United States v. Angelo Nardolillo, 252 F.2d 755, 1st Cir. (1958)
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Scribd Government DocsUnited States v. Angelo Nardolillo, 252 F.2d 755, 1st Cir. (1958)
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Scribd Government Docs252 F.
2d 755
UNITED STATES of America, Appellant,
v.
Angelo NARDOLILLO, Defendant, Appellee.
No. 5309.
United States Court of Appeals First Circuit.
March 4, 1958.
Joseph Mainelli, U. S. Atty., Providence, R. I., with whom Arnold
Williamson, Jr., and Samuel S. Tanzi, Asst. U. S. Attys., Providence, R.
I., were on brief, for appellant.
Jacob S. Temkin, Providence, R. I., with whom Christopher Del Sesto,
Providence, R. I., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN,
Circuit Judges.
WOODBURY, Circuit Judge.
Our only concern at present is with a motion to dismiss an appeal of the United
States in a criminal case on the ground of want of appellate jurisdiction.
The defendant-appellee, Nardolillo, was tried by jury in the court below on his
plea of not guilty to an indictment in four counts charging him with wilful
failure to pay taxes in violation of 145(b) of the Internal Revenue Code of
1939, 26 U.S.C.A. 145(b). The jury returned a verdict of guilty as charged in
all four counts and within five days thereafter, on May 27, 1957, the defendant
filed a motion in Arrest of Judgment under Criminal Rule 34, 18 U.S.C.A., a
Motion for Judgment of Acquittal under Criminal Rule 29, and a Motion for a
New Trial under Criminal Rule 33.
On June 10, 1957, while these post-trial motions were pending, the defendant,
evidently in the light of Jencks v. United States, 1957, 353 U.S. 657, 77 S. Ct.
1007, 1 L.Ed.2d 1103, which had been decided one week before on June 3,
filed a motion for the production and inspection of certain reports in the
possession of the United States, the motion reciting that it was filed in
connection with and in aid of his motions for acquittal and for a new trial
referred to above. The reports requested were those prepared by a Revenue
Agent and a Special Agent of the Internal Revenue Service, both of whom had
testified for the Government at the trial as to material matters and each of
whom had previously prepared and filed reports to their superiors relating to the
matters as to which they had testified. The defendant asserted that these reports
had not been available to him during the trial and that inspection of them was
"singularly important" to him for the purpose of possible impeachment of the
testimony of the two key Government witnesses. On the same date, June 10,
the defendant also had a subpoena duces tecum served upon the United States
District Attorney for Rhode Island directing him to appear in court with the
reports of the aforementioned agents to which the United States responded by
filing a motion to quash.
4
The Government's motion to quash and the defendant's motion for production
and inspection were heard in due course and on June 26 the court below entered
an order denying the motion to quash but granting the motion for production
specifying the time, place and circumstances under which the United States
was to make the reports of the agents, so far as the same related to the matters
they had testified to at the trial, available for inspection by the defendant and
his counsel. The United States Attorney notified counsel for the defendant that
certain Regulations issued by the Attorney General forbad his compliance with
the court's order to produce the agents' reports and that in consequence he felt
compelled respectfully to decline compliance with the court's order. Counsel
for the defendant then filed a motion grounded upon the United States
Attorney's refusal to comply with the court's order of production wherein he
asked that his motion for acquittal theretofore filed be granted and for "such
other relief as shall be meet under the circumstances." The court heard counsel
on this motion, and also on a motion of the United States Attorney that the
defendant be required at once to press all his pending motions. The court
denied the Government's motion out of hand and no hearing has ever been held
or formal action taken on the defendant's post-trial motions in arrest of
judgment, for judgment of acquittal or for a new trial. In due course the court
granted the defendant's motion based on the Government's refusal to comply
with the production order and on August 21, 1957, entered judgment: "That the
criminal action herein, Indictment No. 6552, be, and the same hereby is
dismissed." No judgment of conviction has ever been entered nor has the
defendant been sentenced.
The United States promptly filed notice of appeal from this judgment of the
District Court and thereupon the defendant filed a motion in this court to
dismiss the appeal "on the ground of want of appellate jurisdiction." The
defendant filed a brief in support of his motion, the United States filed a brief in
opposition thereto, and finding the question of our jurisdiction somewhat
perplexing, we invited oral argument on the motion.
6
The judgment appealed from does not relate to an independent, separable matter
collateral to a criminal prosecution, such, for instance, as an order relating to
the amount of bail, see Stack v. Boyle, 1951, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3,
within the limited categories listed in Carroll v. United States, 1957, 354 U.S.
394, 403, 404, 77 S.Ct. 1332, 1 L.Ed.2d 1442, as appealable by the United
States under Title 28 U.S.C. 1291. Thus whatever right the United States may
have to appeal to this court must derive from Title 18 U.S.C. 3731, wherein,
except when direct appeals to the Supreme Court of the United States are
provided, appeals by the United States to a court of appeals are authorized:
"From a decision or judgment setting aside, or dismissing any indictment or
information, or any count thereof * * *," and "From a decision arresting a
judgment of conviction * * *."
This statute must be strictly construed for "appeals by the Government in
criminal cases are something unusual, exceptional, not favored." Carroll v.
United States, supra, 354 U.S. 400, 77 S.Ct. 1336. The question therefore is
whether, categorized realistically, id. 354 U.S. 405, 77 S.Ct. 1339, the
judgment from which the United States has taken this appeal fits squarely into
either of the categories listed in the statute. We think it does not.
In our view the judgment cannot be classified as "a decision arresting a
judgment of conviction," for the reason that it is not grounded upon the District
Court's want of jurisdiction or upon any failure of the indictment to charge an
offense, and 3731, as part of the revision of the Criminal Code in 1948, is to
be construed in relation to the provisions of the Federal Rules of Criminal
Procedure adopted four years earlier in 1944, United States v. Pack, 3 Cir.,
1957, 247 F.2d 168, 170, and under Criminal Rule 34 the court is only
authorized to "arrest judgment if the indictment or information does not charge
an offense or if the court was without jurisdiction of the offense charged."
10
Nor is the judgment appealed from one `setting aside or dismissing [an]
indictment" for it is not based at all upon a defect of any kind in the indictment
but is based upon a defect in the proceedings had at the trial under the
indictment. United States v. Janitz, 3 Cir., 1947, 161 F.2d 19; United States v.
Pack, supra.
11
Indeed we are somewhat perplexed as to how the judgment from which the
United States has taken this appeal should be classified. The judgment is that
the "criminal action herein," identifying it by indictment number, "be, and the
same hereby is dismissed." This wording, naturally enough, closely follows and
therefore would seem to be based upon the holding in Jencks v. United States,
1957, 353 U.S. 657, 77 S.Ct. 1007, as summarized in the first sentence of the
last paragraph of the Court's opinion in 353 U.S. on page 672, 77 S.Ct. on page
1015 which reads: "We hold that the criminal action must be dismissed when
the Government, on the ground of privilege, elects not to comply with an order
to produce, for the accused's inspection and for admission in evidence, relevant
statements or reports in its possession of government witnesses touching the
subject matter of their testimony at the trial."
12
Since the judgment appealed from is couched in the language of the holding in
Jencks, it might perhaps be assumed that it was intended to have the same
effect as the decision in Jencks. And the effect of that decision, as clearly
pointed out in the concurring opinions of Mr. Justice Frankfurter (353 U.S. at
page 672, 77 S.Ct. at page 1015) and of Mr. Justice Burton, with whom Mr.
Justice Harlan concurred (353 U.S. at page 678, 77 S.Ct. at page 1018), is not
to terminate the prosecution but to require another trial. But if this be so, and
the District Court intended to give the United States another chance to try its
case, 1 maybe on other evidence, or maybe by change of mind on the same
testimony but with access by the defendant to the reports of the agents, the
judgment is certainly interlocutory and in criminal cases "there is no authority
today for interlocutory appeals" by or on behalf of the United States. Carroll v.
United States, 1957, 354 U.S. 394, 406, 77 S.Ct. 1332.
13
On the other hand it may well be, indeed it would seem more likely, that the
District Court interpreted the Government's refusal to obey its order of
production as a definite and final election by the United States to maintain the
secrecy of its files even "at the price of letting the defendant go free," United
States v. Reynolds, 1953, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727,
quoted with approval in Jencks v. United States, supra, 353 U.S. 671, 77 S.Ct.
1014, and that with this in mind the court intended by its judgment to terminate
the prosecution once and for all. But even if this be so, and the judgment put a
period to the prosecution, still, as we have already pointed out, it is not one
dismissing an indictment or arresting a conviction. Thus the judgment is not a
"decision" within the limited categories listed in Title 18 U.S.C. 3731, as
appealable by the United States.
14
Judgment will be entered dismissing the appeal for lack of appellate
jurisdiction.
Notes:
1
At a second trial the defendant could not be heard to complain of double
jeopardy for he waived that defense by his request for a new trial
