United States v. Blue, 20007.

• Decision Date: 15 September 1965
• Docket Number: No. 20007.,20007.
• Citation: 350 F.2d 267
• Parties: UNITED STATES of America, Appellant, v. Ben BLUE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.2d 267 (1965)

UNITED STATES of America, Appellant, v. Ben BLUE, Appellee.

No. 20007.

United States Court of Appeals Ninth Circuit.

August 16, 1965.

Rehearing Denied September 15, 1965.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Los Angeles, Cal., for appellant.

Ernest Mortensen, Mortensen & Maxwell, Pasadena, Cal., for appellee.

Before JERTBERG, Circuit Judge, MADDEN, Judge, Court of Claims, and DUNIWAY, Circuit Judge.

DUNIWAY, Circuit Judge:

The United States moves that we certify this appeal to the Supreme Court of the United States, pursuant to the provisions of the Criminal Appeals Act, as amended, 18 U.S.C. § 3731. The appellee, Ben Blue, opposes the motion and moves that we dismiss the appeal. We deny Blue's motion and grant the government's motion.

1. The factual background.

On August 5, 1964 Blue was indicted on 6 counts. The first 3 counts charge the filing of false and fraudulent income tax returns for the calendar years 1958, 1959 and 1960 (26 U.S.C. § 7201). The other 3 counts charge the filing of false income tax returns on behalf of a corporation, Merry-Go-Round, Inc., for the same three calendar years. (26 U.S.C. § 7206(1)). On November 24, 1964 Blue filed a motion to dismiss the indictment. The grounds are: In the course of an investigation of the income tax returns of Blue and of the corporation for the years in question, and as early as November 13, 1962, Blue and his counsel were advised that the Internal Revenue Service proposed to recommend criminal prosecution of Blue in connection with the tax returns for the years in question. On April 12, 1963 the Service levied a jeopary assessment against Blue and served him with a so-called 90-day letter, stating the assessment, the claimed deficiencies, and his right to petition the Tax Court for relief. Levies were made on all of his known assets, but these did not produce enough funds to pay the assessments. Within the 90 days, and on July 29, 1963, Blue did file petitions for relief with the Tax Court. These petitions were transmitted to the Enforcement Division of the Internal Revenue Service on October 17, 1963 and from there found their way to the Department of Justice and ultimately into the files of the Assistant United States Attorney handling the prosecution.

2. The trial court's ruling.

Blue's motion to dismiss the indictment was based upon two principal contentions: (1) that the levying of the jeopardy assessment deprived him of access to all of his assets and thereby prevented him from being adequately represented by counsel and from procuring the services of an accountant in the defense of the criminal charge, and (2) that by tying up all of his assets, the government prevented him from paying the taxes assessed and suing for a refund and, in effect, compelled him to file petitions with the Tax Court in which, in order to present his case to the Tax Court, he was forced to disclose information in violation of his privilege, under the Fifth Amendment to the Constitution, against incriminating himself. The motion is supported by an affidavit of his counsel, and at the hearing various witnesses testified.

At the conclusion of the hearing the court granted the motion but wrote no opinion, the only order in the record being a minute order which reads in pertinent part: "* * * indictment dismissed; defendant discharged; bond exonerated." It found against Blue's first contention, but sustained his second contention.¹

3. The sufficiency of the notice of appeal.

One ground upon which Blue asks us to dismiss the government's appeal is that the notice of appeal does not state the name of any court to which the appeal is taken. The notice does, however, contain all of the material that is required by Rule 37 of the Federal Rules of Criminal Procedure. On the other hand, it does not conform to Rule 10 of the Rules of the Supreme Court, which relate to appeals to that Court. Apparently, counsel who prepared the notice read Rule 37, but did not look at the accompanying Form 26, which contains a recital that the appellant appeals "to the United States Court of Appeals for the ....... Circuit." In fact, on the day the notice of appeal was filed, the Clerk of the District Court forwarded a copy of the notice of appeal and a statement of the docket entries to the Clerk of this court, as is required by Rule 37(a) (1), and mailed a copy to counsel for Blue, as is also provided in the rule. We think that the failure of the notice to name the court to which the appeal is taken is immaterial, since the appeal normally will come to this court, as the rule itself indicates, and the regular procedure was in fact followed. Our view is strengthened by the fact that the Criminal Appeals Act provides for a transfer of an appeal to the proper court if the appellant should appeal to the wrong court. This, rather than dismissal, is the remedy calculated to assure a just disposition of the case. This is precisely the sort of technical objection that the Rules were designed to eliminate. (Rule 2) We therefore hold that this ground for dismissal is without merit.

4. The motion that we certify the appeal to the Supreme Court.

The Criminal Appeals Act lists three sets of circumstances under which an appeal may be taken by the United States direct to the Supreme Court. The third and the only one which could be applicable here reads as follows:

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

The government contends that what the court did here was, in essence, to sustain a motion in bar. It is conceded that Blue has not yet been put in jeopardy.

In the first case construing the statute, United States v. Celestine, 1909, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195, the Court held, without elaboration, that the sustaining of a plea which challenged the jurisdiction of the Federal Court over an Indian, was the sustaining of a special plea in bar. This was followed by United States v. Barber, 1911, 219 U.S. 72, 31 S.Ct. 209, 55 L.Ed. 99. In that case the trial court sustained what was denominated a plea in abatement, the basis of which was that the prosecution was barred by the statute of limitations when the indictment was found. The Court held that the substance of the action of the Court, and not the label that attached to it, should determine whether the Court's action was the sustaining of a plea in bar. It then laid down the following rule:

"As said by counsel for the government, `the plea of the statute of limitation does not question the validity of the indictment, but is directed to the merits of the case; and if found in favor of the defendant the judgment is necessarily an acquittal of the defendant of the charge, and not a mere abatement of the action; and it has been universally classed, in both civil and criminal procedure, as a plea in bar and not in abatement.\'" (p. 78, 31 S.Ct. p. 211)

This decision was followed in United States v. Oppenheimer, 1916, 242 U.S. 85, 137 S.Ct. 68, 61 L.Ed. 161 and in United States v. Goldman, 1928, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862.

In United States v. Thompson, 1920, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333, the trial court quashed an indictment on the ground that when a prior Grand Jury had had the case presented to it and refused to indict, the United States Attorney could not then take the matter again to a second Grand Jury and obtain an indictment. The Court held that this amounted to the sustaining of a plea in bar "because its necessary effect was to bar the absolute right of the United States to prosecute by subjecting the exercise of that right, not only as to this indictment, but as to all subsequent ones for the same offenses, to a limitation resulting from the exercise of the judicial power upon which the judgment was based." (p. 412, 40 S.Ct. p. 291)

In United States v. Storrs, 1926, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460, the defendants, indicted for a conspiracy to use the mails to defraud, pleaded in abatement certain irregularities in the proceedings of the Grand Jury, and the Court dismissed the indictment. The irregularities had nothing to do with the merits — with the right of the government to prosecute. They could readily be avoided in obtaining a new indictment. At the time of the dismissal the statute of limitations had run. The Court held that the fact that the statute of limitations had run after the indictment was found did not convert the plea in abatement into a plea in bar, and that the plea in abatement did not amount to a plea in bar because it did not look to barring the action, but only to abating it. In the course of his opinion, Mr. Justice Holmes used the following language: "The statute uses technical words, `a special plea in bar,' and we see no reason for not taking them in their technical sense." United States v. Thompson, supra was distinguished and was said to go "to the extreme point."

The next decision is United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. Murdock was indicted for refusing to answer questions put to him by an Internal Revenue Agent acting under a summons that had been served upon Murdock. He entered a plea to the indictment, the basis for which was that if he had answered the questions he would have been compelled to become a witness against himself in violation of the Fifth Amendment. The Court sustained the plea and discharged him. The Court said that the effect of the order was "to bar further prosecution for the offense charged," (p. 147, 52 S.Ct. p. 64) and that consequently, it amounted to a plea in bar. It cited all of the foregoing cases except Celestine. In United States v. Hark, 1944, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290, Hark was indicted for violating a maximum price regulation issued under the Emergency Price Control Act of 194...