by the Board denied to

be reviewed.

All right, that’s out. Denied”’

App. p. 74.

~

4

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\ 22

Thus, the testimony of the draft counselor who

would have testified as to Mr. Jenkins’ intent on and

would be redundant.

Prior to Mr. Bibuld’s taking the stand the registrant

had testified that he had spoken to Mr. Bibuld prior to

“Q. Could you Please tell us what transpired when

you saw Mr. Bibuld?

Prior to February 24, 1971.

The questions then as to whether a retria] would be

required upon reversal of this case is a non-sequitur.

ORY Mane 6 PEAS)

Wate | ae dle

23

be raised in defense to an indictment under 50 U.S.C.

App. section 462.5

THE THICKET THROUGH WHICH THE

COURT MUST WADE.

The Petitioner suggests that the thicket of cases

through which the court~ must wade to find that the

court of appeals had jurisdiction to hear the appeal in

the instant case is not so thick after all. Respondent

disagrees and contends that a fence or wall has been

constructed between the petitioner and its position by

the following cases: United States v. Ball, 163 U.S. 662

(1896).

In United States v. Ball, supra, two individuals by the

name of Ball and one individual by the name of

Boutwell were indicted for the murder of William T.

Box, in an indictment charging that the defendants

being white men and not Indians, on June 26, 1889 in

Pickens County, in the Chickasaw Nation in the Indian

Territory did unlawfully and with malice aforethought

shoot the contents of a gun in Box’s body and as a

result Box. died. The three defendants were arraigned

SThe issue of whether a retrial would be necessitated is

further complicated by the uncertainty arising under Presi-

dential Proclamation 4313. September 16, 1974 (Weekly

Compilation of Presidential Documents, vol.10, No. 38) This

Proclamation established a program for the return of Vietnam

Era Draft Evaders and military deserters. It has not yet been

determined what its effect will be on a defendant who has been

acquitted of violation of the Selective Servicé Act and

Regulations (Title 50 U.S.C. App. §462(a)) and whose case is on

appeal by the government, as in the instant case. '

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25

however, considered that such a position would be

unjust if followed in this country since it would allow |

the prosecutor to raise his own ineptitude in failing to

properly indict the defendant on an appeal. Ball, supra

at 668. After full consideration of the issue, the Court

stated that it was unabie to resist the conclusion that:

‘“*A general verdict of acquittal upon the issue of

not guilty to an indictment undertaking to charge

murder, and not objected tc before the verdict as

insufficient in that respect is a bar to a second

indictment for the same killing’. Ball, supra, at

p.669.

Further, the Court stated:

“Millard F. 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

judgement against the other defendants upon the

writ of error sued out by them only.” Ball, supra

at p.670.

Finally, in disposing of the issue and discharging

Millard F. Ball, the Court concluded:

““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 otherwise

without putting him twice in jeopardy and thereby

violating the Constitution. However, it may be in

England, in this country, a verdict of acquittal

although not followed by any judgement is a bar

to a subsequent prosecution for the same offence.

United States v. Sanges, 144 U.S. 310 and other

cases cited herein at Ball, supra at p. 671.

The Government characterizes this as mere dictum in

their brief. Petitioner’s Brief, p. 28. However, it is clear

AONE EEN

PTR

et et

26

that the Court was dealing with the issue of reversal of

Millard F. Ball’s acquittal by the appeal taken by his

two co-defendants. It is also clear that the Court

considered extensively the existing British Tule as

KEPNER V. UNITED STATES, 195 Us. 100

(1904)

barred review on appeal by the Government and that

this was true whether trial had been before the court or

jury and whether Philippine custom had been otherwise

or not.

The Court stated in pertinent Part that:

AP That Peta Paces

27

“The Court of first instance, having jurisdiction to

try the questions of 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 jeoparty [sic] for the same

offense if Congress used the terms as construed by

this court in passing upon their meaning. We have

no doubt that Congress must be held to have

intended to have used these words in the well

settled sense as declared and settled by the

decisions of this court”

Kepner, supra at p. 133.

In Kepner, the Court had under its consideration an

Act of Congress that prohibited a defendant from being

put twice in jeopardy for the same offense. Also, in

contradistinction to the statute was a military order

(No. 58 as amended by act of -the Philippine

Commission, No. 194 — See Kepner at p. 133) which

purported to give the Government the right to appeal

from acquittals. There was an extensive discussion of

Philippine custom which was based on Spanish Civil

Law in which jeopardy was continuous until the court

of iast resort had ruled. After this discussion, however,

the Court concluded that it was Congress’ intent to give

the Philippines the protection of our Bill of Rights

regardless of Philippine custom. Under our Bill of

Rights, the Court stated quoting from U.S. vy. Ball,

supra, an acquittal could not be reviewed by error or

otherwise, Kepner, supra at p. 131 quoting from U.S. v.

Ball, supra at p. 671.

Although the Government in their brief (Pet. Brief,

p. 30) stated that since Kepner involved the inter-

pretation of an Act of Congress and ‘not the

Constitution its interpretation cannot be binding on this

28

Court’s interpretation of the Fifth Amendment. This

might be true under other situations, but certainly not

Act of Congress.

“When Congress came to Pass the Act of July 1,

1902, it enacted almost in the language of the

President’s instructions, the Bill of Rights of our

Constitution. In view of the expressed declaration

of the President, followed by the action of

Congress, both adopting with little alteration, the

construing the instrument from which they were

taken?” ™

FONG FOO V. UNITED STATES, 369 US.

141 (1962)

In this case three government witnesses had already

testified and a fourth was in the middle of his

OWE RS SEA SNS aS RNR A IS

SAN a soto ERS

Be ere

29

testimony when the district judge stopped the proceed-

ings. Thus far, the situation is similar to one in which a

mistrial is declared in the middle of trial. If there is a

manifest necessity for the declaration of the mistrial, it

is settled that the defendant can be retried since he was

never in jeopardy. United States v. Jorn, 400 U.S. 470

(1971); Illinois v. Sommerville, 410 U.S. 458 (1973). In

Fong Foo, however, the district court judge did

something unusual. Instead of declaring a mistrial, he

stopped the trial and directed the jury to come in with

a verdict of acquittal. A formal judgment of acquittal

was subsequently entered. The record reveals that the

judge directed acquittal on two grounds: 1) the lack of

credibility of government witnesses; 2) the misconduct

of the prosecutor.

The Government filed a petition for writ of

mandamus to the Court of Appeals for the First

Circuit, praying that the judgment of acquittal be

vacated and the case reassigned for trial. The Court of

Appeals granted the petition upon the ground that

under the circumstances the court was without power

to take the action that it did.

This Court rejected the reasoning of the Court of

Appeals since the decisions that the court of appeals

relied upon (Ex Parte United States, 242 U.S. 27 and

Ex Parte United States, 287 U.S. 241) did not involve

the double jeopardy clause. The decision is short and

the respondent quotes it in large part:

“Neither of those decisions involved the guaranty

of the Fifth Amendment that no person shall be

subject for the same offense to be twice put in

jeopardy of life or limb’. That constitutional

MU KENT SiN dike aS A a es he ks aR ta Jone

Pf PETE ORY

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30

Provision is at the very root of the present case and

we cannot but conclude that the Suaranty was

“The petitioners were tried under a Valid indict-

ment in a federal court which had jurisdiction over

them and the subject matter...The Court of

Appeals thought, not without reason, that the

was final, and could not be reviewed... without

putting [the Petitioners] twice in jeopardy and

thereby violating the Constitution,’ ”.

Fong Foo at P. 631 citing US yp Ball, supra.

The Government distinguishes Fong Foo on the

grounds that it is not Our Case, if only because there ‘‘a

Government’s witnesses.

Fong Foo also ‘Teveals the weakness of the

Government’s Position with regards to the necessity or

lack of necessity for a retrial. The Government makes

31

much of the fact that the Fong Foo court stated that

the Fifth Amendment guarantee was violated when the

court of appeals set aside the judgment of acquittal and

_ directed that the petitioners be tried again. However, if

the court of appeals had held in favor of the defendants

originally, this court would have never had the occasion

to discuss whether a retrial would have been required or

not. The decision as to jurisdiction and the decision as

to the necessity or lack of necessity for a retrial are

two separate and distinct inquiries. The first is an

inquiry as to the power of the court to review the

matter at hand in the first place. The second decision as

to the necessity for a retrial is intrinsically linked with

a finding that jurisdiction exists and that the lower

court was in error. However, the second issue cannot be

reached without a determination on the first issue.

However, in determining the first issue, jurisdiction

clear and simple, it is not necessary to inquire into the

second. Since the two considerations are divorced from

one another, it unnecessarily confuses the issue to ask

this court to determine before reaching the issue of

jurisdiction whether the decision on the merits was

correct or not.

UNITED STATES V. SISSON, 399 U.S. 267

(1970)

Sisson was indicted in the District of Massachusetts

for wilfully failing to report for induction as ordered by

the local board. He moved to dismiss the indictment

prior to trial on several grounds all of which were

denied by the district court and the case proceeded to

trial before a judge and jury. The judge’s instructions to

PEELE MLM HIME BEIT NTE TA NO ELEY ICI, OE LEE BEES EI EM

PAI ARAT LOE YL ELMER STINE HINER ERE

32

_ the jury advised the jurors that the crux of the case was

whether the defendant’s refusal to submit to induction

Sisson because as a “sincerely conscientious man” his

interest in not killing in Vietnam outweighed “the

country’s present need for him to be sO employed’’.

Sisson had satisfied the judge during the course of his

based on the insufficiency of the indictment nor on the.

basis of error appealing on the face of the record.

Sisson at p. 28] and 287-288.

As stated at Page 288 of 399 U.S. at the

commencement of Part IIC of the opinion which had a

majority of the ~~

—.

sn

33

“The same reason underlying our conclusion that

this was not a decision arresting judgement — i.

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”.

Whether the judge’s constitutional theory was

erroneous or not wa$ irrelevant according to the ‘Court.

If a judge had given erroneous instructions to a jury .

similar to the district court’s decision to “arrest the

judgment, the jury’s verdict on such instructions could

not be disturbed. As such, the judge’s decision could

not be disturbed in this case without violating the

double jeopardy clause.

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

séttled that an acquittal can “not be reviewed, on

error or otherwise without putting [the defendant]

twice in jeopardy and thereby violating the

Constitution....In this country a_ verdict of

acquittal, although not followed by any judge-

ment, is a bar to a subsequent prosecution for the

same offence.

United States v. Ball, 163 U.S. 662 (1896)” Sisson

at pp. 290-291.

The Court’s decision in Sisson did not rest on the

fact that the judge could have sent the case to the jury

(as per the hypothetical situation) but rather on what

the district court did — “i.e. render a legal determina-

tion on the basis of facts adduced at trial relating to

the general issue of the case”. Sisson, supra at p. 301.

(In Green the Court was referring to Trono.v. United

States, 199 U.S. 521, a case decided a year after

HEAD SMR ENGI Y CPN

34

Kepner, which also involved an interpretation of the

statutory double jeopardy provision applicable in the

Philippines. )

Whether a new trial was requested or not in Sisson

as in the other cases discussed is completely irrelevant.

Since, however, the Government has made this an issue,

it can be stated that the Court had stated that Sisson

could not be retried after the dismissal for lack of

jurisdiction. Sisson, supra, at Pp. 290, footnote 18). The

Government in its Brief, indicated that a retrial was not

sought in Sisson by the Government. Yet, that is

exactly the situation in the instant case, but Sisson held

that there was no jurisdiction for the appeal in an

analogous situation where no new triai was sought. If

the fact that the Government was or was not seeking a

new trial was not considered relevant in Sisson, there is

no reason why it should be relevant consideration in

Jenkins.

In fact, Sisson is dispositive of the issue. The judge

made a legal determination on facts adduced at trial

going to the general issue of the case and no new trial

was requested by the Governniaaaes is Jenkins’ case

(although arguably if there is a €cision on the merits

and it is unfavorable, a new trial would be necessary).

As much as the petitioner may try, Sisson, Fong

Foo, Kepner, Ball and their progeny bar the appeal in

the instant case. The only other issue that need be

discussed is whether analogous situations point to the

conclusion that the Court of Appeals had jurisdiction in

this case. Many things may be said about analogies to a ©

Particular situation, but one thing is certain. Some may

be strong and others weak but they are all analogous

and by definition not directly on point.

ES RAO Rag PARAL ISSUED ROTEL DERE ELT CEE INE AEE ES OE

et —. .

SPREE ES, AR AAT 9 Wine GEOL OE ELE MELD AS 4 Sp BS eS BIN —

= A RR ON a ee D8 IRD AME RS ——

37

court rendered a final determination in his favor after

trial. To this date, Ronald Jenkins is not a completely -

free man while his. case is still pending. This two year

conforms with the notion of diligent

delay scarcely )

prosecution under section 3731 of Title 18 United

States Code. Such a delay only adds to the harassment

and turmoil that the double jeopardy clause was bound

to prevent and your respondent urges this as an

independent ground for this Court’s affirming the Court

of Appeals finding of lack of jurisdiction, App. A. P.

3a.

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AN

ha oor Ae de AGMN | CORRTMRR I Toe ewe

CONCLUSION E

\ ;

The judgment of the Court of Appeals should be

affirmed on the ground that section 3731 of Title 18,

U.S.C. and the Fifth Amendment Double Jeopardy

Clause prohibit an appeal, from the judgment of the

District Court.

And further the judgment of the Court of Appeals

should be affirmed on the ground that the appeal in the

ithi iustifiably delayed in

violation of the express provisions of Title 18 U.S.C.,

Section 3731.

Respectfully submitted,

JAMES S. CARROLL, III

126 West 119th Street

New York, New York 10026

Tel. No. [212] 663-4920

Attorney for Respondent

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35

ANALOGOUS AREAS SEEMINGLY IMPLI-

CATING THE DOUBLE JEOPARDY

CLAUSE.

No double jeopardy claim is advanced when a court

of appeals reverses a judgment of conviction of a

district court. Jeopardy does not attach for double

jeopardy purposes once an individual has, in a manner

of speaking, run the gauntlet and lost. Any subsequent

proceedings in such a case are simply that — subseqnent

proceedings. Therefore, rulings in such cases do not

truly involve the double jeopardy clause and are. not.

directly on point. United States v. Russell, 411 U.S.

423, is not directly in point for that reason although it

might be interesting to examine such cases as an

exercise in the logical operation of deduction without

one of the premises. |

The same rationale, your respondent is certain,

applies to district court orders in arrest of judgment.

Such orders are often appealable, but if the court made

a legal determination based on facts adduced at trial”

going to the general issue of the case the order would

not be appealable. United States v. Sisson, supra.

LOOKING AT THE ISSUE FROM THE

POINT OF VIEW OF THE FISH.

It has been related that a great American humorist

was once asked on a final examination paper to discuss

a fishing treaty between the United States and Canada

first from the point of the United States and then from

the point of view of Canada. He declined to ‘discuss it

from either point of view, deciding that it might be

ROR SSR —

36

more politic to discuss it from the point of view of the

fish. Certainly it seems absurd to discuss the issue of

fishing treaties from the fish’s point of view but to

discuss the double jeopardy clause from the point of

view of those accused of crime who have won at tzial is

not absurd at ail. | ;

Ronald Jenkins is not the United States of America,

after all. Although our Government in seeking justice

for all can pursue a citizen from the district court up to

the Supreme Court with no noticeable attrition, it

cannot be said that the individual can withstand such

an onslaught as readily as a government. If it is true as

the Court of Appeals in the instant case reports (App.

A.p.7a) that in the thirteenth century the bar against

multiple prosecutions assumed a rather grim urgency,

since after many trials by. battle only the hardiest

combatants would. survive, this is equally true ‘today.

The individual citizen is bound to come away from any

battle with the resources of his Government with life

long scars. If he is guilty of the offense, such scars are

not too much for him to bear for going afoul of his

fellow citizens. When, however, he is able to prove his

innocence before a judge or jury, there should come a

time when he ceases being an accused person and

becomes again an ordinary citizen. This time should be

after a final determination on the merits of the case

after trial in which both sides have the opportunity to

| Produce evidence in their behalf. This is all that the

respondent has been requesting.

On February 24, 1971, Ronald Jenkins was not

inducted into the armed forces of the United States. It .

is now the latter part of 1974, three and one half years

after his induction date and two years after the district