Warren E. Burger: We will hear arguments next in, 76-1040, Sanabria against the United States. You may proceed whenever you are ready, Mr. DiMento.
Francis J. Dimento: Thank you, Mr. Chief Justice and may it please the court. This is here on the grant of the petition for a writ of certiorari to the First Circuit which partially vacated a judgment of acquittal entered in the District Court for the District of Massachusetts. The case presents a double jeopardy issue which arises in this way. In November of 1971, there were a series of raids so-called around the suburban communities of Boston, pursuant to search warrants directed to suspected bookmaking establishments. The warrants were issued as the result of a series of wiretaps authorized by the District Court which have been conducted since the previous June. For some reason, and I do not know the reason, it was not until 10 months later in September 1972 that an indictment was returned. In this particular indictment, the one now before you, 16 persons were indicted and, eventually, 11 were tried of whom one was the petitioner, Sanabria. It was a one-count indictment charging a violation of Title 18 United States Code Section 1955 which, as you know, is the so-called Bookie Syndicate Act. About a month after the indictment was returned, the Fourth Circuit announced this decision in Giordano which you might recall was the case that held that a wiretap was invalid if its application for it had been authorized by a person other than the Attorney General or the specially designated assistant as required by the statute. Then, this court granted certiorari in Giordano. In the spring of 1973, by agreement among all the parties including the government and the defendants, the case was allowed to lay dormant pending your decision in Giordano. I give you this history because there is some suggestion in the government’s brief and in the record that, for three or four or five years, defense counsel was finding ways to attack the indictment. The case was essentially dormant for a very good part of the time. Eventually, in mid-1974 I believe, this court upheld Giordano. As a result, many, many of the indictments that have resulted from the raids were dismissed and this was one of the few surviving indictments, if not the only one. It became immediately apparent to defense counsel that unless we could find some other basis for a Fourth Amendment attack, there was simply no defense for these defendants. There was just a ton of evidence, if all the bookmaking slips and wiretaps were going to get into evidence. We did come up with some other Fourth Amendment grounds but the District Court did not see it that way, nor did the Court of Appeals. Interestingly enough, we filed a petition for certiorari here which was held by you over the summer and denied just last September under the name of Plotkin, petitioner, I believe against the United States. These were the 10 defendants who were convicted. Sanabria was the 11th and he was acquitted. I am jumping ahead in time. After the Trial Court denied our motion to suppress the evidence, we realized that the trial was going to be simply an exercise in the protection of the defendants’ rights. Shortly before the trial began, we began casting around for some kind of defense to put on some kind of plausible defense at the trial. Of course, the place to begin is with the statute. The statute, if you recall, prohibits willfully conducting a gambling business that has to meet three criteria. First of all, the violation of the gambling business must constitute a violation of state law. Second, it must involve five or more persons. Thirdly, it must be large. It must be in operation more than 30 days or receive a gross revenue of more than $2,000 in any single day. An essential element of the offense was to prove that the gambling law alleged in the indictment violated state law. The indictment particularized as the violation of state law, Section 17 of Chapter 271. That Section of the Massachusetts General Laws is directed to games like horse races, political election, boxing matches, but not to lottery, the numbers games so-called. Thus, the government had to prove or we thought they had to prove that the business that was being alleged was one that was in violation of Section 17. That is a non-numbers type of game. At the close of the government’s case when it put Section 17 into evidence, by way of asking the court to take judicial notice of it, we made what I might charitably call a somewhat specious argument. Because the indictment described the business as one of registering bets which is not, technically speaking, a crime under Massachusetts law, the crime is being found in a place with apparatus for registering bets. But, because the indictment described the business as one for registering bets and because it described the gambling business as including a numbers operation and the numbers operation was not a crime under Section 17 which was specified in the indictment, we moved for a judgment of acquittal. As I say, the motion was completely unsound. We took a wild shot and the District Court was not buying it. At the Appendix at page 7, you will find the District Court holding that the indictment was not effective in denying the judgment of acquittal on that basis.
Thurgood Marshall: Am I correct that, so far, you admit that you started out in this case, decree the condition where you would have what you consider a full-proof double jeopardy plan?
Francis J. Dimento: I do not know. I never dreamed that this case would get this far or that there would be any double jeopardy plan.
Thurgood Marshall: You said you have made the specious argument and all that? I do not understand that.
Francis J. Dimento: I made a specious argument moving for judgment of acquittal when the proper motion should have been motion to dismiss the indictment. That was why the argument was not well-founded. Then after the District Court denied the motion, properly so, we got down to the serious business of directing ourselves to the evidence in the case. We moved at page 11, I believe of the record, to strike or limit the numbers evidence so as not to be considered on the first essential element of the crime. That is, that the gambling business must violate state law and, in this case, violate Section 17, the horse-racing statute. What we were asking the court to do is either strike out all of the numbers because horse-racing had been particularized or limit the numbers evidence so that it could be received only as further description of the gambling and perhaps go to the state of mind of the defendants. That is, that they were professional gamblers and knew what they were doing.
William H. Rehnquist: Your point was that since the indictment had not recited in detail each of the Massachusetts statute that was thought to be violated, and a necessary prerequisite for the federal offense, this motion was in order.
Francis J. Dimento: Not quite, your honor. My point was there was one statute which was particularized and that was the statue, the violation of which the government had to prove.
William H. Rehnquist: When you say particularized, do you mean alleged in the indictment?
Francis J. Dimento: Particularly alleged in the indictment.
William H. Rehnquist: It was your view that the indictment to be sufficient to withstand a motion to dismiss had to allege chapter and verse of the Massachusetts law.
Francis J. Dimento: No, not that either. Judge Skinner, the Trial Judge, recognized that. If it had simply alleged that the gambling business violated state law that would have been enough. I think Judge Skinner said that what the government had done was narrowed it, specified Section 17, and was stuck with it.
William H. Rehnquist: It was a misleading contention on your part that since they did not have to specify anything but they did specify one section and, therefore, you have been more or less misled so that you were prepared to defend only as to that aspect?
Francis J. Dimento: I really did not think I had to show that I was misled or prejudiced because it is part of the due process that you prove what is charged and you charge what you intend to prove. I suppose that is part of it. But, it all goes to the fundamental right to be notified of the crime with which you were charged. At any rate, the District Court denied our motion to strike the evidence so as to limit it and then the defendants put on some evidence and then we renewed what I would call a specious judgment of acquittal motion and that was denied. Then, there was a recess and the judge came back from the recess and said that he had done some research. He reconsidered our motion to strike or any alternative to limit the evidence and he decided to strike the numbers evidence. He says that in page 13, “Section 17 does not include the numbers aspect, so that while I am not going to grant a motion for judgment of acquittal on that basis, I will grant the motion to strike so much of the evidence in the case as has to do with numbers betting.” Then, when the dust had cleared and the numbers evidence had all been taken out of the case it became obvious that there was no evidence linking one defendant to the case in any way, linking him to the gambling business and that defendant was the petitioner here, Sanabria. I did what I assumed was the logical thing to do and move for judgment of acquittal. Of course, what we could have done was to do nothing at all and permit the jury to return a verdict of not guilty which it would have had to do because the judge would have had to instruct that they could convict somebody only if he were connected to a horse-racing gambling business and the jury would have, under those instructions, done the right thing, I assume.
William H. Rehnquist: But when you move, you in effect, waived your right to have the jury return that verdict. You chose to have a determination in a different matter.
Francis J. Dimento: I do not think so, your honor. I thought that that question could have been passed in the Martin Linen case decided only last April where this court recognizes that a judgment of acquittal is the equivalent of a directed verdict and, I would assume, of a verdict.
William H. Rehnquist: In so far as the Double Jeopardy Clause protection though one of them has the right to go to the jury that is empaneled and have your determination come from that first jury, do you not think when you make a motion like you do, you waive that right in favor of some preferred method of determination?
Francis J. Dimento: I do not think of it as a waiver. I think of it as saving the court, the government, defense counsel, and all the personnel involved in the trial a lot of time. Why go through the empty and futile gesture, to go through this empty ritual of sending the case to the jury when you know there is only one conclusion that they can arrive at?
William H. Rehnquist: But you are not willing to let them arrive at. You wanted it short-circuited.
Francis J. Dimento: I would have been willing.
William H. Rehnquist: But you were not because you made the motion.
Francis J. Dimento: Because I was following the rules. I am sure if I had, by way of request for instruction, asked the Trial Judge to instruct the jury that they are not to convict anybody who was shown merely to be who was not in the horse business, he would have, when I made that request for instructions, said to me “you damn fool!Why are you not moving for judgment of acquittal? I am not going to send this case and sit around until a jury decides up there in the jury room that there is no evidence.” He would have, I suppose, sue sponte entered the judgment of acquittal. I do not think of myself as waiving anything. The judgment of acquittal was allowed and then the government filed this notice of appeal. I would say the notice of appeal of the First Circuit is the first time and the only time the government correctly described what happened, because it says the United States appeals from a decision in order of the District Court excluding evidence and entering a judgment of acquittal and denying the motion for reconsideration. There had been a motion for reconsideration thereafter. Then in the second paragraph of its notice of appeal, the government says it is hereby certified that the evidence suppressed constitutes the substantial proof of the charges against the defendant. Obviously, the government was trying to fit this in to that part of the statute which permits it to appeal from an allowance of a motion to suppress evidence. The net result really as to what happened here was that there was an erroneous ruling on the evidence. It pains me to say that the ruling was erroneous. I thought it was right and I still do. But, that is not before you. The First Circuit has decided it was erroneous. There was an erroneous ruling on the evidence, but a correct ruling on the state of the evidence in granting the motion for judgment of acquittal. This characterization the Court of Appeals and the First Circuit holds is in accurate. That court holds that the critical ruling by the District Court was that the indictment failed to charge a violation of Section 1955 on a numbers theory. That is at footnote 5 of the court’s opinion at page 6 of our Appendix to the petition. But, may it please the court, that can be said of almost any erroneous ruling excluding evidence as irrelevant. When a court decides whether evidence is to be admitted or not, it must necessarily interpret the scope of the indictment. If it interprets the scope widely, it will permit in more evidence. If it narrows the scope, it will narrow the amount of evidence that comes in. But, when it excludes evidence on the basis of irrelevancy, that exclusion is no more appealable than if it erroneously excluded evidence because it was incompetent. Here, the Court of Appeals says not that the indictment was dismissed but that it was effectively dismissed and not that evidence was excluded but that the charge was excluded. It speaks of excluding the charge. The Court of Appeals says, and this is adapted by the government, that the numbers charge was a discrete basis for imposing criminal liability. This discrete basis was effectively dismissed. We have here what I respectfully consider to be a new vocabulary introduced in to the criminal law.Indictments are divided into counts as we all know but now, under the law of the Court of Appeals of the First Circuit, counts are to be further divided into discrete basis of liability, which I call in my notes DBLs, discrete basis of liability.
Speaker: Implied counts?
Francis J. Dimento: Yes. If the law of the First Circuit is to become the law of the land, then the erroneous failure of the Trial Court to recognize a DBL and a resulting exclusion of evidence will be the equivalent of a dismissal of that DBL and any judgment that results will be appealable as, of course, only to that DBL.
Speaker: What is a DBL?
Francis J. Dimento: Discrete basis of liability, my shorthand expression for the Court of Appeals. The Court of Appeals, however, puts a limit on this DBL kind of theory by saying that you can have a DBL that has constitutional double jeopardy significance only where the count is duplicitous. That is, the DBL must be one of the offenses contained in the indictment. The government takes a more extreme view. Because the government concedes that the First Circuit was in error when it held that this particular indictment was duplicitous, it now must take the position if it is going to claim successfully to this DBL theory, it must take the position that a DBL must still be treated as a separate offense for purposes of double jeopardy analysis even though the count is not duplicitous. So that under the government’s definition, I think it is possible to isolate several DBLs in this indictment in this one count. As a matter of fact, DBL recognition will become a very important part of the skills of every defense lawyer because his failure to recognize a DBL could have drastic double jeopardy consequences. But in this particular count, the charge is that the defendant accepted, recorded, and registered bets on horses and numbers. You have accepting bets on numbers, recording bets on numbers, and registering bets on numbers. You have got three DBLs there. Then, you have got skill, speed, and endurance of horses, and yet accepting bets on the skill of the horse and recording bets on the skill of the horse and registering bets on the skill of the horse. It just keeps going on and on and on. You might get into the hundreds of these DBLs. It seems to me that if you are going to incorporate that into our law, it should be prospective because, Lord knows, nobody really recognizes this theory up until now. Lawyers ought to have a time to learn what these DBLs are. Also, the District Courts ought to be instructed liberally to grant particulars.
Byron R. White: I take it from your argument you agree that if there were to be DBLs recognized what the judge did here was to dismiss that DBL?
Francis J. Dimento: I do not think he did that, not at all. What he did was to exclude evidence under that DBL.
Byron R. White: He excluded evidence with respect to the other charge. Because he excluded the evidence, there was not any evidence on the other charge.
Francis J. Dimento: He excluded the numbers evidence. The numbers was an identified DBL according to the Court of Appeals. By excluding that evidence, the Court of Appeals says he effectively dismissed the numbers DBL, so to speak.
Byron R. White: Dismissed, not acquitted?
Francis J. Dimento: Yes, effectively dismissed. That is the government’s position.
Byron R. White: What is your position?
Speaker: If you are going to recognize DBL, what is your position?
Francis J. Dimento: What he did was exclude evidence and then on the state of the exclusion of the evidence, on the state of the evidence, after the exclusion, he entered a judgment of acquittal.
Potter Stewart: If, as my brother White says, you are going to recognize DBLs, which your submission of course is that you should certainly not do it, he did dismiss that DBL, the one based upon numbers, correct?
Francis J. Dimento: No, I do not think so. All he did was say that I am going to exclude the numbers and I am going to exclude all evidence of numbers because the only evidence I am going to let in is the evidence of the horses.
William H. Rehnquist: What happens at that stage of the trial? Supposing you do not have the DBL element in it at all, there is simply an indictment for a bank robbery and at the beginning of the government’s case the Trial Judge says “I am going to exclude all evidence of bank robbery.” What is the next step that either of the parties take?
Francis J. Dimento: I think you have got the problem of an intellectually dishonest judge at least.
William H. Rehnquist: Let us face it. We have got a whole bunch of judges around the country and my hypothetical is that he may think there is something wrong with the indictment or perhaps there is something wrong with the indictment. And then, he says “I am going to exclude any evidence of the crime charged in the indictment.”
Francis J. Dimento: Your honor, what can I say? The defendant did not appoint the judge. The government had more to do with the appointment than we did. It is purely incompetence.
William H. Rehnquist: Maybe it is a poor ruling on the part of the judge, but what does defense counsel do at this stage?
Francis J. Dimento: Defense? He is delighted. What does the government do?
William H. Rehnquist: The government is simply sitting there with no move to make. What happens?
Francis J. Dimento: The evidence gets excluded erroneously and then, correctly, a judgment of acquittal is entered.
William H. Rehnquist: On the motion of the defendant?
Francis J. Dimento: On the motion of the defendant. He might say “I am going to let in all bank robbery evidence but the evidence you have is incompetence. It is all hearsay. I am excluding it on that basis.” He could be 100 percent wrong, but that is the system.
Potter Stewart: Then you have Fong Foo case, do you not?
Francis J. Dimento: Yes, you get pretty close to that issue.
Potter Stewart: With my brother Rehnquist’s example, let us say he is wholly irrationally.
Francis J. Dimento: Yes, you do.
Potter Stewart: And clearly, conspicuously, erroneous.
Francis J. Dimento: Yes.
Potter Stewart: He excludes evidence and the result is an acquittal. Then, you have a Fong Foo case. There was an acquittal and the government cannot appeal.
Francis J. Dimento: I would say. That is best close as you can come to the Fong Foo case. Also critical to the Court of Appeals’ holding was that there should have been an objection to the indictment before trial, but there was nothing wrong with the indictment. Ten people were eventually convicted under the indictment and Sanabria himself could have been convicted if the government had, in any way, been able to connect him with the gambling business defined in the indictment. The government concedes in its brief that there was no support for a pretrial motion to dismiss if there had been one.
Speaker: Mr. DiMento, as I understand that law that is subsequently developed, had the judge made a different ruling on the conclusion of the evidence, your client could have been convicted in this trial on the numbers evidence.
Francis J. Dimento: Yes.
Speaker: So he was in jeopardy of conviction on both DBLs.
Francis J. Dimento: Yes. Even with the numbers evidence out, he was in jeopardy in conviction under the horse aspect because there might have been some or little evidence left in there connecting him with the horses. He was in jeopardy on both. But, the government says that although we had no ground for a pretrial motion to dismiss, we should have objected to the indictment beforehand. I do not know of any such objection under the rule as it existed then, but the government says that in some way, we should have pointed out the mis-citation of Section 37. Our position is that there was no mis-citation. Section 37 was a perfectly valid part o the Massachusetts statute and the indictment was a fine coherent hold. I just do not see that there was any ground for any type of motion before trial. What the government is really saying is that we should have written a letter to them and say “gentlemen, we think that what you really intend to do here is to charge not only a violation of Section 17 but also a violation of Section 7. I think you better amend your indictment or go back and get a new one because while you will be able to convict 10 of the clients here, Sanabria, we are told has no evidence of engaging in horse betting so, therefore, you better go back and get a different approach.”
Byron R. White: What happens in a case of two counts in an indictment and the government offers evidence under both of them and then the defendant says “well, the second count of the indictment really is defective. It does not effectively charge a crime.” The court says “I think that is right. I am going to dismiss that count and, of course, I will then exclude the evidence the government has offered to support this crime that has not been charged. It is like the chicken and the egg. Here, the court did not think that this indictment charge the numbers crime. Is it not true in this case?
Francis J. Dimento: Yes.
Byron R. White: What do you do first, exclude the evidence or do you dismiss the indictment?
Francis J. Dimento: It depends on what position you are in.
Byron R. White: What did he do?
Francis J. Dimento: In this case, he decided that the indictment was perfectly valid. It could not be dismissed. I had moved.
Byron R. White: He did not think the indictment charged the numbers crime.
Francis J. Dimento: No, he did not. You speak of numbers crime, however, as though you were speaking of a separate offense.
Byron R. White: Is it not odd to say that the judge entered an acquittal on a crime that he thought the indictment did not charge? You are not making that contention.
Francis J. Dimento: No, I am not making that.
Byron R. White: Did the judge think that a numbers crime was adequately charged in this indictment?
Francis J. Dimento: No, he did not.
Byron R. White: How could a judge enter, or acquit the person or enter a judgment of acquittal on a crime that he thought the indictment did not even charge?
Francis J. Dimento: Your premise is wrong. Your question has got a wrong premise. You are talking about a crime. There was no numbers crime as such. The crime was violating state law. The judge thought that the violation of state law in the manner by means of numbers did not satisfy the indictment.
Speaker: Although the indictment could have charged the crime, that the evidence would have supported it.
Francis J. Dimento: The indictment could have charged the crime. If it would have been written differently, yes.
Speaker: The Court of Appeals thought that the indictment adequately charged a crime to which this evidence was relevant.
Francis J. Dimento: Yes. The Court of Appeals thought the evidence was relevant. That is the issue.
Warren E. Burger: No one is in doubt as to what crime was being charged?
Francis J. Dimento: Yes.
Warren E. Burger: I recall your earlier statement. You conceded that it left through in no doubt.
Francis J. Dimento: I knew what crime was being charged but I knew also that it was been narrowed and particularized to a violation of horse betting. Finally, the Court of Appeals says and the government adapts the argument that we gave up our valued right to a verdict, which I think I have covered before. We never thought that by moving to exclude evidence and then moving for a judgment of acquittal we were waiving anything or giving up any right. I do not see how anybody can fairly say that our decision to move for the exclusion of the evidence or to object to the evidence and then to move for judgment of acquittal could, in any way, constitute a waiver of anything so valuable as the constitutional right not to be twice put in jeopardy for the same crime.
William H. Rehnquist: It is not a question of your waiving a right to double jeopardy. It is a question of consciously deciding not to go to this particular jury for its verdict.
Francis J. Dimento: Only because the rule puts the obligation on defense counsel not to waste the court’s time by sending a case to the jury under instructions that will inevitably result in a verdict of not guilty.
William H. Rehnquist: But you did make a choice.
Francis J. Dimento: I do not think that. I think I fulfilled an obligation to the court not to waste its time. I do not think I made the choice in the sense that I was sacrificing something for my client in order to gain some benefit. I was simply following the rules and correct procedure. It is a natural thing to do for a lawyer with more than six months experience.
William H. Rehnquist: But you on account of a counter practice would have subjected your client to a risk too. As you say, the jury might have come back with a verdict of guilty.
Francis J. Dimento: Yes, they might have come back with a verdict of guilty but I have to assume that all juries do the right thing.
William H. Rehnquist: You say that you have had more than six months of experience.
Francis J. Dimento: Yes. That is a good point. In this case, I am confident the jury would have recognized it because I am confident that the judge, under the instructions of the judge, his instructions would have been so explicit.
Speaker: But, nevertheless, when he entered what you call a judgment of acquittal he had already ruled that the indictment did not charge a crime with respect to numbers.
Francis J. Dimento: I do not like to use that kind of phraseology.
Speaker: I know you do not and I do not blame you.
Francis J. Dimento: See if you will accept mine. He had made a determination as to the scope of the indictment.
Speaker: Yes.
Francis J. Dimento: The scope of the indictment, as determined by him, was now then argued by the government.
Speaker: I understand that. The Court of Appeals, however, said the indictment as it stood charged a crime to which the evidence about numbers was relevant.
Francis J. Dimento: Yes.
Speaker: The judge at the trial had said “there is no crime charged in the indictment to which this evidence is relevant.” So, how could he have ever had acquitted him on that crime which was never charged?
Francis J. Dimento: That, may I respectfully say, if we reason it that way then I know of no ruling excluding evidence that cannot be tortured into an appealable result.
Speaker: I do not know about that.
Francis J. Dimento: Excluding evidence on the basis of relevancy.
Speaker: I did not ask about exclusions of evidence with respect to crimes that, unquestionably, is charged in the indictment.
Francis J. Dimento: I am saying excluding on the basis of relevancy. Once you say evidence is excluded because it is irrelevant, then you are necessarily defining the scope of the indictment.
Speaker: It was excluded as irrelevant to the crime that the judge did think the indictment charge. It was not excluded as irrelevant to the charge which he thought the indictment did not charge.
Francis J. Dimento: Yes, but you are returning to the charge.
Speaker: I certainly am. I intend to.
Francis J. Dimento: I think that we can carry to its extremes by using the example of the judge who has the bank robbery indictment and says “I am just going to exclude all evidence of bank robbery.” And although that is terribly erroneous, it is still --
Warren E. Burger: Mr. Easterbrook? You can at least do something for us in two to three minutes.
Frank H. Easterbrook: Mr. Chief Justice and may it please the court. The facts of this case are distinctive and simple. Since Mr. DiMento’s argument is concentrated on the fact, I think I will do likewise at least for a few minutes before lunch. The indictment which was filed in 1972 charged petitioner and 16 others with operating an illegal gambling enterprise in violation of state law. The indictment on its face stated, and this language appears at page 16a to the Appendix to the petition, that the defendants accepted “bets and wagers on a para-mutual numbers pool.” It also charged that the gambling enterprise accepted bets on horse races. In other words, it charged that one crime was committed by two means. After three years of pretrial proceedings and on the sixth day of trial after the close of the government’s case, the defendants moved for a judgment of acquittal on the grounds of insufficiency of the evidence. The judge rejected that motion out of hand is frivolous.
Warren E. Burger: I think we will pick up there at 1:00, Mr. Easterbrook. Mr. Easterbrook, you may resume.
Frank H. Easterbrook: Mr. Chief Justice and may it please the court. Just before lunch, I had read part of the charging portion of the indictment which said that defendants, as part of the operation of a gambling enterprise, accepted bets and wagers on a para-mutual number pool. After the District Court denied the motion for a judgment of acquittal on the grounds of insufficiency of the evidence, the defendants then argued that the indictment failed to state any offense involving numbers betting, although it clearly did so, on its face, because it referred to Section 17 of a particular Massachusetts statute. This section, they argued, referred mainly to horse betting and that Section 7 referred to numbers betting. After the District Court initially denied this motion, it agreed and concluded that the indictment did not adequately charge any offense involving the taking of numbers bets. Having effectively struck through with the charge on the face of the indictment charging numbers bets, the District Court then excluded the numbers evidence as irrelevant to what remained. The trial was recessed overnight and the prosecutor asked the District Court to reconsider that decision. The District Court asked counsel for petitioner whether he was prejudiced. Counsel said in open court that, indeed, there was no prejudice because he had read the indictment and seen the charge of accepting numbers bets. He asserted, however, that he did not need to show prejudice because this was a technical matter.
William H. Rehnquist: Wait. It is one thing to say you do not have to show prejudice. It is another to say you have not been prejudiced.
Frank H. Easterbrook: I think so. I think the Court of Appeals was right in concluding that you did not have to, that you had to show prejudice. But in a minimum, having conceded that there was not any, it would not make any difference who had the burden to show prejudice.
Warren E. Burger: Do you suggest that that is a form of waiver?
Frank H. Easterbrook: No, I do not believe it is a formal waiver of any sort.
Warren E. Burger: It is a form of, not formal, a form or a kind of waiver.
Frank H. Easterbrook: We have not relied on it as a waiver, your honor. It is simply a statement that there was not, in fact, any prejudice. I would take it as a concession, as Mr. DiMento said in open court today that he was making a specious motion. Nevertheless, the District Court adhered to its ruling and concluded that the indictment would not be read as stating any offense involving numbers. With the numbers theory removed, the District Court then turned to the evidence with respect to horse betting. It found that this evidence was insufficient to show that Mr. Sanabria was involved in the gambling enterprise and it acquitted him on what remained. The Court of Appeals held that this was the equivalent of dismissing the indictment in so far as it charged engagement in accepting numbers bets. It further held that the District Court’s disposition of the numbers betting portion of the indictment was not an acquittal because it had nothing to do with relating the evidence to the elements of the offense or to the defining the elements of the offense, but was simply a conclusion that the indictment was insufficient on its face. The court then remanded for a second trial with respect to the gambling offense to the extent to the gambling offense involving numbers. To the extent involving horse betting, there was indeed an acquittal. The Court of Appeals held, and we agree, that we could not retry petitioner on that charge. Petitioners argued that the Criminal Appeals Act does not authorize the appeal that the United States took. This court has held, however, that the Criminal Appeals Act authorizes any appeal from a final judgment unless the double jeopardy clause bars the way. We believe, therefore, that the only question this court need confront is a constitutional one. I turn directly to that. We believe that a second trial on the horse betting theory is permissible for two reasons.
Speaker: On what?
Frank H. Easterbrook: On the numbers theory, I am sorry. First, a defendant who has an opportunity before trial to seek a resolution of defects apparent on the face of the indictment must do so then.
Speaker: Why was there defect on the face of the indictment? The indictment was perfectly valid facially. They charged him with the violation of this federal statute and the state criminal law they mentioned was the one covering horse-race betting. That was not a defective indictment in any sense of the word, was it?
Frank H. Easterbrook: I think there are two answers to that.
Speaker: There might or might not have been sufficient evidence to convict him and the court held that there was insufficient relevant evidence to convict him. You do not make a motion before trial on that basis.
Frank H. Easterbrook: No, your honor, but I meant that contention in another way. The indictment on its face charged the taking of numbers bets, and then it referred to a state statute. Petitioner argued that the indictment would have been adequate to charge the taking of numbers bets, if it had either recited Section 7 of the Massachusetts statute or not mentioned any Massachusetts statute.
Potter Stewart: And just said in violation of state law.
Frank H. Easterbrook: Just said in violation of state law.
Potter Stewart: Because that is a component of the federal offense.
Frank H. Easterbrook: Yes. But, the elements of the offense had to do with the statement that it violated state law. In order to be a sufficient charge, the numbers bets were involved. To the extent that numbers bets were not adequately charged then, the claim is that something went wrong on the face of that indictment, that although the language of the indictment said that numbers bets were being taken and that this was a gambling offense, the statement that Section 17 of the Massachusetts statute was involved with enough to affect the validity of that charge apparent on the face of the indictment. It would have been open to petitioner then to move before trial to strike through that language as incorrect or inconsistent or, in some other way, inadequate. Our argument is that since he did not do so, he then opened up the possibility of a second trial that would otherwise not have needed to be held. I will get to that in a moment. The second argument which was an alternative argument is that the District Court’s decision here removed the numbers charged from the case of petitioner’s request. When the District Judge granted a judgment of acquittal, all that was left was horse betting. The case, therefore, is not significantly different from last term’s decision in Lee which held that a defendant could be retried after an indictment had been dismissed in mid-trial at the defendants’ request. The first argument has to do with the timing of petitioner’s motion. Rule 12b3 of the Federal Rules of Criminal Procedure requires that objections to defects on the face of the indictment be raised before trial. The argument that the indictment which concededly recited that petitioner engaged in a betting offense involving numbers did not actually charge that offense. It is an attack on the insufficiency of the indictment and, therefore, was required to be raised before trial. We have collected at note 23 of our brief some authorities that support this proposition. Petitioner, therefore, was not entitled to have his contention resolved during trial at all. Not having attacked the indictment before trial, the judge was required to treat the charge as sufficient. The court did consider. In considering it at all that it erred in petitioner’s favor, the timing of the motion was petitioner’s choice and the judge did reach it. It gave him the relief he requested. In doing so it erred a second time, as the Court of Appeals now has held. In other words, this case is here because of a result of two errors that the District Court made, each induced by petitioner.
Potter Stewart: The Fong Foo case was here as a result of egregious errors that the Trial Court had made ending in a judgment of acquittal and we held that regardless of those extremely serious, almost irrational errors, after an acquittal there could not be an appeal by the government because of the Double Jeopardy Clause.
Frank H. Easterbrook: I think there are at least three distinctions between Fong Foo and this case. One of which, the technical question whether this was indeed an acquittal I will get to in the second part of this argument. The more important distinction between this case and Fong Foo, one that is pertinent to the argument I am making now is that, in but in Fong Foo, the things that led to the determination of the prosecution could not have been raised before trial. The question whether a prosecution’s witness was lying, whether the evidence was believable, whether it was sufficient, and the other things that underlay the District Court’s decision in Fong Foo were capable of resolution only at a trial with the general issue.
Potter Stewart: And the third? You said there were three.
Frank H. Easterbrook: The third issue.
Potter Stewart: The third difference.
Frank H. Easterbrook: The third difference, I am sorry, is that the defendants in Fong Foo did not ask the District Court to do what he did. They did not, in other words, request the termination of the trial before the jury had a chance to rule on the sufficiency of the evidence. That is one reason, why Fong Foo was quite different from cases like Lee and, indeed, from cases like Dinitz in which the defendant, on his own motion, took the case away from the jury and asked for a pre-verdict termination.
Speaker: In Dinitz, the defendant asked for a mistrial.
Frank H. Easterbrook: Yes, your honor.
Speaker: And it is quite different from asking and getting a judgment of acquittal.
Frank H. Easterbrook: I agree. In Lee, the defendant moved for an order dismissing the indictment and the court held that that was the equivalent of mistrial. I think it is also the case that if what the defendant asks for and gets is really a dismissal of the indictment that the same analysis applies regardless of what the District Court calls it.
Potter Stewart: You are going to get to Martin Linen, I suppose.
Frank H. Easterbrook: I will.
Speaker: Mr. Easterbrook, on that last point, supposing as you suggest and was suggested this morning, the defendant had not moved for judgment of acquittal but had asked for instructions which would have really, in fairness, mandate an acquittal by the jury and the jury had, nevertheless, found him guilty. Then, I suppose, under the theory of the case that the Trial Judge actually adapted, the Trial Judge would have been obligated to grant a motion for judgment notwithstanding the acquittal and notwithstanding the verdict. Had that scenario taken place, would you contend that such an order by the Trial Judge would also have been a dismissal?
Frank H. Easterbrook: Let me answer that in two ways. First, your hypothetical case is a case that this court has already decided. It is the case of Foreman against the United States. In 361 US, the court held that a second trial was permissible in that case because the jury did return a verdict of guilty in the teeth of the evidence, as the judge defined it, because the judge wrongly removed from the jury’s consideration, the correct theory on which it could and should have convicted. The second answer is that if that kind of thing had happened in this case and the jury had in fact acquitted instead of convicting, that it would not have been an acquittal on the charge to the extent it involved numbers evidence. Our view is that the numbers charge was removed from the case well before the judge granted an acquittal. When the judge effectively said that there was no numbers charge at all because the indictment was inadequately stated, that took the case out. What was left was a horse betting charge. Whether the District Judge acquitted it, acquitted by himself or sent it to the jury, and the jury returned a verdict of acquittal is, in our view, a matter of detail.
Speaker: You would say even if there were a jury verdict of acquittal that because of the erroneous exclusion of the evidence that it should be treated as though the indictment had been dismissed on this DBL.
Frank H. Easterbrook: Yes, your honor.
Speaker: I see.
Frank H. Easterbrook: We would dispute, I think, whether you would characterize this as an erroneous exclusion of evidence. It is clear that evidence was taken out of the case, but it is also I think clear that more than that was involved. Before the evidence went out, there was a ruling that the indictment was insufficient to state that part of the offense.
Potter Stewart: Mr. Easterbrook, before you proceed, we were talking about the indictment, the one alleged. I do not find the indictment in the Appendix or anywhere else here.
Frank H. Easterbrook: It is on page 16a of the petitioner for certiorari.
Potter Stewart: Thank you.
Frank H. Easterbrook: Suppose the case had been identical to the facts in Lee in which the defendant was charged with taking the wallet of a blind operator of a candy stand at the Post Office. The judge had concluded after hearing all of the evidence that the indictment was insufficient to state an offense because it did not charge that the defendant intended permanently to deprive Mr. Bilsky, his property, having said that, the judge then formally excluded the evidence. In our view, it would not make any difference what the judge said nor did having concluded that the indictment was insufficient on its face to charge that offense. It was simply a matter of detail. The defendants’ interests were fixed by the reason that the judge terminated the case and not the means by which he did so. That, I think, is the rationale underlying the distinction between dismissals of the indictment and mistrials on one hand and true acquittals on the other. It has to do with the reason why the case terminated and not the form that the judge used to make that termination come about. The reason this case terminated with respect to the numbers offense was simply that the defendant succeeded in persuading the court that the indictment was bad on its face. The purpose of the Double Jeopardy Clause is to avoid multiple trials at the request of the prosecution. It guards against repeated prosecutions brought to embarrass the defendant, to subject him to anxiety, to increase the chance of conviction of an innocent man. But, the premise of this rule is that it is possible to have guilt reliably determined in a single trial. When guilt can be determined in a single trial, holding of two trials is pointless and an offense against the defendants’ rights. But, when the premise of this rule does not hold true, the court has allowed second trials in order to produce a single fair trial. For example, there can be a second trial after a tainted conviction has been reversed. There can be another trial after a mistrial has been granted because of manifest necessity or even in the absence of manifest necessity because the defendant requested it. There can be another trial as in Lee, when an indictment has been dismissed at the defendants’ request because of a defect on its face. In other words, when the first trial is flawed, a second trial may be held. When a defendant moves to abort his case before a verdict, a second trial may be held even if the first one was not flawed. In these cases, it cannot be said that the prosecutor deprived the defendant of his valued right to obtain the verdict of the jury at his first trial.
John Paul Stevens: Mr. Easterbrook, let me be sure I have your position on the Lee case. You are taking the position that if the case had gone to the jury and Lee had been acquitted because of the judge’s view of striking evidence and so forth, that acquittal could have been appealed as though it were a dismissal.
Frank H. Easterbrook: No, your honor, we are not taking that position.
John Paul Stevens: I thought you said it was a matter of detail.
Frank H. Easterbrook: Lee was a bench trial.
John Paul Stevens: That is right. It was a bench trial. Had it been a jury trial and they had gone to the jury.
Frank H. Easterbrook: If it had actually gone to the jury and the jury had returned a verdict of acquittal, in our view, there could be no review. That would be the end of things.
John Paul Stevens: But why not?Because, supposing the reason there was an acquittal is because of an erroneous theory of the indictment and erroneous instruction of the jury which, in effect, excluded as in this case the evidence relating to horse betting or numbers, whichever one it is. What is the difference?
Frank H. Easterbrook: One of the difficulties in reviewing judgments of acquittal has been that judgments of acquittal could be based upon other reasons. The judge may make an erroneous instruction but the jury might acquit for reasons having nothing to do with the erroneous instruction.
John Paul Stevens: Under the instruction they could not convict, under the instruction, faithfully applied, they could not convict. They might have done it for an irrational reason and you give the defendant the benefit of irrationality.
Frank H. Easterbrook: Not even necessarily irrationality, simply disbelief of the proof which might be rational or irrational on a particular case.
John Paul Stevens: No, because by hypothesis there is no proof on the only permissible theory in which you could go to the jury. It is nothing to disbelieve. But, you still say that acquittal would not be a dismissal.
Frank H. Easterbrook: Yes, your honor. I think, to the extent it could be reduced to simply a claim of jury irrationality that the defendant is entitled to jury irrationality.
John Paul Stevens: But I thought you told me earlier that, in this case, if it had gone to the jury and the jury had acquitted that that was a matter of detail and there could be another trial here.
Frank H. Easterbrook: The reason, I said that, was because, in our view, what the jury would have acquitted on was only the offense to the extent it involved numbers.
John Paul Stevens: How do you know, if they submitted? Maybe they did not believe somebody, just the same example you gave me earlier.
Frank H. Easterbrook: Perhaps I am not entirely understanding your hypothetical, Mr. Justice Stevens. In your hypothetical, would the judge submit the entire indictment together with the charge of both numbers and horse betting?
John Paul Stevens: He would have entrusted the jury that the evidence relating to horse betting, whichever one that was stricken, is not to be considered by you. But, if having that evidence out, you still find him guilty of horse betting, that is the only theory on which you can find him guilty is that you find evidence of horse betting and I have stricken all the evidence of horse betting. Then, they say there is no such evidence and they acquit.
Frank H. Easterbrook: In our view, the numbers issue would still be a lie because the numbers issue never went to the jury at all.
John Paul Stevens: No, say, he submits both issues to the jury. I am sorry. I am not getting the example clear.
Frank H. Easterbrook: It is a confusing case.
John Paul Stevens: Yes.
Frank H. Easterbrook: If he submits both theories to the jury, then I think the jury’s acquittal is final. But, if he takes out of the case before it goes to the jury, a discrete basis for the imposition of liability. Here, the numbers offense.
John Paul Stevens: How did he take it out in this case other than by excluding the evidence? That is all he did. Then, he said there is no evidence so I am going to enter a judgment of acquittal. But, if the jury did precisely the same thing you say it is a dismissal, if I understand you correctly.
Speaker: Well, he ruled expressly that the indictment did not reach in the numbers of the charge.
Frank H. Easterbrook: Yes, it did. It was not simply a jury charge issue. It was a case in which a discrete sequence of events.
John Paul Stevens: The jury was not free, I suppose, to include that defendants were guilty if they thought they were guilty of the numbers charge.
Frank H. Easterbrook: That is right. As I understand the hypothetical, the numbers charge would never go to the jury with or without any evidence at all. The jury would be told that the indictment never charged any numbers offense and that he should disregard the language.
John Paul Stevens: What special charge is under the jury then? They acquitted on the single count of the indictment.
Frank H. Easterbrook: I think I still give you the same answer that since the numbers charge was gone from the case by then.
John Paul Stevens: But it was gone because he excluded the evidence. He did not tell the jury anything about the indictment. He just excluded that evidence.
Frank H. Easterbrook: Perhaps how you come out of this depends in part on where you go in. In our view, it was not gone because he excluded the evidence. He excluded the evidence because it was gone. The evidence was quite irrelevant to the case once he had held there was no valid numbers charge at all on the face of this indictment. The evidence was excluded because of what had gone before that and because of a legal theory that did not have much to do with sufficiency of the evidence or, indeed, with the relevance of the evidence but had to do with the adequacy of the indictment. I think that is the key in the case.
John Paul Stevens: May I just ask one more question then I will stop. I apologize for taking so much time, but would you agree that on the numbers charge, which apparently that would now be regarded in the First Circuit as sufficient indictment on the numbers charge as well as the horse betting charge, that the defendant was actually put in jeopardy on the numbers charge assuming two separate theories liability when the first witness began to testify or maybe when the jury was sworn.
Frank H. Easterbrook: Yes, your honor. We agree that he was, in fact, put in jeopardy. The jeopardy was terminated at his own requested by the effective dismissal of the indictment here, as in Lee. In Lee too, although the information was defective with jeopardy attached at the beginning of the trial.
William H. Rehnquist: Mr. Easterbrook, on your theory, would there ever be a case of no double jeopardy in the case of a count of indictment submitted to a jury by the judge and with respect to which the jury returns a verdict of not guilty?
Frank H. Easterbrook: That would always be a double jeopardy bar to a second trial on the charge submitted to the jury. There are no exceptions to that in our view.
Thurgood Marshall: Do you agree that after the judge ruled on the evidence, that there was no way under the sun that the jury could legally convict him?
Frank H. Easterbrook: I am sorry, your honor. I did not follow the hypothetical.
Thurgood Marshall: Once the judge ruled on the evidence and excluded the evidence, is there any way under the sun that the jury could legally convict the petitioner?
Frank H. Easterbrook: I think the conviction in those circumstances would be in the teeth of the evidence and would have to be reversed by the Court of Appeals.
Thurgood Marshall: It could not be legally done by the court?
Frank H. Easterbrook: Or set aside by the Trial Court.
Thurgood Marshall: But it is almost impossible for him to do it, once the judge probably instructed the jury.
Frank H. Easterbrook: It has happened. The Foreman case is one of those examples.
Thurgood Marshall: Yes, because you and I are too weak. We have been practicing more than six months too. But, my point is that once the judge took the evidence out of the case, was the judge then not without more obliged to instruct the jury practically to acquit?
Frank H. Easterbrook: Yes, your honor. I believe he was.
Thurgood Marshall: If he had done that, jeopardy.
Frank H. Easterbrook: Mr. Justice Marshall, I think the answer to that is the same answer that I had given to Justice Stevens, that by the time we got there, the numbers offense had been taken out of the case entirely and what would remain to go to the jury and, indeed, what remained on which the District Judge here entered his judgment of acquittal, had nothing to do with numbers at all.
Thurgood Marshall: Would the judge have had to instruct the jury that there is no way to convict this man?
Frank H. Easterbrook: He would have had to instruct the jury that there is no way to convict this man on the charge that remains.
Thurgood Marshall: Then what is the difference? The only difference is that, technically, defense counsel asked him to do it which he would have done without the motion.
Frank H. Easterbrook: Your honor, the motion that in our view is the material one was not the motion for the judgment of acquittal. It was the motion to take the numbers theory out of the case. Once that had been done, the acquittal followed quite naturally. But, the dispositive point in our view is the time at which the numbers theory came out. Let me suggest an analogy that we use in our brief. Suppose this indictment had been in two counts, and we understand the petitioner does not contest that it could have been. One count charging conducting a gambling enterprise by taking horse bets. The other count charging the conduct of the gambling enterprise by taking numbers bets. The District Judge would have done two discrete things here. He would have charged that the first count of the indictment charging the taking of numbers bets was insufficient on its face and dismissed it. Then he would have submitted a second count to the jury, the second count dealing with the taking of numbers bets. The jury would have acquitted on that. In our view, this is the same case as that hypothetical. It makes no difference to the defendants as far as double jeopardy interests are concerned, whether there was one count or two. Although in our view once the horse betting count went to the jury, that is a final un-reviewable disposition of the numbers argument, it does not do anything
Thurgood Marshall: Do you want to say that the prosecutor can throw any indictment he wants?
Frank H. Easterbrook: The prosecutor has substantial discretion in drafting an indictment.
Thurgood Marshall: Is it their discretion to draft an illegal unfair indictment?
Frank H. Easterbrook: Certainly not, your honor, but I think it is agreed at least between the parties here that a two-count indictment in this case would have been proper. I think, in so far as the Double Jeopardy Clause is concerned, it does not make any difference whether it is in one count or two. In Greene against the United States, at 555 US page 190 note 10, the court took up exactly this kind of question. The question in Greene was whether it made a difference in part that first and second degree murder had been expressed in one count rather than two. The court said the situation is the same as though Greene had been charged with these different offenses in separate but alternative counts of the indictment. The constitutional issues at stake here should not turn on the fact that both offenses were charged to the jury under one count. The same is true in this case. The constitutional issue should not turn on the fact that both theories of liability were charged in one count. The interests of the defendant are the same either way. The issue on which the District Judge eventually entered its judgment of acquittal had only to do with the numbers betting theory of liability, excuse me, it had only to do with the horse betting and not numbers betting. If I make that mistake once more, it is going to be exceedingly embarrassing. I repeat that the problems here are largely of petitioner’s making. There was no fatal flaw in the indictment. The first trial was not infected with error. The petitioner took a perfectly adequate trial, brought it to a halt, persuaded the judge that he had not been adequately charged, and aborted the trial without obtaining the verdict of the jury. All of this was unnecessary. The timing was petitioner’s choice. The error was introduced at petitioner’s urging. We, therefore, believe that because he urged the District Court twice, once in timing and once in taking the numbers offense out of the case, he should not now be entitled to absolute immunity from prosecution. We, therefore, believe that the Court of Appeals correctly held the Double Jeopardy Clause does not bar petitioner’s second trial.
Speaker: Correct me if I am wrong because I may be because there has been so much double jeopardy recently. Did the Martin Linen case not, in effect, hold that the grant of a motion for an acquittal was the equivalent of a jury verdict of acquittal?
Frank H. Easterbrook: Yes, your honor, it did. We do not contest that holding here, although I argued it in Martin Linen case in the other side. But, the gist of my argument has been that two things happened here. One, with respect to the horse betting theory of liability, it ended in a true judgment of acquittal although entered by the judge. It should be treated as if it were by the jury and we cannot retry Mr. Sanabria on horse betting.
Speaker: It is difficult to conceive of how you can have an acquittal of part of a count. But, I know that is what this whole case involves.
Frank H. Easterbrook: For the same reason, I think that you could have an acquittal on count one of a two-count indictment if this charge have been broken up in two counts, as it could have been.
Warren E. Burger: That depends on reading the indictment in the way that you have suggested, does it not?
Frank H. Easterbrook: It does and it depends on characterizing what the District Judge did and the way the Court of Appeals characterized it. But, we think the reading is correct and the characterization is fair, and the rest of the argument is downhill from that.
John Paul Stevens: Mr. Easterbrook, just one other question on appealability. At the outset, you mentioned that you view Criminal Appeals Act. An appeal lies wherever it is. The second trial would not be barred by the Double Jeopardy Clause and you stated that the court has, in effect, so held. Are you referring to what I characterize as dicta in the Wilson case?
Frank H. Easterbrook: I am. I think it was an alternative ground for the decision and it must be seen as a holding.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.