United States v. Hill

• Decision Date: 30 March 1973
• Docket Number: No. 71-2485.,71-2485.
• Citation: 473 F.2d 759
• Parties: UNITED STATES of America, Petitioner, v. Honorable Irving HILL, United States District Judge, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 759 (1972)

UNITED STATES of America, Petitioner, v. Honorable Irving HILL, United States District Judge, Respondent.

No. 71-2485.

United States Court of Appeals, Ninth Circuit.

December 21, 1972.

Rehearing Denied March 30, 1973.

Larry Flax, Asst. U. S. Atty. (argued), Eric A. Nobles, Thomas H. Kotoske, Asst. U. S. Attys., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for petitioner.

Edwin M. Rosendahl (argued), Joseph Taback (argued), Beverly Hills, Cal., Los Angeles, Cal., for real parties in interest.

Before KOELSCH, DUNIWAY and KILKENNY, Circuit Judges.

DUNIWAY, Circuit Judge:

The Government seeks writs of mandamus directing respondent judge to vacate his order dismissing indictments in cases pending before him in the District Court of the United States for the Central District of California. United States of America v. Linetsky, et al., No. 7145; United States of America v. Carlo, et al., No. 7142.

FACTS

On December 22, 1970, a 36-count indictment was returned against Linetsky and others charging, in substance, one or more of the defendants, real parties in interest here, with violations of Title 18 U.S.C. § 1461, in knowingly depositing obscene advertisements in the United States Mail for carriage and delivery. Each defendant pled not guilty. Also on December 22, 1970, an eleven-count indictment was returned against defendant Carlo and others charging, in substance, the same kind of violations of the same statute on obscenity. Each defendant pled not guilty.

Later, the parties in each case stipulated, for the purpose of minimizing discovery, that the materials that appeared in the stipulation were copies of the materials underlying the indictment.

The Linetsky case was consolidated with the Carlo case for the purpose of hearing on defendants' motion to dismiss, made pursuant to Rule 12, F.R. Crim.P. A hearing on the motions to dismiss was continued to August 5, 1971. On July 20, 1971, the Government filed, in each case, a memorandum in opposition to the hearings on the respective motions to dismiss. This opposition contained the following statement:

"Initially, the Government again reasserts its objection to the hearing to be had on July 30, 1971 the hearing having now been continued to August 5, 1971; and, by its participation therein does not intend to convey that it, in any way, approves of such hearing, nor does the Government by any such participation, intend to waive such objection or the right of any Appellate redress that may inure to it as a result of such hearing. The Government\'s sole purpose for participation in such hearing is to fully, as possible, apprise the Court of its position relative to such hearing."

On August 5, 1971, despite the opposition of the Government, the trial judge held hearings on defendants' motions to dismiss and, over the opposition of the Government, allowed defendants to introduce into evidence the stipulated materials together with certain materials (magazines and a film) previously adjudicated as protected under the First Amendment, in unrelated obscenity prosecutions. The Government, solely for the purpose of apprising the judge of its position and to protect its interest in the prosecution, offered three advertisements from the case of Miller v. United States, 9 Cir., 1970. 431 F.2d 655 CA 9, 1970. The trial judge then made a pre-trial determination that the materials, which formed the basis of both of the indictments, were not obscene as a matter of law and dismissed both indictments.

Issues Presented

(1) Did the Government have a right of appeal to either the Circuit or the Supreme Court?

(2) Did the judge's action place the defendants in jeopardy? If so, should the writ issue?

As will be seen, the first question also involves the second question, and an affirmative answer to the second question also provides an answer to the first question.

1. Right to appeal.

Real parties in interest argue that the Government could have appealed, but did not, and that therefore the writ does not lie. We withheld decision in this litigation pending the outcome in United States v. Weller, 9 Cir., 1972, 466 F.2d 1279, which was to follow the Supreme Court's remand in United States v. Weller, 1971, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26.

We need not decide, however, whether the two Weller cases preclude an appeal by the Government here. The Criminal Appeals Act, as amended, 18 U.S.C. § 3731, permits the Government to appeal in certain cases, "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution," or "after the defendant has been put in jeopardy." Because we are of the opinion that the real parties in interest have been put in jeopardy, we hold that the Government has no right to appeal.

The law as to when a defendant has been put in jeopardy — when jeopardy "attaches" — is technical, but not so technical as to permit a holding in this case that jeopardy has not attached. The general rule is stated in McCarthy v. Zerbst, 10 Cir., 1936, 85 F.2d 640, 642:

"The general rule is that a person is not in jeopardy until he has been arraigned on a valid indictment or information, has pleaded, and a jury has been impaneled and sworn; and where a case is tried to a court without a jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence." Footnotes omitted.

See also Clawans v. Rives, 1939, 70 U.S. App.D.C. 107, 104 F.2d 240, 242.

These cases meet the foregoing criteria. In each, the defendants had been arraigned on valid indictments and had pled. The court then "heard" evidence going to the general issue — whether the matter mailed was "obscene," a necessary element of the offense. Having considered the evidence, the court ruled, "as a matter of law," that the matter was not obscene. The court did not hold that the indictments were defective. On their faces, they were valid. What the court held, in substance, was that the defendants before it were not guilty. Surely, a court is "hearing" the evidence just as much when it receives written evidence as when it hears oral testimony of a witness. Many cases are tried solely on written evidence, sometimes on a stipulation of facts, sometimes on a transcript of a preliminary hearing or of a preliminary motion, such as a motion to suppress, sometimes upon evidentiary exhibits alone. A prime example is Selective Service cases, which are frequently tried upon the Selective Service file alone. We have held that a trial of this type places the defendant in jeopardy. United States v. McFadden, 9 Cir., 1972, 462 F.2d 484.

In this case the evidence was received and the court's decision was made in a proceeding denominated a motion to dismiss rather than in a "trial." But that fact is not conclusive. This was made clear long ago in United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. There, an indictment had been dismissed on the ground that the charge was barred by the statute of limitations, a view of the statute of limitations later held erroneous by the Supreme Court in another case. A new indictment was procured, defendant's plea of double jeopardy was overruled, and he was convicted. On appeal, the conviction was reversed. Speaking for a unanimous Court, Mr. Justice Holmes said:

"Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged. It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government\'s consent before a jury is empaneled; or that it is conclusive if entered upon the general issue. United States v. Kissel, 218 U.S. 601, 610, 31 S.Ct. 124, 54 L.Ed. 1168, 1179, but if upon a special plea of the statute, permits the defendant to be prosecuted again . . . "Of course, the quashing of a bad indictment is no bar to a prosecution upon a good one, but a judgment for the defendant upon the ground that the prosecution is barred goes to his liability as matter of substantive law, and one judgment that he is free as matter of substantive law is as good as another. A plea of the statute of limitations is a plea to the merits, United States v. Barber, 219 U.S. 72, 78 31 S.Ct. 209, 55 L.Ed. 99, 101, and however the issue was raised in the former case, after judgment upon it, it could not be reopened in a later prosecution. We may adopt in its application to this case the statement of a judge of great experience in the criminal law: `Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence. . . . In this respect the criminal law is in unison with that which prevails in civil proceedings.\' Hawkins, J., in The Queen v. Miles, 24 Q.B.D. 423, 431." 242 U. S. at 87-88, 37 S.Ct. at 69.

See also Dear Wing Jung v. United States, 9 Cir., 1962, 312 F.2d 73, 74.

The district judge did not think that he was holding a trial; he believed that...