Opposition Brief — Swidler v. United States

Yuthe Supreme Gaurtof the Winited States

OcrospeR TERM, 1953

No. 430

David SWIDLER, PETITIONER:

v.

Unrrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The original opinion of the Court of Appeals

(R. 60a-62a)* was withdrawn (R. 63a) and was

not reported. The second opinion of the court

sitting en banc (R. 64a-66a) has not yet been

reported.

1 In the Court of Appeals both petitioner and the Govern-

ment filed printed appendices containing portions of the re-

porter’s transcript of the trial proceedings. The record in

this Court is composed of those two appendices. References

to the appendix for petitioner will be designated, “R.” Ref-

erences to the appendix for the Government will be desig-

nated, “A.”

(1)

2

JURISDICTION

The judgment of the Court of Appeals was en-

tered on September 25, 1953. (R. 68a.) The pe-

tition for a writ of certiorari was filed October 23,

1953. The jurisdiction of this Court is invoked

under 28 U. S. C. 1254 (1). See also Rules 37

(b) (2) and 45 (a), Federal Rules of Criminal

Procedure.

QUESTION PRESENTED

Petitioner’s motion for a judgment of acquittal

at the close of the Government’s evidence was

denied... He rested without offering evidence and

the jury returned a verdict of guilty. Petitioner

then filed a motion for judgment of acquittal or,

in the alternative, for a new trial. The question

presented is:

Whether the court’s order denying the motion

for judgment of acquittal but granting a new trial

is a final and appealable decision under the provi-

sions of 28 U. 8. C. 1291.

STATUTE AND RULES INVOLVED

28 U.S. C.:

Sec. 1291. Final decisions of district courts.

The courts of appeals shall have juris-

_ diction of appeals from all final decisions

of the district courts of the United States,

the District Court for the Territory of

Alaska, the United States District Court

for the District of the Canal Zone, the Dis-

trict Court of Guam, and the District Court

of the Virgin Islands, except where a direct

had

3

2

review may be had in the Supreme

Court. ***°* ray > ¥% x hes t¢

7

ERAL RULES oF CRIMINAL PROCEDURE:

“Rule 29. Motion for Acquittal.

(a) Motion for Judgment, of Acquittal.

Motions for directed verdict are abolished

and motions for judgment of acquittal shall

be used in their place. The courton mo-

tion of a defendant or of its own motion

shall order the entry of judgment of acquit-

tal of. one or more offenses charged in the

indictment or information after the evi-

dence-on either side is closed if the evidence

is’ insufficient’ to sustain a ecortvietion of

such offense or offenses. If a defendant’s .

motion for judgment of acquittal at the

close of the evidence offered by the govern-

ment is not granted, the defendant may

offer evidence without having reserved the

right. | ;

(b) Reservation of Decision on Motion.

If a motion for judgment of acquittal is

made at the close of all the evidence, the

court may reserve decision on the motion,

submit the case to the jury and decide the

motion either before the jury returns a ver-

dict or after it returns a verdict of guilty

or is discharged without having returned a

verdict, If the motion is denied and the

ease is submitted to the jury, the motion

inay be renewed within 5 days after the

jury is discharged and may include in the

alternative ‘a motion for a new trial. -If'a

verdict of guilty is returned the court may

4 ~

on such motion set aside the verdict and

order a new trial or enter judgment of

acquittal, If no verdict is returned the

court may order a new trial or enter judg-

ment of acquittal.

Rule 33. New Trial.

~The court may grant a new trial to a de-

fendant if required in the interest of jus-

tice. If trial was by the court without a jury

the court may vacate the judgment if en-

tered, take additional testimony and direct

the entry of a new judgment. A motion

for a new trial based on the ground of

newly discovered evidence may be made

only before or within two years after final

judgment, but if an appeal is pending the

court may grant the motion only on remand

of the case. A motion for a new trial based

on any other grounds shall be made within

5 days after verdict or finding of guilty or

within such further time as the court may

fix during the 5-day period. ae

STATEMENT

On March 6, 1952, an indictment was filed

against petitioner in the United States District

Court for the Eastern District of Pennsylvania

charging him with wilfull attempted evasion of

his income taxes for the calendar year 1945, in

violation of Section 145 (b) of the Internal Rev-

enue Code. The single count of the indictment

alleged that petitioner had filed a fraudulent re-

turn stating that his net income was $4,601.47 and

that the tax due was $765.36, whereas he knew

’

that the figures should have been $110,516.01 and

$78,199.73. (R. 2a-3a.)

The evidence adduced by the Government may

uriefly be summarized as follows:

During 1945, the taxable year, petitioner sup-

plied cash to a luggage manufacturer for the

purchase of large quantities of cloth from mills.

When the cloth was delivered to the luggage

factory petitioner took charge of it. (A. la-Ga.)

Representing himself as a salesman for either

Charles Schwartz or J. Levenson, he then sold it

to various dealers at a considerable profit’ (R.

36a—42a; A. 12a, 15a, 21a.) Invoices to the pur-

chasers were always in the name of Schwartz or

Levenson. (R. 10a; A. 4a-22a, 26a-27a.) The

checks in payment were made out to Schwartz or

Levenson, but they were either handed to peti-

tioner personally or mailed to him. (A. 10a, 12a-

22a; cf. R. 8a-10a and A. 24a-25a.) When one

of the purchasers asked about the identity of

Schwartz or Levenson, petitioner said, “‘As long

as you are getting the piece goods that you want

and so long as it is being billed to you with a

legitimate bill, what difference does it make to

you?” (A. 2la-22a.) Some of the people with

whom he had contacts in the course of these deal-

ings actually knew him, not as Swidler, but as

2In some instances the purchasers apparently realized

that they were actually buying the goods from petitioner

himself. (A. 7a—8a, 17a—-18a.)

6

either Schwartz « or Levenson. (A. 6a, lla, 22a-

28a.) hacia

The Schwartz and Levenson checks which peti-

tioner received were always cashed at check cash-

ing firms in New York.’ (R. 13a-36a.) The man-

ager of one of these firms knew petitioner as

Charles Schwartz. (R. 13a-14a, 21a.) He was

always accompanied by one or two other men

when he came in. (R. 25a-26a, 29a.) When

checks made out to Schwartz were presented, the

manager counted out the money and gave it to

petitioner. (R. 13a-18a, 21a, 23a-24a, 28a.)

Petitioner introduced one of the other men as

Levenson, and Levenson and petitioner always

came in together when they had a Levenson check

to cash. The manager counted out the money

and gave it “to them’. (R. 18a, 21a-25a,

28a-29a. )

Treating all these checks as income to peti-

tioner (R. 36a-48a), the Government computed

his true net income for 1945 to be $79,414.48

(R. 48a). His return for that year showed a

net income of only $5,101.47 derived from a part-

nership. (R. 4a—7a, 48a, 53a—56a.)

~ Petitioner’s motion for a judgment of acquittal

at the close of the Government’s evidence was

overruled. (R. 52a.) The defense then rested

* The one check which was made out in petitioner’s own

name was deposited in his personal bank account. (R.

8a-10a, A. 24a-25a.)

7

without offering any evidence and the jury

returned a verdict of guilty. (R. 1a; Pet. 4.)

After the verdict petitioner filed a timely re-

newal of the motion for a judgment of acquittal,

asking in the alternative for a new trial under

the provision of Rule 29 (b). The stated grounds

for both alternatives were: (1) that the evidence

was insufficient; (2) that the original motion for

judgment of acquittal should have been granted;

(3) that the verdict was contrary to the weight of

the evidence; and (4) that it was error to admit

certain checks not shown to have been paid to

petitioner. (R. 57a.) The trial judge refused

a judgment of acquittal, but granted a new trial

in “the interests of justice”. (R. 58a.) Peti-

tioner noted a timely appeal. (R. 2a.)

The Government filed a motion to docket and

to dismiss the appeal on the ground that the order

of the District Court was not final. (R. 59a.)

The appeal was dismissed by a three-judge

panel of the Court of Appeals. (R. 60a.)

Thereafter the ease was reargued before the full

bench and was again ordered dismissed. (R.

63a.) The original opinion of the court was with-

drawn and a new one filed in which the full bench

concurred. Assuming arguendo that the evidence

was insufficient to support the verdict, the court

pointed out that the provisions of Rule 29 would

require the trial court to enter a judgment of

‘The notice of appeal has not been included in the record.

230601—58-—2

8

acquittal under such circumstances. The court

held, however, that since no sentence was imposed

and a new trial was granted on petitioner’s mo-

tion therefor, the order of the District Court was

not ‘‘a final reviewable decision within the pur-

view of Section 1291.’”’ (R. 64a-66a.)

ARGUMENT

Petitioner contends (Pet. 6-14) that the provi-

sions of Rule 29 (supra, p. 3) required the trial

court to grant a judgment of acquittal if the evi-

dence was insufficient, and that the denial of his

motion was a final and appealable decision. But,

as the court below unanimously held en banc, the

order of the District Court was neither a final

judgment nor a final decision. Petitioner’s con-

tention is without merit.

1. Preliminarily, it should be pointed out that

the premise of petitioner’s argument (and the as-

sumption arguendo of the Court of Appeals)—

that the grant of the new trial was based upon an

insufficieney of the evidence—is inconsistent with

the most logical interpretation of the District

Court’s order. For the District Court merely

stated that ‘‘the interests of justice require that a

new trial be granted,’’ without indicating the

basis for that conclusion (R. 58a). Even from

the brief summary of the evidence recited above

(pp. 5-6), it is apparent that there certainly was

‘*some competent and substantial evidence before

the jury fairly tending to sustain the verdict.”’

United States v. Socony-Vacuum Oil Co., 310 U.S.

9

150, 254; Curley v. United States, 160 F. 2d 229,

232-238 (C. A. D. C.), certiorari denied, 331 U. 8.

837. Inasmuch as petitioner had assigned as one

reason for his alternative motions alleged errors

in admitting evidence, it is at the very least a

logical inference that it was on this ground, and

not upon the insufficiency of evidence, that the

new trial was granted. It would thus appear that

the Court of Appeals actually decided only a

hypothetical question not necessarily presented by

the record.

2. Basic to petitioner’s entire argument—whieh

assumes with the court below that the evidence was

insufficient (but ef. supra)—is his contention

(Pet. 7, 10, 12, 13, 14) that there is an absolute

and Constitutionally guaranteed right to acquittal

where there is insufficient evidence of guilt, and

that this absolute right is made explicit by the

provisions of Rule 29. It may be conceded that

such a right accrues before verdict, but it has al-

ways been the law that the filin :

_ for_a new trial after verdict of guilty operates as

“a waiver of the right. Prior to the adoption of

Rule 29, the district courts commonly granted new

trials because of insufficiency of the evidence, but

they either did not have or did not in fact com-

monly exercise the power to enter a judgment of

acquittal after verdict. Thus, a defendant, whose

motions for a directed verdict were denied at the

end of the Government’s case and again at the

close of all the evidence, was commonly thought to

SRE RS Re EERRCeemE:

10

have no choice after verdict except to move for a

-, new trial.” Allowance of the motion effected a

' waiver of the accrued right to an acquittal. The

lack of finality under such cireumstances is so ob-

vious that we have been able to discover no case

in which an appeal was even attempted.

One of the objects of Rule 29 was to sanction

the practice, followed by a few district courts but

left uncertain by this Court (Ha parte United

States, 101 F. 2d 870 (C. A. 7), affirmed by an

equally divided Court, sub nom. United States v.

Stone, 308 U. S. 519), of permitting a motion

for judgment of acquittal after verdict as an

alternative to a motion for new trial.. But

there is nothing to indicate that the allowance

of the requested new trial should no longer

operate as a waiver of the allegedly accrued

right to acquittal. In ultimate analysis, peti-

* See Brief for the United States in Bryan v. United States,

No. 178, October Term, 1949, pp. 18, 20-21, 37-39.

* The Advisory Committee on the Rules appended the fol-

lowing notes to Rule 29:

“Note to Subdivision (a). 1. The purpose of changing

the name of a motion for a directed: verdict to a motion for

judgment of acquittal is to make the nomenclature accord

with the realities. The change of nomenclature, however,

does not modify the nature of the motion or enlarge the scope

of matters that may be considered.

* * * . *

“Note to Subdivision (b). This rule is in substance similar

to Rule 50 (b) of the Federal Rules of Civil Procedure, fol-

lowing 28 U. S. C. § 723c, and permits the court to render

judgment for the defendant notwithstanding a verdict of

guilty. Some Federal courts have recognized and approved

the use of a judgment non obstante veredicto for the defend-

11

tioner’s argument seems to boil down to a conten-

tion that he cannot twice be placed in jeopardy

for the same offense’ “But it is settled that peti-

tioner waived this right by requesting and obtain-

ing a new trial. Bryan v. United States, 338

In the Bryan case, there was a similar alterna-

tive motion for judgment of acquittal and for a

new trial. The motion was denied and sentence

was imposed. “The Court of Appeals for the Fifth

Circuit reversed for insufficiency of the evidence,

but it ordered a new trial instead of directing a

judgment of acquittal. Bryan petitioned for a

writ of certiorari on the ground that Rule 29

entitled him to a judgment of acquittal. This

Court granted certiorari and affirmed the judg-

ment of the Court of Appeals. Although not

squarely controlling here, since this Court held

that Rule 29 does not apply to appellate courts,

the case is persuasive in that, though the evidence

was insufficient, a new trial was ordered instead

of an acquittal, largely because Bryan’s motion

ant in a criminal case. Ea parte United States, 101 F. 2d

870, C. C. A. 7th, affirmed by an equally divided court, United

States v. Stone, 60 S. Ct. 177, 308 U. S. 519, 84 L. Ed. 441.

The rule sanctions this practice.”

When such an alternative motion is made after verdict

in a civil case, it is clear that the district court may in its

discretion choose either alternative. Cone v. West Virginia

Paper Co., 330 U. 8.212, 215. scoge a

™The due process argument, é. ¢., that petitioner cannot

be convicted except upon sufficient evidence, is of no avail

since the conviction has been set aside:

<<

12

An the District Court had requested one or the

other of these remedies in the alternative. 338

U. 8. at 558-560.

_ 8. The order denying a judgment of acquittal

and granting a new trial was not a final judg-

ment. It did not result in institution of dis-

ciplinary measures and was nota determina-

tion of guilt. Korematsu v. United States, 319

U.S. 482, 485; Berman v. United States, 302 U. 8.

211, 212-213. But petitioner insists that the order

was a final ‘‘decision” within the meaning of 28

U. S. C. 1291 (supra, p. 2), relying on such cases

as Stack v. Boyle, 342 U. 8S. 1, 6, 12, and Cohen v.

Beneficial Loan Corp., 337 U. S. 541, 545, 547. See

also Swift & Co. v. Compania Caribe, 339 U. S.

684, 688-689. Perhaps the best analysis of this

line of cases is that of the Court of Appeals for

the District of Columbia Circuit: °

We understand the Cohen and Swift

cases to establish this principle. An order

that does not ‘‘terminate an action’’ but is,

on the contrary, made in the course of an

action, has the finality that Section 1291

requires for appeal if (1) it has ‘‘a final

and irreparable effect on the rights of the

* The opinion of the Court touches only obliquely on the

duty of a trial court when faced with such an alternative

motion after verdict. 338 U.S. at 559. But the opinion of

the concurring Justices clearly indicates that, in their view,

the district court may order a new trial under Rule 29

when the evidence is insufficient to support the verdict.

° United States v. Cefaratti, 202 F. 2d 18, 16, certiorari

denied, 345 U. S. 907.

13

ies,”? being ‘‘a final disposition of a| ¢/ /;

claimed right’’; (2) it is.“‘too important to | 4s

be denied review’; and (3) the claimed!) /

right “is not an ingredient of the cause of

action and does not require consideration

with at?” * * # }

Measured by this test, the order of the District

Court is clearly not a final and appealable de-

cision.

(a) The order of the District Court has no fine:

effect on the rights of the parties and is not a

final disposition of petitioner’s right to a judg-

ment of acquittal on the pending charge. That

remedy remains open to him after the presenta-

tion of the evidence at the new trial. Had peti-

tioner been content to file only a motion for judg-

ment of acquittal, the denial of that motion would

have been followed by imposition of sentence and

a final judgment. But petitio: requested either

a judgment of acquittal or u ueW trial on the

ground that the evidence was insufficient, and he

eannot now complain that his right to a judgment

of acquittal has been finally determined when, at

his own request, the entire trial proceedings have

been set aside. See supra, pp. 9-12. Nothing has

been determined contrary to petitioner except that

he is not entitled to an acquittal at the resent

time: a Bt eo

thy The order is not “too important to be de-

nied review.’ True, it will, as petitioner contends ,

(Pet. 13), subject him to the inconvenience of an- , > }

i /

i

other trial. But this is the necessary result of the

Congressional policy against piecemeal appeals.

Roche v. Evaporated Milk’ Assn., 319 U. 8. 21,

30-31; Cobbledick v. United States, 309 U. 8. 323.

If petitioner’s argument were carried to its logi-

cal conclusion, and, indeed, the petition appears to

make this very contention (Pet. 10), the denial

of a motion for a judgment of acquittal at the

close of the Government’s case would be a final

decision, and the trial would be interrupted by an

appeal as of right at that point.”

(ec) Petitionér’s claimed right to a judgment of

acquittal is not separable from the main action. On

the contrary, it goes to the very heart of the cause

of action. The case is, therefore, clearly distin-

guishable from the Cohen, Swift and Stack cases,

supra, which involved separable and auxiliary

proceedings such as attachments and applications

for bail. The decisions appealed from there had

a final effect upon the rights of the parties which

could not be remedied by an appeal in the main

action." Here, however, petitioner will still be

able to obtain a judgment of acquittal if the Gov-

' 1 Petitioner’s reference to Brock v. North Carolina, 344

U. S. 424, is not in point. Brock was objecting to a second

trial after the prosecutor had requested and obtained a mis-

trial in the original proceedings. Furthermore, this Court

held that under the circumstances the interests of justice

were served by ordering a new trial.

™ Cases involving appeals from orders denying or grant-

ing motions to suppress evidence prior to indictment are like-

wise inapposite. There also the order appealed from is sep-

it

15

ernment fails to present substantial_p

essentials of the charge at the@ext trial.)

4, Petitioner also contends (Pe 4) that the

grant of a new trial was im oper, and that, the

denial of the judgment of acquittal must, there-

fore, be final. The argument is that the District

Court acted on its own initiative and not on peti-

tioner’s motion, since it granted the new trial “in

the interests of justice” instead of for any one of

the reasons specified in the motion; and that it

was without power to act on its own initiative

since more than five days had elapsed after the

return of the verdict. The argument is plainly

without merit. The trial court was clearly acting

on petitioner’s motion. “The first sentence of

this rule” is declaratory of the power to grant a

new trial ‘in the interest of justice’ instead of for

reasons catalogued as they might have been. The

generality of the reasons assigned by [the trial

judge] for the order in question is all that is re-

quired.” United States v. Smith, 331 U. 8. 469,

472.

arable from the main action. See Perlman v. United States,

247 U. S. 7; Burdeau v. McDowell, 256 U. S. 465; Go-Bart

Co. v. United States, 282 U.S. 344; and cf. Cogen v. United

States, 278 U. S. 221.

12 Rule 33, supra, p.4. An immaterial footnote has been

omitted from this quotation.

Yes

16

CONCLUSION

The decision of the court below is clearly cor-

rect and there is no conflict of decisions. The

petition for a writ of certiorari should be denied.

Respectfully submitted.

Rosert L. Stern,

Acting Solictor General.

H. Brian Hoiianp,

Assistant Attorney General.

Exuis N. Siacx,

Davip L. Luceg,

JosEPH M. Howarp,

Special Assistants to the Attorney General.

DrcemsBer, 1953.

G, S$, GOVERNMENT PRINTING OFFICE, 1953