Brief for the Respondent in Opposition — Neal v. United States

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CITATIONS

Cases:

Adome Vv. Shirk; 117 Fed. S01... 2... .<...- eS als

Aetna Insurance Co. v. Kennedy, 301 U. S. 389____. Rees

Backun vy. United States, 112 F. (2d) 635. mate ag

Ballew v. United States, 160 U. S. 187...-.-.-.-.--------

ene eee, Oe B. -(ee) Oot st ers

Brady v. United States, 24 F. (2d) 399. -.----- aEagies

Caringella vy. United States, 78 F. (2d) 563_. pis :

Collenger v. United States, 50 F. (2d) 345, certiorari denied,

284 U.S. 654_- seatl bein balsd aan

Cornero v. United States, 48 F. (2d) 69 Bas aes: at

DeRees v. Costaguta, 275 Fed. 172, certiorari denied, 257

A CORN eee a natty ee asec ee ie ae alee wise

Duff v. United States, 185 Fed. ms: ackinl dain aaa

Ex parte Nielsen, 131 U.S. 176------- ae

Ex parte United States, 101 F. (2d) 870, aff’ d, United States

v. Stone, 308 U.S. 519_-- ----- j nay ee

Holmes v. United States, 275 Fed. 49. ‘goes conege Bae ride ss

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

Leslie v. United States, 43 F. (2d) 288__-_..._-..-------

Levin v. United States, 5 F. (2d) 598, certiorari denied, 269

te O68. aot ee ee oo ere es

Murphy v. Massachusetts, 177 Ms OF ROU k ees kwesk Thue

Palko v. Co ssninatietal, CE I Pas ete ea ke ee

Ridenour v. United States, 14 F. (2d) 888___-_-._--- a

Slocum v. New York Life Ins. Co., 228 U.S. 364__-._----

Steinman v. United States, 185 Fed. 47... ---------

Stroud v. United States, 251 U.S. 15--- ESA ee RS es

Drene-v. Unaed Gree; 100 U-8. 622.2 nc te ee

United States vy. Ball, 163 U.S. 662_- -.-__-

United States vy. Marrin, 159 Fed. 767, aff'd 167 Fed. 951,

certiorari denied, 223 U. 8. 719-_._..-- :

United States vy. Stern, 186 Fed. 854, aff’d 193 Fed. 888__

Statute:

Act of May 18, 1934, e. 304, 48 Stat 783, Sec. 2 (a) as

amended, (U. 8. C., Title 12, Sec. 588 (b)....._.---..-

qd)

282316—41——-1

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Inthe Supreme Gourt of the United States

OcToBER TERM, 1940

No. 582

WILLIAM Squire NEAL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Circuit Court of Appeals (R.

586-589) on petitioner’s second appeal has not yet

been reported.’

JURISDICTION

The judgment of the Cireuit Court of Appeals

was entered October 15, 1940 (R. 590). The peti-

1 The majority and dissenting opinions in the court below

on the petitioner's first appeal are reported in 102 F. (2d)

643 and are set forth in full in the Appendix to the peti-

tion for a writ of¢certiorari (Pet. 11-25).

(1)

2

tion for a writ of certiorari was filed November 19,

1940. The day after this petition was filed the pe-

titioner filed in the Cireuit Court of Appeals a

motion for leave to file a petition for rehearing,

accompanied by the petition (R. 592, 594-604).

The motion for leave to file the petition was

granted on December 3, 1940 (R. 593), and the pe-

tition was denied on the same day (R. 605). The

jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the

Act of February 13, 1925. See also Rule XI of the

Rules of Practice and Procedure in Criminal

Cases, promulgated by this Court May 7, 1934.

QUESTIONS PRESENTED 2

After his original conviction was reversed by the

Circuit Court of Appeals because of the insuf-

ficiency of the evidence in a certain respect and the

case remanded for a new trial, the petitioner, with-

out objection on his part, was retried and again

convicted, which second conviction was. affirmed by

the Circuit Court of Appeals. In a petition for re-

* The petitioner reserves, but does not argue, the conten-

tion that the evidence was insufficient to warrant submit-

ting the case to the jury because it showed at most the

receipt of stolen property rather than aid given to a felon

(Pet. 5). The Government, therefore, does not argue the

point. Attention is directed, however, to the facts set

forth in the opinion of the court below on the first appeal

(Pet. 16-17) and the holding of the court below on the

second appeal that “the evidence was clearly sufficient to

support a verdict of guilt” (R. 589).

3

hearing following that affirmance petitioner for the

first time challenged the action of the Circuit Court

of Appeals on his first appeal in directing that the

case be remanded for a new trial.

The question presented by the petition for a writ

of certiorari is whether the Circuit Court of Ap-

peals in reversing the judgment of conviction on

the first appeal was required to remand the case

with instructions to discharge the petitioner for

the reasons that (1) a second trial would consti-

tute double jeopardy, (2) a retrial was precluded

under the doctrine of res judicata, and (3) the ends

of justice require a reversal with instructions to

discharge the defendant where a Circuit Court

of Appeals holds that the evidence is insufficient.*

STATEMENT

In February 1938 the petitioner’s brother, John

L. Neal, was indicted in ten counts for stealing

various sums of money from a national bank. He

pleaded guilty to five counts of this indictment and

was sentenced to the penitentiary. Theft from a

national bank was first made an offense by the

amendment of August 24, 1937 ¢. 747, 50 Stat. 749,

to. Section 2 (a) of the Act of May 18, 1934 e. 304,

*This question raises the further questions whether the

petitioner waived his privilege against double jeopardy by

appealing from his original conviction, whether res judicata

can be invoked for the first time on appeal, and whether

the petitioner timely challenged the action of the Circuit

Court of Appeals in remanding the case for a new trial.

4

48 Stat. 783 (U.S. C., Title 12, See. 588 (b)) and

the indictment was predicated on this amendment

(Pet. 12-13).*

Petitioner has been tried twice on a separate

indictment charging him with being an accessory

after the fact with respect to the offense for which

his brother John was convicted.’ It was charged

that he became an accessory after the fact on Jan-

uary 7, 1938, in that he aided in secreting the pro-

ceeds of the felony by concealing some $5,000 of

the money which John had stolen, thus suppressing

important evidence to the end that John might

escape punishment (R. 3-5). On the first trial

petitioner was convicted and sentenced to impris-

onment for two years. On appeal, the petitioner

asserted, inter alia, that his motion for a directed

verdict should have been granted (Pet. 12). The

Circuit Court of Appeals found that petitioner

knew that John had committed the offense charged

against him (Pet. 17) and intimated that the money

which petitioner had secreted was a part of the

* All “Pet.” references in this statement are to the major-

ity opinion of the court below on the first appeal as printed

in the Appendix to petitioner’s brief (Pet. 11-23).

° This statement of facts pertains only to the first count

of the indictment in two counts against the petitioner. The

second count charged misprision of the same felony with

respect to which petitioner was by the first count charged to

have been an accessory after the fact (R. 5-6). Since the

judgment on the second count was reversed on the first ap-

peal and since petitioner was acquitted on that count at the

second trial, the second count is not now involved,

aie ora Pr:

5

money which John had stolen from the national

bank over a period of seven years (Pet. 16, 17).

The court held, however, that the petitioner’s mo-

tion for a directed verdict should have been granted

because the Government had failed sufficiently to

prove that any part of the moneys concealed by

the petitioner had been stolen by John after Au-

gust 24, 1937, the date upon which it became a Fed-

eral offense to steal moneys from a national bank

(Pet. 18). The court, therefore, reversed the judg-

ment of conviction for insufficiency of the evidence,

and remanded the case with instructions to grant a

new trial (Pet. 23).

The petitioner did not attack the remanding of

the case for a new trial either by a petition for re-

hearing in the Cireuit Court of Appeals or by a

petition to this Court for a writ of certiorari, and

a second trial for the same offense was had without

any objection on the vart of petitioner. On

that trial the Government undertook to prove that

a part of the money concealed by the petitioner

was stolen by John after August 24, 1937 (R. 587).

Petitioner was again found guilty (R. 19) and

sentenced to two years imprisonment and to a fine

of $500 (R. 24-25). Upon appeal the petitioner

again contended that the trial court should have

granted his motion for a directed verdict, but the

Cireuit Court of Appeals held that upon the evi-

dence the jury was warranted in finding that all of

the money concealed by the petitioner was stolen

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from the national bank and that part of it was

stolen after August 24, 1937 (R. 589). The court

accordingly affirmed the judgment of conviction.

Thereafter, by leave of the Cireuit Court of Ap-

peals, the petitioner filed in that court a petition

for rehearing attacking for the first time the action

of the Circuit Court of Appeals in remanding the

ease for a new trial on the first appeal (R. 594-

604).

ARGUMENT

(1) There is clearly no merit in the peti-

tioner’s contention that the Cireuit Court of Ap-

peals was powerless on the first appeal to remand

the case for a new trial because of the double

jeopardy doctrine. Assuming that double jeop-

ardy may ever result from a second trial in the

same case," it is settled that where, as here, a de-

fendant appeals from the judgment of conviction

and obtains a reversal, he thereby waives his right

to plead at the second trial that he has been once in

jeopardy. United States vy. Ball, 163 U.S. 662, 671;

Trono v. United States, 199 U. 8. 521, 533, 534;

Murphy v. Massachusetts, 177 U. S. 155, 158;

Stroud v United States, 251 U. 8S. 15, 18... The

® See, however, Mr. Justice Holmes’ dissenting opinion in

Kepner vy. United States, 195 U. S. 100, 1384-135, and the

opinion of the Court, written by Mr. Justice Cardozo, in

Palko v. Connecticut, 302 U. S. 319, 322-323.

7 Even in a case where a defendant is twice placed in

jeopardy by a second trial, it has been uniformly held that

he waives his privilege against double jeopardy by pro-

gist of these decisions is that the accused waives his

privilege against double jeopardy because he has

himself invoked the action of the appellate court

which resulted in a further trial.

Petitioner asserts, however, that waiver of dou-

ble jeopardy by appeal does not exist where the

reversal occurs for insufficiency of the evidence be-

‘ause public policy dictates that the Government

should have but one opportunity to make out a case

against the defendant, but does exist in those cases

in which the reversal results because of error in the

admission or exclusion of evidence, erroneous

instructions to the jury, misconduct of counsel, etc.,

for the reason that ‘‘In cases of the latter charac-

ter, it may be said that there is no jeopardy because

no trial at all, in the legal sense, resulted”’ (Pet. 9).

Petitioner cites no authorities in support of this

attempted distinction, and there is nothing in any

of the decisions which deal with waiver or jeopardy

by appeal which makes the application of the doc-

trine depend upon the ground or grounds upon

which the reversal was predicated. There is as

much reason for applying the waiver doctrine in

one ease as in the other, since in each the new trial

ceeding to trial without asserting the privilege. Levin v.

United States, 5 F. (2d) 598, 600 (C. C. A. 9th), certiorari

denied, 269 U. S. 562; Brady v, United States, 24 F. (2d)

399, 405 (C. C. A. 8th); Bracey v. Zerbst, 93 F. (2d) 8,

9-10 (C. C. A. 10th). Here the question was first raised on

petition for rehearing after affirmance by the Circuit Court

of Appeals of petitioner’s conviction on the second trial.

282316—41— —2

of

8

was brought about by the action of the accused

himself in appealing and securing a reversal of his

conviction.

Ex parte Nielsen, 131 U.S. 176, cited by the peti-

tioner, does not aid him. In that case there was no

waiver of double jeopardy by appeal or otherwise.*

(2) Petitioner does not elaborate his contention

that the reversal and remanding of the case for a

new trial on the first appeal violated the doctrine

of res judicata. On that appeal the Circuit Court

of Appeals held that the evidence was inadequate

because it did not sufficiently establish that the

money concealed was money stolen from the na-

tional bank after August 24, 1937. This issue was

not attempted to be relitigated at the second trial,

the appellate court’s decision was respected as the

law of the case, and the Government’s evidence

was directed to supplying the deficiency in proof

found by the appellate court.’

(3) The petitioner contends that the Circuit

Court of Appeals was required, when it reversed

® Since double jeopardy did not result because of peti-

tioner’s second trial, it would be profitless to discuss his

contention that the defense of double jeopardy may be first

made on appeal where it turns upon a question of law ap-

pearing on the face of the record as distinguished from some

question of fact. (Pet. 4). See, however, cases cited in foot-

note 7, supra, p. 6.

°It has also been held that the question of res judicata

cannot be considered on appeal where, as here, it was not

raised below. Adams v. Shirk, 117 Fed. 801 (C. C. A. 7th);

DeRees v. Costaguta, 275 Fed. 172 (C. C. A, 2d), certiorari

denied, 257 U. S. 648.

9

his conviction on the first appeal for insufficiency

of the evidence, to order that he be discharged and

that it should not have not remanded the case for a

new trial. We submit (a) that the petitioner is

not in a position to urge this contention and (b)

that in any event the contention is without merit.

(a) The petitioner did not attack the judgment

of the Circuit Court of Appeals remanding the case

for a new trial either by a petition for rehearing or

by a petition to this Court for a writ of certiorari.

On the contrary he submitted to a second trial with-

out objection and did not question the propriety of

his retrial until after the court below had affirmed

his seeond conviction. Under these circumstances,

we submit that petitioner’s challenge to the judg-

ment of the Cireuit Court of Appeals came too

late, particularly since, as is hereinafter indicated,

the action of the Cireuit Court of Appeals in re-

manding the case for a new trial was, at most, the

exercise of a discretionary power. The proper

administration of justice requires that a defendant

seek direct and prompt review of alleged error by

an appellate court.

(b) Petitioner cites no decision which supports

his view that a Cireuit Court of Appeals, when it

holds that a motion for a directed verdict should

have been granted for insufficiency of the evidence,

is required to direct that the defendant be dis-

charged. He asserts, however, that the Cireuit

Court of Appeals should have ordered his dis-

sccuaseialo sary iam: al

10

charge because he would have been released on the

spot if the trial court had granted his motion for a

directed verdict as the Circuit Court of Appeals

held it should have done.

In Collenger v. United States, 50 F. (2d) 345,”

the only Federal case in which the question was

directly presented, motions for a directed verdict

had been overruled, the Government conceded on

motions for arrest of judgment that the evidence

was insufficient, and the defendants contended both

in the District Court and in the Cireuit Court of

Appeals that their discharge should be ordered be-

cause a verdict for their acquittal should have been

directed by the District Court and that had this

been done they could not again be tried on the same

charge. The Circuit Court of Appeals for the

Seventh Circuit held, however, that it had no right

to discharge a defendant where the evidence was

inadequate but was required under the decision of

this Court in Slocum v. New York Life Ins. Co.,

228 U. S. 364," to remand the case for a new trial.

The defendants filed in this Court a petition for a

writ of certiorari in which the sole question pre-

sented was the correctness of this ruling. This

Court, however, denied certiorari (284 U. S. 654).

” Followed in Caringella v. United States, 78 F. (2d) 563,

567 (C.C. A. 7th).

"The Slocum decision was re-affirmed by this Court in

Aetna Insurance Co. v. Kennedy, 301 U. 8. 389, 394.

11

In Ex Parte United States, 101 F. (2d) 870

(affirmed by an equally divided court, U nited

States v. Stone, 308 U.S. 519), in which the Circuit

Court of Appeals for the Seventh Circuit upheld

the right of a trial judge to render a judgment non.

obstante veredicto pursuant to the reservation of a

ruling on a motion for a directed verdict, the court

stated that the effect of its decision in the Collenger

ease was to condemn a judgment non obstante vere-

dicto made without reservation (p. 877, note 21).

It is, therefore, evident that the court in the Col-

lenger case felt that it was compelled to remand the

case for a new trial because a discharge of the de-

fendants would have been tantamount to a judg-

ment non obstante veredicto without reservation.

This but recognizes that since a trial court cannot,

at least without reservation, set aside a verdict of

guilty upon reaching the conclusion that the evi-

dence is insufficient, except by granting a new

trial,’? a Circuit Court of Appeals is equally power-

less to do so.

Petitioner does not refer to the Collenger case

but questions the soundness of the Slocum deci-

sion “ and its application to Federal criminal cases.

2 A motion for arrest of judgment cannot be based upon

insufficiency of the evidence to support the verdict. United

States v. Stern, 186 Fed. 854 (D. E. D. Penn.), aff'd 193

Fed. 888 (C. C. A. 3d); United States v. Marrin, 159 Fed.

767 (D. E. D. Penn.), aff'd 167 Fed. 951 (C. C. A. 3d),

certiorari denied, 223 U. S. 719.

18 In this connection petitioner refers (Pet. 5-6) to Rule

50 of the New Civil Procedure Rules providing for auto-

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12

His position is that a Federal appellate court has

the power to dispose of a criminal case as right

and justice may require “ and that the ends of jus-

tice require that where a Cireuit Court of Appeals

reverses a conviction for insufficiency of the evi-

dence it should remand the case with directions to

discharge the defendant.

It is unnecessary here to consider either the

soundness of the Slocum case or its application to

criminal cases. For there is nothing to show that

the court below proceeded on the assumption that

it was required to grant a new trial. And clearly

it was not required to order the discharge of the

defendant. We have found no decision which so

holds and the petitioner has cited none. Indeed,

where a judgment of conviction is reversed be-

cause the trial court erroneously failed to direct

a verdict in favor of the defendant, it is the fre-

quent practice for the Circuit Courts of Appeals

to order a new trial. For example, see Backun v.

United States, 112 F. (2d) 635, 639 (C. C. A. 4th);

Leslie v. United States, 43 F. (2d) 288 (C. C. A.

10th); Ridenour v. United States, 14 F. (2d)

888 (C. C. A. 3d); Holmes v. United States,

275 Fed. 49 (C. C. A. 4th); Duff v. United States,

matic reservation of decision on a motion for a directed

verdict. It suffices to say that there is no similar rule with

reference to Federal criminal procedure.

%* Citing Ballew v. United States, 160 U. S. 187, and

various lower Federal court decisions.

PPI RINE IE LT EDO OEP DIL BO EPO WL, ILM LENT IE I I ee EM EM AEE TE spect sem dit EIGEN ES

13

185 Fed. 101 (C. C. A. 4th). And, of course, even

in the absence of such a direction a new trial is had

unless the opinion of the appellate court clearly

shows that the court to which its mandate is di-

rected must follow some other course. Cf. Stroud

vy. United States, 251 U. S. 15, 17; Steinman v.

United States, 185 Fed. 47 (C. C. A. 3d).

It would, we submit, have been contrary to the

ends of justice for the Circuit Court of Appeals

in the instant case to have directed the petitioner’s

discharge upon the reversal of his first conviction.

The ends of justice demand that, except where

double jeopardy constitutes a barrier (Cf. Cornero

v. United States, 48 F. (2d) 69 (C. C. A. 9th)),

a person guilty of a crime be convicted and pun-

tshed. In the instant case the two opinions of the

Cireuit Court of Appeals make it manifest that at

the first trial the Government had abundantly

proved all of the elements of the offense charged

against the petitioner (see Pet. 17; R. 587) except

that, in the view of two of the judges, it had failed

sufficiently to establish that any part of the stolen

money concealed by the petitioner was taken from

the national bank after August 24, 1937, when it

first beeame a Federal offense to steal money from

such a bank. Plainly, under these circumstances,

the ends of justice did not dictate that the Cireuit

Court of Appeals should have allowed the peti-

14

tioner to go free, particularly when there was no

reason for that court to believe that the Govern-

ment would be unable to supply the deficiency in

proof which the court had pointed out. Ina some-

what analogous situation the Circuit Court of Ap-

peals for the Fourth Circuit, in Backun v. Umited

States, 112 F. (2d) 635, 639 supra, in reversing a

conviction for insufficiency of the evidence in cer-

tain respects and in remanding the case for a new

trial, said that ‘‘It may be that, upon such new

trial, it will be possible to identify additional sil-

ver in the possession of Zucker as having been

stolen, or to show otherwise that the value of the

stolen silver transported in interstate commerce

came within the valuation fixed by the statute.”

See also Caringella v. United States, 78 F. (2d)

563, 567 (C. C. A. 7th), supra.

Cornero v. United States, 48 F. (2d) 69 (C. C. A.

9th), cited by the petitioner, is clearly not in point.

In that case the Circuit Court of Appeals, in view

of its finding that the defendant’s plea of former

jeopardy was meritorious and timely, was of course

required to discharge him. In the instant case, as

we have heretofore shown, there is involved no

question of double jeopardy.

CONCLUSION

Petitioner’s contentions are clearly without

merit and there is involved no conflict of decisions.

15

We therefore respectfully submit that the petition :

for writ of certiorari should be denied.

Francis BIpDLe,

Solicitor General.

WENDELL BERGE,

Acting Assistant Attorney General.

Raovut BERGER,

Special Assistant to the Attorney General.

Grorce F. KNEIP,

W. Marvin SMITH,

Attorneys.

JANUARY 1941.

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U, S$. GOVERNMENT PRINTING OFFICE: 1941