United States v. DiStefano

• Decision Date: 17 July 1972
• Docket Number: No. 828,Dockets 72-1268,829,72-1442.,828
• Citation: 464 F.2d 845
• Parties: UNITED STATES of America, Appellant, v. Nicholas DiSTEFANO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

464 F.2d 845 (1972)

UNITED STATES of America, Appellant, v. Nicholas DiSTEFANO et al., Defendants-Appellees.

Nos. 828, 829, Dockets 72-1268, 72-1442.

United States Court of Appeals, Second Circuit.

Argued June 7, 1972.

Decided July 17, 1972.

Walter M. Phillips, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Peter F. Rient, and John W. Nields, Jr., Asst. U. S. Attys., of counsel), for appellant.

Gustave H. Newman, Brooklyn, N. Y. (Evseroff, Newman & Sonenshine, Brooklyn, N. Y., of counsel), for appellees DiStefano and Russo.

Maurice Edelbaum, New York City (Nancy Rosner, New York City, of counsel), for appellee Rosner.

Before FRIENDLY, Chief Judge, and LUMBARD and MULLIGAN, Circuit Judges.

FRIENDLY, Chief Judge:

The indictment here, in the District Court for the Southern District of New York, filed on December 8, 1970, charged Edmund Rosner, an attorney, and three other defendants, with the serious crime of suborning perjury, 18 U.S.C. § 1622, and conspiracy, 18 U.S.C. § 371, by procuring Pedro Hernandez and three others to testify falsely at a March, 1967 trial in which Hernandez was convicted of violating the federal narcotics laws. The defendants entered not guilty pleas. In March, 1971, a pre-trial conference was held before Judge Metzner to set a trial date. The Government announced readiness for trial in April or May, but counsel for the various defendants, who are among the most active members of the New York City criminal defense bar, pleaded heavy trial engagements through June.¹ Without objection, the judge scheduled the trial for November 1.

In July the Government began efforts to assemble its witnesses. Hernandez, who had testified before the grand jury and had been available in March, could not be located, despite vigorous efforts to that end. On October 27 the Government applied for an adjournment on the ground of the unavailability of Hernandez and another witness, Beltran. Over the objection of defense counsel, the judge adjourned the trial until January 4, 1972, stating that he would dismiss the indictment at that time if the Government was not prepared to go forward; he also issued a material witness warrant for Hernandez' arrest. In the interval the Government found Beltran but not Hernandez. It sought and the judge granted, again over the objection of defense counsel, a further adjournment, to January 24. When on that date the Government sought a further adjournment but was unable to make any representation when Hernandez would be found, the judge dismissed the indictment.

Some two months later, with the statute of limitations having run in the meanwhile, the Government located Hernandez in Mexico City and sought to have him returned as a parole violator. Its motion of April 18, 1972, that the judge vacate his order dismissing the indictment since the missing witness had been located was denied. The Government had filed a notice of appeal on February 3, 1972 from the January 24, 1972 order of dismissal. On April 21, 1972, after the denial of its motion to vacate, it filed a petition for mandamus to direct the judge to reinstate the indictment. Defendants, while also responding on the merits, have moved to dismiss the appeal for want of jurisdiction.

I.

It is beyond question that if appealability were governed by the statute now in effect, 18 U.S.C. § 3731, as amended by § 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970), the order dismissing the indictment would be appealable;² indeed, we have recently entertained precisely such an appeal, United States v. Crutch, 461 F.2d 1200 (2 Cir.1972). It is equally beyond question that the present statute does not apply since § 14(b) provides that the 1970 amendments shall not apply to any criminal case begun before their effective date, January 2, 1971, and the instant indictment was filed December 8, 1970. See United States v. Marion, 404 U.S. 307, 311 n. 2, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We therefore look to the statute effective on the date of the indictment. That too, if read literally, would confer jurisdiction since it authorized an appeal to a court of appeals in criminal cases, inter alia:

From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section.

and, as will be shown in Part II, the exception is not applicable.

However, this is the rare case where we must look not to the presently effective statute or to its father but to its grandfather, the Criminal Appeals Act as it stood before the 1948 amendment, 62 Stat. 844, just quoted. The equivalent provision of the predecessor legislation, the Criminal Appeals Act of 1907, 34 Stat. 1246, as amended in 1942, 56 Stat. 271, read:

From a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this Act.

Before any court had occasion to pass upon this language, which clearly would not have encompassed the appeal here sought to be taken, the Federal Rules of Criminal Procedure became effective on March 21, 1946. Rule 12(a) abolished all pleas except not guilty, guilty and nolo contendere. It also abolished demurrers and motions to quash and provided that "defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules," notably Rule 12(b). In addition, the last sentence of Rule 54(c) provided that terms associated with these abolished pleas, motions to quash and demurrers, when appearing in acts of Congress, "shall be construed to mean the motion raising a defense or objection provided in Rule 12." The Advisory Committee Note made clear that this "has particular reference to 18 U.S.C. § 3731 . . . . It is intended that the right of the Government to appeal in such cases should not be affected as the result of the substitution of a motion under Rule 12 for a demurrer, motion to quash and a special plea in bar."

The announced purpose of the 1948 revision of the Criminal Code was "the substitution of plain language for awkward terms, reconciliation of conflicting laws, omission of superseded sections, and consolidation of similar provisions." H.R.Rep.No.304, 80th Cong., 1st Sess. (1947). The changes represented by 18 U.S.C. § 3731 were consistent with that purpose, the Reviser's Notes stating only: "Minor changes were made to conform to rule 12 of the Federal Rules of Criminal Procedure."

The first case to consider whether the 1948 amendment should be literally applied, so as to reach a dismissal for lack of prosecution under Rule 48(b), there caused by the grant of a suppression motion, was United States v. Pack, 247 F.2d 168 (3 Cir. 1957). In an able opinion by Judge Kalodner, which took note of the Supreme Court's admonition in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227-228, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), that courts should not blandly assume, in that instance with respect to the 1948 revision of Title 28, that Congress had intended to make important jurisdictional changes not clearly expressed when it had not been apprised by the Reviser's Notes, the Court held that the section should continue to be read as theretofore, save only for the abolition of outmoded terms.³ A year later the Ninth Circuit was presented with a similar issue, United States v. Heath, 260 F.2d 623 (9 Cir. 1958),⁴ and reached the same result. Sitting in banc, the Ninth Circuit gave further consideration to the problem in United States v. Apex Distributing Co., 270 F.2d 747 (9 Cir. 1959).⁵ There was no change in result and no dissent although Judge Pope wrote a wistful concurring opinion, in which Judge Stephens joined, over the passing of the good old days when a statute could be read to mean what it said. Compare Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396, 71 S. Ct. 745, 95 L.Ed. 1035 (1951) (concurring opinion of Mr. Justice Jackson). A later decision in the Ninth Circuit has indicated no disposition to take a new look. United States v. Kanan, 341 F.2d 509 (9 Cir. 1965). The Government has cited no case in any other circuit to the contrary. Although the point was not directly involved in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), the plurality opinion of Mr. Justice Harlan approvingly noted Apex and the reasoning as to the limited effect of the 1948 amendment on which it and the other cited decisions were based. 399 U.S. at 292 n. 22, 90 S.Ct. 2117. Beyond this, in 1968 Congress tackled the problem that had given rise to United States v. Pack, supra — the granting of a motion to suppress evidence — by authorizing an appeal on a certificate of need by the United States attorney, 82 Stat. 237,⁶ but left the Pack-Heath-Apex holdings intact until two years thereafter. Even if we entertained doubt with respect to the Third and Ninth Circuit decisions and felt free to act on this despite the footnote in Sisson, it would scarcely be in the interests of sound judicial administration to create a conflict with respect to a complex jurisdictional statute now happily repealed. However, we have none.

II.

Having given scant attention to the jurisdictional problem in its opening brief, the Government's reply brief advanced the alternative suggestion that we certify the appeal to the Supreme Court under the paragraph of former § 3731 permitting an appeal by the Government to that Court

From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.

Construction of the phrase "a motion in bar" gave rise to much discussion in United States v. Mersky, 361 U.S. 431, ...