Opposition Brief — Beets v. Hunter

INDEX

CITATIONS

Cases:

American Construction Co. v. Jacksonville Railway Co., 148

U. S. 872

Aspen Mining and Smelting Co. v. Billings, 150 U. S. 31____

Bostwick ¥. Brinkerhoff, 106 U. 8. 3.

Fleming v. Borders, 165 F. 2d 101

Hamilton-Brown Shoe Co. v. Wolf Bros. @ Co., 240 U. 8. 251_

Hunter v. Thomas, 173 F. 2d 810

Toledo Scale Co. v. Computing Scale Co., 261 U. 8. 399__._

Statutes:

28 U. 8. C. (1946 ed.) 230

28 U. 8. C. (1948 rev.) 2107

Federal Rules of Civil Procedure :

Rule 59. ,

Rule 78, F. R. Civ. P., as amended Deecmber 27, 1946, but

not effective until March 1948, 329 U. S. 866, 875_...___

Miscellaneous :

Robertson and Kirkham Jurisdiction of the Supreme Court

of the United States, § 119, pp. 208-210_

858811—49

e- fF BPD FARAH AHe H

Yuthe Supreme Gourtof the United States

OocrospER TERM, 1949

No. 241

Ben L. BEETS, PETITIONER

v.

Water A. Hunter, Wappen, Unirep States

PENITENTIARY, LEAVENWORTH, KANSAS

ON PETITION OF A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

In June 1945, petitioner was found guilty of

rape after trial before a court martial convened

at Darmstadt, Germany, and he was sentenced to

life imprisonment. His sentence was later re-

duced, first to 30 and then to 18 years’ imprison-

ment, by orders of the Secretary of War (R. 11-

12). The present proceeding arose upon a peti-

tion for a writ of habeas corpus filed by peti-

tioner in the District Court for the District of

Kansas challenging the validity of his conviction

(R. 5-10). A hearing was held on January 21

and 22, 1948, at which petitioner testified and

adduced the testimony of three other witnesses,

(1)

Me ee

2

and respondent introduced the record of the

court-martial proceedings (R. 86-140). At the

conclusion of the hearing the District Court

announced its decision (R. 138-140) and entered

a decree, dated January 22, 1948, adjudging that

petitioner was unlawfully held by respondent and

directing that he be forthwith discharged from

custody (R. 19). Petitioner was released upon

his personal recognizance without surety pending

appeal (R. 19-20).

On January 29 and 30, 1948, respondent filed

a motion and supplemental motion for a new trial

(R. 25-28) and on March 12, 1948, a motion to

vacate the decree of January 22 and to permit

respondent to adduce additional testimony of

persons whose affidavits were attached to the

motion (R. 28-74). The latter motion alleged

surprise in an amendment of the habeas corpus

petition which the court allowed at the opening of

the hearing on January 21 (R. 18-19, 87) and in

the testimony of the witnesses called on peti-

tioner’s behalf, and stated that since the hearing

other witnesses had been located who could give

pertinent testimony negating the evidence under-

lying the court’s findings and conclusions, entered

' January 29 (R. 20-25), that petitioner did not

have the effective assistance of counsel at his

court-martial trial and that the court martial was

influenced by higher authority and consequently

was not free to render impartial justice (R. 28-

38). A hearing on these motions was held on

Oe ne a

3

April 7, 1948 (R. 146-197), upon the understand-

ing that if the court found the additional testi-

mony adduced by respondent sufficient to refute

petitioner’s contentions it would vacate the decree

of January 22 and enter judgment against him on

the whole record (R. 147-150, 191-196). The

court stated at the conclusion of the hearing,

after the government had adduced all evidence

available for a new trial (R. 195): ‘‘And so, the

case is, in effect, retried. * * * what we are

doing here is retrying this case’’ (R. 196). The

court explained that it had adopted this course,

rather than formally setting aside the decree of

January 22 and granting a new trial, in order to

obviate remanding petitioner to respondent’s cus-

tody pending ultimate decision (ibid.; see also R.

148). The cause was then continued to afford

petitioner an opportunity to bring in additional

witnesses (R. 196-197). Thereafter, on June 2,

1948, petitioner filed an ‘‘Opposition to Further

Proceedings in Said Cause,’’ taking the position

that respondent’s motions to vacate the judg-

ment and for a new trial would not lie and that

the time for appeal had therefore expired (R.

84). On December 30, 1948, without any further

proceedings, the court overruled respondent’s mo-

tions (R. 85).

On February 24, 1949, within 60 days from the

denial of these motions (see 28 U. 8. ©. (1948

rev.) 2107), respondent filed a notice of appeal

from the judgment of January 22, 1948, and the

4

further order of December 30, 1948 (R. 86).

Petitioner thereafter moved in the Court of

-Appeals to dismiss the appeals for lack of juris-

diction (R. 201-205). The motion was denied on

May 11, 1949 (R. 206), and it is this action of the

Court of Appeals which petitioner asks this Court

to review.

The order denying petitioner’s motion to dis-

miss the appeal was only an interlocutory ruling

and not a final judgment, since it did not dispose

of the whole case on its merits, Bostwick v.

Brinkerhoff, 106 U. S. 3, 4, and the appeal is still

pending in the Court of Appeals. It is true that

this Court has power to grant certiorari to re-

view interlocutory as well as final decrees of a

court of appeals. Toledo Scale Co. v. Computing

Scale Co., 261 U. S. 399, 418. However, this

power is exercised only in ‘‘extraordinary cases,”

and the fact that the decree sought to be reviewed

is not final may, of itself, furnish sufficient

ground for denial of the application. Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U. 8.

251, 258. Certiorari should not issue to review an

interlocutory decree of a court of appeals ‘‘unless

it is necessary to prevent extraordinary incon-

venience and embarrassment in the conduct of

the cause.’? American Construction Co. v. Jack-

sonville Railway Co., 148 U.S. 372, 384." Clearly,

1 Robertson and Kirkham, in their work, Jurisdiction of

the Supreme Court of the United States, express doubt as

to the power of this Court to issue certiorari to review “mere

5

there are here no extraordinary circumstances or

matters of urgent public interest such as to jus-

tify an exception to the general rule. If the

Court of Appeals should reverse the judgment of

the District Court, petitioner will then have

ample opportunity to seek review here of the

order of which he now complains, as well as the

merits of his case. In the meantime, he is free on

his personal recognizance granted by the District

Court immediately following its decree of Janu-

ary 22, 1948.

In any event, it is clear from the summary of

the proceedings in the District Court set forth

above that the final judgment of the court was

embodied in the order of December 30, 1948, over-

ruling respondent’s motions to vacate the earlier

judgment and for a new trial. The motion and

supplemental motion for a new trial were filed

within ten days from the entry of the decree of

January 22, 1948 (see Rule 59, F. R. Civ. P.), and

the motion of March 12, 1948, to vacate that decree

was filed within the same term of court and within

the period which would otherwise have been allowed

rulings by the Circuit Courts of Appeals upon motions pre-

sented in appeals pending before them, not going to the

merits of such appeals,” but they argue that “The conceded

power of the Supreme Court under that section [240 (a) of

the Judicial Code, now 28 U. S. C. 1254 (1)] to review inter-

locutory decrees and non-final judgments is to be exercised,

it is submitted, only in the review of such judgments, decrees

or orders as dispose, for the moment, of the whole con-

troversy before the court.” § 119, pp. 208-210.

6

for appeal." The court entertained all these mo-

tions, held a hearing on April 7, 1948, which was

in effect a continuation of the hearing held on

January 21 and 22, and rendered its ultimate

decision (see R. 192), based upon the evidence

adduced at both hearings, on December 30, 1948,

in the form of the order overruling respondent’s

motions, At the hearing on April 7, the court

refrained from vacating the decree of January

22, which it recognized would have been an appro-

priate step as a preliminary to the reopening of

the hearings (R. 148), and as it had the power to

do (Hunter v. Thomas, 173 F. 2d 810, 812 (C, A.

10)), merely as an accommodation to petitioner

so that he might continue to enjoy the freedom

-granted him on his personal recognizance by the

decree of January 22. In these circumstances, an

appeal prior to the final disposition of respond-

ent’s motions would have been premature (cf.

Fleming v. Borders, 165 F. 2d 101 (C. A. 9)),

since the decree had not taken final effect for the

purposes of appeal (cf. Aspen Mining and Smelt-

ing Co. v. Billings, 150 U. 8S. 31, 36).

* Whether the period was at that time three months (28

U. S. C. (1946 ed.) 230) or 60 days (Rule 73, F. R. Civ. P.,

as amended December 27, 1946, but not effective until March

1948, 329 U. S. 866-867, 875).

7

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Puiu B. PERLMAN,

Solicitor General.

J ALExanpDER M. CAMPBELL,

/ Assistant Attorney General.

Rosert 8. Expauk1,

QRopert G. Maysaoxk,

Attorneys.

SEPTEMBER 1949.