United States v. Ruiz-Estrella, 72 Cr. 607.

• Decision Date: 20 August 1973
• Docket Number: No. 72 Cr. 607.,72 Cr. 607.
• Citation: 362 F. Supp. 660
• Parties: UNITED STATES of America, v. Vinicio E. RUIZ-ESTRELLA, Defendant.
• Court: U.S. District Court — Eastern District of New York

362 F. Supp. 660

UNITED STATES of America, v. Vinicio E. RUIZ-ESTRELLA, Defendant.

No. 72 Cr. 607.

United States District Court, E. D. New York.

August 20, 1973.

Paul B. Bergman, Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., of counsel), for Government.

E. Thomas Boyle, St. James, N. Y. (Robert Kasanof, New York City, of counsel), for defendant.

DOOLING, District Judge.

The Court of Appeals, on appeal from a nonjury conviction, based on the agreed use as the trial record of the evidence taken at the suppression hearing, reversed on the grounds that the search was constitutionally invalid and that the suppression hearing had been unconstitutionally conducted, and the Court concluded its opinion, 2 Cir., 481 F.2d 723 p. 730.

"We thus conclude that the seizure of the shotgun here cannot be justified under any applicable rationale, and that the motion to suppress, on the particular facts shown, should have been granted. We have also concluded, for the reasons noted in part II, supra, that the exclusion of both appellant and the public from part of the suppression hearing was in error. Consequently, the judgment of the district court is reversed." (Emphasis added).

The Order of the Court of Appeals, filed in this court on July 16, 1973, adjudged that

". . . the judgment of said District Court be and it hereby is reversed in accordance with the opinion of this court."

Since the indictment turned entirely on defendant's alleged possession of the shotgun which the unconstitutional search had disclosed, one would suppose that upon remand the Government would have to consent to a dismissal of the indictment. Defendant, accordingly, has moved to dismiss the indictment, but the Government resists. It contends that since appeal was from a judgment of conviction and the reversal was not accompanied by a direction to dismiss the indictment but was comprised in the single word "reversed," that implies a remand for such proceedings, including a fresh suppression hearing, as may be conducted consistently with the Court's opinion.

Certainly the principles of law enunciated in the Court of Appeals govern further proceedings in the case. If there is no new evidence, shown to be excusably unavailable to the Government at the first hearing, the suppression must stand, and, at minimum, the Government would have to be able to show that it could proceed to trial without the suppressed weapon or any fruits of the search, an apparently impossible task.

Can this unelaborated "reversal" on substantial issues be interpreted as affording room for a retrial of the search issues? The first ground of reversal — impropriety in the manner of conducting the hearing — would surely not prevent repeating the evidentiary hearing, curing the defect found in the manner of conducting it. But the second ground of reversal, striking the twin notes of a total absence of ground for search and an absence of real "consent," is not easily dissolved. McRae v. United States, 1969, 137 U.S.App.D.C. 80, 420 F.2d 1283, 1286-1289, considered it very difficult to accord the Government the same broad right to relitigate at trial a pre-trial order granting suppression, that a defendant has to relitigate at the trial a pre-trial order denying suppression, and denied the Government the right to do so in the McRae case itself. But the Court indicated that, while required to make a powerful showing for being allowed to relitigate a suppression order, the Government could in some circumstances have the right to do so.

United...