UNITED STATES v. MARTIN LINEN SUPPLY CO.

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Argument of Frank H. Easterbrook

Chief Justice Warren E. Burger: We will hear arguments now in 76-120, United States against Martin Linens Supply Co. and May I say to counsel in this case and the other cases scheduled for today.

Mr. Justice Rehnquist is unavoidably absent due to illness, but reserves the right to participate in considerations and decisions of these cases on the basis of the entire record including the tape recording of the oral arguments.

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

Mr. Frank H. Easterbrook: Mr. Chief Justice, and May it please the court.

The question presented by this case is whether the double jeopardy clause precludes the government from appealing an order terminating the prosecution, but entered after a mistrial had been declared because the jury was unable to agree upon a verdict.

This case began when the United States filed a civil antitrust complaint against respondents, their president and a Third Linen Supply Corporation.

The parties soon agreed upon a consent decree and the consent decree was entered in the summer of 1969.

In 1971, the United States filed petitions charging respondents and their president with civil and criminal contempt with that consent decree.

The petitions alleged that respondents threatened other linen supply firms with retaliation if they engaged in competition.

Petitions also alleged that respondents made good their threats.

The District Court entered an order, holding that the allegations did not sufficiently charge of violation of the consent decree.

The United States appealed and the Court of Appeals reversed.

It held that although respondents are entitled to engage in vigorous competition, they are not entitled to do so on a selective or retaliatory basis or to make threats to competitors.

In other words, the Court of Appeals held, the competition must be directed to consumers and the threats of reprisals directed to competitors were inconsistent with the consent decree.

On remand in a District Court, a jury trial was held on the criminal contempt charges.

The government introduced testimony from a former employee of respondents and from respondents’ competitors demonstrating that respondents threaten the officers of competitors with retaliation if they persisted in competing.

If a competitor did not desist, respondents’ mounted a competitor specific sales campaign that is instead of soliciting all potential users of linen supply services.

They directed their sales efforts toward making low price offers to the customers of the particular offending competitor.

They also made threats to competitors in the hope that these threats and the retaliatory sales campaigns taken together would stave off competition by making it more costly.

At the end of trial, the jury returned the verdict of not guilty with respect to respondent’s president Mr. Troy who had not been linked personally with any of the threats.

The jury announced that it was hopelessly deadlocked with respect to respondents, although, it stood 11 to 1 in favor of conviction.

The judge declared a mistrial without objection and he dismissed the jury.

The judge then invited motions for judgments of acquittal.

He expressed dissatisfaction with the consent decree stating that respondents had been improvident in accepting its strictures.

He also stated that he believed the evidence introduced by the government was inadequate.

Respondents accepted the invitation and six days later, they filed motions for judgments of acquittal.

Approximately two months later, the judge granted both of those motions without writing an opinion.

The United States appealed for a second time.

It argued in essence that the testimony at trial established the allegations of the contempt petitions because the Court of Appeals had held on the first appeal that proof of threats and retaliatory sales campaigns would demonstrate a violation of the consent decree.

We argued that the District Court’s grant of the judgment of acquittal not withstanding, at least prima facie proof of threats and retaliatory sales campaigns.

Unknown Speaker: In your view Mr. Easterbrook, I assume at the stage of trial that the jury announced it was deadlocked, was there an authority in the judge to at that point direct a verdict of acquittal?

Mr. Frank H. Easterbrook: Your Honor, directed verdicts of acquittal by the jury were abolished by Federal Rule of Criminal Procedure 29 (A) and therefore in our view, he did not have such authority.

Unknown Speaker: Well, he had no authority at that stage to terminate the proceedings by an acquittal?

Mr. Frank H. Easterbrook: Not by a directed verdict to acquittal.

He did have the authority at that stage to terminate the proceedings by entering a judgment of acquittal on his own which would represent his view that the evidence taken in the light most favorable to the government together with all of his legitimate inferences was insufficient to make out a case for the jury.

Although in this case he did not do that, and instead he allowed the jury to continue its deliberations and eventually discharged them, and he did not declare he did not have a judgments of acquittal until two months and five days later.

Unknown Speaker: But the motion is filed within seven days as provided by Rule 29 (c)?

Mr. Frank H. Easterbrook: Yes, it was Your Honor.

Unknown Speaker: The motion for judgment of acquittal.

Mr. Frank H. Easterbrook: Yes.

Unknown Speaker: And that motion was granted.

Mr. Frank H. Easterbrook: It was indeed and we think that that kind of decision can be appealed.

Unknown Speaker: I know you do.

Mr. Frank H. Easterbrook: But before I come to that I would like to discuss two issues that are lurking in the background of this case but that we think the court need not to address.

The first of these issues is whether the double jeopardy clause applies to corporations.

Both respondents are corporations and unless the Double Jeopardy Clause applies to them in a way that creates principles of finality more stringent than those that Res Judicata there could be no barred with second trial here.

I will not discuss that issue here however, because it was not raised by the parties in the Court of Appeals and the Court of Appeals did not discuss it.

The issue is squarely presented, however, in United States against Security National Bank in which a petition for a writ of certiorari is pending.

The United States believes that the court should address that issue in Security Bank, but that it is not necessary to do so in this case.

Second issue I will not discuss at length is the effect of mid-trial terminations whether they are called judgments of acquittal or orders dismissing the indictment.

We have discussed that problem at pages 12 to 19 of our brief and we have shown that there is no absolute bar to a re-prosecution unless the jury returns a verdict of acquittal.

When a defendant requests a mid-trial termination, he has exercised his right to control the conduct of the proceedings and has voluntarily surrendered his right to receive the verdict of the jury.

In such cases, no less than in cases in which the mid-trial termination is called a mistrial like United States against Dennis, the double jeopardy clause does not bar a second trial.

Unknown Speaker: Well, the argument in your brief under A would cover a mid-trial termination?

Mr. Frank H. Easterbrook: Yes.

It would Your Honor.

Unknown Speaker: It is only the argument under B that would cover this case, but not a mid-trial.

Are you abandoning that argument?

Mr. Frank H. Easterbrook: We are not at all abandoning that argument.

Our argument is in the last analysis that only a verdict of acquittal by the jury is an absolute bar to retrial.

Unknown Speaker: But you are talking about a mid-trial termination?

Mr. Frank H. Easterbrook: But we do not believe it is necessary to reach that question in this case.

Unknown Speaker: But if we access your argument A, we have reached the question, have we not?

Mr. Frank H. Easterbrook: That is correct, but I think it is more appropriate for me to make here at a greater length the narrower arguments that would avoid the necessity to reach that particular one.

Although I will say that the mid-trial termination problem has recently received a thoughtful and very thorough analysis in a case called United States against Sanabria decided by the First Circuit on December 29.

Unknown Speaker: That is involved in the Brown case, is it not?

Mr. Frank H. Easterbrook: The same issue was involved.

Unknown Speaker: Decision for certiorari is pending here?

Mr. Frank H. Easterbrook: Yes Your Honor.

It is the same issue.

This case however simply does not involve the mid-trial termination.

The case went to completion and ended in a mistrial when the jury was unable to reach a verdict.

The difficult questions presented by mid-trial terminations, therefore, need to be resolved here.

In our view, a single, simple principle controls this case.

It is a principle That is been accepted since Mr. Justice Story’s opinion for the Court in 1824 United States against Perez.

The principle is this.

The declaration of a mistrial because the jury is unable to agree upon a verdict removes any double jeopardy objection to a second trial.

Once the jury has reached an impasse, the judge is entitled to set the case for a second trial because of manifest necessity.

We do not understand respondents to quarrel with this and if the District Court may set the case for a second trail without offending the double jeopardy clause, then the Court of Appeals may direct the District Court to do so.

This follows we believes from United States against Sanford decided by this Court on October 12th of last year.

In that case, the court held that the double jeopardy clause does not bar review of orders entered after a mistrial has been declared terminating the prosecution, even though in Sanford, the order was based in substantial part on evidence that was heard at trial and even though in Sanford, the District Court concluded that the evidence of trial showed that respondents had a complete defense to the charges against them.

Unknown Speaker: Mr. Easterbrook before you get too deeply into the double jeopardy argument, do not you have a statutory problem?

What is the statutory language that supports the appeal from a judgment of acquittal?

Mr. Frank H. Easterbrook: Our statutory authority is the first paragraph of the criminal appeals act.

We acknowledge that the statutory authority does not speak in terms of judgments of acquittal, but that language was thoroughly analyzed in United States against Wilson and the Court held in Wilson that Congress intended to authorize appeals from orders terminating the prosecution unless those appeals were barred by the double jeopardy clause.

In Wilson itself the case had gone to the jury and thereafter the judge entered an order that he denominated the judgment of acquittal and there was an argument made by respondents in Wilson that we lack statutory authority to appeal.

The Court rejected that argument in Wilson and we think the reasoning in Wilson is dispositive here.

Unknown Speaker: In Wilson, it did not occur in effect that it was a dismissal of the indictment?

Mr. Frank H. Easterbrook: The court held that it did not make any difference I think.

That analysis is at pages 347 or 348 to 351 of Wilson and that what the judge called at was simply immaterial.

The salient factor was it terminated the prosecution in favor of the defendant and that was a fact that triggered the right to appeal under the first paragraph of the Act.

We think our double jeopardy proposition also follows quite strongly from United States against Jorn in 400 U.S.

In Jorn, the district court declared a mistrial in mid-trial.

Then it dismissed the indictment later concluding that the double jeopardy clause would bar second trial.

This court entertained an appeal from that decision.

It ultimately held that the District Court was right and that the double jeopardy clause did bar a second trail because the declaration of a mistrial in mid-trial amounted to judicial over reaching, but the court clearly implied that if the declaration of a mistrial had been proper and it also would have been proper for this court to have reversed and remanded for a second trial.

As the court said in that case at page 476, a mistrial ruling contemplates re-prosecution and so it is here.

The Court of Appeals has the power to remand for a second trial.

The double jeopardy clause does not bar the way because it was proper to declare a mistrial on a counter jury disagreement and the jury’s inability to agree removed the bar to a second trial.

Unknown Speaker: In the Jorn case the District Court as I remember had dismissed indictment because he thought that a new trial was constitutionally impermissible under the double jeopardy clause and that view was ultimately affirmed in this court.

In this case by contrast, the district judge entered a judgment of acquittal not because of any views about the double jeopardy clause, but because of his views of the case on the merits.

Mr. Frank H. Easterbrook: Yes Your Honor.

What I was using Jorn for was to demonstrate the preposition that the mere fact that a second trial would follow a reversal on appeal is not necessarily an independent double jeopardy bar, if the double jeopardy clause does not bar that second trial.

In Jorn, the argument was the double jeopardy clause would not bar the second trial because the declaration of the mistrial had been proper.

Unknown Speaker: And that argument was ultimately rejected.

Mr. Frank H. Easterbrook: Right.

Here the argument is that the double jeopardy clause would not bar the second trial because the declaration of a mistrial because of jury disagreement was clearly (Voice Overlapped) disagree.

Unknown Speaker: Well, here the argument is, I do not know whose argument you are talking about, here your opponent’s argument is that the double jeopardy clause bars a new trial because there has been a judgment of acquittal, of not guilty.

Mr. Frank H. Easterbrook: Right and that presents the question whether the double jeopardy clause independently bars review of the judges’ findings, even if the second trial would not by itself violate the clause.

Unknown Speaker: What is effect of the finding of acquittal?

Mr. Frank H. Easterbrook: Assuming that the judgment is not…

Unknown Speaker: Does it mean not guilty?

Mr. Frank H. Easterbrook: It means in this case that according…

Unknown Speaker: It means that he goes free?

Mr. Frank H. Easterbrook: It means the defendants go free, That is right.

Unknown Speaker: And cannot be tried again on that charge?

Mr. Frank H. Easterbrook: And cannot be tried again unless we prevail on appeal.

That was I believe the same situation that arose in Sanford decided earlier this term in which after the full trial occurred and the case went to a mistrial because of jury disagreement.

The judge held that the defendants based on evidence of trial had an absolute defense to the charge of the indictment.

The defense was governmental consent.

If we had not appealed that order in Sanford, the defendants would have gone free and that would the end of the case, but we did appeal and this court held that the Court of Appeals could review that finding and reverse and remand for a new trial.

Unknown Speaker: But the Rule 29 (c), what was the purpose of it?

Mr. Frank H. Easterbrook: Rule 29 (c) was to bring proceedings to a close in the case where the government did not have a case and I would like to make one thing quite clear in case if there is any misunderstanding, we do not contend that a second trial should be held automatically after there is a mistrial declared.

There may be reasons in particular cases why a second trial should not be held.

In the present case for example, if the evidence was in fact insufficient as the judge believed it is quite appropriate for the district court to enter a judgment of acquittal and that would be the end of the case absent to appellate review, but we believe that…

Unknown Speaker: At what stage, at what point precisely did the district judge do that?

Mr. Frank H. Easterbrook: The District Judge has power under Rule 29 (c) to enter a judgment of acquittal at any time during the trial when the motion is made, and on a motion made within seven days after trial.

So the District Judge’s order in this case was clearly within his power.

The question is not, and we have never contended it otherwise, so was the order in Sanford, clearly within the judge’s power again, there is no doubt that he had the power to do exactly what he did.

Question is whether he erred in doing so and if he erred, whether an appeal lies to correct that error.

Unknown Speaker: Mr. Easterbrook, you told us at the beginning that in entering the order the District Court wrote no opinion, but I cannot even find copy of the order here.

Mr. Frank H. Easterbrook: Copy of the order is in our petition for writ of certiorari.

Unknown Speaker: I could not see that.

Mr. Frank H. Easterbrook: Towards the rear, it is at pages 40 (a) to 43 (a), there are two separate orders, they are both denominated judgments of acquittal and in both of those orders the judge recites that the reasons stated in the motions for judgments of acquittal are good and valid and that further this defendant is not guilty.

Unknown Speaker: And he used the phrase Not Guilty.

Mr. Frank H. Easterbrook: That is right.

Unknown Speaker: Mr. Easterbrook, would you be making the same argument if there has been mistrial, but the judge had just exercised his power to enter a judgment of acquittal or when the jury reported that they were deadlocked, that would be the mistrial sort of thing?

Mr. Frank H. Easterbrook: Well, our position is that once the jury deadlocked, the fact of the deadlock is the manifest necessity to create the right to a second trial.

Whether the judge says the formal words, I declare a mistrial is quite an important in our view, that it is functional analysis rather than a formal one and the important function in this case is the jury was unable to agree that the first trial had essentially come to naught.

Than the question is whether the double jeopardy clause after the first trial has come to naught bars a second trial and we think not, and for that purpose it makes no difference whether the judge says, I grant a mistrial.

But I would like to turn back question…

Justice Potter Stewart: You told us that the federal rules have abolished the directed verdict of acquittal, but up until recently there was such a thing as a directed verdict of acquittal and had the district judge done that when the jury reported they were deadlocked had he then on motion or without motion said well, I have considered all the evidence and I hereby direct you to reach the verdict of acquittal, that functionally would be precisely the same as this case, would it not?

Mr. Frank H. Easterbrook: No, it would not Your Honor.

The difference is this.

Suppose the jury had come back and said that it was deadlocked and the judge instead of saying, I direct you to return a verdict of acquittal, had given an outrageously erroneous instruction at that point that had said, when the jury is deadlocked…

Justice Potter Stewart: In that case first, and then you would involve in any or all of the hypothetical as you want.

Mr. Frank H. Easterbrook: I think your case is the case in which the judge sends the jury out to consider under outrageously erroneous instructions.

The instruction is the defendants are not guilty, return a verdict of acquittal.

At that point…

Justice Potter Stewart: Now, this is after the jury comes back and says we are deadlocked, we can not reach a verdict and the judge says, well, that was nearly a motion of acquittal and I had it under consideration and I now direct you to reach a verdict of acquittal.

Mr. Frank H. Easterbrook: And he sends the jury out to do that.

Justice Potter Stewart: Well, even if he does not, generally he used an open court.

Mr. Frank H. Easterbrook: Alright, at that point, our argument is the same as the argument here and in our view, it is no longer…

Justice Potter Stewart: It was directed jury verdict of acquittal, why is not that a Fong Foo case?

Mr. Frank H. Easterbrook: The Fong Foo case was a case in which that happened in mid-trial, before the jury said it was unable to agree.

So you had no idea in Fong Foo whether the jury was favorably disposed to defendants, whether the jury would evaluate the prosecution’s evidence in such a way that it did not credit the prosecution’s witnesses as Judge Wizansky (ph) in Fong Foo had said that he did not and the judge’s instruction in mid-trail in Fong Foo deprived the defendants of their opportunity to receive that verdict from the jury, but in the hypothetical you gave, the case went unencumbered to the jury, the jury came back and said, we are deadlocked, we cannot agree and at that point we think, the manifest necessity for the declaration of the mistrial is just (Voice Overlap).

Justice Potter Stewart: Hypothesis is that the jury does not agree and the judge at that point says, well I am going to direct you to enter a verdict of acquittal.

Mr. Frank H. Easterbrook: It is our view Mr. Justice Stewart that what happens after the jury is unable to agree, is where double jeopardy purpose is immaterial.

Justice Potter Stewart: That is what I thought, even though it is an instructive verdict of acquittal.

Mr. Frank H. Easterbrook: Even though it is an instructed verdict, but it is not this case.

Unknown Speaker: (Inaudible)

Mr. Frank H. Easterbrook: No, Your Honor, I do not believe so.

Unknown Speaker: (Inaudible) says specifically that you can do it after the jury is deadlocked.

Mr. Frank H. Easterbrook: Yes, Your Honor and we agree entirely with that.

The judge had the power to do what he did and if he was right, first of all we would not appeal, if we thought he was right.

If we incorrectly thought he was wrong and we appeal, the Court of Appeals should affirm and that is still the end of this case and the defendant is still free.

Unknown Speaker: That gives you judgment of the given case before (Inaudible)

Mr. Frank H. Easterbrook: Your Honor, in our view that is a much more difficult case because if he simply does it on his own, it deprives the defendant of his right to receive the verdict of the jury, something he was not deprived of here.

Unknown Speaker: He has not been deprvied of it very much to get it directed.

Unknown Speaker: What verdict of the jury is not here, you have not gotten any verdict either.

Mr. Frank H. Easterbrook: That is correct, just because the jury was unable to reach a verdict and that is the same as in any mistrial case.

Unknown Speaker: It happens that the jury have afforded an (Inaudible).

Mr. Frank H. Easterbrook: No, Your Honor.

In our view 29 (c) is perfectly applicable and the judge was quite within his power in doing what he did.

Unknown Speaker: If he grants the judgment of (Inaudible) as the jury would allow (Inaudible).

Mr. Frank H. Easterbrook: Yes Your Honor.

Unknown Speaker: And then nothing (Inaudible)

Mr. Frank H. Easterbrook: We do not agree with that proposition Your Honor.

In our view under the argument that we have made at pages 12 to 19 of our brief, the double jeopardy clause does not bar a second trial, if the defendants ask for what they got, then in our view it is complete…

Justice Thurgood Marshall: In my hypothetical case, defendants have not opened their mouth, but as the case is ended and both sides rest, the judge says, I will not cross, leave this to the jury, I would cross with the jury and I grant a judgment of acquittal.

Mr. Frank H. Easterbrook: Your Honor, in our view, we probably cannot appeal that judgment, if the defendants have not opened their mouths.

Justice Potter Stewart: Right, but what did the defendant do here?

Mr. Frank H. Easterbrook: There are two differences.

One is the jury did go out and did return and the second difference is the defendants asked for exactly what they got and they asked for it and got it when they asked for it.

Justice Potter Stewart: Well, in my case, would it normally be the defense counsel make such a motion at the end of the criminal trial, does he usually do this?

Mr. Frank H. Easterbrook: It is common Your Honor, but the defense counsel also has the option to ask the jury first and then ask…

Justice Potter Stewart: Well, if you we ask for judgment of acquittal, he can be retried.

Mr. Frank H. Easterbrook: If the judgment of acquittal is granted and if he was not entitled to it, those are two important preconditions in our view.

If he asked for something to which he was not entitled and voluntarily asked the judge to take this case away from the jury, then in our view he has surrendered his valued right to receive the verdict of the fact finder and in those circumstances, he can be tried the second time.

Justice Potter Stewart: Well, he is not that complaining about anything he has been deprived of?

Mr. Frank H. Easterbrook: I know I was – I am sorry, I was dealing with Mr. Justice Marshall’s hypothetical and that again is not this case, I would like to return.

Justice Potter Stewart: Of course the defendant asked for a verdict of acquittal from a very moment he pleads not guilty, does he not?

That is continuing request and that is continuous throughout the trial.

Mr. Frank H. Easterbrook: But he usually has his choice of time.

Justice Potter Stewart: Ask to be acquitted.

Mr. Frank H. Easterbrook: Mr. Justice Stewart, he usually has his choice of timing.

He can ask for it from the jury and if the jury returns it under Fong Foo and under Kepner that is simply final.

The jury has the power to return final verdicts.

If he asks for it of the judge, he is asking for a purely legal ruling on the sufficiency of the evidence and if he decides to take the case away from the jury in our view, he is also subjecting himself to a second trial if it turns out that he was not entitled to have that case taken from the jury…

Unknown Speaker: The same case is relevant here, one could analyze his motion for a directed verdict for acquittal as a position at that time, I am not going to waive the jury and ask the judge.

Mr. Frank H. Easterbrook: But unless the prosecution agrees to do that, the prosecution also has a right to have the case go to the jury which is what upheld in Singer and we have indeed relied on Singer in this case.

Unknown Speaker: You have?

Mr. Frank H. Easterbrook: Yes we have.

I would like to discuss briefly the case of United States against Wilson which I think addresses some of the things I have been discussing with Mr. Justice Stewart and Mr. Justice Marshall.

In Wilson, the court returned the verdict of guilty and the judge then entered a judgment of acquittal which he called a judgment of acquittal, based on the evidence that was heard at trial.

The court held that such a judgment can be reviewed and reversed and the fact that it is called an acquittal is irrelevant.

The Court summarized this in United States against Jenkins, 420 U.S at page 365 by saying that when “The jury returns a verdict of guilt, that the Trial Court thereafter enters a judgment of acquittal and appeal is permitted.”

In other words, nothing in the Double Jeopardy Clause bars appellate review of the judge’s decision to acquit the defendants, even based on evidence of trial, because we understand that to be the import of statement in Jenkins.

Unknown Speaker: Mr. Easterbrook, I have to interrupt you because you had called my attention to the Wilson case and the court describes the order of the District Court as the dismissal of the indictment at two or three places at the beginning of the opinion, where do you find that was a judgment?

Mr. Frank H. Easterbrook: Your Honor, the judgment entered in Wilson was denominated by the judge as a judgment of acquittal.

Unknown Speaker: It was on the ground, was it not that there was unreasonable delay in final hearing?

Mr. Frank H. Easterbrook: Yes it was…

Unknown Speaker: So, that is certainly and normally, be properly called the dismissal.

Mr. Frank H. Easterbrook: We argued in Wilson that that is what it was really, functionally a judgment of dismissal and it was not a judgment --

Unknown Speaker: That is not true as this case --

Mr. Frank H. Easterbrook: That is correct, but my --

Unknown Speaker: You have a statutory problem.

Mr. Frank H. Easterbrook: My use of Wilson for that purpose was because we have had in Wilson a very long and complicated argument about whether this document which was called a judgment of acquittal was in form or in function an order dismissing the indictment.

Unknown Speaker: Well, but everybody agrees now that it was in function an order dismissing the indictment whereas in this case, in function we have an order acquitting the defendant, are they not different.

Mr. Frank H. Easterbrook: The court reached the conclusion in Wilson as I read that case though by deciding that did not make any difference.

Unknown Speaker: Where did you find that in the Wilson, I just read the page that you cited before and I…

Mr. Frank H. Easterbrook: I can also refer you to 337 to 339 in which the court discusses what Congress meant in passing the Criminal Appeals Act, but I can go beyond Wilson I think, because in United States against Sanford, we have the same problem we have here.

In Sanford, the judge entered an order saying that the defendants had a perfect defense and on that account, he dismissed the indictment, but the argument on the other side was although that was called a dismissal of the indictment, it was really in function an acquittal and we appealed and this court held that we were entitled to appeal under the Criminal Appeals Act for the reason that the double jeopardy clause did not bar a second trial.

Unknown Speaker: That depends on whether in function the order is a dismissal and acquittal, but how can you characterize this is in function as the dismissal after the trial is all over, that I do not understand.

On the ground that the evidence was insufficient to support the verdict to guilty, that is the reason the judge gave and how can you call that a dismissal of the indictment?

Mr. Frank H. Easterbrook: We cannot call it a dismissal of the indictment, but what we can say is it does not make any difference.

Unknown Speaker: (Inaudible) if you cannot call a dismissal of the indictment, you cannot appeal.

Mr. Frank H. Easterbrook: We can say I think Your Honor that Congress intended in the Criminal Appeals Act to remove all non constitutional bars to appeal from final orders terminating the prosecution and that Congress used language that it thought encompassed all of those categories of final orders terminating the prosecution and although it did not use this particular language, under the interpretation of that statute in Wilson which goes back to the legislative history, Congress intended its language to be broad enough to cover this case.

Unknown Speaker: And maybe Congress correctly thought that a judgment of acquittal could not be appealed because a retrial would be barred by them, double jeopardy clause, and maybe the reason they did not use any phrase.

Mr. Frank H. Easterbrook: One more point Mr. Justice Stevens, the Third Circuit in Wilson had held as a matter of law, that the judgment in that case was in fact an acquittal and not a dismissal of the indictment, that it was an acquittal in both form and functions.

Unknown Speaker: Well, I understand all that, but how you get over the fact that in this case in function it is an acquittal.

What else you do on the evidence offered by the government is insufficient to support the charge, the man you filed is acquittal, isn't he?

That is functionally what happened here.

Mr. Frank H. Easterbrook: We do not dispute that.

Justice John Paul Stevens: You just say some acquittals can be appealed and there is no authority that you have cited that supports that proposition, is it not?

Mr. Frank H. Easterbrook: I think Sanford supports that proposition, absolutely because in function, the judgment in Sanford was an acquittal.

It was an order based on the evidence of trial holding that the defendants had committed no crime and the court held that we could appeal in Sanford.

Wilson supports that not because the order in Wilson was in function, an acquittal based on insufficiency of the evidence, but because of the court’s analysis of a legislative history and the intend of Congress to permit appeals whenever the double jeopardy clause would not bar them and that leaves in our view only the constitutional issue in this case.

Justice John Paul Stevens: Well, that was really the equivalent under the Old Criminal Appeals Act of the judgment notwithstanding the verdict, was it not, I forgot the name of the – that was involved in that case, where the indictment in effect did not charge a crime, taking all the evidence into consideration.

Mr. Frank H. Easterbrook: It was not a case where the indictment did not charge a crime.

The indictment charged the crime in Wilson, but the Court found that there were other reasons outside the indictment and completely apart from the face of the indictment why there should not be a trial and this the Court had analyzed the Old Criminal Appeal Act in Sisson the defect had to appear on the face of the indictment which was not true in Wilson.

Chief Justice Warren E. Burger: Mr. Smith.

Argument of J. Burleson Smith

Mr. J. Burleson Smith: Mr. Chief Justice and May it please the court.

There is a narrow and a limited constitutional question involved here and I confess to the court that much has been written about the problem of Double Jeopardy both before and after the 1970 amendment.

I will not suggest to the Court that everything has been written and the area is consistent, nor will I suggest to the Court that there is a single case handled by this Court in which there has been a dispositive ruling, a ruling on facts on all squares with ours.

I do suggest, however, that the precedent and the policy of the administration of criminal justice both support the affirmance of the judgments below.

Turning first to the question, then of course the fountainhead of all decisions and all considerations in a case like this is Mr. Justice Story’s opinion in the Perez case in 1824.

That case ordinarily is cited for his words about the prisoner has been neither convicted nor acquitted then therefore maybe put to his defense.

Similarly the words manifest necessity, the words of ends of public Justice, but I come after those words to the words that I think are really, now this is back in 1824 are really those that are applicable here after talking about the discretion to be exercised by the trial judge and you remember that Perez was a hung jury case and the question was it capital case and the question was what was the trial judge’s power at that time.

Mr. Justice Story said, “But after all they, the judges, have the right to order the discharge and the security which the public have for the faithful, sound and conscious exercise of this discretion rests in this as in other cases upon the responsibility of the judges under their oaths of office.

Now, that it seems to me as what we have today is to determine what the trial judge’s function is in a case and how he exercised that function in this case.

The Perez case of course has been cited down through 1976 by this court.

Perhaps one of the most pertinent observations about it was in this Court in Wade v. Turner where it was pointed out that the value of the Perez principles thus lies in the capacity for informed application under widely different circumstances without injury to defendant or to the public interest.

That after all is the resolution at least remains in this or in any other case involving the administration of criminal justice.

The resolution of the problems, the public interest on the one hand, the private interest of the individual on the other hand.

But counsel for the government says that only the jury can determine facts, That is thought were Mr. Hayrlin said for this court in Sisson case.

That court in Sisson case for its decision on appealability as you know much has written about that by Mr. Hayrlin, but this court said then in Sisson case that judges like juries can acquit defendants and cited specifically Rule 29 of the Federal Rules of the Criminal Procedure.

Then in Illinois against Somerville, this court recently speaking through Mr. Justice Rehnquist for the majority, Mr. Justice White for dissent, both acknowledge the applicability of the Perez Rule, both acknowledge the flexibility of the rule of Perez that there is no fixed mechanical formula, but rather that broad discretion is reserved to the trial judge.

Now That is what Rule 29 (c) actually does.

It gives broad discretion to the trial judge and the judge here exercised that discretion.

Similarly in other cases, Rule 29 cases, the trial judge has exercised that discussion similarly, particularly the Suarez case out of the Second Circuit which relied on the Second Circuit’s own opinion in the Jenkins case which was later affirmed by this case.

Suarez is on all fours.

It is a white horse case in so far as the procedural posture of the case is concerned.

It was a multi count indictment.

Some of the counts were dismissed by the court.

It went to the Jury.

The Jury hung up.

The trial court granted a Rule 29 (c) motion.

He entered a judgment of acquittal.

The Second Circuit said that the entry of that specifically under Rule 29 (c) barred Appeal by the government, that there had been final determination that is what this Circuit said in this case, that is what this case is all about.

Then in Robins out of the Sixth Circuit, a Rule 29 (a) case, that had cert denied for this court.

The court there as one of the Your Honors suggested granted a motion for acquittal at the end of the government’s case, he took it away from the jury at that juncture.

The Sixth Circuit said that jeopardy had attached and that at appeal by the government was barred by the Constitution (Inaudible)against double jeopardy, and that came to this Court, petition was denied.

I suggest, if the court please, that there is no difference between a Rule 29 (a) acquittal and Rule 29 (c) acquittal.

So what we have are three circuit courts; the Second, the Fifth and the Sixth who have reached decisions under the rule 29.

Now, counsel for the government neither in brief nor in an oral argument has cited a single case from the circuit or any other court on a Rule 29 situation that supports the government’s position here.

The government’s position here is also baseless under the decision of this court in full form.

In full form which is then reiterated in recent opinions of this court. You had a trial judge take it away during the course of the trial and enter a judgment.

On the facts as they were deuced and this court held that there was no right of appeal by the government.

I reiterate that neither in oral argument nor in brief has the government supported a single Rule 29 case in its support, but now you come, you cannot get into the precedent in this matter without getting into famous trilogy of Wilson, Jenkins and Serfass.

Your Honors of course know much more about those cases than I would presume to know.

Wilson was appealable because there was, as the court said, there was a guilty verdict entered by the jury.

Unknown Speaker: Mr. Smith, before you get to those cases, just so I know what your answer to this question is when you are discussing those other cases.

Supposing the jury returns the verdict of guilty and within seven days the judge enters an order of acquittal.

I take it your submission is that even though it would not be a necessity for any new trial afterwards that the mere fact of acquittal seals the case and it is unappealable.

Mr. J. Burleson Smith: Your Honor, I am not going to suggest that.

One of the cases recently says that there is talismanic quality in the word acquittal and…

Unknown Speaker: You are not saying then I take it that just the fact that the judge has done what the rule has entitled him to do, namely under a judgment of acquittal based on the evidence, automatically forbids appeal.

Mr. J. Burleson Smith: I am not saying that Rule 29 arises to constitutional level if the court please.

Unknown Speaker: Again, I just want to know, is it appealable or not?

May the government appeal that judgment of acquittal?

Mr. J. Burleson Smith: Where there is a jury verdict of guilty…?

Unknown Speaker: Yes.

Unknown Speaker: General motion under 29c within seven days.

Mr. J. Burleson Smith: I think it could.

Unknown Speaker: And if it reversed, the guilty verdict is reinstated?

Mr. J. Burleson Smith: It is reinstated.

There is no necessity for a new trial and as Justice Rehnquist said in the Jenkins case, there is no necessity for a new trial for the resolution of any..

Unknown Speaker: Now, I would like to listen to those cases.

Mr. J. Burleson Smith: And I think that we have taken the position and I think it is perfectly supportable that Jenkins is a controlling case and I particularly direct Your Honor’s attention to Footnote 7 in that case where Mr. Justice Rehnquist, if you will remember had before the dissenting opinion or the dissenting position taken by Judge Lombard out of the second circuit.

Judge Lombard was relying on such cases as Illinois versus Somerville and Mr. Justice Rehnquist said judge Lombard analogized respondent’s case to mistrial cases in which the public interest and fair trial designed to end in judgments must be waived.

That if it is, we felt, would not be serve or permitting a clearly guilty defendant to go free because of erroneous interpretation of the controlling law.

Speaking for this Court Mr. Justice Rehnquist said, we disagree with this analysis because we think it is of critical importance whether the proceedings of the Trial Court terminated in a mistrial as they did in the Somerville line of cases or ended in defendant’s favor as they did here.

In other words, there was a judgment of acquittal in favor of the defendant and of course That is the same case in which speaking for this court very recently, Mr. Justice Rehnquist also said and this gets to the heart of the double jeopardy question.

Here there was a judgment discharging the defendant although we cannot say with assurance whether it was or was not a resolution of the factual issues against the government, but it is enough for purposes of the double jeopardy clause and therefore for the determination of appealability under 3731, that further proceedings of some sort devoted to the resolution of factual issues going to the elements of the offense charged would have been required upon reversal and remand, and ironic part of this case is that this is a criminal contempt case.

Criminal contempt, any contempt of course is a charge of flaunting or denigrating the power, authority and dignity of a court.

Here the court against whom the contempt was supposed to have been directed has failed absolutely and in unequivocal language that the defendants are not guilty, that the government has failed to discharge its burden, the defendants are not guilty, using those words if you please Mr. justice Stewart and that they should for that reason be acquitted and they were acquitted.

Now, Serfass; Serfass is simply a pretrial dismissal and as the Chief Justice suggested that really is a test of this sufficiency of the indictment.

So also is Sanford.

Sanford is clearly just as this court held in December of this last year is simply a pretrial dismissal.

Admittedly, the trial court said that the government has consented, and therefore, whatever the proof was by the government, the defendants should have been discharged.

That did not come into the trial where that evidence was introduced and produced.

That trial was long gone.

No Rule 29 motion appears in the reports.

That trial was over, but as an after thought and before the next trial the yet to come trial, the defendant filed a motion for dismissal on the ground That is a government’s evidence and now completed trial constituted a complete bar.

This court quite properly held that that was nothing but a pretrial dismissal.

Now, if the court please, the authorities, it seems to me the precedent is clearly in support of the position of the respondents here, the two corporations, but there is a very, very important consideration, a policy consideration if the court please, and that relates to the fair accommodation between the proper administration of criminal justice on the public’s behalf and an individual defendant’s right to finality of judgment.

I think this is what Mr. Justice Black was talking about in Green v. United States speaking for this Court of course, and the underlying argument, one that is deeply ingrained at least in the Anglo sect in the system of jurisprudence is that the state with all it is resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, an ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent, he may be found guilty.

In other words, when he is acquitted he is acquitted and his trial is over.

The government counsel has said frankly that the question of whether not corporations and the only parties before this court are corporations, are entitled to protection of double jeopardy cause.

There is a question yet to be determined by this court and it will be determined on appeal if the court takes it from the Security National Bank case out of the Second Circuit.

He frankly said that this is a determination that need not be made by this Court in this case, but -- and that is a position in all candor that the government takes both in it is brief or petition to cert and also in its main brief in this Court.

On the other hand, I cite that case and the Second Circuit is opinion in that case to show that what Mr. justice Black said about the rights and public policy as to individuals applies as well as to corporations and in this opinion, in December 1976, the Second Circuit in unanimous opinion says no corporation, large or small can escape the incalculable effect which a conviction may have on the public attitude towards the company.

Like an individual it must answer to the verdict of the community.

No corporations, no matter how large can pit its resources against the overwhelming might of the state so as to avoid the harassment and the increasing probability of conviction resulting from re-prosecutions and this unequal contest “fundamental fairness” requires that the government having had a full try at establishing criminal wrongdoing shall not have another, the appeal is dismissed.

Now let us turn those considerations to what we have here.

Let us look at the facts of our case.

First of all counsel did not mentioned that the 1969 consent decree was entered into and negotiated after extended grand jury proceedings, considerable time, expense, effort.

The decree was entered in 1971.

Less than two years later, we were faced with Ex parte show cause orders for both criminal and civil contempt.

We had been negotiating when we had been with them for at least three years, but these were entered Ex parte by the government at the government’s motion.

Then we were faced with a prior appeal on the motion to construe.

We lost that.

This Court refused the cert and after that we had extensive discovery on both the criminal and the civil contempt, discovery running in tandem, in addition to discovery under the ominous procedure which prevails in our district and then in 1975, we got to the trial of this case and I think it is very important for this court to know the comments of the trial judge and these are all in the appendix.

First of all the government’s position in the trial as shown on page 31 and 32 clearly shows that what it is trying to do is prosecuting industry and we just happen to be the lucky target for the disruptive practices that the government talks about in the industry.

We are the only ones as the record shows against which any charges like this have been made.

Unknown Speaker: The merits of your case or the government’s case are not really before us here, are they?

Mr. J. Burleson Smith: No sir, but these all go to the judge's comments that are in the Appendix which show the state of mind of the judge when he found not guilty and acquitted.

Unknown Speaker: But your position is that even if the judge was – when pressed your position would be that even if the judge was quite wrong in entering the judgment of acquittal, nonetheless it is not appealable?

Mr. J. Burleson Smith: That is Fong Foo if the court please.

Unknown Speaker: Exactly and that has to be your position.

Mr. J. Burleson Smith: Yes sir and Fong Foo says that very clearly.

I think the whole court thought, they probably thought the trial judge in Fong Foo had done something improvidently in dismissing or bringing to an end that particular litigation, but the fact is that the court -- there was an acquittal and that no appeal should allow.

Unknown Speaker: And the fact really that this was a criminal contempt rather than a mine-run claim, and like criminal case does not have anything basically to do with the issue before us, does it?

Mr. J. Burleson Smith: I think not if the court please.

I think the Fifth Circuit determined that in the prior appeal and said that criminal contempt is for purposes of our problem here is…

Unknown Speaker: This case has been argued just as though it were a mine-run criminal prosecution.

Mr. J. Burleson Smith: And that of course is one factor that shows the comprehensive effect of the Court’s ruling in this case is because there is no real reason that it should not apply to other cases except for the fact that you have the judge finding -- he is the one against whom the contempt is posed.

Unknown Speaker: Well, That is a little circumstance of this case, but it does not really affect the basic issue here.

Mr. J. Burleson Smith: I think on that we would have to say that whatever distinctions you could make would be hard to abstain.

Then the trial court says and this indicates that when he dismissed the jury, he did not intend to terminate this trial.

He made some remarks from the bench and he said I am open to any motions that either side would like to file; that is at page 33 of the appendix, then on that same page, he told the government, I think you have had your day in court on the criminal contempt.

I gave you every opportunity to convict these defendants and you came very close on the corporate defendants, but you did not come close on the individual.

I would be inclined to bring this thing to an end at this time saying in to the government, you shot your best shot and you did not kill anybody, you did not sustain your burden, I find the defendant’s not guilty and I acquit them, this is getting over until the time when he had his order.

Unknown Speaker: He had two other opportunities to say the same thing, did he not?

Mr. J. Burleson Smith: You mean earlier?

Unknown Speaker: Yeah.

Mr. J. Burleson Smith: Yes, Your Honor.

Unknown Speaker: Yes (Inaudible) and he did not.

Mr. J. Burleson Smith: He did not.

He gave the government full opportunity and the Fifth Circuit says this in its opinion.

He gave the government full opportunity to shoot everything they had, they shot it and we made the motion at the end of the government’s case.

We made the motion to acquit at the end of the whole case.

But now this rule 29…

Unknown Speaker: He convinced the eleven jurors though, did he not?

Mr. J. Burleson Smith: Yes, he did and at all tender that is one reason we do not want them to have another shot, but also the government has got another shot even after this because what judge would, the trial judge was saying, he said, let us get on with the civil contempt.

Let us get on.

It is still pending and there is nothing that the government could get in this criminal contempt, by way of penalty that it can also get in the civil contempt which is presently pending in the trial court.

Now, what did the trial court say when he entered his judgment of acquittal.

Now each of this is dated April 22, 1975, there is a separate judgment of acquittal as to each corporate defendant.

The court finds that the ground set forth in that motion are good and valid and that the government has failed to prove the material allegations beyond a reasonable doubt, that further this defendant should be found not guilty, is accordingly a judge that respondent Martin Linen Supply Co is not guilty of the charges against it and is hereby acquitted and discharged as to all charges herein.

That is the judge’s order and his opinion.

The Fifth Circuit of court held that there was no appealability and no appeal available to the government and it is our position of course that each of those judgments are the judgments of both courts below should be affirmed.

Now, if its not affirmed, if those judgments are not affirmed, how are we going to describe the function of a trial judge in the trial of a criminal case?

Judge Simpson on the panel of the Fifth Circuit that heard the argument, an old trial judge, asked the government counsel, he said what difference is there between the acquittal under these circumstances and the acquittal under the circumstances of Robins where the court took it away from the jury at the end of the government’s case.

The government had no satisfactory answer to the court.

Judge Dyer also an old experienced trial judge, also on the panel said, counsel you would have a good argument if there were not anybody in that courtroom but you and the jury.

So what are you going to attribute to the trial judge?

Now, I suggest if the court please, that unless this trial court’s judgment of acquittal pursuant to Rule 29 which had all of the effect of extending this trial in which this judgment of acquittal was entered, in which this evidence was entered and introduced, quite contrary to Sanford, that unless this judgment of acquittal is sustained and affirmed, the trial judge for practical purposes will be sterilized to the position of an impotent umpire.

He will be in the trial court under these circumstances and a position quite like that an umpire at a tennis match.

If he cannot do something definitive as the presiding officer of that court then he is sitting there doing not much more than calling foot faults, out of bounds and net balls.

I suggest that the proper function of the trial court is to put him where he is to make decisions and that is what I think Mr. Justice Story was talking back about his early as 1824 and when he enters a judgment of acquittal, its just as effective as if the jury had returned a verdict of guilty.

Thank you Sir.

Thank Your Honors.

Chief Justice Warren E. Burger: Thank you gentleman, your case has submitted.