Petitioners Brief — Serfass v. United States

e:

BUPREME OOURT, sim : ZIBED

No. 73-1424

Gu the Supreme Court of the Wnited States

OCTOBER dei 1973

UNITED STATES OF AMERICA

v.

DAVID EMERY SERFASS, PETITIONER

PETITIOMERS BRIEF

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

HARRY A. DOWER, Esquire

BOYD G. HIXSON, Esquire

BARRY N. MOSEBACH, Esquire

First Valley Bank Building

Center Square \

Allentown, Pa. 18101

Attorneys for Petitioner

THOMAS FOLEY, Jr., Esquire

The Connell Building

Scranton, Pa.

of Counsel

~oee

Opinions below .................26...

Jurisdiction ......... 0.00.0. eee

Question presented ..........0..00004.

Statutes and rulesinvolved ...............

Statement .......2.20..0...02000200005.

Summary of argument ..................

Argument ............ 000004 eee eeeae

Conclusion ............. 00000222 eee

CITATIONS

Cases:

Bartkus vy. Illinois, 359 U.S. 121, (1959)

Fong Foo y. United States, 369 U.S. 14 ,

C19G2). 6 ceca ete beeen cvenees

Green y. United States, 355 U.S. 184, (1957). .

Illinois v. Somerville, 410 U.S. 458, (1973)

Mulloy v. United States, 398 U.S. 410, (1970).

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

United States yv. Brewster, 408 U.S. 501,

Page

Swmon r--

Pa

-

6, 7/10, 21

12

8

(1972) 2. cc cc wc cee te eens 9.14

United States v. Brown, 481 F. 2d 1035 (8th

OM POTS) cece eens een ewneeaeas 18,19

United States v. Covington, 395 U.S. 57.

(1969) ..... ce ec ee ee ee hee ee 19

United States v. Fargas, 267 F. Supp. 452

(S.D.N.Y.1967) ............3 6... 13,14, 19, 20,

21

United States v. Findley, 439 F. 2d 970 (Ist

Oi, FATE on rays oboe eee eRe bas

United States v. Goldstein, 479 F. 2d 1061 (2d

Oy AUIS) eh eee sew eee ses

United States v. Grochowski, 454 F.2d 655 . .

United States vy. Hill, 473 F. 2d 759 (9th Cir..

W972) . tt et cw ee eee

9,10. 12, 14,

2]

7,14, 15. 16,

17, +8, 21

RRP KATES

: 7 Page

United States v. Jenkins, 490 F. 2d 68 (2nd

Cir., 1973) 2.2... 0.2... 2..22..0202.. 7

United Staies v. Jorn, 400 U.S. 470 (1971)... 2i

United States v. Knox, 396 U.S. 77 (1969)... 19

: United States v. Martin Linen Supply Com-

F pany, 485 F. 2d 1143 (Sth Cir., 1973) .... 18

__-United States vy. McCreery, 473 F. 2d 1381

: UE ) a 16, 17,18

United States v. Oppenheimer, 242 U.S. 85

} WIQIG). cee pec ae ae ays sesesscses! 16

: United States v. Pecora, 484 F. 2d 1289, 1293

CLSTS): wie ac ee wee ee os ewe eee 10, 13, 14, 15

United States v. Ponto, 454 F. 2d 647 (7th

CM U9) co es ye ew os eee as 10, 16,17, 18

United States v. Rothfelder, 474 F. 2d 606

(6th Cir., 1973) .. 2.2.02 ...02....0.2.. 13

United States v. Serfass, No. 15229 Cr. M.D.

PO SUI TG. TITS bcc eee ke waenas 8, 18,19

United States v. Sisson, 399 U.S. 267, (1970) . 6, 8, 9, 10,

11,17, 19,21

United States v. Southern Railway Company,

485 F. 2d 309 (4th Cir., 1973) .. 2.2.2... 10,11, 13

United States v. Velazquez, 490 F. 2d (2nd

eee bf 0) Tr ee 7,8, 9, 10, .

22

United States v. Walker, 489 F. 2d 1353 (7th

CM APIS) cee ei eess seers es hese es 17

United States v. Ziskowski, 465 F. 2d 480 (3rd

Oi, WOIZ) 24 66k obs bao ees hoe eeis 21

: Statutes & Regulations:

Luaited States Constitution, Fifth Amendment . Z

18 USC. 83731 2. nce emi na nns estes 2, 4, 6, 14,

1S

28 U.S.C. §1254(1)

See SIOZ AY 5 eg oe eases 12

Il

50 U.S.C.A. 462(a) ow

Federal Rules of Criminal Procedure, Rule 2 . .

Federal Rules of Criminal Procedure, Rule 12 .

Legislative History:

Amendment to the Criminal Appeals Act, S.

REP. No. 91-1296, 91st Cong. 2nd Sess.

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PDR AD ete SRC OR

Gu the Supreme Court of the Gnited States

OCTOBER TERM, 1973

No. 73-1424

DAVID EMERY SERFASS, PETITIONER

V.

UNITED STATES OF AMERICA -

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The Opinion of the Court of Appeals (A. C) is reported at

492 F. 2d 388. The Opinion of the District Court (A. A) is

unreported.

JURISDICTION

The Judgment of the Court of Appeals was entered on

February 20, 1974. The Petition pale of Certiorari was

docketed on March 22, 1974, and was granted on April 22,

1974 (A.M). The jurisdiction of this Court rests upon 28 U.S.C.

1254(1).

QUESTION PRESENTED

Does an Appeal by the Government from the pre-trial dismis-

sal of an indictment based on a full review of the Government’s

evidence put the defendant in double jeopardy?

(1)

STATUTES AND RULES INVOLVED

United States Constitution, Fifth Amendment provision:

.nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;.. .”;

and

18 U.S.C. 3731 provides in pertinent part:

“In a criminal case an appeal by the United States

shali lie to a Court of Appeals from a decision, judg-

ment, or order of a District Court dismissing an indict-

ment or information as to any one or more counts,

except that no appeal shall lie where the double jeop-

ardy clause of the United States Constitution prohibits

its further prosecution. .

“The provisions of this Section shall be liberally

construed to effectuate its purposes.”

STATEMENT

Petitioner had been ordered to report for induction into the

Armed Forces of the United States on December 18, 1970. The

induction was to have taken place on January 18, 1971.

David E. Serfass was a member of the Peace Corps and was

serving on Panape, a remote Pacific island. Among other things

he was engaged in training a native as a superintendent of

construction to build, repair, and maintain, an air-strip and a

road on this small island. His military service had been deferred

for two years while he was performing this service in the

interest of the United States. Shortly before the conclusion of

his two years of service in the Peace Corps he was requested to

stay in Panape a few more months to complete the training of

_-the native superintendent. He agreed to stay and notified his

‘ D> ‘rd of this change. He was ordered to take his pre-

- induc vsical examination at an United States Army instal-

lation in Guam, and as a consequence of events over which he

had no control, and a substantial amount of bureaucratic red-

_ tape, and no available transportation, he could not get to Gram.

~He was then ordered by his Draft Board to report for trans-

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portation for induction at the Salvation Army headquarters in

Allentown, Pennsylvania; he was required to be there at 5:00

A.M. on December 18, 1970. He did everything but swim from

Panape and arrived in Allentown at 2:00 A.M., and three hours

later stood in line at the Salvation Army waiting to board a bus

to go to the induction center in Wilkes-Barre, Pennsylvania. He

went to the induction center but was found to be afflicted with

amoebic dysentery, was sent home, and was rescheduled to be

inducted on January 18, 1971.

On December 29, 1970 your Petitioner requested a special

form for conscientious objectors (Form SSS—150). (Selective

Service File, pages 74, 75.) His Local Board, Local Board No.

89, of Pennsylvania, then received the completed Form 150

from the Petitioner, who requested a courtesy interview on

January 11, 1971, and received such on January 13, 1971.

(Selective Service File, pages 77, 78-97.) The Local Board

* considered his entire file at a meeting on January 13, 1971 and

on January 14, 1971, Petitioner was informed that the Board

unanimously agreed “‘that there was no change over which the

{Petitioner} had no control.” On this basis, the Board decided

not to reopen his file. (Selective Service File, page 103.) The

Petitioner then refused induction at the examining station in

Wilkes-Barre, Pennsylvania, on January 18, 1971. (Selective

Service File, 118.) Petitioner was thereafter indicted on October

10, 1972, the indictment being for a violation of 50 U.S.C.

App. 462(a). At the arraignment, Petitioner pleaded ‘“‘Not

Guilty” and a trial date was set. A Motion to Dismiss the

Indictment was filed, (A. D) along with a supporting affidavit

(A. E). The Briefs of the Government and your Petitioner were

submitted and an argument on the Motion to Dismiss was held

before Judge Michael Sheridan, Chief Judge, United States

District Court for the Middle District of Pennsylvania, at which

time there was also an oral stipulation of counsel, relating to the

fact that Petitioner had made out a prima facie case for

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conscientious objector status. Shortly. thereafter, and before

decision, the entire Selective Service File of the Petitioner, at

the request of Judge Sheridan and mutual consent of Serfass

and the Government, was submitted to the Judge (A. J&K).

In an Opinion filed July 16, 1973, Judge Sheridan granted

the Petitioner’s Motion to Dismiss the Indictment. (A. L) The

Court, noting that the material facts had been derived from

Petitioner’s Affidavit in Support of the Motion to Dismiss, the

entire Selective Service File, and from Admissions of Counsel

during the oral argument on the question, held that the state-

ment of reasons given by the Draft Board was sufficiently

ambiguous. to be reasonably construed as a rejection on the

merits which would prejudice your Petitioner’s right to in-ser-

vice review and, therefore, granted the Motion to Dismiss.

The United States filed a timely Motion of Appeal to the

Third Circuit Court of Appeals seeking a review of the District

Court’s Order dismissing the Indictment. The Government in its

Brief stated that jurisdiction was based on 18 U.S.C. 3731, as

well as arguing on the merits. Petitioner’s Brief contended that

the Order of the District Court dismissing the indictment was

not an appealable order and that the Circuit Court of Appeals,

therefore, did not have jurisdiction to hear the Appeal as the

Petitioner would then be put twice in jeopardy. (The main

thrust of the argument in both cases was on the merits.) The

Gourt of Appeals held, after dispensing with oral argument, that

jeopardy had not yet attached and, therefore, dismissal of the

indictment in the instant case was an appealable order, and

went On to decide the merits of the Government’s Appeal,

reversing the decision of the lower court and remanding to the

District Court for trial. (A. C)

SUMMARY OF ARGUMENT

Petitioner argues that the Government does not have the

_ right to appeal under the Criminal Appeals Act, 18 U.S.C. 3731

for the reason that he is put in double jeopardy by virtue of

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that appeal. It is contended specifically that appeal by the

‘United States is barred by prior jeopardy when the District

Court grants a pre-trial Motion to Dismiss, relying on facts

outside the indictment, these facts being derived from the

defendart’s affidavit in-support of his motion, his entire Selec-

tive Service File, and from a Stipulation of Counsel at Oral

Argument on the Motion to Dismiss, such Order by the District

Court being the functional equivalent of an acquittal on the

merits.

In support of this position, Petitioner argyes that the double

jeopardy provision of the United States Constitution should not

be applied with the use of mere technicalities. Specifically, it is

argued that although the general principle as to whether or not

jeopardy has attached revolves around the question as to

whether or not jury trial has either been waived and the court

has begun to hear evidence or the jury has been impaneled and

sworn, this is only a presumption. Petitioner further argues that

because of the fact that the dismissal of the indictment was the

functional equivalent of an acquittal on the merits, that con-

structively, jeopardy had attached.

This position is made particularly forceful in light of the fact

that the Court considered all the evidence that the Government

had to present. It is argued that because of this, it would be

exalting form over substance to allow an appeal in a situation

where a second prosecution would be clearly barred. In this

vein, it is clear that the Government did not have to enter into a

stipulation nor did it even have to assent to a hearing on the

Motion to Dismiss. It is suggested that both Petitioner and the

Government were concerned with the elimination of unjustifi-

able expense and delay in accordance with the Federal Rules of

Criminal Procedure. In this light, the determination was

evidently made by the Government that since all the facts were

present upon which a resolution of the matter depended, it

would aid both parties to have the matter heard and disposed of

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at a hearing of the Motion to Dismiss.

Justice would dictate that in a case where the Government’s

evidence has been thoroughly reviewed by the District Court

and what is the functional equivalent of a judgment of acquittal

has been entered, Petitioner should not be subject to any

further actions against him, even in the form of an appeal by

the Government.

ARGUMENT

This case raises very important issues on the meaning of the

double jeopardy clause of the United States Constitution and

the statutory construction of the recently amended Criminal

Appeals Act, 18 U.S.C. Section 3731. The construction of this

statutory section, as applied by the Third Circuit Court of

Appeals in this Case, has put the Defendant, Petitioner, twice in

jeopardy in violation of the clear import of the statute itself and

the United States Constitution.

It appears that the amendment to the Criminal Appeals Act

undef consideration was prompted by problems of appealability

encountered by the Department of Justice. (Amendments to

the Criminal Appeals Act, S. Rep. No. 91-1296, 91st Cong., 2d

Sess.) Petitioner also recognizes that the action taken by the

Congress was also prompted by the decision of the Supreme

Court in United States v. Sisson, 399 U.S. 267,90 S. Ct. 2117,

26 L. Ed. 2d 608 (1970). Justice Harlan, writing for the Court,

had indicated in his Opinion that the statute as it existed at that

time left much to be desired as far as its applicability to the

present procedural categories of the Federal Rules of Criminal

Procedure, as its roots were grounded in pleading distinctions

that existed at common law. It is clear, however, that even given

the reasons for the amendment of the statute, this does not

obviate the necessity for looking at each case as it arises on its

own factual background. The Supreme Court has admonished

against the use of technicalities in interpreting the double jeop-

ardy provision of the United States Constitution. See /Ilinois v.

Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066

(1973).

The principle enumerated in the Fifth Amendment of the

Constitution under consideration is truly an ancient concept in

the civilized world. Bartkus v. Illinois, 359 U.S. 121, 151

(1959). (Black J. dissenting.) In fact, it has becn traced back to

the time of Demosthenes, 355 B.C., when he stated that,

“The laws forbid the same man to be tried twice on

the same issue, be it a civil action, a scrutiny, a con-

tested claim, or anything else of the sort.’ | Demos-

thenes 589 (Vance trans. 1962). Cited in US. v.

Jenkins, 490 F. 2d 68, 70 (2nd Cir., 1973).

This ancient concept is not always easy to apply but its basic |

reasoning is centered around the proposition that,

“The State, with all its resources and power should

not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him

to embarrassment, expense and ordeal, compelling him

to live in a continuing state of anxiety and insecurity, as

well as enhancing the possibility that even though

innocent he may be found guilty.” Green v. U.S., 355

U.S. 184, 187-188, 78 S. Ct. 221, 2, L. Ed. 2d 199

(1957).

With these concepts in mind, other courts have stated that even

though the general principle as to whether or not jeopardy has

attached revolved around the question as to whether or not jury

trial has either been waived and the Court has begun to hear

evidence or the jury has been impaneled and sworn, this is only

a strong presumption, which it is argued, should be rebuttable.

See U.S. v. Velazquez, 490 F. 2d 29 (2nd Cir., 1973). See also

U.S. v. Pecora, 484 F. 2d 1289, 1293, (3rd Cir., 1973) where in

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

Court stated that the District Court in Hill, supra, determined

the character of evidence entered into the record and concluded

that, therefore, jeopardy had attached. The critical question

then to be determined is really a policy determination in any

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given situation, that is,

“Whether the Government’s action...reached the

point where the Government’s power to retrace its steps

is checked by countervailing interests of the individual

protected by the double jeopardy clause of the Fifth

Amendment.” Velazquez, supra, at 1096.

In the case at hand, it is important to review the facts at this

point which would specifically relate to the question presented.

First, it is important to note that by virtue of the presentation

of the Defendant’s affidavit in support of his Motion to Dismiss,

then later his entire Selective Service File,,and from the Stipula-

tion of Counsel, none of the facts upon which the resolution of

the Motion depended was in dispute. Second, Briefs were sub-

mitted and a confrontation between the parties in the form of

oral argument took place. With this situation, the District Judge

determined that,

“Although Defendant has not waived his right to trial

by jury a defense based upon an alleged procedural

defect in the Selective Service classification process is to

be determined by the Court.” Fed. R. Crim. P.

12(b)(4).”” United States of America vy. David Emery

Serfass, No. 15229 Cr., July 16, 1973. (A. A)

The first argument of Petitioner centers around the proposi-

tion set forth in United States vy. Sisson, 399 U.S. 267, 289,

290, 26 L. Ed. 2d 608, 90 S. Ct. 2117 (1970), that

“Quite apart from the statute, [in this case the

Supreme Court was referring to the old 18 U.S.C. 3731]

it is, of course, well settled that an acquittal can ‘not be

reviewed on error or otherwise, without putting [the

Defendant] twice in jeopardy, and thereby violating the

Constitution. ...[I]n this country a verdict of acquit-

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

subsequent prosecution for the same offence,’ ”. Citing

United States v. Ball, 163 U.S. 662, 671, 41 L. Ed. 300,

16S. Ct. 1192 (1896).

The question then becomes whether the decision of Judge

Sheridan, although labeled a Dismissal of the Indictment was

the functional equivalent of an acquittal on the merits. First of

ali, it would be necessary to find that the trial court had, in

fact, reached beyond the face of the indictment, gathering

“evidentiary facts outside of the indictment, which facts would

constitute a defense on the merits at trial.”’. United States v.

Brewster, 408 U.S. 501, 506, 33 L. Ed. 2d 507, 514, 92S. Ct.

2531 (1972). It is unequivocally clear that the Judge reached

beyond the face of the indictment in that he considered the

Defendant’s affidavit in support of his Motion to Dismiss, the

entire Selective Service File, which was ordered by the Judge to

be sent to the Court (A. J), and the Admission of Counsel

which in Velazquez, supra, at 1098, is cited as being equivalent

to a showing of evidentiary facts outside of the indictment,

such Admission relating to the fact that the information which

had been submitted by Petitioner to his Local Selective Service

board had, in fact, established a prima facie claim for conscien-

tious objector status based upon a late crystallization. The

question then remaining would be whether or not these facts,

clearly beyond the face of the indictment, would in fact con-

stitute a defense on the merits at trial. That the position of

Petitioner as presented to the Judge at the District Court level

would have constituted a defense on the merits at trial is ,

beyond question. The District Judge did, in fact, find under the

law existent at the time, that such facts did constitute a valid

defense and, therefore, granted the Motion to Dismiss.

It is also important to note at this point that the label given

to the decision or order of the District Court is not controlling,

United States v. Sisson, supra, at 288. Although the District

Court labeled its decision on the Petitioner’s Motion to Dismiss

as an Order Dismissing the Indictment, it is clear that, in effect,

the Dismissal operated as an acquittal on the merits. The First

Circuit has expressed this viewpoint in the case of United States

v. Findley, 439 F. 2d 970 (Ist Cir., 1971). Ina substantially

similar fact situation, that court held that,

“If a dismissal is a result of the showing of eviden-

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tiary facts, dehors the indictment, which, if established

at a trial would constitute a defense on the merits, the

Court’s ruling, however described,... is, in effect, an

acquittal .. .”’ Findley, supra, at 972.

This reasoning was also set forth in United States v. Ponto, 454

F. 2d 647 (7th Cir., 1971), and in the companion case of

United States v. Grochowski, 454 F. 2d 655 (7th Cir., 1971).

Assuming the order was, in effect, an acquittal, the next

matter to be considered would obviously be whether one could

say that as a result of that fact, that jeopardy had attached. It is

recognized that the general rule with reference to when jeop-

ardy attaches is that ,

“{i]n a jury case, jeopardy attaches when a jury has

been impaneled and sworn; in a non-jury case, jeopardy

attaches after the court has begun to hear evidence.”

United States v. Pecora, 484 F. 2d 1289, 1293 (3rd Cir.,

1973).

As was stated in Velazquez, supra, at 1095, however,

“(ijt is not wholly dispositive of the claim raised...

to state that since the jury was neither waived nor

impaneled, jeopardary could not have attached,

although this gives rise to a strong presumption.” :

This is clearly the implication in Sissun, as well, where the

statement is made that an acquittal could not be reviewed

without putting the defendant twice in jeopardy. Sisson, supra,

at 289, 290. It is to be noted as well that the Supreme Court

has warned against applying mechanical tests with reference to

the question as to whether or not jeopardy has attached. Somer-

vilie, supra. The fact that the swearing in of a jury or waiver of

the right of jury trial is only a presumption as to when jeopardy

attaches is also made clear by the holdings of many of the

Circuit. Courts of Appeal which have dealt with this issue. The

United States Court of Appeals, Fourth Circuit, has recognized

this precept in the case of United States v. Southern Railway

Company, 485 F. 2d 309 (4th Cir., 1973). In that case, the

Southern Railway Company was charged with having willfully

failed to observe strictly its published tariffs in violation of the

Elkins Act, 49 U.S.C. §41(1). The basic charge of the Govern-

ment centered around the alleged fact that Southern Railway

had not required General Tire to attach manifests or execute

certifications with respect to eight shipments of sponge rubber

carpet purchased by General Tire and Rubber Company.

Southern filed a Motion to Dismiss the Indictment and the

District Court heard oral argument on that Motion at which

time -Southern filed an amended Motion to Dismiss. over the

objection of the Government. The amended Motion made the

claim that the required manifests were, in fact, contained in the

shipping orders attached to the shipments. The District Court

then received, without objection, the shipping orders which had

accompanied the shipments and copies of the applicable tariff.

The court also heard oral argument at this time and each party

was allowed to present its claims to the Court. The Court held,

after reviewing the evidence and at the conclusion of argument,

that the shipping orders constituted a manifest and, therefore.

granted the defendant’s Motion to Dismiss. The Government

appealed the holding of the District Court, taking exception to

the finding that the shipping orders complied with the manifest

requirement of the tariff. Southern made the contention that

the decision of the District Court was in actuality, an acquittal

on the merits. and, therefore, to allow it to be tried after

dismissal would constitute double jeopardy. The Court went on

to state that it felt that the proper determination to be made by

the Court of Appeals should be,

“Whether the District Court’s determination of the

prosecution was actually an acquittal on the merits of

the case.” Southern Railway, supra, at 312. :

The court went on to conclude that if the District Court's

determination was found to be an acquittal. then no appeal

could be taken by the Government because of the fact that

jeopardy would have attached. Citing Sisson, supra, at 289-290.

The Court reasoned that the District Court had held a full

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hearing and allowed Southern to file exhibits to support its

Motion to Dismiss. It then noted that the issue which was

presented to the District Court was, for all practical purposes,

the only issue to be tried. Upon this analysis, the court con- .

cluded that the dismissal was, in reality, a Judgment of

Acquittal on the merits and, therefore, jeopardy had attached

and the Government was precluded from appealing.

There is no question but that the facts in Petitioner’s case are

substantially similar to those in the case of Southern Railway.

In both of the cases, the decision of the District Court was

made on the basis of not only the Motion to Dismiss and the

affidavit attached thereto, but also on the facts which were

presented in addition to them. In the case at bar, the District

Judge undoubtedly placed great emphasis on the Stipulation of

Counsel (that Serfass had established a prima facie case for

conscientious objector classification) made in court during the

hearing on the Motion to Dismiss. This Stipulation was of great

import as is evidenced by Footnote No. | in Findley, supra, at

972, where the Court there commented upon the question of

the relevancy of establishing a prima facie case aspect regarding

conscientious objector classification. The District Judge had

determined that the question was not relevant but the Court of

Appeals, citing Mulloy v. United States, 398 U.S. 410, 416, 90

S. ct. 1766, 26 L. Ed. 2d 362 (1970) states:

“We must, accordingly, take it that in the Court’s

view it w3s immaterial whether the form was defective

or insufficient on its face. Whatever the ultimate resolu-

tion of the present dispute as to the duty of the Bo..rd

to specify its reasoning in refusing to reopen, if the

defendant did not even have openers [Here the court is

clearly referring to the question as to whether or not the

defendant had made out a prima facie case.] we clearly

wonder how or why he should get into the play.”

After citing Mulloy, the Court also then referred to 32 C.F.R.

§1625.2 which is the Federal Regulation dealing with ihe

obligation of the Local Board to reopen if the registrant makes

13

out a prima facie, and then states that, “there is no obligation .

on the board if he does not.”” Again, the fact that this Stipula-

tion had been entered into in the case at hand cannot be

emphasized enough. It clearly is one of the things which

Petitioner would have been required to prove in order for the

draft board to have been under any kind of obligation to hear

his claim at all. This stipulation clearly obviated any necessity

for a later factual determination and was clearly needed in order

for the District Judge to make a determination on the Motion

to Dismiss at this point in the proceedings. See United States v.

Fargas, 267 Fed. Supp. 452 (S.D.N.Y. 1967). This Stipulation

was substantially similar to the one in which the District Court

in Southern Railway, supra, received “without objection”

(emphasis added) evidence that shipping orders had accom-

panied the shipments to General Tire, as well as copies of the

tariff. In addition, in both Southern Railway and the case at

hand, each side to the controversy was given the opportunity

to argue its case.

The clear import of the case indicates that where there is an

acquittal, jeopardy attaches and thé United States is precluded

from appealing. Other case law points in the same direction. In

United States v. Rothfelder, 474 F. 2d 606, (6th Cir., 1973) the

rationale is the same for finding the Government could not

appeal, in a substantially similar case involving the Selective

Service Laws, where the Court held that no appeal was available

to the Government from a Judgment of Acquittal. The District

Court in this case had granted the Defendant’s Pre-Trial Motion

to Dismiss the Indictment and based its finding on facts con-

tained in the defendant’s Selective Service File. For this reason,

the Court found that the judgment, although characterized as

the granting of a Motion to Dismiss, in effect was an acquittal.

The Third Circuit Court of Appeals in deciding the’ case at

bar with reference to the jurisdictional question relied on its

- decision in Pecora, supra, at 1289. Pecora was indicted tor

allegedly having violated §302(b) of the Labor Management

SORE ESSA ot Der Pet

Relations Act, 1947, which made it an offense for an employee

representative to receive from an employer, “any payment,

loan, or delivery or any money or other thing of value.”” 29

U.S.C. §186. The parties entered into a Stipulation of Facts

upon which the indictment was based. This Stipulation was

appended to Pecora’s Motion to Dismiss the Indictment. The

District Court decided that on the basis of this Stipulation of

Facts upon which the indictment was based that there was no

violation of the statute and, therefore, dismissed the indict-

ment. The Government appealed the decision and the Court was

faced initially with a determination as to whether or not §3731

prohibited appeai by the Government. In deciding that the

Court did have jurisdiction to entertain the appeal, the court

was faced with the dicta of the Supreme Court in Brewster,

supra, at 506, noting that an appeal would not lie from a

decision resting upon extraneous facts based upon a stipulated

fact, or showing of other evidentiary facts outside the indict-

ment, “which facts would constitute a defense on the merits at

trial. ..”’. It was noted that the decision in Brewster was based

upon an appeal under the old §3731 and also noted was the

Supreme Court’s citing of Findley, supra. With reference to the

Findley decision, it was noted that the court specifically found

that the defendant had not been formally placed in jeopardy

and, therefore, concluded that the holding in Brewster, supra,

was based not on jeopardy provisions but rather on the basis of

the old §3731. Petitioner agrees that formal or technical jeop-

ardy had not attached but it is submitted that constructively

jeopardy had attached.

ese

Julccics cto beitendiies aaa Sa: —

The Third Circuit in Pecora, supra, at 1293, also attempts to

distinguish the decision in United States v. Hill 473 F. 2d 759

(9th Cir., 1972). It distinguished Hill on two grounds. First, it is

noted that the Court in Hill, supra, did not make any deter-

mination as to whether or not the defendant had waived his

right to jury trial. (See A. P, however where there is no notation

in the docket entries in the District Court to indicate that any

15

party had waived jury trial.) The Court in Pecora itself rec-

ognized in its second distinction that the general principle with

reference to the attachment of jeopardy being measured on

whether or not jury trial has been waived or not is not fully

determinative of the issue. The second distinguishing feature

between Pecora and Hill, the Court noted was that evidence was

actually entered into the record in the Hill case. “The District

Court determined the character of that evidence so it may be

said that jeopardy had attached.”’ (emphasis added), Pecora,

supra, at 1293.

It is important at this point to look at the decision in Hill.

Hill was a case in which the Government sought Writs of

Mandamus directing the District Judge to vacate an Order

dismissing the indictments in the case of United States y.

Linetsky, et al., No. 7145, and United States of America vy.

Carlo, et al., No. 7142, Central District of California. The

defendants had been charged with violations of 18 U.S.C.

§ 1461, in that they knowingly deposited obscene advertise-

ments in the United States mail. The parties entered into a

Stipulation to the effect that the materials that appeared in the

same were, in fact, copies of the materials upon which the

indictment was based. The Defendants made a Motion to

Dismiss the indictment pursuant to Rule 12, F. R. Crim. P.

Hearings were held on the Motion and the defendants were

allowed to introduce into evidence the Stipulated materials and

certain other materials. The District Judge then made the deter-

mination that the materials which formed the basis of the

indictments were, as a matter of law, not obscene and, there-

fore, dismissed the indictments. The Government anpealed

under 18 U.S.C. §3731. Here the Court reasoned that jeopardy

had attached and, therefore, refused to hear the issue on the

merits. The Court reasoned that since the District Court had

considered evidence going to the general issue in the case, the

finding, although characterized as a granting of a Motion to

Dismiss, was, in effect, a holding that the defendants were not

ye —

16

guilty. Hill, supra, at 761. In arriving at its decision, the Court

cited the case of United States v. Oppenheimer, 242 U.S. 85, 37

S. Ct. 68, 61 L. Ed. 161 (1916), in order to buttress its holding

that the designation of the court’s ruling as granting a Motion to

Dismiss is not conclusive of whether or not it was, in effect, a

trial. The case is also cited for the proposition that an adjudica-

tion on the merits is final. Hill, supra, at 761, 762. Special note

should be made of the fact that the Court of Appeals believed

that the District Judge “did not think that he was holding a

trial; he believed that jeopardy had not attached.”, Hill, supra, at

762. The Court goes on, however, to find that jeopardy had, in

fact, attached as the Judge had decided the general issue and

that in substance, though not in form, an acquittal had been

granted.

The particularly relevant aspect of your Petitioner’s case in

light of the decision in Hill is that to the extent that the Third

Circuit Court of Appeals attempts to distinguish the holding in

Hill from its holding in Petitioner’s case, it is clearly erroneous.

As has been set forth above, it is very clear that the prior case

law substantiates the fact that although Petitioner was not

technically in jeopardy, the policy considerations behind the

double jeopardy provisions in the Constitution would be clearly

violated by allowing the Government to appeal in this situation.

It is clear that as in Hill, supra, evidence here was actually

entered into the record and it is clear also from the holding of

the District Court that the entire Selective Service File, all of

the Government’s case, was considered.

It is clear, also, that the case of United States v. McCreery,

473 F. 2d 1381 (1973) which embraced the constitutional,

double jeopardy theory espoused in United States v. Ponto, 454

F. 2d 657 (1971), would be applicable to the case at hand and

would preclude an appeal by the Government. The reasoning in

Ponto, supra, at 663 was that since the order dismissing the

indictment in that case was based upon a determination on the

merits, it was, in essence, an acquittal to which jeopardy had

17

attached. To the extent that the opinion of the concurring

judges differs from the constitutional analysis as set forth in

Ponto it is erroneous. It is submitted that to argue that although

the decision in Petitioner’s case by anyone’s standards, would

clearly bar a second prosecution, to hold that an appeal would

be allowed, would be putting form over substance, a dangerous

concept when dealing with basic constitutional rights. Hill,

supra, at 763.

It is instructive at this point to note that there have been two

recent cases which have had to deal with the problem of

appealability in light of the other recent decisions cited above.

In the case of United States v. Walker, 489 F. 2d 1353, (7th

Cir., 1973), the Court distinguished from Walker’s case the

rulings in Ponto, Growchowski, Gustavson, and McCreery,

supra. The distinguishing factor noted was that,

‘*“'* each of the dismissals sustained the merits of an

affirmative defense. In the case before us, however. the

Government’s Stipulation is a particularization of the

general allegation in the indictment. By revealing the

facts, it is prepared to prove, the Government has, in

effect, narrowed the charge in the indictment.”’ Walker,

supra, at 1355. 1356.

Also in the case of United States v. Goldstein, 479 F. 2d 1061,

(2nd Cir., 1973), the appellees attempted to rely upon the

decision in Hill, supra. The Court, in distinguishing Hil! stated as

follows:

“Hill involved indictments charging the sending of

obscene advertisements through the mail. Defendant’s

Motion to Dismiss the Indictments was granted on the

ground that the advertisements were not obscene as a

matter of law. In finding reprosecution prohibited by

the double jeopardy guarantee, the Court noted that the

Judge had received evidence limited to a necessary

element of the offense; the dismissal thus decided the

general issue of guilt and was the equivalent of a

directed acquittal.””’ See United States v. Sisson, supra,

399 US. at 290 n. 19 90 S. Ct. 2117; United States v.

#

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18

Ponto, 454 F. 2d 657, 663-664 (7th Cir., 1971) (en

banc).

“Judge Weinstein’s dismissal, by contrast, in no sense

turned on the general issue of guilt or required the

taking of evidence remotely related to any element of

the crime.”

It is very clear that both of these cases acknowledge the general

proposition that although technical jeopardy may not have

attached, what we might refer to as “constructive” jeopardy,

may attach in circumstances like the cases of Hill, McCreery

and, it is submitted, Serfass.

With reference to the holdings of the two circuits which

might be considered to be adverse to your Petitioner’s position,

it is argued that they are clearly distinguishable from your

Petitioner’s case. The case of United States v. Martin Linen

Supply Company, 485 F. 2d 1143, (Sth Cir., 1973) is distin-

guishable on the ground that there was a finding that the

District Judge had not commenced a hearing of the evidence.

Without a doubt, at least under the rationale of Hill, supra, at

761, it cannot be argued that the District Judge in this case had

not heard the Government’s evidence. In fact, it is argued that

by virtue of the Judge’s having the whole Selective Service File

to consider and by virtue of the fact that the Government had

agreed that Petitioner had made out a prima facie case, all of

the evidence that the Government had to present against

Petitioner was, in fact, before the Judge and was considered in

the decision. The case of United States v. Brown, 481 F. 2d

1035, (8th Cir., 1973) is also distinguishable from the case

confronting your Court at present. It is clearly indicated by the

Court of Appeals, Eighth Circuit, that in the Brown case the full

evidence was not before the court. The Court found in Brown

that factual issues had not been decided and that the only thing

decided by the lower court was a decision not to accept the

defendant’s pleas of guilty. In Petitioner’s case, it is clear, as set

forth above, that factual questions which weré intertwined with

19

the general issue were clearly set forth and the Judge made his

determination on the basis of those facts.

The facts of the Brown case lead to another point which

must be raised with reference to the question presented. In

Brown, supra, special emphasis is placed upon the fact that the

Government was unwilling to consent to the submission to the

case to the Court on stipulation, Brown, supra, at 1038. It

certainly would have been possible for the Government to do so

and it is argued that if this had been done, the United States

Court of Appeals, Eighth Circuit, might well haveecome up with

a different decision. At any rate, it is clear that the District

Judge in Petitioner’s case was aware of the impact of the

stipulation entered into by the Government and his considera-

tion of Petitioner’s whole Selective Service File. The Judge

notes that the Motion to Dismiss the Indictment based upon the

contention that Petitioner had been denied due process of law

as a result of the Local Board’s having inadequately set forth its

reasons for denying Petitioner’s post-induction order request to

reopen his classification was a defense which would”be properly

raised by motion before trial. United States v. Serfass, No.

15229 Cr., (A. A) The statement is concluded by the recitation

that this would be especially so, ‘‘since none of the facts upon

which its resolution depends is in dispute’’. Serfass, supra, at (A.

A [emphasis added] ). In citing authorities for his position, the

Judge referred to portions of a number of cases which dealt

with the authority of the Judge to rule on the dismissal motion.

See United States v. Sisson, 1970, 399°U.S. 267, 301-02 & n.

55, 56; United States v. Knox, 1969, 396 U.S. 77, 83 & n. 7;

United States v. Covington, 1969, 395 U.S. 57, 60-61; United

States v. Fargas, 8.D.N.Y. 1967, 267 F. Supp. 462, 455-57. The

case of United States v. Fargas, supra, is especially instructive.

In that case the defendant, indicted under 50 App. U.S.C. § 462

for failure to submit to induction into the Armed Forces,

moved to dismiss the indictment. In suppart of this dismissal

-

—_

ee ee ee

20

motion, the defendant submitted an affidavit citing relevant

facts from his Selective Service File. The defendant made the

argument that the facts as recited in this affidavit constituted a

complete defense to the charge made. The District Court,

noting that it could in its discretion order that a motion be

deferred for determination at trial of the general issue, Rule

12(b)(4}, F. R. Cr. P., denied the request to dismiss the indict-

ment at that stage in the proceedings. The Court’s rationale was

based upon the belief that the defense as raised by Fargas could

not be determined from the papers before the Court at that

time. Fargas, as was Petitioner, was what is referred to as a late

crystallizer, and was basing his dismissal motion on the same

grounds as your Petitioner. The Court, in noting that it was

faced with too few facts in order to determine the question, and

also noting that those factual questions, were, “‘closely related

to and intermingled with the issue which must be decided at a

trial on the merits”, Fargas, supra, at 457, decided that the

motion was not ripe for determination at that time and, there-

fore, declined to dismiss the indictment. In light of the fact that

the District Judge in the case at bar has cited Fargas, supra, it is

the inescapable conclusion that the Judge had determined that a

postponement of the determination of the motion to the time

of trial was unnecessary, as the Government had stipulated the

one relevant factual question which might have been necessary

to be made at trial and, in addition, had considered Petitioner’s

entire Selective Service File, which was all the evidence that the

Government had against Petitioner. (It should be noted that in

refusal to submit to induction cases everything is entered in a

registrant’s file so that the Government need only prove the file

and thus provesa prima facie case; thus it can safely be stated

that the Government’s entire case was before the District

Judge.) In light of this, the inescapable conclusion again is that

Petitioner’s case was decided on the merits and as such,

although labeled as an order dismissing the indictment,

functionally was an acquittal to which jeopardy attaches.

PAM ALC IE LORE RE OTE YT 68 RT BA LARA AE

21

Except for the facts which shouted from Petitioner’s Selec-

tive Service File, which compelled the Government in good

faith to stipulate that Petitioner had made out a prima facie

case for conscientious objector status, there was no necessity

for the Government to agree to this. It was clearly a factual

matter which the Court would have had to determine at trial in

order for the holdings in United States v. Ziskowski, 465 F. 2d

480, (3rd Cir., 1972) and other similar cases even to have

applied to the question presented before the District Court. If

the facts were not there the Government was certainly free to

oppose the Motion to Dismiss on the basis that it contested the

fact that Petitioner had made out a prima facie case as a

conscientious objector. Also, to the extent that the District

Judge’s analysis of his authority to entertain the Motion at that

time was improper a suggestion Petitioner strongly doubts,

Petitioner should certainly not have to bear the burden of being

subjected to another “go-around” with the Government as a

result of that. See Hill, supra, at 762. ,

A final argument centers around the oft-mentioned caveat

regarding the fact that the question as tc whether or not

jeopardy attaches is not to be decided by a mechanical test.

Illinois v. Somerville, 410 U.S. 458, (1973); United States vy.

Jorn, 400 U.S. 470 (1971); United States v. Sisson, 399 US.

267, (1970). It is unmistakably clear that had either the court

ordered that it could not determine the Motion to Dismiss at

that time and directed that the parties proceed to trial, see

Fargas, supra, or had Petitioner proceeded to have a jury im-

paneled and sworn, technical jeopardy would have attached. See

Findley, supra, at 974. It is important to note that the

announced purpose of the Federal Rules of Criminal Procedure,

Rule 2, is as follows:

“These rules are intended to provide for the just

determination of every criminal proceeding (emphasis

added). They shall ba construed to secure simplicity in

procedure, fairness in administration and the elimina-

SODRY

een ER RPE AVS Meas

22

tion of unjustifiable expense and delay.’’ (emphasis

added. )

It is suggested that the Criminal Appeals Act and the Federal

Rules of Criminal Procedure ought to work together; at least to

the extent that if what is in effect an acquittal is entered, as in

this case, on a Motion to Dismiss an Indictment before a jury

has been impaneled and that dismissal is based upon stipulated

facts and all the evidence which the Government had to present,

jeopardy should be held to have attached and an Appeal snould

be barred.

There is some concern as was expressed in the majority

opinion in Velazquez, supra, at 1100, that the power should not

be given to a trial judge at this stage in the proceedings to

forever bar further prosecution of a criminal defendant. But the

dissent in Velazquez, supra, at 1113, amply points out that the

Judge, in fact, has that power now either to dismiss the indict-

ment on undisputed facts after the trial has commenced or by

the directing of an acquittal at the close of the Government’s

case. This is, of course, amply pointed out by the decision of

the Supreme Court in Fong Foo v. United States, 369 U.S. 141,

7 L. Ed. 2d 629, 82 S. Ct. 671 (1962). In that case the Judge

directed the jury to return verdicts of acquittal on the basis that

Government witnesses were, up to that point, incredible, and on

the alleged improper conduct on the part of the Assistant

United States Attorney prosecuting the case. The Supreme

Court held that the judgment of acquittal, even though bascd

upon “an egregiously erroneous foundation,” was final and

therefore could not be reviewed without putting the petitioners

twice in jeopardy in violation of the United States Constitution.

Surely justice would dictate that in a case where the Govern-

ment’s evidence has been thoroughly reviewed by the District

Court and, what is in effect, a judgment of acquittal has been

entered for Petitioner, that justice would dictate that he should

not be subject to any further actions against him, even in the

form of an appeal, by the Government.

¢

BOR PRN PUR LARGE AER AE AP lt AE IES ee OE iD ROTI Lis SN tir age!

23

4

:

SPREE —

CONCLUSION

Petitioner (the Defendant) was twice put in jeopardy and

therefore the judgment of the Court of Appeals regarding the

finding that it had jurisdiction should be reversed and the Order

of the District Court Dismissing the Indictment should there-

fore be reinstated. .

Respectfully submitted,

. HARRY A. DOWER,

BOYD G. HIXxsON, -

BARRY N. MOSEBACH,

(Attorneys for Petitioner)

JUNE, 1974.

ay , 5c OG ese