UNITED STATES v. JENKINS

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Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will hear arguments next in United States against Jenkins, 73-1513.

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 a grant of the petition of the United States for a writ of certiorari to a review decision of the United States Court of Appeals for the second circuit, which dismiss the Government's appeal from an order of the District Court in this case which in turn the dismiss respondent Jenkins indictment for knowing failure to submit to induction into the arm services.

This case is related to the next case which you will hear, United States against Wilson.

Both involved the issue of whether the United States may appeal constitutionally consistently with the Double Jeopardy clause from a post trial ruling which would be denominated on acquittal under the definition in Jenkins.

The Wilson case also involves the further issue of whether the ruling there was an acquittal for purposes of such a rule if the court were to adopt such a rule.

Now the pertinent facts surrounding Jenkins offense as disclosed by the evidence at trial and has specifically found by the District Court are undisputed.

Mr. Jenkins was ordered on February 4th, 1971 to report for induction on February 24th.

The validity of that order as initially issued is on challenge.

Mr. Jenkins received that order, he wrote the local board thereafter requesting a form on which to apply for contentious subject to classification.

On the day before his induction, he went down to this local board, again to pick up this form.

At that time, he gave them a brief written statement of his contentious subjection claim.

At that time, eh was told that his induction order would not be postpones and that he should report the following day.

On February 24th, 1971, he failed to report for induction.

These findings were all specifically made by the District Court.

Now it is the Government's position that these facts required as a matter of law, the entry of a judgment of conviction against respondent Jenkins.

However, the District Court concluded that because these offense took place prior to this Court's decision in Ehlert and because that the time of these events in the view of the District Court, it was the law of the Second Circuit that the local board was required to postpone respondent Jenkins induction and to consider his claim of like crystallizing conscientious objection.

It would be unfair to apply the Ehlert principle to the defendant who was before the District Court.

Unknown Speaker: And this case is not as the case in which the respondent Jenkins did have a counselor that he consulted?

Mr. Andrew L. Frey: He did.

Yes.

Unknown Speaker: Was that man a lawyer or not?

Mr. Andrew L. Frey: The draft counselor I believe was not a lawyer.

Unknown Speaker: But he presumably had some expertise with respect to the law of selective service?

Mr. Andrew L. Frey: We do not know, it is not in the --

Unknown Speaker: Also, would have been a very good counselor?

Mr. Andrew L. Frey: It is not in the record presumably.

Unknown Speaker: And therefore presumably would have know the law of second circuit, right?

Was that not part of some of the briefing?

Mr. Andrew L. Frey: Well that is – but surely is speculative.

I do not – that was not a part of Judge Travia's --

Unknown Speaker: Well if you go to it, if the person is a doctor, for example, you assume the doctor knows something about medicine just by definition, if you got to a counselor, a draft selected service counselor, you assume almost by definition if he is a counselor unless he is a fraud and he knows something about selective service law, do you not?

Mr. Andrew L. Frey: Well yes.

Unknown Speaker: It does not need to be on the record.

Mr. Andrew L. Frey: Well I do not know whether this Court could take judicial notice of it, but I think that what the District Court held was that with respect to people, who at that time were ordered to report for induction when the law of the Second Circuit has been held in the Gearey case, it would be unfair to apply Ehlert retroactively.

Now that is a question of law and that is a question of law which was decided in favor of the Government in the case called Mercado, which was then pending on appeal in the second circuit.

Because of the conflict between the two cases, the Solicitor General authorized an appeal in the Jenkins case.

And as the Court of Appeals decision in Mercado, clearly establishes, the District Court here was in error in dismissing the indictment and the respondent was demonstrably guilty and he should properly have been convicted.

However, divided panel of the Court of Appeals never reached the merits of our appeal.

Rather, it held that the District Court's action although label the dismissal was in fact an acquittal as the concept was defined in the United against Sisson.

While the Court of Appeals recognize that the amended criminal appeals act would authorize the Government's appeal if the constitution permits it.

It concluded that this Court's decisions in Ball, Kepner, Fong Foo and Sisson prevented it.

The Court of Appeals as an inferior court from allowing the appeal in this case.

Although there is some suggestion that Judge Friendly felt that these holdings were suitable for reconsideration by this Court.

Now the issue in this case may be simply stated, dopes the Double Jeopardy clause of the Fifth Amendment bar Government appeal from a post trial decision of the District Court terminating a prosecution in favor of the defendant with such a decision is an acquittal under the definition of the concept in Sisson if the appeal raises only issues of law and if a reversal would not require the defendant to undergo a second trial.

Now the constitutional question of the appealability of a legal erroneous acquittal where no second trial was required is surprisingly enough in view of its importance, a matter of first impression before this Court.

Later in my argument show in detail why this is so, with reference to the four cases relied upon by Judge Friendly.

Unknown Speaker: Is Fong Foo pretty much in point?

Mr. Andrew L. Frey: No.

I will get to it later, but briefly Fong Foo was not in point because what it prohibited was an appeal where a retrial would be required.

Unknown Speaker: But that was legally erroneous acquittal, was it not?

Mr. Andrew L. Frey: That is true.

I mean Fong Foo establishes the preposition that there maybe circumstances in which a legally erroneous acquittal is not reviewable, but it was not talking about the circumstances of this case because in Fong Foo, the trial had never been completed and you really were in a Summerville Perez type of interrupted trial situation ending in acquittal.

That is perhaps close in some ways adjourn.

The reason why this is a question of basically first impression today in 1974 is clear when you look at the history that common law and under the holding of this Court in the Sanges case, the Government had no right of appeal in criminal cases in the absence of a statute authorizing such appeal.

And then in 1907, Congress pass the old criminal appeals act and it was construed in such a manner ultimately in Sisson, but it had been all along to preclude appeals in cases of this sort.

So as a matter of statutory law prior to 1971, the federal Government could not appeal rulings of this sort in criminal cases.

Moreover, the issue did not come up in state cases because the Double Jeopardy clause under the ruling in Palko was not being applicable to the states until a fairly recent decision of this Court amendment.

And I would like here to just point out with respect to the significance of betting something that Judge Friendly noted, which is that the ruling that you make in this case today is a ruling that will be binding not only the federal Government but on each of the 50 states.

And if you say there can be no appeal here, you are saying that this is a fundamental principle that is applicable equal force allover.

And I should note that there are some states that have authorized appeals in this situation as a matter of state law, as a recent decision of the New York, Court of Appeals in July of this year a case called People against Isabella, 359 New York sub 2nd 100.

Unknown Speaker: Did the state have a Double Jeopardy -- a guarantee against Double Jeopardy in this conduction that you know?

Mr. Andrew L. Frey: I am not certain, but I think there is generally some in -- I am told 48 of the 50 states do.

Unknown Speaker: Constitutionally?

Mr. Andrew L. Frey: Have a state constitutional provision, but of course the interpretation of that might be in accordance for instance with Justice Holms descent Kepner.

Our position in this case is a very simple one.

We say that the concept of Double Jeopardy relates to the subjection of the defendant [inaudible] criminal case to a second trial that therefore comes into play only where second trail is to be had since our appeal if successful would not lead to a second trial, Double Jeopardy is simply irrelevant here and the appeal is constitutionally permissible.

Now in our brief, we have set forth various authorities that make it clear that the element of second trial was at the heart of the Double Jeopardy notion at common law and in the application of the American contintitutional principle as explicated by this Court on numerous occasions.

Unknown Speaker: Your appeal is successful if it had been -- your appeal is successful if it had been attained by the Court of Appeals, would have result in what?

Mr. Andrew L. Frey: Would have resulted in a remand, presumably it would have resulted in a remand with a direction to the District Court to undertake further proceedings under a correct view of the law and those proceedings would in the absence of something that does not appear on the record be the entry of a judgement of conviction.

It would not be the taking of further evidence, it would be the dismissal of this indictment and the commencement of a new proceeding with a new indictment.

It would simply be -- what we are entitled to we believe is a matter of law as judgment of conviction in this case.

Unknown Speaker: Have you -- I am just thinking -- a lot of if I have ever seen on the reviewing court opinion the direction to enter a judgment of conviction simplict-- plain over without any further proceedings.

Argument of Mr.Justice Marshall

Mr.Justice Marshall: (Inaudiblt) a directive burden, doesn't it

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well it is --

Unknown Speaker: Guilty.

Mr. Andrew L. Frey: I am not suggesting that the Court of Appeals as to exactly what it is that the Court of Appeals would do.

But here, we have situation in which the district judge has found as a fact every element of the offense.

He has made his findings a fact.

So it is hard to conceive what he could do.

He would have not choice as a matter of law when the case goes back to him, but to enter a judgment of conviction.

Now perhaps what the Court of Appeals would do is reverse the order of dismissing the indictment remand the case for further proceedings consistent with its decision.

Unknown Speaker: They can get that, if not a trial.

Mr. Andrew L. Frey: I assume they will be if we win this case and the defendant does not avail himself of the clemency opportunity that will be the entry of a judgment of conviction.

I can not imagine what else the District Court could do but --

Unknown Speaker: That is all, just without the defendant even there in the court room?

Mr. Andrew L. Frey: Well the trial was completed, this order was -- Judge Travia entered three weeks after the trial was over and this order was legally incorrect that it erroneously dismissed the indictment.

Now he may have before him other motions, motions for new trial, motions for verdict acquittal on some other ground.

I do not believe that that is before him.

But if he had such motions before him as in the case of United States against Weinstein where a similar situation arose, the Court of Appeals sent it back and they said, “You could not do what you did, but now you can consider the motions that are before you and proceed accordingly.”

I had to grant a new trail which was what was pending in Weinstein or enter a judgment of conviction in accordance with the jury's verdict.

I do not see that it is material for purposes of this case, what it is that would happen in the District Court.

Unknown Speaker: Now would you say --

Mr. Andrew L. Frey: We are not asking for a further trial.

Justice Potter Stewart: Under your submission, it seems to me its quite material because you say this would be a different case if you are successful in the Court of Appeals, if the Court of Appeals has to change your appeal.

And if you succeeded on the merits of the appeal, you can see that there would be Double Jeopardy if the remand after your successful argument and that the Court of Appeals accepted your argument, it would be for a trial, do you not?

Mr. Andrew L. Frey: Well, but whatever else --

Justice Potter Stewart: Thought I think what happens after remand is rather important your argument as I understand it.

Mr. Andrew L. Frey: But Mr. Justice Stewart, the question is, what is the relief that we are requesting.

In Fong Foo, the relief that was requested was to vacate the judgment of acquittal that had been entered by the District Court and to conduct, hold a new trial.

Now the relief that we are requesting here is not to hold a new trial.

There is nothing in our appeal that requires a new trial.

Justice Potter Stewart: What was the priority of your brief in the court of appeal?

Mr. Andrew L. Frey: Well I am sorry.

Justice Potter Stewart: Did the court of appeal direct a judgment of guilty?

Mr. Andrew L. Frey: I do not believe so.

Justice Potter Stewart: That would be unprecedented, would you?

Mr. Andrew L. Frey: I do not believe so, but I think it is not -- the trial was completed.

Let us suppose for instance that the District Court had not made these findings of fact.

The trial had simply – the trial had been completed and he has made his ruling of law without making the findings of fact that are essential for conviction.

And our position is that the case would be remanded to him to make findings of fact on the basis of the evidence that he heard at trial, which he had not yet made.

That process is not a second trial, whatever it maybe a continuation of the first trial, but even that seems to me questionable whether the evidence has been completed, the prosecution in the defense have rested and submitted their case, made their final statements.

The trial is over.

Now the question is what legal consequences attached to the events that occurred at trial.

Justice William H. Rehnquist: Well if Judge Travia was in the form of a dismissal of the indictment, was it not?

Mr. Andrew L. Frey: That is correct.

Justice William H. Rehnquist: I suppose the Court of Appeals could reverse the order dismissing the indictment and remand the case for further proceedings that might seem appropriate --

Mr. Andrew L. Frey: That is what I am suggesting it should do.

Yes.

Even if he had labeled in acquittal, we would say he should -- which he did not do, but had he done it, we would say that they would reverse the order of acquittal and remand it for further proceedings consistent with their decision.

Justice William H. Rehnquist: Well what if Judge Travia had determined on a somewhat different factual situation a bench trial that the statute limitations barred this prosecution and made all the findings that indicated otherwise he would certainly the man guilty.

But he said, “On the base of the statute limitations, I am going to enter a judgement of acquittal.”

Do you say the Government can appeal that determination without violating Double Jeopardy?

Mr. Andrew L. Frey: Absolutely.

Indeed, I think that analytically it is not the appeal itself that ever violated Double Jeopardy.

The problem is that the Double Jeopardy clause is pertinent because if what the relief that is requested by the appeal is a new trail and if we may not because of the Double Jeopardy clause have a new trial, then we are asking for an advisory opinion, there is no case or controversy and in that sense the Double Jeopardy clause bars the appeal.

Justice William H. Rehnquist: So you distinguish between an identical ruling on the statute limitations at the close of all the evidence and wanted the close of the Governments case.

A retrial would be required if you reverse the judgment that was entered that close the Government's case.

Mr. Andrew L. Frey: We would distinguish it and if it were entered at the close of the Government's case and prior to the defense in a jury trial.

Now in a non-jury trial, I think it would be somewhat different because you do not need a second trial, we would argue that you would be sending it back for continuation of the first trial.

Justice William H. Rehnquist: You mean the judge would just pick up hearing the evidence from the defendant two years later?

Mr. Andrew L. Frey: Well if it were two years later, I do not think that the constitution would bar that in a judge trial.

The essential notion that underlies the Double Jeopardy protection is the notion that there has been a factual finding by the trier of fact that acts necessary to constitute the offense did not occur as charged and it is that finding as United States against Bowen makes clear and that is the paradigmatic Double Jeopardy protection.

It is that finding which cannot be challenged.

Now if the judge says at the close of the Government's evidence that it shows that the defendant was wearing a green hat and that is an affirmative defense and therefore he enters a judgment of acquittal.

Our view is that that should be an appealable order even if he does not wait until the end of the trial.

But of course we do not have to struggle with that here because he did wait until the end of the trial.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Mr. Fryer, I still think you are asking the Court of Appeals to direct a verdict of guilty.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Now I am --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: so you get away from it.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: I am suggesting that that as a legal matter the only possibly correct action that could have been in this case on the basis of the evidence found by the judge was a verdict of guilty.

I am not saying that the Court of Appeals should direct in the (Inaudible) case which we quote in our brief.

Judge Han addressed himself to the difference between errors of judges and errors of juries and he said that the Double Jeopardy protection does not extend to legal errors by judges and I think (Inaudible) was one of these motion in bar post --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Are you saying you could direct the verdict of guilty?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Well answer me, are you not doing it?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: He did not say that and we are not doing that.

No, we are saying -- but the Court of Appeals should do.

I mean I am saying to you that the --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: The Court of Appeals should say, “You were wrong in acquitting the man.

You should have found him guilty.

Therefore, proceed pursuant to this opinion.”

That is like the old British case, you found the man --

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: But wait a minute.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: -- and you watch to consider your verdict.

Chief Justice Warren E. Burger: Was there any relief that the Court of Appeals could have directed except that they proceed with the trial?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well the trial was completed here.

Chief Justice Warren E. Burger: In this case the trial is completed.

You take your case and proceeded it.

Mr. Andrew L. Frey: No, it did simply suggested that although it is clearly it is quite inevitable --

Chief Justice Warren E. Burger: In this case, they have completed the trial.

Is there anything uncommon about reinstating the verdict of the trial court?

Mr. Andrew L. Frey: No of course not Mr. Chief Justice.

Justice William H. Rehnquist: But of course here you do not have any verdict to reinstate that that is one of your problems is it not?

Mr. Andrew L. Frey: Well the verdict can be entered on the remand.

I do not see the judgment can be entered on the remand.

Justice William H. Rehnquist: Well supposing the Court of Appeals had decided it had jurisdiction in this case.

Say Judge Travia was wrong on the legal point, reverse the order dismissing the indictment and remanded for further proceeding.

Judge Travia then again address himself to the question of what judgment should be entered sine the previous judgment is vacated.

He says, “On second thought, I have got reasonable doubt about this.

I am going to enter a judgment of acquittal.”

Would he be free to do that under the --

Mr. Andrew L. Frey: Well there are two points that are relevant here.

One is that the defendant has waived a jury trial and when he waived the jury trial, he waived in our view the right to a completely irrational determination.

And there is a case which Judge Friendly wrote for the second circuit called United States against Maybury in 274 F 2nd in which he said, “We do not believe we would enhance respectful law for the courts by recognizing for a judge the same right to indulge in forgeries in the disposition of criminal charges that for historic reasons has been granted to the jury.

Now we are saying that when the defendant waives a jury trial, he waives in his sense his right to a completely rational --

Unknown Speaker: Does his conditions comply that Judge Friendly's view that there expressed is that the judge at a bench trial can not for any or no reason direct an acquittal as jury could?

Mr. Andrew L. Frey: Well we are straying somewhat from the issue in this case --

Unknown Speaker: Is that what you are saying?

Mr. Andrew L. Frey: I am suggesting that there would be a substantial question as to whether the judge has the power and we certainly think he has the right but whether he has the power to --

Unknown Speaker: You mean if Judge Travia did what my brother Rehnquist suggests that the Government could appeal that?

Mr. Andrew L. Frey: Well the Government could not review.

There is a problem of reviewability.

Of course, if he makes a finding that the defendant did report for induction or that he has a reasonable doubt that he failed to report for induction.

Unknown Speaker: No, but this is on the review that you suggested would happen in this case if you prevail.

It goes back to Judge Travia.

I guess he is no longer on the bench, is he?

Mr. Andrew L. Frey: That is right.

Unknown Speaker: But if it went back to Judge Travia and he were now to say as my brother Rehnquist said, “Well, on second thought I might obtain this --

Mr. Andrew L. Frey: Well if he were to say on second I thought I have reasonable doubt as to one of the elements of the offense and I find as a fact that there is a reasonable doubt about a certain necessary element of the offense, I have a reasonable doubt that he ever received this notice to report and therefore it is not knowing.

There are clear limits on our ability to challenge this that is basically an unreviewable finding --

Unknown Speaker: I suppose he did say, “I entertained a reasonable doubt.

He said nothing except, “I direct the verdict” or, “I find the defendant not guilty.”

Mr. Andrew L. Frey: Not guilty.

Unknown Speaker: That is all he says.

Mr. Andrew L. Frey: Well our contention in our brief of course we have taken the view that an unexplicated acquittal is not what is at issue here, but in terms of considering that the possible approaches to this problem where we would have a case with an unexplicated acquittal, but with findings of fact which we are entitled to request from the judge under rule 23C in which he says, “I find beyond unreasonable doubt that the three element of the offense A, B, and C.”

Each occurred, and then said, “I acquit.”

I think we would take the position in such case and that is not this case that we could have appellant review.

Unknown Speaker: It would be right up against Fong Foo if you did so, would you not?

Mr. Andrew L. Frey: Not at all because we are not asking that we start the proceeding over again with the taking of new evidence before the judge, which is what jeopardy consist of.

I am not asking --

Unknown Speaker: It was wholly -- it was grandiosely erroneous judgment of acquittal midway in a trail and the -- your client, the United States somehow besought mandamus in that and that got it from the Fist Circuit Court of Appeals.

This Court reversed had said, “No matter how erroneous, no matter how grandiosely erroneous that action of the district judge that bring a judgement of an acquittal was an acquittal and any further proceedings would be Double Jeopardy.”

Mr. Andrew L. Frey: Well, let me make two points about that.

First of all, it did not say any further proceedings.

It said that you cannot have an appeal because what the Government is asking for, you cannot have mandamus, you cannot have appellant review.

So what the Government is asking for is to start the whole proceeding over again and panel of new jury begin all over again.

That is not our case.

It is not remotely like our case.

There simply is no question of having a second trial in this case in a sense which double – it is relevant to Double Jeopardy under the decisions of this Court.

And the second point about Fong Foo is that the issue of whether an acquittal could be appeal was never argued and Fong Foo.

The Government simply rested its contention in that case on the contention of what happened that was not an acquittal and not at all on the question of whether which is here today about the appealability of acquittals.

That was assumed is given by all parties and they are only in the context where reversal would lead to a second trial.

Now before getting to the cases in detail, I would like to consider the ramifications of policy for this issue.

The effect of the ruling below as well as that of the Court of Appeals in Wilson is to let a clearly guilty defendant.

That is one that has been found by the beyond a reasonable doubt to have committed all the acts constituting the offense, to let such a defendant go free because of a trial judges erroneous interpretation of a point of law.

Now we submit that one is hard pressed to imagine how such a result furthers the ends of public justice.

As Mr. Justice Harlan said in dealing with a related question in United States against Tateo which is in 377 U.S. at page 466 corresponding to the right of an accused to be given a fair trail is the societal interest one whose guilt is clear after he has obtained such a trial to what Mr. Jenkins.

It would be a high price indeed for society to pay where every accused granted immunity from punishment because of any defects efficient to constitute reversible error in the proceedings leading to conviction.

Now there, he was talking about a retrial after a conviction, but I think the thoughts a policy matter in terms of what we are talking about here, what kind of protection we are affording to defendants if we adopt the role of the second circuit in this case.

I think the thoughts are pertinent.

He also made another point in this connection, in tat paragraph into tail in which he said that if the rule or otherwise appellant courts would be lower to apply the laws as they saw fit in reverse convictions because the consequence would be to immunize the defendant from a retrial.

Well, the same thing is true here if you say that an error of law by the District Court committed on a motion such as this forever immunizes the defendant from further proceedings no matter how erroneous the ruling is, then district judges are going to be reluctant to make these rulings the way they see fit.

They will leave it to the Court of Appeals in order to avoid these manifestly on just situations.

So it is not an unmitigated blessing for the defendant if you were to adopt the position of the second circuit.

I would like to reserve the balance of time for rebuttal.

Chief Justice Warren E. Burger: From here on Mr. Frey.

Mr. Caroll.

Argument of James S. Carroll

Mr. James S. Carroll: Mr. Chief Justice and may I please the court.

The issue that the court will have to determine after the submission of the briefs and the oral argument in this case, is whether the United States had the right to appeal from the District Court's order acquitting the defendant in this case after trial and after the defendant had been put into jeopardy.

Whether the Court of Appeals in this case was correct in its determination that it did not have jurisdiction under either section 3731 of title 18 or under the Double Jeopardy clause of the Fifth Amendment to hear and determine this appeal.

The Government contends that the District Court's decision was appealable because it was purely legal ruling with undisputed findings of fact and that this is purely legal ruling could be corrected by the mere expedient of sending the case back to the District Court with instructions to enter a judgment of conviction.

Aside from the fact that I feel that such a cause goes directly counted to the spirit that the Double Jeopardy clause is suppose to protect.

I do not think that this particular position by the Government has any sanction or any support in the cases of this Court.

As our contention that the decision of the District Court judge was one that was based on facts do set the trial which went to the general issue of the case and as such this was an acquittal from which no appeal was to be allowed.

In addition, we question whether the decision of the District Court was a purely legal ruling and whether this so called legal ruling could be corrected by the simple expedient of directing a judgment of conviction.

We further question whether the Government has complied with section 3731 of the criminal appeals act in that this appeal was not expeditiously prosecuted as is mandated by section 3731.

To delve in to the facts of this case, On February 4th, 1971, Mr. Jenkins received a notice to report for induction.

Directly thereafter and this notice to report of induction – excuse me, it was February 24th of 1971.

Directly thereafter, Mr. Jenkins went to a draft counselor by the name Jerome Bobbled, in turn, Mr. Bobbled contacted myself.

Subsequently, Mr. Jenkins mailed a letter to the local board requesting a CO150 form, and to this, he received no response from the local board.

On February 23rd of 1974, the date before Mr. Jenkins was to report for induction, Mr. Jenkins went to the local board, he had conversation with Mrs. Elaine Morris, the secretary of the local board and he asked that he be given a CO150 form and that his induction date be postponed.

At that time, Mrs. Morris called New York City Headquarters and spoke to Mr. Thomas Mahan, who was the chief of the legal division of selected service headquarters in New York City.

Mr. Mahan directed that Mr. Jenkins write out a brief statement of his beliefs in opposition to war.

After doing so and after reading this brief statement to Mr. Mahan over the telephone, Mr. Mahan determined that Mr. Jenkins had not made out a prima facie case for opposition to owe a war because Mr. Jenkins in a statement had said that he was opposed to the war, this present war although he did not exclude opposition to owe a war in his statement.

Unknown Speaker: And Mr. Mahan was the clerk of the selective service board?

Mr. James S. Carroll: Mr. Mahan was the director of a legal division of selective service headquarters in New York City.

Mr. Mahan is presently a US attorney in the eastern district of New York.

At the time of the prosecution of this case, Mr. Mahan was the US attorney assigned to prosecute this case.

In fact, a motion was made directly prior to the trial to have Mr. Mahan excluded from prosecuting the case and subsequently during the course of the trial, Mr. Mahan appeared as a witness for the Government to detail the facts that I have just gone into before the court.

On February 24th, Mr. Jenkins did not report for induction.

We have not disputed this but later on in March of 1971, Mr. Jenkins did return the CO form to them local board.

No action was taken on that form.

It was in April of 1971 that Ehlert v. United States was decided.

Ehlert intervened between the date that Mr. Jenkins was to report for induction and return the CO150 form and the date that Mr. Jenkins was subsequently indicted for failure to report for induction.

On October 3rd of 1972, the case came to trial.

We waived trial by jury, the original prosecutor, Mr. Mahan was substituted and the Government presented two witnesses, the executive secretary of the local board in Thomas Mahan.

It is true that before trial, we had asked for 45 days in which to present all motions.

No pretrial motions were presented because the selective service file was turned over to us, which gave us all of the discovery that we required in the particular case.

The defense presented three witness, Mr. Jenkins, the defendant, Mr. Jenkins' mother and Mr. Jerome Bobbled who is Mr. Jenkins draft counselor.

However, Mr. Bobbled's testimony was not allowed in the case although we had made an offer approve that Mr. Bobbled would show that Mr. Jenkins was aware of the fact that he could present a CO150 form at this time according to the applicable case law at that time and that Mr. Jenkins believes in opposition to war crystallized after the date that he was ordered to report for induction, but before the date of actual induction.

This was pursuant to the applicable case law in the second circuit at that time.

As I stated, the court excluded Mr. Bobbled's testimony although an offer approve was made.

We also had three other witnesses who were character witnesses.

However, we stipulated to their testimony.

After the trial of the case, Judge Travia requested whether we would like to argue at the particular time as to Mr. Jenkins guilt to innocence of the offense or whether we would prefer to submit findings of fact and conclusions of law.

We opted for the latter and we submitted findings of fact and conclusions of law proposed findings of fact and conclusions of law to Judge Travia.

Several weeks thereafter the judgment was rendered, the Government states that this was a dismissal of an indictment.

In fact in Judge Travia's opinion after findings of fact and after his discussion of the applicable law, Judge Travia did in fact state that the indictment in this case is dismissed and the defendant is discharged.

Unknown Speaker: May I ask Mr, Carroll, did you submit the post findings and conclusions?

Mr. James S. Carroll: Yes I did.

Unknown Speaker: And is that at page 4 of 52 (a) of Judge Travia's first sentence the indictment of this case is dismissed, so the defendant is discharged?

Is that your submission?

Mr. James S. Carroll: I requested that judgment of acquittal be rendered.

I never requested that the indictment be dismissed.

In fact, to go into that briefly, the --

Unknown Speaker: Are you saying judgment of acquittal – judgment of acquittal in (Inaudible) what was it you asked?

Mr. James S. Carroll: No, I asked for acquittal from the judge.

Unknown Speaker: Judgement of acquittal.

I see.

Mr. James S. Carroll: I --

Justice Potter Stewart: The motion that appears on the page that starts on page four of the appendix in --

Mr. James S. Carroll: Yes but --

Justice Potter Stewart: Motion of judgment of acquittal singed by you.

Mr. James S. Carroll: That is correct.

Throughout the course of this proceedings however, I was maintaining not simply that on the law, Ehlert v. United States was not retroactive.

In fact, I never made such a broad side attack against Ehlert v. United States.

In fact was that with the peculiar circumstances of Mr. Jenkins case, Mr. Jenkins was represented by council and he had consulted a draft council, but prior to this, he was aware of the applicable case law.

The local board received his CO150 form and did not act on it even though Geary at that time requiring that they do so.

And Ehlert came down one month after all of these transactions and my position was and I think the position that Judge Travia adopted was it under the peculiar circumstances of Jenkins case that Ehlert v. United States should not be applied to him that in fact Ehlert v. United States would have been unduly harsh in the circumstances of Mr. Jenkins case.

I would like to point out also that Mr. Jenkins did take the stand that during the course of these proceedings while Mr. Jenkins was testifying Judge Travia interrupted my direct examination several times.

In fact, at one point during the direct examination, Judge Travia took over the direct examination and questioned Mr. Jenkins very closely about his sincerity and went in very deeply into Mr. Jenkins credibility in stating that he was in fact a conscientious objective.

I have also raised another issue which I did not explore in much debt in brief, but I would like to bring to the court's attention that the trial in this case commenced on October 3rd of 1972, the judgment of the District Court was rendered on October 24th of 1972.

The Government's notice of appeal was filed on November 21st, 1972, its brief however was not filled until June 13th of 1973.

In his decision dated December 11th of 1973, the Court of Appeals admonished the Government and stated that the Government had not in their view complied with section 3731's mandate that the appeals be diligently prosecuted by the Government.

They stated in a footnote that the delay in appealing the case by the Government – and I quote, they stated this casually conforms with our notion of diligent prosecution and we would have dismissed the appeal on that ground if defendant had so requested.

After this decision came down, the Government requested one extension of time to petition for rehearing before the Court of Appeals.

Rehearing was denied on February 6 of 1974.

Later, the Government asked for an extension of time to petition for a writ of certiorari to this Court, and by order of Mr. Justice Marshall on February 28th of 1974, the time for filling for writ of certiorari was extended to April 7th of 1974, the petition being filed on April 8th.

It was on May 28 of 1974 that the petition was granted.

Again, on July 10th of 1974, the Government requested an extension of time to file the brief to July 24th of 1974, which was granted.

The brief for the Government was not received by my office until September 17th of 1974.

Similarly, and I do not think I coming into this Court with unclean hands although I am asking equitable relief.

On October 10th of this year, I requested an extension of one month's time to November 14th, 1974.

The argument was set today of course.

I think that under the statute itself that the Government has not complied with the mandate in section 3731 to prosecute appeals diligently.

I think --

Justice William H. Rehnquist: Mr. Carroll, in the second circuit's opinion, a footnote you quoted, page 3 (a) of the petition for writ of certiorari where the Court of Appeals is talking about dismissal of the appeal for a failure to diligently prosecute, which it said it did not reach – it said, “If the defendant had so requested –“ that had you requested dismissal?

Mr. James S. Carroll: No, I had not so requested.

I do not think however that I waive the right to bring this to this Court's attention however because I think its an affirmative obligation on the Government's part to comply with all sections of that particular statute.

Unknown Speaker: Then bringing it to our attention, what are you suggesting now, Mr. Carroll?

Mr. James S. Carroll: I am suggesting that --

Unknown Speaker: You went through the entire routine -- ?

Mr. James S. Carroll: Yes.

Unknown Speaker: Right up in through the filling of briefs here?

Mr. James S. Carroll: Yes.

I am suggesting Mr. Justice Black that the Government or rather this appeal should be dismissed on two grounds.

First, that the Government has not complied with section 3731 and that this particular appeal is barred by the Double Jeopardy clause.

And on the second ground that --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: You really mean certiorari, don't you?

Rebuttal of James S. Carroll

Mr. James S. Carroll: Excuse me.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: You said appeal, you mean certiorari?

Rebuttal of James S. Carroll

Mr. James S. Carroll: Well I am talking about the original appeal to the Court of Appeals, which I think is what is an issue now whether the Court of Appeals originally had jurisdiction to hear the appeal.

But I am also stating that because of the fact that the Government has not complied with all of the provisions of section 3731 and that they have not diligently prosecuted the appeal that on that separate ground, the original appeal should not have been allowed.

The Government had made several statements in which they try to take this particular case out of the traditional case of an acquittal being rendered after a trial before a judge or a jury.

They first make the distinction between a purely legal ruling and the ruling on the facts.

I think this particular distinction is unattainable.

I think that in this particular case, individual facts were conceded by the District Court in making its final ruling that the indictment should be dismissed.

In fact, the court went very deeply into the facts of this particular case.

And again, as I have stated, the court found that under the peculiar circumstances of this case that Jenkins was not guilty.

It stated that under the facts of the case were Jenkins was a priced other law, other second circuit, which differed from other circuits at that time that Jenkins should not be found guilty of refusing to submit to induction.

This case should not be any different because a judge made articulated findings of fact and conclusions of law.

A judge as what is stated in United States v. Mayberry does not have the luxury to issue simply a judgment of not guilty or guilty.

In fact, he must make findings of fact in conclusions of law, but I submit to you that in this particular case Judge Travia was acting as a fact finder that the finding of fact cannot be limited only to the findings of fact that he articulated.

I think he found nine facts in the case.

But I believe that through his discussion, he indicated that he had gone deeply into this defendants credibility and he indicated that this was part of his decisions that Jenkins would be unduly prejudice by a different finding by the court.

I could analogize this situation to one that was stated in the Sisson case where the judge had stated to the jury, if you find such facts, then you will render a verdict not guilty and I think it was the same thing.

Judge Travia found such facts articulated in his findings of fact and articulated in his discussion of the law and on the basis of that, he found that Jenkins was not guilty.

If for example, a judge had given erroneous instructions to a jury of if for example, a jury had applied a judge's correct instructions on the law erroneously in the same way, such a verdict from the jury would not be subject to any review as it was stated in United States v. Ball.

Unknown Speaker: Mr. Carroll, if the Government should prevail here and the case went back, do you think Judge Travia assuming he would hear it could sit on the findings of fact that were made or would he have to make new ones or additional ones, what is your evaluation of that?

Mr. James S. Carroll: I think that if the court finds that there is jurisdiction in this case, if the case would have to be sent back to Judge Travia for retrial.

And the reason for that is that the Court of Appeals recognized that an affirmative defense could be asserted that Jenkins had in good faith relied upon the existing case law in the circuit at that time in refusing induction.

Now, although I think that Judge Travia did make such a finding, although not expressly articulated or impliedly articulated, I think that the time of trial, Judge Travia believe that it was improper to go into that question at the trial stage.

When I asked that Mr. Bobbled, the counselor takes the stand, the Government asked for an offer of proof and when my offer of proof was that Mr. Bobbled would testify as to Mr. Jenkins conversations with him and that Mr. Jenkins believes in opposition to war crystallize after February 4th of 1971, but before February 24th of 1971.

Judge Travia excluded that testimony because he believed that it would not be relevant and he believe in fact that it would be redundant of what was already in the selective service file.

Unknown Speaker: Well I take that you are saying that if the Government should prevail, the case is remanded, there is no way to avoid a new trial?

Mr. James S. Carroll: I am saying that.

I am also stating that the distinction that the Government makes between a pure legal ruling and findings of fact is not articulated anywhere in the case law and in fact is directly contradicted by the case law.

Sisson makes it very clear that the rule of a test is to be used is whether on the basis of facts adduced at the trial going to the general issue of the case, whether the defendant is guilty or not guilty.

Chief Justice Warren E. Burger: Mr. Carroll to pursue Mr. Justice Blackman's question and to which you answer that there would be no way of avoiding a new trial.

Would trial be limited to the eviction to have a bench trial or it would be parties all be freed, start from scratch as it were if you decide to have a jury trial they wanted.

Mr. James S. Carroll: I imagine that parties would start from scratch, but the first motion that would be made in such a case would be a motion in bar to stop such a trial on the grounds of Double Jeopardy, but I do not think that it is necessary to go that far because I think the appeal in this case alone puts the defendant in Double Jeopardy.

I feel that there was an acquittal in this case that any subsequent proceedings in this case put the defendant into Double Jeopardy.

I do not think it is necessary for the Government to go to the expense of having this case sent back for another trial when the only thing that would resolve from such a cause would be for that trial to itself be barred by the Double Jeopardy clause.

Justice William H. Rehnquist: Of course if in fact it goes back, the reason that it will go back is because this Court has said there was Double Jeopardy.

Mr. James S. Carroll: That is correct if it does in fact go back, that would be the determination.

But I think that in a sense the Government has thrown in a confusing factor by asking whether in fact it would require a new trial or whether a judgment of conviction could simply be entered.

I think that is putting a cart before the horse.

The initial question is whether this Court has jurisdiction to hear the appeal and whether the Court of Appeals initially had jurisdiction to hear the appeal.

What would happen subsequently is not directly in point.

If this Court does reached the merits of this case however, I submit to you that the ruling of the district judge was correct under the circumstances and that although he was not stating an Ehlert did not apply or cases, he was correct in stating that Ehlert did not apply to the particular situation involved in United States v. Jenkins.

I think the Government's appeal is barred by the applicable case law starting with United States v. Ball, continuing to Kepner v. United States and ending up with Fong Foo and Sisson.

The court has stated repeatedly that an appeal alone is barred by the Double Jeopardy clause and that this true whether the trial is before a judge or before a jury and that the test to be used is not whether it was a pure legal ruling or a factual ruling, but whether on the basis of facts adduce a trail, the judge went to the general issue of guilty or not guilty.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Carroll.

Mr. Frey, you have a few minutes left.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: On the question of whether there has to be a retrial, which seems to be focal here, there is absolutely nothing in our appeal which asks on behalf of the Government that there would be a new trial in this case as a result of the correction of error.

Unknown Speaker: Maybe the other side would want one?

Mr. Andrew L. Frey: Maybe they would and maybe they would be entitled to one and if they request one and are entitled too on the Double Jeopardy clause does not preclude that relief.

But we are not at that stage and I think it is important to understand the Mercado case and to understand that we do not have here an issue of fact in any significant sense.

There is not a shred of evidence in the record in this case nor is there anything in Judge Travia's decision that basis itself on actual reliance by this registrant on the law of the second circuit, I suppose to constructive reliance on the law.

There is no reference in fact to reliance on the law but to the unfairness of applying it retroactively.

And as a matter of law, we think Mercado makes it clear that even if he did in fact rely on the prior law of the second circuit, he would have no defense.

What the court said in Mercado was upholding the conviction of a register to claims to have relied on preexisting case law would appear to be no more than an application of the settled rule, but an erroneous belief that induction orders in valid even if based on the advise of counsel is not a defense to a prosecution for refusing induction and the one who refuses induction on the basis of such belief acts at his parole.

That is the law in second circuit.

They talked about a possible exception, but it is that exception would be prior to the time of this Courts grant of certiorari in Ehlert because they said that the grant of certiorari in Ehlert cast Geary into sufficient question that nobody could properly relying on the second circuit law.

Jenkins and Mercado were factually situated in the identical circumstance.

Let me say further, there has been a reference to an offer of proof with respect to the draft councilor, Mr. Bobbled.

Now if you look at page 70 of the appendiz, you will exactly what that offer of proof was.

Mr. Carroll said that what Mr. Bobbled would testify to, was that after discussing Mr. Jenkins case with him for some time, Mr. Bobbled elicited from the registrant the fact that he would contentiously oppose to all wars.

And it was only at this time that Mr. Jenkins became aware of this conscientious opposition to all wars and there was further inquiry into this matter of the offer of proof and on page 71, Mr. Carroll said, “I think the sincerity of the registrant is an issue.”

And later on page 73, the court said, “How is he going to change the facts with his testimony.”

Mr. Carroll said he is going to amplify on the sincerity of the registrants beliefs which I state was tested by the local board prior to any type of permissive hearing by the local board.

And the testimony of Mr. Jenkins went to the question of sincerity and that was irrelevant to this issue.

My time has expired.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.