United States v. Scott – Oral Argument – February 21, 1978

Media for United States v. Scott

Audio Transcription for Opinion Announcement – June 14, 1978 in United States v. Scott

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Warren E. Burger:

We will hear first this morning 76-1382, United States against Scott.

Mr. Frey, you may proceed whenever you are ready.

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to review the judgment of the Court of Appeals for the Sixth Circuit dismissing the government’s appeal in this case which was taken from an order of the district court which dismissed count one of the indictment against respondent on grounds of prejudicial pre-indictment delay.

The relevant facts are simple and may be summarized briefly.

In March 1975, respondent was charged in a three-count indictment with distributing controlled substances on three separate occasions; cocaine on September 20, 1974, codeine on September 24, 1974, and heroin on January 22, 1975.

He moved before trial to dismiss the first two counts on due process grounds, alleging prejudicial pre-indictment delay.

The motion was denied with the proviso that it could be renewed after presentation of evidence at trial.

It was renewed and again denied at the close of the prosecution’s case, at which time, a motion for a judgment of acquittal was also denied, the court indicating that the prosecution had put on enough evidence to take the question of respondent’s guilt or innocence to the jury.

The pre-indictment delay motion was again renewed after the defense had rested and this time it was granted.

The United States then sought an appeal and we are concerned here solely with the dismissal of count one.

The court granted respondent’s motion to dismiss that count on the basis of delay, finding that there had been intentional delay by the government in bringing the charge for the improper purpose of accumulating evidence of other crimes by the respondent, and that the delay of five-and-half months had prejudiced the respondent because it had interfered with his ability to recollect the events of the date on which the offense allegedly occurred.

Mr. Frey, count two is entirely out of the case?

Mr. Andrew L. Frey:

Yes, we are not asking this Court to reverse the dismissal of our appeal as to count two.

In light of this Court’s subsequent decision in United States against Lovasco, the dismissal was indisputably erroneous.

The question this Court must decide is whether the United States is entitled to correction of the error by an appeal and, of course, whether the United States can appeal depends on whether the double jeopardy clause would bar a second trial of respondent if the appeal were successful.

Now, let me approach this question, first, by describing some of the legal terrain that this Court has traversed in the last several years and by positioning the present case on the double jeopardy landscape.

The issue in the present case is akin to those recently decided by the Court in cases such as Wilson, Jenkins, Dinitz, Martin Linen, Lee and Finch, and which it has now before in Sanabria.

As a result of these decisions, the court has authoritatively answered many questions.

For instance, Wilson made clear that the government could appeal a dismissal or an acquittal that followed a jury verdict of guilty when success on appeal would not require a second trial.

On the other hand, Jenkins, Martin Linen and Finch established that in most, if not all, other circumstances the Double Jeopardy Clause confers upon defendants in criminal cases an interest in retaining the benefits of a post-jeopardy acquittal by either judge or jury whether or not the acquittal is legally or factually correct.

This interest precludes a government appeal to review the propriety of such acquittals.

Dinitz and Lee, on the other hand, established that a mid-trial termination not amounting to an acquittal on the merits if requested by the defendant does not bar a second trial, at least as long as the termination is of a kind that allows or contemplates the possibility of further prosecution.

William H. Rehnquist:

Mr. Frey, you are not suggesting that all of the authoritative answers, as you refer to them, that had been given by this Court to these questions are consistent with one another, are you?

Mr. Andrew L. Frey:

No, I am not, but they have at least established a group of cubbyholes in which certain situations can be placed.

We know what the rules are unless this Court is prepared to reexamine any of the cases.

I think there is some inconsistency in rationales, but nevertheless, some clear strains of decision or lines of policy that I will attempt to elucidate that shed considerable light on the proper outcome of this case.

This case falls in, and as yet unexplored, middle ground.

On the one hand, it plainly does not involve an acquittal under any acceptable definition of the term.

Unlike Jenkins, unlike Martin Linen, unlike Finch, there was here no determination that respondent did not commit the offense that he was charged with nor was there a resolution in respondent’s favor of any facts relating to the question of guilt or innocence.

Mr. Andrew L. Frey:

There may be cases such as Sanabria in which it is difficult to tell whether there has been an acquittal, but this is not such a case.

Instead, there was here simply a determination that regardless of respondent’s guilt or innocence, wholly independent factors preclude his conviction.

Potter Stewart:

How is it denominated by the District Judge?

Mr. Andrew L. Frey:

It was a dismissal.

Potter Stewart:

There was a grant for motion to dismiss and he was dismissed?

Mr. Andrew L. Frey:

Yes, I believe that is correct.

Thurgood Marshall:

I think it was just a dismissal.

It did not say motion (Inaudible)?

Mr. Andrew L. Frey:

Well, there was a motion which was made prior to trial and which was then —

Potter Stewart:

Which was continued during the trial, the indictment was dismissed?

Mr. Andrew L. Frey:

It was a dismissal of the indictment which would be the proper remedy if the legal grounds were correct.

Thus, the case is holding that an acquittal may not be reviewed on appeal where a second trial would result from a reversal are not controlling here.

On the other hand, this case is not necessarily controlled by the mistrial dismissal cases such as Dinitz and Lee.

Those cases can be distinguished from this case on the ground that their determination of the first trial did not result from a ruling that, if correct, would bar further prosecution of the charge.

Unlike what the Court was able to say in Lee, the Court could not say here that the ruling of the district court was the functional equivalent of a mistrial.

Nevertheless, we submit that the instant case is markedly closer in almost all material respects for the mistrial dismissal line of cases than to the acquittal line of cases.

Accordingly, the government’s appeal in the ensuing retrial if the appeal succeeds are not barred by the Double Jeopardy Clause.

I would like to turn to a consideration of the relevant double jeopardy policies.

In an attempt to demonstrate why those policies are served rather than offended by allowing the government’s appeal in this case.

The history of the Court’s double jeopardy jurisprudence reflects a continuing effort to strike an appropriate balance between competing interests.

On the one hand, the interest of society in conducting fair trials ending in just judgments which subsumes the societal interest of the guilty should be punished for their crimes.

On the other hand, the interest of the individual to be sheltered from the anxiety and expense of multiple trials, to avoid multiple punishments for a single offense and to preserve a determination at trial that he is not guilty of the offense charged.

None of these interests is absolute.

Thus, society’s interest in legally just and factually accurate trial outcomes is required to yield to the double jeopardy interest of an acquitted defendant even though the acquittal may, for instance, be the product of a palpably erroneous jury instruction.

On the other hand, whatever interest the defendant has in preserving an acquittal must yield in situations like Wilson or like Serfass where he is not yet been placed in jeopardy when the acquittal occurs.

As for the central double jeopardy interest of the defendant in avoiding multiple trials, it is well settled that that interest too must give way in at least three types of circumstances.

The first is where the defendant has been convicted and the conviction is reversed or set aside subsequently.

The second is where, as a result of prosecutorial or judicial error, the defendant elects to move for a mistrial that terminates the first trial.

The third is where the trial is terminated even over the defendant’s objection because circumstances make such determination manifestly necessary.

In all of the cases involving the permissibility of a second trial or of a government appeal, the interest of the defendant that could allow him to prevail has fit within two categories.

Warren E. Burger:

When you speak of the Manifest Necessity Doctrine, is that not coupled with the interest of justice both to the public and the accused?

Mr. Andrew L. Frey:

Yes, of course.

Warren E. Burger:

An balancing process, is it not?

Mr. Andrew L. Frey:

Yes, it is a balancing process and the point I was attempting to suggest is that the interest in avoiding multiple trials is not absolute.

It requires a balance of the societal interest in public justice against the individual interest in avoiding repetitious litigation.

The manifest necessity determination is an effort to strike that balance in a situation where the trial has had to terminate because of a hung jury or acts of wars and weighed against other circumstances.

It is justifiable to override the defendant’s right in avoiding multiple trials.

I gather you have decided a case this morning that involves that very question.

In any event, if I could come back to the concept that there are two kinds of interests of the defendant which I think can be shown that neither of which is implicated in this case.

The first interest which was deemed controlling in Ball and Kepner, Jenkins, Martin Linen, Finch is the interest in preserving an acquittal if the defendant is able to obtain one.

Now, as I have indicated, that interest is not at all involved in this case since respondent most definitely was not exonerated of the charge of cocaine distribution.

The second interest, which is central to the mistrial dismissal line of cases and which prevailed in such cases as Downum and Jorn, is the valued right of the defendant to obtain a verdict at the first trial if he wants one.

Cases implicating this interest both to such factors as whether the defendant has agreed to determination of the first trial and if he has resisted it to whether determination was nevertheless necessary to serve the ends of public justice.

If, as in Dinitz and Lee, he has sought the pre-verdict determination, it is difficult to conclude that a second trial should be barred on the grounds of an unjustified deprivation of the defendant’s right to obtain a verdict at the first trial.

Now, respondent Scott, like Dinitz and Lee, did not have his right to settle his dispute with society once and for all at the first trial taken away from him.

He could have had a verdict, but he preferred instead determination on a ground unrelated to his guilt or innocence.

So if the appeal does not —

Byron R. White:

Could I interrupt?

Mr. Andrew L. Frey:

Sure.

Byron R. White:

There are two interests.

One, to preserve the interest in the acquittal and the second is to go to the jury in the first trial.

Now, that second point is that, why is the interest in preserving an acquittal not very similar to the interest that the defendant might have if, say, there were an appeal and judgment entered here, I assume that collaborate it.

If there has been an appeal and we said you could appeal on that and it was finally judged that trial was too late, he could not be retried then either, why is that the same?

Mr. Andrew L. Frey:

You mean under principles of res adjudicata that may be constitutionalized?

Byron R. White:

Yes, is the principle of res adjudicata part of what the Double Jeopardy Clause protects?

Mr. Andrew L. Frey:

I would agree that it is an important part of what the Double Jeopardy Clause protects, but it simply is inapplicable way you have an appeal.

Byron R. White:

Let me put it a little differently.

You say the first interest is in preserving an acquittal.

Why does not the defendant have an interest in preserving any favorable resolution of the trial after he has been put in jeopardy?

Mr. Andrew L. Frey:

Well, the question is whether he has an interest that this Court has recognized or is now prepared to recognize should override the societal interest in correcting error and in obtaining a determination of his guilt or innocence.

Mr. Andrew L. Frey:

After all, the principal purpose of the trial itself on which the Double Jeopardy Clause focuses is to secure a determination, accurate if possible, of the defendant’s guilt or innocence.

When there has been a determination that he is not guilty, this Court has taken the view last term in Martin Linen and in Finch that that determination vests in the defendant an indefeasible interest that the government cannot attack.

It has nothing to do with res adjudicata, it seems to me, because we cannot appeal.

We cannot seek review of errors that may have underlined the acquittal, but I think that the reason that has a special status is because it is a determination that the defendant is not guilty.

I think the Court has come to the conclusion that that kind of determination is something that the Court is not prepared to see attacked in means that would require a second trial.

Byron R. White:

Perhaps that is right, but is it not correct that the defendant does have an interest at least in preserving a favorable judgment even though it is not a non-determination of innocence?

Mr. Andrew L. Frey:

I do not question that he has an interest, but I think it is —

Byron R. White:

It is not necessary to protect his interest?

Mr. Andrew L. Frey:

Well, it is clear from the Wilson case that the interest in preserving the favorable judgment is not itself constitutionally protected by the Double Jeopardy Clause because in Wilson the defendant got the very same kind of ruling that this defendant got here.

Byron R. White:

But, after a verdict of guilty?

Mr. Andrew L. Frey:

After a verdict of guilty, but he had the same interest in preserving it from attack on appeal, yet, the Court allowed the appeal because it was the concern with multiple trials and not the right to preserve a favorable ruling and there is some discussion in the Court’s opinion in Wilson which indicates that there — that preserving a favorable ruling —

Byron R. White:

His interest there was in not being tried twice and here if you prevail he will be tried twice?

Mr. Andrew L. Frey:

I intend to discuss the reasons why his interest in not being tried twice is no different from Lee’s interest in not being tried twice.

There are two separate interests that you have mentioned.

One is the interest in preserving a favorable decision.

As to that interest I maintain and I think the Court’s decision, particularly Wilson support me, that that interest applies to acquittals in a different way from the way it applies to other kinds of favorable rulings.

As to the interest in avoiding multiple trials, that is always an interest of a defendant and that is an interest in the mistrial situation, that is an interest in the Lee dismissal situation, that is an interest in this situation.

What I am suggesting is that it is not an interest of sufficient force to override the public interest in having one determination of the defendant’s guilt or innocence.

While this case is technically distinguishable from Lee on the basis of the nature of the order terminating the prosecution, we submit that it is controlled by the same policies and that they dictate the same result.

Neither in Lee nor in this case did the defendant secure a favorable resolution on the merits, that that might be supplanted by a second trial.

In both cases, the pre-verdict termination was in response to the defendant’s own motion and with his consent.

Now, we recognize that there is dictum in Lee seemingly pointing to a different result.

I refer to the following statement which appears at page 30 of 432 US.

“Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause.”

This was such a dismissal, but we believe that the statement in Lee which was not necessary to the Court’s decision there was never intended to govern cases such as the present one.

Two reasons support this conclusion.

Byron R. White:

And apparently Jenkins does?

Mr. Andrew L. Frey:

Jenkins is not controlling here at all because Jenkins was an acquittal.

That is, Jenkins was a determination that Mr. Jenkins had not committed an offense under the selective service laws because Ehlert was not retroactive.

The first reason why the Lee dictum is not applicable here is that it was a completely accurate statement of the situation in Lee where there was no government appeal.

Mr. Andrew L. Frey:

So that if the ruling in Lee had been a dismissal with prejudice or determination of the merits of the controversy, the second trial in Lee would have been barred by the Double Jeopardy Clause.

Here, we have a government appeal which distinguishes the case.

Potter Stewart:

But it is the fact of the government appeal that makes it necessary to make an inquiry into whether or not the second trial is barred by the double jeopardy clause because that is the test of whether or not the government can appeal?

Mr. Andrew L. Frey:

Well, I understand that there is a double jeopardy issue in all the cases.

Potter Stewart:

It is the only issue because that is the test to whether or not the government can properly appeal?

Mr. Andrew L. Frey:

But in Lee there was a res adjudicata issue that had to be answered.

That is, was the decision of the district court dismissing the indictment in Lee, a final determination of the controversy that would become final by res adjudicata principles if there was a failure to appeal.

If that was true in Lee, then a second trial would have been barred by the Double Jeopardy Clause.

So that what I am saying is that the statement in Lee can be perfectly well-understood.

Potter Stewart:

You mean here, in this case, in the present case, had there been no government appeal and the government had simply tried to —

Mr. Andrew L. Frey:

The Double Jeopardy Clause would have barred a retrial.

Potter Stewart:

— retry a felon, it would have been barred by res adjudicata, if nothing else, and the Double Jeopardy Clause?

Mr. Andrew L. Frey:

And a fortiori by the Double Jeopardy Clause.

So that the statement in Lee would be accurate if we had proceeded by means of a second trial rather than an appeal.

Now, apart from this point and I recognize that Lee cites Jenkins and Jenkins was a government appeal case, I think that what the Court was doing in Lee was contrasting the dismissal in Lee with the dismissal in Jenkins which was in the nature of an acquittal, that is a determination that the defendant had not committed the crime with which he was charged.

We do not think that the Court had in mind this special subcategory of cases involved in Scott and I assume the fact that certiorari was granted, there was some indication that the matter was not wholly settled by the statement in Lee.

Moreover, so long as the case does not implicate the defendant’s special interest in preserving a determination that he is not guilty of the offense charged, there is no good reason for distinguishing among various types of dismissals for purposes of determining the permissibility of a second trial.

All dismissals that do not determine guilt or innocence ought to be analyzed in the same way.

Why should a Trial Court’s erroneous dismissal on the grounds of pre-indictment delay, statute of limitations, or discriminatory prosecution bar a second trial, although a dismissal for some other defect in the indictment or the trial does not?

We think there is no good reason.

In either type of case, the defendant is exposed as a result of the second trial to the same amount of added anxiety and expense and the prosecution is afforded precisely the same opportunity to improve upon its original presentation.

Assuming as we —

Thurgood Marshall:

Exactly what we are talking about when we say double jeopardy?

In this case, there is no way this man can escape without two trials under your theory?

Mr. Andrew L. Frey:

If we are right and if we —

Thurgood Marshall:

He has to get two trials?

Mr. Andrew L. Frey:

No, there is a way that he can escape.

Thurgood Marshall:

How?

Mr. Andrew L. Frey:

If the motion that he made and got the district court to grant was legally correct, then the dismissal would be affirmed.

Thurgood Marshall:

But your position is that it was not correct?

Mr. Andrew L. Frey:

Well, that is right. [Laughter]

Thurgood Marshall:

In that case, he gets two trials.

Mr. Andrew L. Frey:

That is our position.

That of course is what happened to Lee.

Thurgood Marshall:

So he gets Double Jeopardy?

Mr. Andrew L. Frey:

Well, that is true, but as I tried to point out earlier in my argument, the Double Jeopardy Clause is not an absolute prohibition against two trials and indeed —

Thurgood Marshall:

It is not a prohibition against double jeopardy?

Mr. Andrew L. Frey:

Well, if you want to put it that way.

Indeed, this case is stronger for the government than Lee for the very reason that you dissented from the Lee decision because in Lee the second trial was needed at least in part because of the negligence of the prosecutor in framing the charge, whereas here, the prosecutor did nothing wrong.

He brought a perfectly adequate charge and it was the respondent by inducing the court to commit legal error who prevented a verdict at the first trial.

Now, Louis —

Thurgood Marshall:

Could the judge not have done this on his own motion?

Mr. Andrew L. Frey:

Well, he could have and had he done it, we would have had it different —

Thurgood Marshall:

That is why I said he did not waive that motion, that is significant in this case?

Mr. Andrew L. Frey:

Well, I believe that he did grant the defendant’s motion.

I do not believe that this is a case that can be treated like Jorn as one in which the judge suddenly popped up and stopped the trial.

William H. Rehnquist:

My understanding of the record is that the defendant made a motion to dismiss at the outset of the trial and the trial judge reserved judgment and then he made it at the close the government’s case to reserve judgment and made it at close the defendant’s case and granted?

Mr. Andrew L. Frey:

Well, I think, technically it was denied, but it was denied with the understanding that it would be considered at a subsequent point in the trial.

Thurgood Marshall:

But you really do not see that there is any material of difference?

Mr. Andrew L. Frey:

Well, I do not think so —

Thurgood Marshall:

Whether the motion is continued or whether the motion is subsequent, it does not make any difference?

Mr. Andrew L. Frey:

I do not think so.

In this case, the judge said “I hereby grant the motion to dismiss with respect to count one,” that is —

Thurgood Marshall:

So I do not think it makes any difference in your argument?

Mr. Andrew L. Frey:

Well, it would make a difference if as in United States against Jorn, the judge suddenly popped up and said I am declaring a mistrial before the defendant could say anything, the jurors were discharged.

Thurgood Marshall:

And I also acquit?

Mr. Andrew L. Frey:

Well, if he said “I acquit,” then you will have a different problem, but he most positively did not say —

Thurgood Marshall:

But it does not agree with your argument in this case.

If he had said it in this case, you would be making the same argument, would you not?

Mr. Andrew L. Frey:

If he said he acquitted?

Thurgood Marshall:

Yes.

Mr. Andrew L. Frey:

Well, I think Serfass makes it clear that the label has no talismanic effect, but if what he did was an acquittal, that is if what he did was a judgment, however wrong, that the defendant had not committed the defense we would not be here today because we would not foreclose —

Thurgood Marshall:

You would not be here if what he did was correct?

Mr. Andrew L. Frey:

Well, if what he did was correct, we do not in a sense we do not know whether what he did was correct. We believe it was incorrect.

Potter Stewart:

Now, you said that very early in your argument that it was probably incorrect?

Mr. Andrew L. Frey:

That is in light of Lovasco I think.

Potter Stewart:

Why do you say that because there was a finding both that this was deliberate conduct in the part of the government and that there was result in prejudice?

Mr. Andrew L. Frey:

I understand that the ingredients of the formula were recited, but the delay was the kind of delay, which was for five-and-half months, which normally does not even trigger an inquiry and the deliberate nature of the delay was the very kind of thing which normally the prosecutor, which is normally recognized as the core kind of appropriate delay that protect the identity of an informant to further investigate to find out the identity of any potential confederates the source of supply of narcotics and so on.

I do not want to argue —

Potter Stewart:

No because in any event even if it was arguably correctly decided and correctly dismissed, your only claim is you had a right to appeal?

Mr. Andrew L. Frey:

That is correct.

Potter Stewart:

The merits of that do not have really had anything to do with this issue now before us?

Mr. Andrew L. Frey:

That is correct.

Now, if this Court upholds the dismissal of the government’s appeal in this case, the result would be to sacrifice the societal interest in a full and fair trial reaching a just judgment without achieving any corresponding benefit to the legitimate interest of criminal defendants.

No one is asking here that respondent choose between his right to have an adjudication of his due process claim and his right to have the merits of the charges against him determined at a single trial.

Both goals could have readily been achieved by the simple expedient of deferring the ruling on the motion to dismiss until after the verdict.

If that is done and the jury acquits, the matter is finished.

If that is done and the jury convicts, the trial judge can, then, grant or deny the motion, the correctness of that ruling can be reviewed on appeal by either side and regardless of the outcome of the appeal, no second trial will be necessary on account of this issue.

John Paul Stevens:

Mr. Frey, before you sit down, would you tell me why Jenkins is not controlling?

Mr. Andrew L. Frey:

Because Jenkins involved what was really an acquittal.

John Paul Stevens:

But at the very last page of the opinion it says we cannot tell whether there was an acquittal or not.

There is no resolution of factual issue and assuming either way, there is still no appeal?

Mr. Andrew L. Frey:

Jenkins was a case in which what the Court was dealing with was a point which I am afraid is now mooted by the Finch decision which is whether if the judge had found every fact necessary to support a conviction and had then applied a legally erroneous theory to produce an acquittal, that acquittal would or dismissal as the judge labeled it in that case, would be reviewable on appeal.

Now, what the Court said was that it could not tell from the record exactly what the judge was doing, but I think it was —

John Paul Stevens:

Therefore, it did not make any difference for the purpose of the decision, is it not?

Mr. Andrew L. Frey:

But that was because whatever he was doing, it was a determination of the defendant’s culpability liability for the offense charged, that is did he or did he not commit an offense was something that the judge determined and there were some questions as to exactly how he determined that exactly what facts he had found, but I do not think that it was anything like this case where the decision to dismiss had nothing to do with whether the defendant committed a crime.

It had merely to do with whether he was prejudice in his ability to defend and so on, but not he could be guilty or he could be innocent.

John Paul Stevens:

I see what you mean.

Mr. Andrew L. Frey:

That was not true in Jenkins.

John Paul Stevens:

Let me ask you one other question rather quickly.

John Paul Stevens:

If I understand your theory correctly, you would also say the government could appeal if the dismissal say were on a ground that there had been prosecutorial misconduct or something of that kind?

Mr. Andrew L. Frey:

I hate to get into that. [Laughter]

John Paul Stevens:

I think it would follow from your theory, but on the other hand, you would say you could not appeal if say there had been a dismissal at the close of the government’s case for the judge thought there was not enough evidence to go to the jury —

Mr. Andrew L. Frey:

That is correct.

John Paul Stevens:

— and I think you would not be able to appeal that?

Mr. Andrew L. Frey:

We take that to be the teaching of Martin Linen, yes.

I just like to sum up the way I see the equities of the present case.

It seems to me that the public has a right under the Double Jeopardy Clause, to expose a defendant in a criminal case to at least one determination of guilt or innocence and that defendant should not be permitted to defeat that important interest by injecting error into a trial, halting it short of verdict, then complaining that exposure to another trial would be unjust and excessively costly for their selves.

I would like to reserve the balance of my time.

Warren E. Burger:

Very well, Mr. Frey.

Mr. Marietti?

William C. Marietti:

Mr. Chief Justice and may it please the Court.

I would like to confine my discussion with the Court this morning to rebutting the brief submitted by the government in this case and as far as our positive position in this case, I would like to rely on my brief in this matter and I do not intend to reiterate that.

I think it is neat for the Court in launching a discussion in the consideration of this case to first consider what we do know about this case.

There is a parent agreement between both the government and the respondent.

Now, it is clear that this case does not fall within the ambit of the Serfass decision which is part and parcel of the trilogy which this Court recently has decided that Wilson-Jenkins-Serfass trilogy, as the Court has referred to them in the Lee decision.

It is clear we do not have Serfass here because we have jeopardy attaching and I read the Serfass decision as making that determination the critical factor and the reason for the decision in Serfass to permit a retrial of the defendant.

In this case, the defendant, Mr. Scott, was put to trial both with regard to the government’s proofs and to the defendant’s proofs and as to count three, which of course is not before the Court, it was sent to the jury.

So the jeopardy has attached under the Downum decision once that jury was empaneled, once they began to consider the evidence.

I think it is also clear that we do not have the situation that we had in Lee or the situation that the Court was concerned about in the Sisson decision where counsel merely sat back and waited until he knew jeopardy had attached and then attempted to use the Double Jeopardy clause as a sword, not as a shield, but as a sword, deliberately deferred his decision to file a motion on legal grounds until after jeopardy had attached.

I think the court was quite concerned about running into that situation and certainly in the Lee case, they came very close to that situation. Counsel in that case had deferred his motion until the very morning of trial and a motion that would require research and he very well knew that and that was noted by the trial judge in his opinion because he said “gentlemen, I am going to need time to consider this motion” and they then proceeded with the proofs.

Now, that is not the situation we have here.

Harry A. Blackmun:

Of course that is a distinction all right, but there is also another distinction and that is that, in Lee, prosecutorial error was present and here there is no prosecutorial error, is that not correct?

William C. Marietti:

It depends how the Court decides to look at what prosecutorial error is.

It would be my position that the prosecutor made error by delaying in bringing the indictments in this case when he had opportunity to do so.

Harry A. Blackmun:

Well, certainly no prosecutorial error during the trial?

William C. Marietti:

Certainly not.

William H. Rehnquist:

Really, other than a verdict of acquittal, any other motion is going to be based on some sort of prosecutorial error, as Justice Blackmun described it, is it not, or prosecutorial misconduct, delay, improper search or seizure, or something?

William C. Marietti:

I think that is true except for the situation where, of course, the Court itself makes an error, but basically, of course, it is based on my opponent making error in the case.

But I think the Lee decision also is different for an important reason and the important reason is that that prosecutorial error is capable of being corrected.

William C. Marietti:

If in fact it was error, and I do not think it was argued in that case that the prosecutor did not make error, it was clear that the prosecutor had made error, he had filed a defective information or indictment and if that is the situation, I submit that readily lends itself to correction.

William H. Rehnquist:

But it is corrected at the sacrifice of your client’s interest in having his fate determined by first jury?

William C. Marietti:

Well, first of all, let me say I am not necessarily saying I agree with the Lee decision.

William H. Rehnquist:

Well, you do not have to agree with any of them?[Laughter]

William C. Marietti:

But I am saying, Justice Rehnquist, that I think we have a stronger case here for that reason because the Lee decision did involve an error by the prosecution that could be corrected, this is not the case here.

In that case it would be simple for the prosecutor to simply file new information, add the elements of the offense, which I believe they left out knowledge and go back to trial and the trial judge in that case even indicated to the prosecution that if you had done this information properly and drafted it properly, there is no question that the facts here fit the crime.

William H. Rehnquist:

Well, the government’s argument here is that what it conceives as the error committed by the trial judge too can be correct, if it can just argue it to the Sixth Circuit on the merits?

William C. Marietti:

With all respect, I think we are confusing the error that I am talking about.

He is talking about the error made by the court in its decision on whether or not to grant a motion made during trial and whether or not to proceed with that motion at trial.

That is the error he is talking about and I am talking about the error that the prosecutor made in the Lee case which was drafting the indictment improperly and the error that the prosecution made in this case in the delay in bringing the charges against my client and that delay can never be corrected.

William H. Rehnquist:

Why should that be critical for purposes of the Double Jeopardy analysis?

William C. Marietti:

I feel it should be critical because the decision in Lee and the decision in Dinitz which the government in this case attempts to rely upon seems to suggest that we somehow had a choice.

We somehow determined our fate in this case and that we decided that because of the makeup of the jury, because of the way the facts had fallen in the case somehow we opted to have this case dismissed by the trial judge.

William H. Rehnquist:

You did, did you not?

William C. Marietti:

I do not think it was that sort of situation and here is why I think it is different.

I think it is different because we did not have a tainted jury in this case like you may have had in the Dinitz decision.

We did not have a tainted jury where we were concerned with the jury somehow getting to hear evidence that they should never have heard.

William H. Rehnquist:

But you preferred to have the trial judge dismiss the indictment on pretrial delay grounds than go to the jury and have its verdict and make your motion on pretrial delay grounds afterwards, the juror returned a verdict of conviction?

William C. Marietti:

I preferred to have the judge decide my motion for dismissal prior to jeopardy being attached.

That is what I preferred because I filed a motion long in advance of trial of this case in accordance with the court rules in an effort to be diligent in properly presenting my case to the court and the court denied that motion.

They did not just say “we will take it under advisement.”

The court said “we deny that motion” and the reason they denied that motion is because he said “I want to hear the evidence.”

William H. Rehnquist:

Well, and there is some reason for a trial judge doing that, is there not?

William C. Marietti:

There certainly is.

I do not quarrel with that, but in terms of what the defendant did in this case, in terms of choosing his own fate, I do not think it can properly be said that we selected our own fate in that regard because we tried to present this case to the judge prior to this jeopardy even attaching.

I have to agree with the comments of Justice Douglas and Justice Brennan in the Lee opinion where they distinguished the situation where counsel, in good faith, goes to that court and says “prior to any trial or any jeopardy attaching, may we please have a decision from this court?”

If the court, nevertheless, says “no, your motion is denied,” then we have no choice.

We have to be put in jeopardy.

I do not think it is fair to say that we selected our fate in that regard, unlike the man in Dinitz.

The man in Dinitz who had already prejudicial problems with that jury in terms of his lawyer being disqualified and the jury being confronted with this situation, we do not have that situation.

William C. Marietti:

We do not have a situation where if you brought in a new jury, that it would change our position in front of that jury, no matter how many jurors you bring into this case, our position and the facts are still going to be the same. The pre-indictment delay is still going to be the same no matter who the jury is and that is why this case is decidedly different, I feel, from a mistrial situation where there is prejudice or taint in that trier of fact that occurs during the trial and that is why I feel this case is completely different.

Byron R. White:

Suppose you make before a trial two motions, one to dismiss the indictment on the grounds that the statute is unconstitutional that purports to authorize the indictment for this crime and secondly that in any event, the statute does not reach the facts contained in the indictment that the statute does not cover this charge and the judge reserves both motions, but during trial you urge him to grant either one of them and he grants one or the other or both of them.

Would you be taking the same position here then?

William C. Marietti:

As to the first motion, I would not.

The reason I would not be taking the same position is that that question does not require the judge to hear the facts of the case in order to make an appropriate decision.

Byron R. White:

I know, but he does terminate the trial and he does not think that you can ever be retried?

William C. Marietti:

But the question in that case is, does the judge have to know the facts of the case?

It seems to me the question in that type of motion is does the judge have to know the facts of the case in order to properly decide the question of whether or not the statute is constitutional.

I do not feel the judge has to have any facts before him.

Byron R. White:

He thought he did, that is why he waited.

He thought putting the statute in some kind of factual context would help him make up his mind on the constitutional issue so he reserved and ultimately ruled?

William C. Marietti:

I am not sure which decision the court is referring to.

There are a couple of decisions like that.

Byron R. White:

I am not referring to any.

I am just wondering whether your position would be that there would be double jeopardy in either one or both of those cases?

William C. Marietti:

My position would be different and it is going to depend on whether or not the judge sua sponte at that trial decides that now he is going to decide the constitutional question whether I renew the motion.

Byron R. White:

You renew the motion?

William C. Marietti:

Well, if I renew the motion at that point, I think I would have to revert to my position in this case.

I attempted in every way within the court rules and within proper procedure to bring my motion before trial and to have a determination before I was placed in jeopardy.

Byron R. White:

If under a state procedure, you can make such motions during trial and they never were made before trial, but you make them during trial, what then?

William C. Marietti:

Well, I can see a divergence of opinion with regard to the Court on that issue.

I think the Court from what I have read in —

Byron R. White:

What is your opinion?

William C. Marietti:

Well, in my opinion in that situation I would still say that if I have been put to the test of the triers of fact that if a jury has been paneled and jeopardy has been attached and it is not a manifest necessity situation or mistrial situation, which it clearly is not, then I would submit that jeopardy would attach.

Byron R. White:

Even though you were the one who urge the dismissal?

William C. Marietti:

That is right, but I emphasize to this Court that that is not the situation that we have here and I do not think it is fair to judge me on those sorts of facts because I made that motion prior to trial and I made it because that is when it was proper —

Byron R. White:

In my example, if the judge said to you “Well, I had just been reading the Supreme Court opinions, I am afraid I would be in trouble if I granted these motions.

Now, I am going to wait until the jury comes in with a verdict.

If the jury finds you innocent, the show is over anyway, but if it finds you guilty, then I will rule on your motion.”

Then I suppose, the decision in your favor post-verdict would be subject to appeal?

William C. Marietti:

It certainly would under the Wilson decision.

I have no doubt about that.

If there has been a determination by the jury that can be reinstated following an appeal, then I would have to abide by the decision of this Court in United States versus Wilson.

Thurgood Marshall:

What happens if a case like this, and after all the evidence is all in, the judge says “I have held this motion up, I am now ready to decide it.

I am going to grant the motion because from the witnesses to this case and their demeanor on the stand, it is obviously that time has interfered with their memory.”

That would be an entirely different case, would it not?

William C. Marietti:

I do not think it would be an entirely different case for this reason because I think the judge did make comments to that effect.

Judge Fox, in making his decision on this motion, indicated not only that my client, Mr. Scott, suffered from a problem with recall of the events, he also noted that the chief witness for the government, the informant Mr. Jordan, also experienced difficulties recalling the events and the judge made that part of his decision.

Thurgood Marshall:

Well, I have to give some respect to the second point, but some of us have tried some criminal cases and is it not perfectly common that the defendant “disremembers,” is that not normal?

William C. Marietti:

Well, I am sure I do not have the experience that the Court has in that regard, but I certainly have been faced with situations where the defendant does not have a memory.

Thurgood Marshall:

As I understand the government says that the fact that this went in and was carried over, it really goes back to the original motion and that nothing transpired?

William C. Marietti:

I do not believe that that part of the case is clear because the judge said in his pretrial order “the motion is denied.”

Thurgood Marshall:

That is the trouble I think you have?

William C. Marietti:

He said “the motion is denied.”

Thurgood Marshall:

If it is unclear, you might not win?

William C. Marietti:

Well, he indicated the motion was denied and he said in that that it was denied without prejudice and my point in raising that part of the whole sequence of events is to point out to this Court that I am not the counsel that you were faced with in Lee or that you were concerned with in the Sisson decision that might arise who waited till I was in jeopardy to use it as a sword.

William H. Rehnquist:

What if you have a motion for directed verdict on the issue of entrapment at the close of all the evidence, something which could not possibly have come up before jeopardy attached and the judge grants that motion, is that appealable or not under these statute making appealability dependent upon Double Jeopardy?

William C. Marietti:

It would be my position on entrapment.

I am not prepared to argue the law of entrapment, of course.

William H. Rehnquist:

No, but is it right or wrong?

William C. Marietti:

It would be my position that since facts were heard which goes to the guilt or innocence of the defendant, and he was put to the test as indicated in Green and in the other decisions, that that certainly would bar appeal of that.

That would be my position on that and that raises another point.

William H. Rehnquist:

Even though there was no possibility of ever obtaining a ruling on that issue prior to jeopardy attaching?

The way you say you try to do, but were prevented from doing?

William C. Marietti:

That is right.

I feel that way, if the Court is going to look at the real interest of the Double Jeopardy Clause as set forth in Green, but again, I emphasize that is not the case here and that is one of the underpinnings of my whole presentation to this Court, is that I did not sit back, I did not sit back and use this Double Jeopardy Clause as a sword.

I did everything that responsible lawyering requires in terms of bringing these motions ahead of time so that I would not be placed in jeopardy, I would not have to be placed in that situation and by the time we got to trial and we got all the way through the trial, I was forced to forgo asserting a legal right.

Warren E. Burger:

Do you say that the court could have then as fully advised in responding to your pretrial motion without any evidence before him as he was after he had the evidence before him?

William C. Marietti:

Absolutely not and I think the government and I are in agreement on this respect.

This is a peculiar type of motion, a motion for pre-indictment delay because it does require evaluating the prejudice to the defendant versus the intentional activities of the government and I think it is necessary in that situation to hear some of the facts, I understand that.

Warren E. Burger:

Do you suppose it is possible that among other things, in postponing a ruling on the motion the judge took into account the fact that your client was a police officer who was presumably trained to remember the facts, and therefore, this delay might be different with respect to him than for some other person, not a police officer?

William C. Marietti:

I know the judge took that into account, Mr. Chief Justice.

I know that he took into account that this man was involved in a number of narcotics transactions, a myriad of them in the course of his police duties and that there was a myriad of times and days that he was required to testify to as a police officer, let alone in defending himself.

I am quite sure the judge was cognizant of that when he made his ruling in this case. I am quite sure of that and I would agree with —

Warren E. Burger:

Then why does that not bring you very close to the situation that Mr. Justice Rehnquist has just postulated to you?

William C. Marietti:

I am not sure.

I do not see the parallel.

I do not see it.

If I might return, I also have to disagree with the position that has been put forth here by the government this morning which I think Justice Stevens commented on that somehow this is not the Jenkins situation because we do not have “an acquittal” here.

Now, I think we have come to the point now where we do not get hung up on the terms whether it is label an acquittal, a dismissal, or whatever, in my reading of the opinion in Jenkins, the Court was unsure.

The Court was not clear as to whether or not there had been a final resolution of the guilt of the defendant, but it seems to me that the Court was clear in the Jenkins decision that there had been a final resolution in favor of the defendant in that case regardless of whether or not it was truly an acquittal for the failure of the prosecution to prove the element of knowledge or not.

The Court said that there were unclear and for that reason, it was a situation similar to those situations where you do have an acquittal, but the Court did not come out and say “Jenkins was an acquittal” and I am not here before this Court today arguing that what happened in this case was an acquittal.

But certainly in this case, as was stated in the Wilson decision by Justice Douglas in his dissent, certainly in that case the Court in arriving at the conclusion that it did had to consider all of the facts in the case, facts which bore the elements of the offense as well as on the motion in that case which was the same as in this case, for pre-indictment delay.

There is one inescapable conclusion that flows from the argument of the government in this case, one inescapable conclusion that this Court felt was crucial in the decision they rendered in Jenkins and that simply is that Mr. Scott, if this Court should say there is jurisdiction to entertain this appeal on the Sixth Circuit and if that Sixth Circuit should say that Judge Fox was in error, which we do not believe he was, but that is not what is before this Court, Mr. Scott is going to undergo yet another trial and that is not the situation we had in Wilson and it is the situation we had in Jenkins.

Thurgood Marshall:

Mr. Marietti, on the acquittal point, you cannot get an acquittal in your case as I see it because if your original motion had been granted, he would not have been acquitted.

The indictment would have been dismissed, right?

William C. Marietti:

That is true.

I agree with that.

Thurgood Marshall:

By a trial, I think you do not have to show an acquittal, could you not make that position?

William C. Marietti:

Well, I take the position, Justice Marshall, that once the judge denied our motion, our motion was over and we were placed in jeopardy at that point.

Thurgood Marshall:

But you renewed your motion?

William C. Marietti:

We certainly did, where else can we renew the motion is the problem?

Thurgood Marshall:

(Voice Overlap) with the motion for dismissal?

William C. Marietti:

Pardon me?

Thurgood Marshall:

Was the motion to dismiss the indictment?

William C. Marietti:

It certainly was.

Thurgood Marshall:

So the motion he granted was the motion to dismiss?

William C. Marietti:

The motion that he granted in all fairness to the position of the government in this case was the motion to dismiss the case for pre-indictment delay.

Thurgood Marshall:

If someone takes a position that they are not going to bury just on language alone, are you not too in agreement that they are both the same, you do not need the word “acquittal?”

William C. Marietti:

I agree completely with that position.

William C. Marietti:

I think the whole Court, from what I read in the decisions agrees with that position that we are not going to, but these manage hinge on terminology.

But I do see the situation here arising that you had in Jenkins. This man is going to have to face trial again.

All the way through the trial, and we did not have a situation here where we had a short bench trial or we had a trial that was terminated partway through the prosecution’s case, Mr. Scott went through the entire trial.

William H. Rehnquist:

Lee was going to have to face trial again too?

William C. Marietti:

I understand that, but in Lee, I think in that case the Court took note that it was clear that the judge did not contemplate that this man could never be convicted of these offense because the judge said in Lee, in his decision he said “look, the evidence of guilt is here, but the information is drafted improperly” and I think the Court in Dinitz also said the same thing because they gave the defendant an opportunity to retain further counsel in the case if he granted as a mistrial.

That contemplates that there is going to be another trial and I thought what the Court said in Lee was is that if the decision rendered by the lower court was to the effect that this man can never be prosecuted for this offense that he simply cannot be convicted and in fact in this case, if there was pre-indictment delay, then he never can be convicted of that offense.

I submit that is what this Court said and that is why this case is like the language in Lee, but different from the facts in Lee because there is nothing that can correct pre-indictment delay.

There is something that can correct an improperly drafted information, but it can never be corrected in this case, and therefore, the judge when he ruled, and we knew that when he ruled, was making a ruling based on an assumption that this man could never be convicted of this offense and that is exactly what Lee seems to distinguish.

It says “if that is the situation we have, then clearly we have a situation where the Double Jeopardy Clause will act as a shield,” not a sword but as a shield.

I see my time is approaching an end and I would just like to comment finally on the alternative that the government proposes in this case and that alternative seems to be that what we trial lawyers should do is more or less sandbag the government and wait until the case is over with and then pop all your motions and bring them out of the bag and have the judge decide them at that point in the case.

William H. Rehnquist:

There will be no sandbagging in the case of waiting on a motion for pretrial delay since there will be nothing that could be done during the trial to correct the government’s pretrial delay as you commented?

William C. Marietti:

Well, I would think that the government should have some prior notice of the defendant having to present this motion or is going to present it at the conclusion of the case because they certainly want to bring these factors out in the testimony of their witnesses.

I urge the Court not to fashion a new rule of procedure for proceeding in these cases.

The government indicated we can call it an arrest of judgment.

I felt that in Justice Harlan’s decision in Sisson, that he clearly indicated that if you are going to get involved in deciding something that requires a decision on the facts that goes beyond the face of the indictment, that that is clearly not an arrest of judgment.

So I cannot buy the government’s argument in this case that we could make a motion for arrest of judgment because that decision of the judge would make that the conclusion of that case would necessarily be based upon the facts.

I submit to the Court in conclusion that if this Court fashions this new form of procedure for proceeding in trial courts on pretrial motions and motions at trial, you are going to create chaos.

You are going to have judges that were put in the position that the judge was in the Lee case for somebody running in on the day of trial and saying “here is my motion, decided it now.”

The judge cannot possibly do it and the judge should not be put in that position.

I just want to conclude by saying, “gentlemen, we have not come here to use the Double Jeopardy Clause as a sword.

I think that was intended as a shield by the constitution and we have done everything we can to be certain that it would be used in that fashion.”

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Frey?

Mr. Andrew L. Frey:

Just a couple of things, Mr. Chief Justice.

The respondent misconstrues our argument on the timing of the motion.

Of course the motion should be made in the first in instance in advance of trial, but as we argued in Lovasco, this kind of motion is best determined only after trial.

Our objection as to its determination in the middle of trial when our appeal rights are defeated contrary, by the way to the policies of Rule 12 (e) of the Rules of Criminal Procedure.

In other words, the motion should be made before trial.

Now, respondent wants you, of course, to look at this case from the perspective of where we stand now.

He is going to have to be subjected to the second trial, but if you decide this case in the government’s favor, look at it from the proper perspective which is at the time, at the point in trial when the respondent could have a ruling on his motion and the judge says “I am ready to rule on your motion now.”

Mr. Andrew L. Frey:

Now, respondent has a choice in that situation.

He can accept the ruling then and there terminating the trial if it is in his favor.

He simply does so at the risk that if he has introduced error into the trial, the government can get it corrected and there will be a second trial.

Alternatively, he can say without any prejudice.

Thurgood Marshall:

How can you correct this delay?

How can the government correct the delay?

Mr. Andrew L. Frey:

That is a very important point.

He says there was prosecutorial error in the delay.

If he is right, there will be no second trial because the Court of Appeals will affirm the dismissal.

It is only if there was no prosecutorial error and no impermissible delay, and therefore, no error that needs to be cured except one that he has suggested.

Thurgood Marshall:

But you agree there is no way to correct a prosecutorial delay if there is, in fact, a prosecutorial delay?

Mr. Andrew L. Frey:

I agree wholeheartedly with that and that is exactly my point.

If there is, in fact, an improper prosecutorial delay in this case there will be no second trial.

Thurgood Marshall:

Your point, I take it, is that the government is entitled to have the Court of Appeals decide whether a delay of four-and-half months is, if that is what it was here, in these circumstances is a delay warranting the dismissal?

Mr. Andrew L. Frey:

Yes, I think the respondent was entitled to have that issue decided in connection with his trial, but what I am suggesting to the Court is that the decision should have been after verdict if he wanted to avoid the risk of two trials.

That would have been —

Potter Stewart:

I think you are saying now what you were starting to say when you were interrupted.

Alternatively, a defendant makes a motion based upon unconstitutional pretrial delay to dismiss the indictment and you are saying now that the judge said “I grant your motion and I am about to dismiss the indictment” and you say “the defendant should not do that.”

He should say “no, Your Honor, do not grant my motion m let the trial go on,” that is sort of an alternative.

Can you imagine any defense counsel in the world who would do that?

Mr. Andrew L. Frey:

Absolutely.

If this Court reverses in Scott, it will be clear to defense counsel that he has his choice.

He can have a midtrial ruling if the judge is willing to give him one, pre-verdict ruling and not ever get the jury’s determination of guilty or innocence.

Potter Stewart:

But he is supposed to say “no, do not grant my motion.

I want to go on and my client may be found guilty, but do not grant my motion to dismiss even though you want to, Your Honor.”

Mr. Andrew L. Frey:

No, not “do not grant it.”

He will get it granted anyway.

It is a question of when it is granted.

It is a question of whether it is granted before verdict or after verdict.

He should say “Your Honor, I want to see if the jury will acquit me.”

Mr. Andrew L. Frey:

Now, you may think that that is unrealistic to expect from an attorney.

Potter Stewart:

I think it takes good amount of self-restraint on part of the defense counsel?[Laughter]

Mr. Andrew L. Frey:

If defense counsel appreciates the possible cost in terms of a second trial, remember Rule 12 (e) says that these kinds of motions are not to be deferred for disposition during trial, if that would compromise the appeal rights of the government which if we lose here, it certainly would.

So this kind of motion should not be.

In fact, there is some question where the judge has power to rule upon it during the trial.

John Paul Stevens:

Mr. Frey, if the government’s submission is accepted and putting aside mistrial situations which are a little bit special, does the time at which the jeopardy attaches have any further significance?

You know we have a case pending here.

Mr. Andrew L. Frey:

Yes, it has great deal of significance under Serfass.

That is, you could have an acquittal that occurs prior to trial which is really what you will have in Serfass.

John Paul Stevens:

You will say that then the time of attaching jeopardy will not make any difference anymore, I do not think?

Mr. Andrew L. Frey:

It makes a difference for two kinds of situations.

The first situation is if you have an acquittal, that is reviewable if it is prior to the attachment of jeopardy, that is what Serfass held.

So the time of attachment of jeopardy may be significant in relation to the time the judge makes the ruling that I have looked at the files and it is plain to me that the defendant has committed no offense.

The second respect in which it is significant is if you have a manifest necessity case like the issue in Crest against Klein (Ph) that never got abandoned by the state.

You may have had an unjustifiable mistrial declared by the court and if that was done before the attachment of jeopardy, there is no Double Jeopardy barred or a retrial there.

John Paul Stevens:

But that is all the mistrial situation.

Except for Serfass, the only time it makes any difference is when the question is whether there is manifest necessity for a mistrial.

If there is a defense, for example, the statute of limitations or entrapment, as Justice Rehnquist said, or any other defense it could always be reviewed.

It would not matter whether the man was in jeopardy or not.

It is the analysis.

It does not make it wrong necessarily.

Mr. Andrew L. Frey:

If the defense was entrapment, if the defense was what Justice White suggested that the statute is unconstitutional, you get into very difficult questions as to whether what you have is really an acquittal.

If what you have is the kind of determination that the defendant is not guilty of a crime which is insulated from review because of the special vested interest.

John Paul Stevens:

All I am saying is that on all those issues it does not matter what the time of placing the man in jeopardy make.

It does not make any difference any more, I do not think.

I may be wrong.

Mr. Andrew L. Frey:

Yes, it makes a difference because if the ruling is prior to the attachment of jeopardy, then there is no even inquiry into Double Jeopardy.

If the ruling is after the attachment of jeopardy, you have to ask yourself, in an entrapment case, it is arguable whether or not that is the kind of acquittal or dismissal going to the merits which ought to be vested with the kind of protection that the Court has given in Finch and given in Martin Linen to those kinds of rulings, and given in Jenkins.

If what you have is as here a claim that the defendant may be guilty, but there was discriminatory prosecution, the defendant may be guilty, but there was a violation to his right to a speedy trial, the defendant may be guilty, but there was prejudicial pre-indictment delay, then you have a class of claims which as I have argued in our briefs, are not materially distinguishable in policy terms from the prosecutor to draw up a proper indictment, the prosecutor introduced prejudicial and inadmissible material before the jury.

John Paul Stevens:

What if you need to know when a fact occurred to decide whether the statute of limitations had run, that would be just like pre-indictment delay, I suppose, the government could appeal it?

Mr. Andrew L. Frey:

We would take that position.

I take it that my opponent is harking back to the Sisson test which was a statutory test which this Court in Wilson essentially abandoned for defining what an acquittal was, I do not think an acquittal has to do with when the evidence is heard, but what it goes to and what the basis of the judge’s ruling is.

Byron R. White:

Mr. Frey, I still do not understand your position with respect to Jenkins.

You say there was an acquittal there.

Well, the Court of Appeals may have said there was, but this Court did not and this Court did not rest its view on the fact that there was an acquittal. It said it could not tell.

Now, I would suppose, in reading that opinion, I suppose even if the court had said there was not an acquittal it would have come out the same way?

Mr. Andrew L. Frey:

Well, but that is because what the Court could not tell was something a little different here.

What the Court knew in Jenkins was that the district court had said Ehlert was not retroactive and the defendant could not be committed of willfully refusing to submit to an induction because of the non-retroactivity of Ehlert.

The government appealed claiming that that was legally erroneous and that we said every fact necessary to support a conviction was found.

Now, this Court said in effect, well, let us suppose that the district court had not, let us suppose the government was right that if the district court had simply rested on Ehlert, we could review that and reverse it.

Let us suppose that, although subsequently I think it was held that that is not so.

Then it said “we still cannot tell whether the judge found all the facts that were necessary to support a conviction.”

We are not sure whether he found that there was knowing refusal to submit to induction.

Byron R. White:

Whether or not he did, the Court said further proceedings were necessary?

Mr. Andrew L. Frey:

Yes, but the fact that in Jenkins the Court may have said whether or not this was an acquittal, the fact that further proceedings are necessary bars an appeal does not answer the question about Lee because, in Lee and in the mistrial cases, it is also true that you do not have an acquittal, but you still have to make the inquiry into whether an appeal on the second trial was justified.

Now, I am suggesting that we have in this case, a category of ruling which when you look at the policies and what we are trying to protect is more likely than it is like Jenkins and the reason that is so is because in Jenkins, it is plain that the district court found the defendant had not committed a crime.

The District Court and The Supreme Court was saying, well, “suppose he found out an illegally erroneous basis, suppose we could agree with the government,” and so on, but there was a finding that there was no crime.

Now, here there was no finding that there was no crime and we submit that that is and should be properly critical to the Double Jeopardy inquiry.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.