Petition — United States v. Jenkins

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$n the Supreme Court of the United States

OCTOBER TERM, 1973 Suprome Court, U. $.

FILED

APR § 1974

UNITED STATES OF AMERICA, PETITIONER

MICBALL ROBAK, JR CLERK

v. *

RONALD S, JENKINS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

‘\

ROBERT H. Bork,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

EDWARD R. KORMAN,

Assistant to the Solicitor General,

ROBERT H. PLAXICo,

Attorney,

Department of Justice,

Washington, D.C. 20530.

INDEX

Opinions below

Jurisdiction

Question presented

Constitutional provisions and statute involved

ELT Lt ST OTT MTR te

Reasons for granting the writ

Conclusion

Appendix A

Appendix B

Appendix C

Appendix D

CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 19

Ehlert v. United States, 402 U.S. 99 5, 6

Fong Foo v. United States, 369 U.S.

142 10, 16, 19

Forman v. United States, 361 U.S. 416 14

Green v. United States, 355 U.S. 184 15,19

Illinois v. Somerville, 410 U.S. 458 19

Kepner v. United States, 195 U.S. 100 = 10, 15,

16, 17, 18

King v. United States, 426 F.2d 278 9

Palko v. Connecticut, 302 U.S. 319 15

Trono v. United States, 199 U.S. 521 19

United States v. Ball, 163 U.S. 662 9, 16,17, 20

United States v. Jorn, 400 U.S. 470 20

Cases—Continued Page

United States v. Maze, No. 72-1168, de-

cided January 8, 1974 _-.................--.... 18

United States v. Mercado, 478 F. 2d 1108 6,9

United States v. Russell, 411 U.S. 423. 18

United States v. Seeger, 380 U.S. 163. wi 18

United States v. Sisson, 399 U.S. 267__.10, 11, 16,

19, 20, 21

United States v. Velazquez, 490 F.2d 29. 22

United States v. Weinstein, 452 F.2d 704,

certiorari denied sub nom. Grunberger

v. United States, 406 U.S. 917 _... 24

United States v. Whitted, 454 F.2d 642 24

Constitution, statutes and rule:

United States Constitution, Fifth Amend-

ment - 2,19

Criminal Appeals Act, 18 U.S.C. 3731, as

amended by Title III of the Omnibus

Crime Control Act of 1970, 84 Stat.

aetetresess 2, 7, 20

Conn. Gen. Stat. Ann. § 54-96 ‘Supp.

wee) ....... cake 14

New York C. P. * § 450. 20 ) 14

Vt. Stat. Ann., Title 13, § 7403 _. 14

Rule 23(c), Fed. R. Crim. P. ', ra 13

Miscellaneous:

Comment, Statutory Implementation of

Double Jeopardy Clauses: New Life

for a Moribund Constitutional Guaran-

tee, 65 Yale L.J. 339 (1956) — 12

Friedland, Double Jeopardy 285 (1968) 15

S. Rep. No. 91-1296, 91st Cong., 2d Sess. 7

Iu the Supreme Court of the United States

OCTOBER TERM, 1973

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

RONALD S. JENKINS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-4la) is reported at 490 F. 2d 868. The opinion

of the district court, which is contained in a docu-

ment entitled “Findings of Fact and Conclusions of

Law” (App. B, infra, pp. 42a-52a), is reported at

349 F. Supp. 1068.

(1)

JURISDICTION

The judgment of the court of appeals was en-

tered on December 11, 1973 (App. C, infra, pp. 53a-

54a). A timely petition for rehearing was denied

on February 6, 1974 (App. D, infra, pp. 55a-56a).

By order of February 28, 1974, Mr. Justice Marshall

extended the time for filing a petition for a writ of

certiorari to and including April 7, 1974. The juris-

diction of this Court is invoked under 28 U.S.C. 1254

(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause bars the

United States from appealing an order of the dis-

trict court dismissing an indictment, after a trial

without a jury, where the district court found that

the defendant committed the acts charged in the in-

dictment but concluded as a matter of law that the

defendant had established an affirmative defense, and

where the error of the district court can be corrected

without a retrial,

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

* * * nor shall any person be subject for the

same offence to be twice put in jeopardy of life

or limb;~* ° °.

18 U.S.C. 3731, as amended by Title III of the

Omnibus Crime Control Act of 1970, 84 Stat. 1890,

provides in pertinent part:

In a criminal case an appeal by the United

States shall lie to a court of appeals from a de-

cision, judgnient, or order of a district court dis-

missing an indictment or information as to any

one or more counts, except that no appeal shall

lie where the double jeopardy clause of the

United States Constitution prohibits further

prosecution,

> * * >

The provisions of this section shall be liberally

construed to effectuate its purposes.

STATEMENT

1. In an indictment returned in the United States

District Court for the Eastern District of New York,

respondent, a registrant under the Universal Military

Training and Service Act, was charged with having

“knowingly failed and neglected to perform a duty

required of him under and in the execution of said

Act and Regulations, by knowingly refusing and fail-

ing to submit to induction into the armed forces of

the United States, after notice had been given to the

defendant by Local Board No. 50, exercising jurisdic-

tion in that behalf, requiring the defendant to report

for induction on the 24th day of February, 1971,”

in violation of 50 U.S.C. App. 462(a) (C.A. App.

A-1).

The case was tried before the district court without

a jury. On October 24, 1972, the district court filed

a document entitled “Findings of Fact and Conclu-

sions of Law” (App. B, infra, pp. 42a-52a). The

district court found that, as charged in the indict-

ment, “the Local Board mailed to defendant * * * an

Order to Report for Induction on February 24, 1971,”

which was received by him, and that “[t]he defend-

ant did not report for induction on February 24,

1971” (id. at 43a-44a).’

* The “Findings of Fact” were as follows:

1. The defendant, RONALD S. JENKINS, is charged

in a one count indictment with violation of 50 U.S.C. App.

§ 462(a), for failure to comply with an induction order to

report and submit to induction into the Armed Forces.

2. Defendant registered with Local Board No. 50,

Brooklyn, New York, on September 23, 1966.

3. On October 19, 1966, the defendant was placed in

Class 2-S by the Local Board and such classification re-

mained on an annual basis until] November 18, 1970, when

he was placed in Class 1-A by the said Local Board No.

50.

4. On January 20, 1971, the defendant was given a

pre-induction physical at the Armed Forces Examination

and Entrance Station, and was found to be medically

qualified for induction.

5. On February 4, 1971, the Local Board mailed to

defendant an SSS Form 252, an Order to Report for In-

duction on February 24, 1971.

6. On February 17, 1971, after receiving his induction

notice, the defendant wrote to the Local Board and re-

quested SSS Form 150 for a conscientious objector clas-

sification.

7. On February 23, 1971, the defendant went in per-

son to the Local Board and requested Form 150. He was

advised to write a short statement as to his beliefs, which

he did, and he was told to report for induction on the next

day because his request for a postponement of his induc-

tion had been denied.

8. The defendant did not report for induction on Feb-

ruary 24, 1971.

9. The defendant’s SSS Form 150 was received by the

Local Board on March 30, 1971.

The district court then proceeded, under the head-

ing “Discussion,” to discuss respondent’s defense to

the indictment “that at the time of his alleged com-

mission of the crime, viz., his refusal to submit to

induction, the law of the Second Circuit [since over-

ruled by Ehlert v. United States, 402 U.S. 99] was

such that he was entitled to a postponement of his

induction to enable the Board to pass on his claim

for C.O. status” (App. B, infra, p. 44a), a claim

which he had concededly asserted for the first time

after receiving his notice to report for induction (id.

at 43a).

The district court agreed with respondent’s claim

regarding the applicable law of the Second Circuit

at the time the local board declined to reopen his

classification, and it concluded further that “the de-

fendant JENKINS would be [prejudiced] by a retro-

active application of Ehlert,” presumably because he

may have refused induction in the belief that he had

a right to be heard on his late crystallization claim

prior to being compelled to report for induction *

(id. at 50a). Accordingly, the district court con-

* The district court made no express finding that Jenkins

had in fact relied on “the applicable law of the Second Cir-

cuit.” The reason for the absence of such finding is that

neither the respondent nor the draft counselor with whom he

consulted, and who was called to testify to respondent’s

sincerity (C.A. App. A-144), testified that they had relied on

“the applicable law of the Second Circuit.” Respondent’s

claim was that the local board was bound to follow “the ap-

plicable law of the Second Circuit” (even though that “law”

was subsequently held to be erroneous) and that the lawful-

ness of the loca] board’s action must be viewed in light of the

law at the time.

cluded that it “cannot permit the criminal prosecu-

tion of the defendant under these circumstances with-

out seriously eroding fundamental! and basic equitable

principles of law” (id. at 52a). Under the heading

“Conclusions of Law,” the district court stated that

“(t]he indictment in this case is dismissed and the

defendant is discharged” (ibid.).

2. Shortly after this decision, the Court of Ap-

peals for the Second Circuit decided United States

v. Mercado, 478 F. 2d 1108, which cast serious doubt

on the legal conclusion of the district court. There,

discussing the effect of Ehlert v. United States, 402

U.S. 99, on pre-Ehlert refusals to report for induc-

tion, the court of appeals stated that “[u]pholding

the conviction of a registrant who claims to have re-

lied on the pre-existing case law would appear to be

no more than an application of the settled rule that

an erroneous belief that an induction order is in-

valid, even if based on the advice of counsel, is not

a defense to a prosecution for refusing induction,

and that one who refuses induction on the basis of

such a belief acts at his peril” (478 F. 2d at 1111).

Moreover, while the court of appeals recognized that

such a rule may operate harshly “as applied to a

registrant who in fact reasonably relied in good faith

on the case law,” no such showing could be made by

a registrant (like respondent) who refused induction

in the early part of 1971, “when there was wide-

spread disagreement among the courts of appeals

and the question had been argued and was pending

decision in the Supreme Court” (ibid.).

Since the order of the district court here conflicted

with the holding of the district court in Mercado,

which was then pending on appeal from a judgment

of conviction, the Solicitor General authorized an ap-

peal to the court of appeals pursuant to the Criminal

Appeals Act, 18 U.S.C. 3731. The Act, which was

adopted to “assure that the United States may ap-

peal [to the court of appeals] from the dismissal of

a criminal prosecution by a district court in all cases

where the Constitution permits,” * authorizes an ap-

peal to the court of appeals from a decision, judg-

ment or order of a district court dismissing an indict-

ment “except * * * where the double jeopardy clause

of the United States Constitution prohibits further

prosecution.” Although respondent had been placed

in jeopardy, and a dismissal after jeopardy might

preclude a second trial, the United States argued that

an appeal was not barred by the Double Jeopardy

Clause because it was not seeking a retrial, but sim-

ply a direction to the district court to enter judgment

in accordance with the evidence adduced at the trial.

The court of appeals concluded that Congress in-

tended to authorize an appeal from an order of the

district court term.nating a criminal prosecution in

all cases in which an appeal would not violate the

Double Jeopardy Clause (App. A, infra, p. 5a):

Appellant asserts, and appellee does not dis-

pute, that Congress intended to extend the Gov-

*S. Rep. No. 91-1296, “Amendments to the Criminal Appeals

Act,” 91st Cong., 2d Sess., pp. 2-3.

ernment’s right of appeal in criminal cases as

far as it constitutionally could. If the language

of the statute left any doubts on that score, they

would be set at rest by the report of the Senate

Committee on the Judiciary, 91st Cong., 2d Sess.,

No. 91-1296, at 4-13. The appeal here wil! there-

fore lie unless the Double Jeopardy clause pre-

vents interference with appellant’s acquittal.

The majority of the court of appeals, however, over

the dissent of Judge Lumbard, held that an appeal

was barred by the Double Jeopardy Clause. The ma-

jority reasoned that, “for double jeopardy purposes,”

the district court judge had acquitted the respondent

(id. at 26a):

His ruling was based on facts developed at

trial, which were not apparent on the face of the

indictment, and which went to the general issue

of the case. The dissent here contends that the

district court’s findings of fact were largely un-

disputed and not relevant to the pivotal legal

issue in question. However, the discussion sec-

tion of the district court’s opinion makes it clear

that it was relying on the precise circumstances

of Jenkins’ case to conclude that the Supreme

Court’s decision in Ehlert should not be applied

retroactively to him. The district court was not

construing the statute, which had been authorita-

tively interpreted in Ehlert, and holding that

Jenkins did not come within it as a matter of

law. It was holding that the statute should not

be applied to him as a matter of fact.

Although a reversal of the order of the district

court would not have necessitated a retrial, but only

a direction to the district court to enter a judgment

in a€cordance with its findings, the court of appeals

held that the Double Jeopardy Cla: *e barred an ap-

peal—that, in effect, the appeal itself placed the de-

fendant in jeopardy a second time.‘ In reaching this

conclusion the court of appeals relied principally on

what it characterized (App. A, infra, p. 16a) as the

“dictum” in United States v. Ball, 163 U.S. 662, 671,

that an acquittal can “not be reviewed, on error or

* The majority opinion below indicated that it was “not cer-

tain” that, if it agreed that the district court had erroneously

dismissed the indictment, further trial proceedings would not

be warranted (App. A, infra, p. 28a). It noted that in United

States v. Mercado, supra, it had recognized the possibility of

a successful defense by “a registrant who in fact reasonably

relied in good foith on the case law or upon the knowledge

that local boards in this circuit would consider a belated con-

scientious objection claim” (478 F. 2d at 1111). The court

of appeals nevertheless did not resolve this issue, but decided

the double jeopardy issue on the assumption that there would

be no “need for a second trial” (App. A, infra, p. 28a).

We merely observe that, in indicating uncertainty regarding

the possible need for further proceedings, the court of appeals

apparently overlooked the fact that respondent had refused

induction during that period of time when Mercado held it

would have been impossible to establish justifiable reliance on

existing law. And respondent could not have relied on a belief

that his claim would be considered by the local board, because

the district court found that respondent was advised the day

before he was due to report for induction that his request

for a postponement had been denied (App. B, infra, p. 44a).

Moreover, even if additional proceedings were necessary, it

would not have been a “retrial” of issues previously litigated

(King v. United States, 426 F. 2d 278, 279 (C.A. 9)), but

merely a reopening of the defense case to permit respondent

to introduce evidence which he should have put in during his

defense at trial.

otherwise, without putting [the defendant] twice in

jeopardy, and thereby violating the Constitution.”

While the court of appeals found that this dictum

had been followed in subsequent cases (Kepmer v.

United States, 195 U.S. 100; Fong Foo vy. United

States, 369 U.S. 141; and United States v. Sisson, 399

U.S. 267), it suggested that a “[r]jeexamination of

the dictum in Ball * * * may well be desirable, par-

ticularly now that the Double Jeopardy Clause has

been extended to the states’; it concluded, however,

that “this is far beyond our power as an inferior

court” (App. A, infra, pp. 29a-30a, n. 20).

Judge Lumbard, who dissented from the holding

of the majority, concluded that “the Double Jeopardy

Clause is not an abstract rule, but one that should be

adapted and applied in light of the totality of cir-

cumstances of each particular case” (App. A, infra,

pp. 40a-41a):

An unalterable rule that the Double Jeopardy

Clause bars all government appeals from acquit-

tals, fails to weigh against the individual’s very

proper interest in not experiencing the anxiety,

expense, and harassment that a second trial

brings, the equally considerable interest of so-

cicty in the fair, just, and sensible administra-

tion of criminal justice. Only last term, the Su-

preme Court in Illinois v. Somerville, 410 U.S.

458 (1973), rejected the notion that technical

errors resulting in a mistrial should bar re-

prosecution. In such cases, the “ends of public

justice” demand that “the purpose of law, to

protect society from those guilty of crimes [not]

be frustrated by denying courts power to put

the defendant to trial again.” 410 U.S. at 470.

I believe that the “ends of public justice” will

not be served if we permit a defendant who is

clearly guilty to go free because of the trial

judge’s erroneous interpretation of the control-

ling law. That Jenkins is guilty would appear

to be indisputable in light of our decision in

United States v. Mercado, 478 F.2d 1108 (1973),

in which we held without reservation that even

prior to United States v. Ehlert, the law of this

circuit was that an individual had to report for

induction although his post-induction notice claim

for conscientious objector status was still pend-

ing.

Accordingly, I would vacate the order of the

court below and remand for a proper application

of the law. [Footnote omitted. |

REASONS FOR GRANTING THE WRIT

1. The Criminal Appeals Act, as amended by the

Omnibus Crime Control Act of 1970, 84 Stat. 1890,

was expressly intended to authorize an appeal from

an order of a district court terminating a criminal

prosecution in all cases in which such an appeal would

not violate the Double Jeopardy Clause. Although it

was anticipated that the revised Criminal Appeals

Act, unlike its predecessor, would provide a clear,

rational scheme governing appeals by the United

States (United States v. Sisson, 399 U.S. 267, 306-

307, n. 61, and 307-308, “[t]his appeal by the United

States from a judgment of the District Court for the

Eastern District of New York dismissing an indict-

ment after a bench trial [as the court of appeals ob-

served] is the latest in a growing list of cases show-

ing that the eagerly awaited 1970 amendment of the

Criminal Appeals Act, 18 U.S.C. § 3731, has not re-

solved all the problems in this area” (App. A, infra,

p. 2a). The principal reason for the growing conflict

and uncertainty,’ however, does not arise from the

language of the Act, which has been consistently con-

strued to authorize appeals by the United States in

criminal cases “as far as [Congress] constitutionally

could” (id. at 5a),° but from the cases construing the

Double Jeopardy Clause—cases which, as one com-

mentary has observed, are “frequently both illogrical

and irreconcilable.” Comment, Statutory Implemen-

tation of Double Jeopardy Clauses: New Life For A

Moribund Constitutional Guarantee, 65 Yale L.J. 339

(1956).

This case presents the Court with an opportunity

to clarify and reconcile some of the past decisions

construing the Double Jeopardy Clause, and to do so

in the context of a case which will have broad rami-

fications and application to a wide variety of situa-

tions. The holdings of the court of appeals—(1) that

a defendant is acquitted “for double jeopardy pur-

* There are two petitions for certiorari presently pending,

one filed by the United States (United States v. Wilson, No.

73-1395) and one filed by a defendant (Serfass v. United

States, No. 73-1424), raising separate but related issues, which

demonstrate the conflict and confusion presently pervading

this entire area (see pp. 21-24, infra).

* Because we agree with the court of appeals’ construction

of the statute, our discussion herein is confined to the con-

stitutional issue presented.

poses” whenever a district court sustains an affirma-

tive defense (or other legal claim going to the merits)

on the basis of facts developed at trial; and (2) that

the Double Jeopardy Clause bars appellate review

of that determination, even where a retrial is not

necessary to correct the error of the district court—

will directly affect the right of the United States to

appeal to the court of appeals in two significant areas

in which errors of a district court may be corrected

without the necessity of a retrial. Under the reason-

ing of the court of appeals, it will be impossible for

the United States to appeal from (1) post-trial dis-

missal orders in cases tried without a jury, where

findings of fact are made’ that require conviction,

but where the district court, because of an error of

law, has sustained an affirmative defense or other

legal claim going to the merits, and (2) all post-

conviction dismissal orders in cases tried by a jury

(where the verdict of guilty is the equivalent of the

findings of fact made here by the district court), sus-

taining affirmative defenses or other legal claims

going to the merits.

Moreover, if permitted to stand, the holding below

will create another illogical and irreconcilable prece-

dent in this area. For example, had the district

court here entered a judgment of conviction, and had

the defendant prevailed on his defense in the court

of appeals, that order would have been as much an

“acquittal for double jeopardy purposes” as was the

* Fed. R. Crim. P., Rule 23(c).

order of the district court. If a subsequent appeal

in effect places the defendant in jeopardy a second

time, even though a retrial is not sought, then a

petition for certiorari would likewise be barred. Since

this is clearly not the law, Forman v. United States,

361 U.S. 416, 426, the illogical consequence of the

holding of the court of appeals is that the action

of a single district court judge terminating a crimi-

nal prosecution is final and unappealable even though

a retrial is not sought, but the holding of three

judges of the court of appeals to the same effect is

not final and is subject not only to rehearing en banc

but to review by this Court.

The petition for certiorari should be granted to

resolve this anomaly and to clarify the meaning and

scope of the Double Jeopardy Clause in an area of

substantial importance to the administration of crimi-

nal justice in the federal courts. Such clarification is

particularly appropriate, as the court of appeals has

observed, “now that the Double Jeopardy Clause has

been extended to the states” (App. A, infra, pp. 29a-

30a, n. 20).° Review by this Court is also important

to insure that the policy of Congress to permit gov-

ernment appeals on questions of law in criminal cases

insofar as constitutionally permissible is not being

undercut by an unduly broad interpretation of the

double jeopardy prohibition.

® We note in this regard that the holding of the Court of

Appeals for the Second Circuit casts doubt on the validity of

statutes, authorizing appeals by the state, which are on the

books in every State within its jurisdiction. See New York

C.P.L. § 450.20; Conn. Gen. Stat. Ann. § 54-96 (Supp. 1973);

Vt. Stat. Ann., Title 13, § 7403.

2. The court of appeals misconstrued and misap-

plied the holdings of this Court interpreting the

Double Jeopardy Clause. The majority opinion ex-

haustively traces the genealogy of the Double Jeop-

ardy Clause, but it ultimately ignores both the his-

tory and purpose of that provision. The common law

rule, which the Double Jeopardy Clause largely re-

flected (Kepner v. United States, 195 U.S. 100, 125),

was directed to applications by the prosecutor for a

new trial following a jury verdict of acquittal. Fried-

land, Double Jeopardy, pp. 285-287 (1969). “The

underlying idea,” Mr. Justice Black has written for

the Court, “is that the State with all its resources and

power should not be allowed to make repeated at-

tempts to convict an individual for an alleged offense,

thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing

the possibility that even though innocent he may be

found guilty. * * * Thus it is one of the elemental

principles of our criminal law that the Government

cannot secure a new trial by means of an appeal even

though an acquittal may appear to be erroneous.”

Green v. United States, 355 U.S. 184, 187-188 (em-

phasis added); Palko v. Connecticut, 302 U.S. 319,

328.

Here, the court of appeals ignored both the “ele-

mental principle” and the “underlying idea” of

the Double Jeopardy Clause by relying for its hold-

* It appears that at common law in England an appeal, such

as that here, could be taken by the Crown. Friedland, supra,

at p. 297, nn. 2-3.

ing on “dictum” (App. A, infra, p. 16a) in United

States v. Ball, 163 U.S. 662, and on what it char-

acterized as the holding of three other cases,’ to

sustain its conclusion that an appeal by the United

States, seeking to correct an error of law by the

district court without the necessity of a retrial,

places the defendant in jeopardy a second time (App.

A, infra, p, 29a):

The short of the matter is this: Kepner held

that an acquittal on the general issue barred an

appellate court from entering a judgment of con-

viction on appeal. Since under Philippine prac-

tice no further proceedings were required below,

the decision belies any view that the Double

Jeopardy clause protects only against the vexa-

tion of a second trial. Fong Foo held that a

directed acquittal barred a retrial even when it

was plain that the acquittal was occasioned by

clear error of the judge. Sisson held that when

a guilty verdict had been nullified by a judge’s

decision to acquit on the merits, the Double

Jeopardy clause prevented an appellate court

from directing the entry of a judgment of con-

viction. We cannot see how in the circumstances

here presented the Government can thread a way

through this thicket so long as these decisions

stand. [Footnote omitted. }

The “thicket,” we submit, is not nearly so dense as

the majority suggests. United States v. Ball, 163

U.S. 662, was a case in which “[t]he verdict of the

1° Kepner V. United States, 195 U.S. 100; Fong Foo v.

United States, 369 U.S. 141; United States v. Sisson, 399 U.S.

267.

jury, after a trial upon the issue of guilty or not

guilty, acquitted Millard F. Ball of the whole charge

** *” (163 U.S. at 670); it was held there that

such a verdict “could not be reviewed, on error or

otherwise, without putting him twice in jeopardy”

because “a verdict of acquittal * * * is a bar to a

subsequent prosecution for the same offence” (163

U.S. at 671). The acquittal in Ball, on a general

verdict, was tantamount to a finding of fact that he

had not done the acts charged. Accordingly, the “dic-

tum” lends no support to the holding below, since

the defendant here was, in effect, found guilty of the

acts charged in the indictment, and the dismissal

order was based on application o a legal principle

to undisputed facts. Moreover, the correction of that

error will not involve “a subsequent prosecution for

the same offence.”

Kepner v. United States, 195 U.S. 100, was a case

in which the defendant had been tried in the Philip-

pines without a jury and acquitted by the trial judge.

Under Philippine law an appeal was authorized from

such an acquittal, and the appellate court had the

authority to make de novo findings of fact on ap-

peal. Citing United States v. Ball, supra, the Court

held that such an appeal is barrid by the Double

Jeopardy Clause (195 U.S. at 133):

The Ball case, 163 U.S., supra, establishes that

to try a man after a verdict of acquittal is ‘o

put him twice in jeopardy, although the vercict

was not followed by judgment. That is prac-

tically the case under consideration, viewed in

the most favorable aspect for the Government.

The court of first instance, having jurisdiction

to try the question of the quilt or innocence of

the accused, found Kepner not guilty; to try

him again upon the merits, even in an appellate

court, is to put him a second time in jeopardy

for the same offense * * *. {Emphasis added.|

The trial “upon the merits” to which the Court al-

luded in Kepner resulted from the peculiar nature of

the appellate review afforded by Philippine law, pur-

snant to which, in Kepner’s case, the appeilate tri-

bunal weighed the credibility of witnesses, made new

findings of fact, and entered a judgment of convic-

tion. But it cannot reasonably be maintained that

when an appellate court determines that the district

court erred as a matter of law in dismissing an in-

dictment, and accepts as true all of the facts found

by the district court, it is conducting a retrial on the

merits."’ Certainly Kepner stands for no such propo-

sition.

Moreover, this consideration aside, it must be re-

membered that Kepner did not involve a construction

of the Double Jeopardy Clause, but the construction

of an Act of Congress, applicable to the Philippines,

which incorporated the double jeopardy principle.

While it is true that, in the course of the opinion

" On this analysis, this Court has been violating the Double

Jeopardy Clause for years by granting petitions for writs of

certiorari in cases where courts of appeals, accepting as true

the findings of the trier of fact, have ordered dismissal of in-

dictments on the merits, based on their application of legal

principles to undisputed facts. See, e.g., United States v. Maze,

No. 72-1168, decided January 8, 1974; United States v. Russell,

411 U.S. 423; United States v. Seeger, 380 U.S. 163.

in Kepner, the Court indicated that it regarded the

statutory provision as having the same effect as the

Fifth Amendment, this Court has subsequently ad-

munished that such language is to be regarded as

dictum and is not “conclusive” in cases “where the

interpretation of the Fifth Amendment is necessarily

decisive” (Green v. United States, 355 U.S. 184, 197,

n. 16). See also, Abbate v. United States, 359 U.S.

187, 198, n. 2 (separate opinion of Mr. Justice Bren-

nan).

Equally inapposite is Fong Foo v. United States,

369 U.S. 141, which involved a directed verdict of

acquittal in a jury trial and in which the relief

sought would have required “that the petitioners be

tried again for the same offense” (369 U.S. at 143).”

Here, as we have emphasized, no such retrial will

result.

The last case upon which the majority relied is

United States v. Sisson, 399 U.S. 267. There, after

a jury had convicted the defendant of failing to re-

port for induction, the district court in effect termi-

nated the prosecution on the basis of its conclusion

that under applicable legal principles the evidence

was insufficient to sustain the defendant’s guilt. The

Court held that this was in effect an acquittal and

*%In Green, the Court was referring to Trono v. United

States, 199 U.S. 521, a case decided a year after Kepner, which

also involved an interpretation of the statutory double jeop-

ardy provision applicable in the Philippines.

* The continuing vitality and scope of Fong Foo is some-

what uncertain in light of this Court's recent decision in

Illinois v. Somerville, 410 U.S. 458.

that an appeal to this Court was not authorized un-

der the old Criminal Appeals Act. After so holding

the Court added the following dictum (399 U.S, at

289-290 ) :

Quite apart from the statute, it is, of course,

well settled that an acquittal can “not be re-

viewed, on error or otherwise, without putting

[the defendant] twice in jeopardy, and thereby

violating the Constitution * * *. [I]n this

country a verdict of acquittal, although not fol-

lowed by any judgment, is a bar to a subsequent

prosecution for the same offence,” United States

v. Ball, 163 U.S. 662, 671 (1896).

This dictum, however, had little relevance to the

case before the Court, since the United States was

not seeking “a subsequent prosecution” of Sisson,

but merely to have the district court enter a judg-

ment of conviction in accordance with the jury’s ver-

dict. The single case cited by the Court, United

States v. Ball, 163 U.S. 662, as we have shown, in-

volved a verdict of acquittal entered by a jury. More-

over, the language in Sisson, like the language in

Ball and Kepner, was wholly unnecessary to this

Court’s decision.”

“ Tending to confirm our submission that Sisson should not

be regarded as dispositive of the double jeopardy issue is the

plurity opinion in United States v. Jorn, 400 U.S. 470. As

there stated in discussing Sisson (400 U.S. at 478, n. 7):

“It is clear from the record in this case that Judge Ritter’s

action cannot, as two members of the Court suggest, be classi-

fied as an ‘acquittal’ for purposes of this Court's jurisdiction

over the appeal under 18 U.S.C. § 3731. * * * Of course, as we

noted in Sisson, supra, at 290, the trial judge’s characteriza-

It is thus plain that the “thicket” that the ma-

jority below perceived as barring an appeal in these

circumstances does not contain a single holding of

this Court in which the important issue we seek to

raise here has been litigated and resolved. Under

these circumstances, we submit, this Court should ac-

cept the suggestion of the court of appeals that “the

dictum in Ball that underlay Kepner, Fong Foo and

Sisson” be subjected to the kind of “[r]eexamination”

that only this Court is competent to undertake (App.

A, infra, pp. 29a-30a, n. 20).

3. There are presently pending on petitions for

writs of certiorari two other cases raising issues

closely related to the issue presented here; if certio-

rari is granted in those cases, it would also be par-

ticularly appropriate to consider at the same time the

issue raised here.

tion of his own action cannot centrol the classification of the

action for purposes of our appellate jurisdiction. But Sisson

goes on to articulate the criterion of an ‘acquittal’ for purposes

of assessing our jurisdiction to review: the trial judge’s dis-

position is an ‘acquittal’ if it is ‘a legal determination on the

basis of facts adduced at the trial relating to the general issue

of the case * * *.’”

This language indicates that four members of the Court

viewed the holding in Sisson solely as one determining “this

Court's jurisdiction over the appeal under [the old] 18 U.S.C.

3731.” See also the dissenting opinion of Mr. Justice White

in United States v. Sisson, supra, 399 U.S. at 328, n. 4 (which

was joined by the Chief Justice and Mr. Justice Douglas): “I

cannot believe that the majority really means to suggest that

Congress could not constitutionally authorize an appeal in a

case precisely parallel to this one in accordance with currently

sought legislation [the present Section 3731].”

a. Serfass v. United States, No. 73-1424, petition

for a writ of certiorari filed March 22, 1974, involves

what might be described as the other side of the same

double jeopardy coin. There, as here, the defendant

sought dismissal of an indictment charging him with

failure to report for induction. The basis of the

motion to dismiss was that the local board improperly

failed to reopen his classification when he made a

post-induction-order claim for treatment as a con-

scientious objector. Serfass made his motion prior to

trial, and the district court granted it on the basis

of the Selective Service File, Serfass’ affidavit, and

certain stipulations of counsel. The Court of Appeals

for the Third Circuit held that an appeal by the

United States would not violate the Double Jeopardy

Clause because Serfass had not been placed in jeop-

ardy at the time the indictment had been dismissed.

On the merits, it reversed the order of the district

court and remanded the case for trial."

If, as we believe, the Court of Appeals for the

Third Circuit was correct in Serfass, it seems hard

to reconcile the result in that case with the conclu-

sion reached below. Jenkins, although guilty, will go

free, even though the legal error which caused the

order of dismissal may be corrected without a second

trial. This is apparently so simply because the dis-

trict court did not rule before trial on his motion for

a judgment of acquittal, which was in fact filed prior

1° The same result was reached by the Court of Appeals

for the Second Circuit a few days after its decision in the

instant case. United States v. Velazquez, 490 F. 2d 29.

to trial." Since the success of the motion did not

turn on disputed facts, it could as readily have been

acted on before trial as after.

On the other hand, Serfass may go to jail, and will

at least be subject to a trial in the district court,

because he diligently made and pressed his motion

prior to trial. Under those circumstances, the con-

sideration of the propriety of the dismissal by the

court of appeals could not be characterized under the

logic of the Jenkins court as a retrial (although per-

haps, under the reasoning in Jenkins, it was a trial).

This result is unacceptable in terms of the policies

reflected by the Double Jeopardy Clause, and we re-

spectfully submit that, if certiorari is granted in

either case, it should also be granted in the other, so

that a rational and just rule may be formulated."

b. In United States v. Wilson, No. 73-1395, peti-

tion for writ of certiorari filed March 15, 1974, the

district court entered an order, after a jury verdict

of guilty, dismissing an indictment on the ground of

'* The only possible explanation for the delay in decision is

that the district court may have regarded this written motion,

filed prior to trial, to have been intended to support the motion

to be made after the evidence was heard at trial. This is par-

ticularly probable here because the motion was filed along

with motions concerning the voir dire, requests to charge the

jury, and a trial memorandum of law. C.A. App. A-l. (Re-

spondent ultimately waived a jury trial.)

Since there is a square conflict among the courts of ap-

peals regarding the issue raised in Serfass, we have filed a

memorandum in that case suggesting that the petition for a

writ of certiorari be granted.

unnecessary pretrial delay. The Court of Appeals for

the Third Circuit held that this order was an ac-

quittal even though it did not go to the merits. Ac-

cordingly, relying on the “dictum” in United States

v. Ball, supra, which was quoted in Sisson, it held

that the Double Jeopardy Clause bars an appeal from

an acquittal.”

Our petition for certiorari in Wilson raises two is-

sues. We challenge the characterization of the order

of dismissal as an “acquittal,” contending that it is

unsound as a matter of law and contrary to definition

employed by the Court of Appeals for the Second

Circuit (in this case and in United States v. Wein-

stein, 452 F. 2d 704, certiorari denied sub nom. Grun-

berger v. United States, 406 U.S. 917) and the Court

of Appeals for the Eighth Circuit (in United States

v. Whitted, 454 F. 2d 642). We also argue that, even

if the order can be characterized as an acquittal, an

appeal is not barred by the Double Jeopardy Clause.

Since, if certiorari is granted in Wilson, that case

could be resolved (on the definition of an “‘acquittal’’ )

without reaching the Double Jeopardy issue raised

here, it is respectfully submitted that, if the issue

we have presented is deemed worthy of review, the

petition here should be granted along with the peti-

tion for certiorari in Wilson.”

*In Serfass, the Court of Appeals for the Third Circuit

distinguished Wilson as involving a “post-trial directed ver-

dict of acquittal” (slip op. 5, n. 1) (emphasis in original).

” We are sending counsel for respondent copies of our

petition for certiorari in Wilson and our memorandum in

Serfass.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

ROBERT H. Bork,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

EDWARD R. KORMAN,

Assistant to the Solicitor General.

ROBERT H. PLAXICO,

Attorney.

APRIL 1974.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SEPTEMBER TERM, 1973

No. 79

(Argued September 12, 1973

Decided December 11, 1973)

Docket No. 73-1572

UNITED STATES OF AMERICA, APPELLANT

Vv.

RONALD S. JENKINS, APPELLEE

Before:

LUMBARD, FRIENDLY and FEINBERG,

Circuit Judges

Appeal by the United States from a judgment of

the District Court for the Eastern District of New

York, Anthony J. Travia, Judge, which, after trial,

dismissed an indictment for refusal to submit to in-

duction into the armed forces in violation of 50

U.S.C. App. § 462(a), on the ground that despite the

subsequent decision in Ehlert v. United States, 402

U.S. 99 (1971), defendant was justified in relying

on earlier decisions in this circuit requiring the local

board to reopen his classification.

Dismissed for lack of appellate jurisdiction.

L. KEVIN SHERIDAN, Assistant United States

Attorney (Robert A. Morse, United States

Attorney, Eastern District of New York, of

Counsel), for Appellant.

JAMES S. CARROLL, Esq., New York, N. Y., for

Appellee.

FRIENDLY, Circuit Judge:

This appeal by the United States from a judgment

of the District Court for the Eastern District of New

York dismissing an indictment after a bench trial is

the latest in a growing list of cases showing that the

eagerly awaited 1970 amendment of the Criminal

Appeals Act, 18 U.S.C. § 3731, 84 Stat. 1890, has

not resolved all the problems in this area.’

‘ Although the Supreme Court has applauded the new Act,

see United States v. Sisson, 399 U.S. 267, 307-08, 324-25

(1970); United States v. Weller, 401 U.S. 254, 255 n.1 (1971),

this case and others herei. cited show that the amendment

has by no means solved all problems in this field.

The statute, so far as here relevant, reads as fol-

lows: *

In a criminal case an appeal by the United

States shall lie to a court of appeals from a deci-

sion, judgment, or order of a district court dis-

missing an indictment or information as to any

one or more counts except that no appeal shall

lie where the double jeopardy clause of the

United States Constitution prohibits further

prosecution.

The provisions of this section shall be liberally

construed to effectuate its purposes.

The indictment here at issue charged that defend-

ant Jenkins, a registrant under the Universal Mili-

tary Training and Service Act, “knowingly failed and

neglected to perform a duty required of him under

and in the execution of said Act and Regulations, by

knowingly refusing and failing to submit to induc-

* The statute also directs:

The appeal in al] such cases shall be taken within thirty

days after the decision, judgment or order has been

rendered and shall be diligently prosecuted.

The judgment in this case was endered October 24, 1972, and

the Government’s notice of appeal was filed on November 21,

,J72, but its brief was not filed until June 13, 1973. This

scarcely conforms with our notion of diligent prosecution and

we would have dismissed the appeal on that ground if defend-

ant had so requested. In United States v. Goldstcin, 479 F.2d

1061, 1064 n.4 (2 Cir. 1973), we admonished that, in appeals

under 18 U.S.C. § 3731, the Government’s brief should ordi-

narily be filed within 30 days after the notice of appeal.

tion into the armed forces of the United States, after

notice had been given to the defendant by Local Board

No. 50, exercising jurisdiction in that behalf, requir-

ing the defendant to report for induction on the 24th

day of February, 1971,” in violation of 50 U.S.C.

App. § 462(a).

Jenkins waived trial by jury, and the case was

heard by Judge Travia, who later filed an opinion

containing findings of fact and conclusions of law.

The facts developed at trial were as follows:

After receiving an order to report for induction

on February 24, 1971, Jenkins wrote the Local Board

asking to be reclassified as a conscientious objector.

On the day before his scheduled induction, he went

to the draft board and requested Form 150, the con-

scientious objector application form. In response to

his request, a Board representative advised him to

draft a brief statement summarizing his beliefs,

which he did. The Board then denied his request for

postponement of his induction. Jenkins failed to re-

port for induction the next day and subsequently

returned his completed Form 150 to the Board.

After extensive discussion, the court concluded that

“The indictment in this case is dismissed and the de-

fendant is discharged.” Recognizing that in Ehlert

v. United States, 402 U.S. 99, decided on April 21,

1971, the Supreme Court had held that local boards

need not consider conscientious objector claims filed

by registrants after they receive their induction or-

ders, the judge ruled that Ehlert should not be given

retroactive effect in this case and that Jenkins’ late-

crystallizing conscientious objection claim was a valid

defense to the criminal charge under this court’s

decision in United States v. Geary, 368 F.2d 144 (2d

Cir. 1966), which Ehlert disapproved, 402 U.S. at

101 n.3. The Government contends that this ruling

is contrary to our recent decision in United States v.

Mercado, 478 F.2d 1108 (2 Cir. 1973), in which we

applied Ehlert to a registrant with a conscientious

objection claim that had allegedly crystallized after

notice of induction. Appellee argues that Mercado is

distinguishable. However, we do not reach that issue

sinee, as we hold, we are without jurisdiction to en-

tertain the Government’s appeal.

II.

Appellant asserts, and appellee does not dispute,

that Congress intended to extend the Government’s

right of appeal in criminal cases as far as it con-

stitutionally could. If the language of the statute

left any doubts on that score, they would be set at

rest by the report of the Senate Committee on the

Judiciary, 91st Cong., 2d Sess., No. 91-1296, at 4-13.

The appeal here will therefore lie unless the Double

Jeopardy clause prevents interference with appel-

lant’s acquittal. To determine that question, we must

look not merely to the familiar but unilluminating

words of the Double Jeopardy clause, “nor shall any

person be subject for the same offense to be twice

put in jeopardy of life or limb,” but also to its his-

torical background, the proceedings leading to its

adoption as part of the Fifth Amendment, and the

course of decisions thereunder.

While the precise origin of the protection against

double jeopardy is unclear, it is certain that the no-

tion is very old.’ The Greeks apparently treated the

concept as part of a primitive form of res judicata.

In 355 B.C., Demosthenes stated, “the laws forbid

the same man to be tried twice on the same issue,

be it a civil action, a scrutiny, a contested claim, or

anything else of the sort.” 1 Demosthenes 589 (Vance

trans 1962). Justinian’s Corpus Juris Civilis rec-

ognized the special applicability of the principle to

criminal proceedings through the maxim that “the

governor should not permit the same person to be

again accused of crime of which he has been ac-

quitted.” 11 Scott, The Civil Law 17 (1932).* Simi-

larly, canon law early declared that “there shall not

rise up a double affliction,” a precept which was ap-

* Justice Black characterized the “[f]ear and abhorrence of

governmental power to try people twice for the same con-

duct” as “one of the oldest ideas in western civilization.”

Bartkus vy. Illinois, 359 U.S. 121, 151 (1959) (Black, J., dis-

senting). A nineteenth century commentator went even fur-

ther, asserting that “the principle is a part of that universal

law of reason, justice, and conscience, of which Cicero said:

‘Nor is it one thing at Rome and another at Athens, one now

and another in the future, but among al] nations it is the

same.’” Bachelder, Former Jeopardy, 17 Am. L. Rev. 748

(1883).

‘Under Roman law the judgment upon an action between

a defendant and his accuser was apparently not binding

against a second accuser who was not a party to the first

action, or at least who was not aware that the first prosecution

was being brought. 21 Scott, supra, at 17-18.

parently based on the notion that God does not pun-

ish twice for the same offense. Bartkus v. Illinois, 359

U.S. 121, 152 n.4 (1959) (Black, J., dissenting).

The related principle that clerics could not be pun-

ished in the king’s court after having been tried un-

der canon law was a major source of the dispute

between Becket and Henry II; Becket ultimately pre-

vailed, albeit postumously. 1 Pollock and Maitland,

A History of English Law 448-49 (2d ed. 1899). In

the thirteenth century, as Bracton reports, the bar

against multiple prosecutions assumed a rather grim

urgency. Since many criminal offenses were tried by

battle between the wronged party and the alleged of-

fender, it was evident that a series of prosecutions

would ultimately produce a “conviction” against all

but the hardiest combatants, if enough “appealors”’

were willing to try their hands at the case. Once

the defendant had endured one such trial for “one

deed and one wound,” Bracton wrote, “he will ae-

part quit against all, also as regards the king’s suit,

because he thereby proves hic innocence against all,

as though he had put himself on the country and

it had exonerated his completely.” 2 Bracton, On

the Laws and Customs of England 391 (Thorne trans.

1968 ).°

* Bracton’s generous view of the emerging double jeopardy

protection was not shared by his immediate successors. Dur-

ing the thirteenth and fourteenth centuries, a defendant's

success in the quasi-criminal action of “appeal” lost its pre-

clusive effect against a subsequent suit by the king, and ricer

versa, although success on an appeal would still bar a second

appeal, and success on an indictment would bar a second

By the time of Lord Coke, the nascent double

jeopardy concept had begun to mature into a complex

of common law pleas, the most prominent of which

were autrefois acquit and autrefois convict. The

first, according to Coke, provided that a defendant

could block a second trial by proving that he had

previously been acquitted of the same offense. Simi-

larly, under autrefois convict a defendant could plead

a former conviction in bar of a second indictment for

the same crime. See 3 Coke, Institutes of the Laws

of England 213-14 (1797 ed.); 2 Hale, Pleas of the

Crown 240-54 (Dougherty ed. 1800). Reprosecution

after an acquittal was permitted, however, if the first

indictment erroneously. failed to charge an offense.

In Vauz’s Case, 4 Coke 44, 76 Eng. Rep. 992 (Q.B.

1591), it was held that if the first indictment was

deficient for failure to charge all the elements of the

felony and a second indictment was brought for the

same offense, a plea of autrefois acquit would be bad

even though the acquittal had not resulted from an

objection to the indictment. A different rule applied

in the case of an error of law committed by the court

in the course of tne trial. Even if the lower court’s

prosecution by the crown. See 1 Britton 104 (Nicholas trans.

1865); Thayer, A Preliminary Treatise on Evidence at the

Common Law 158-59, 161 (1898).

By the fifteenth century, however. an acquittal on an appeal,

at least after trial by jury, once again generally barred suit

by the king, and an acquittal on an indictment could be pleaded

as a bar to a subsequent appeal. Kirk, “Jeopardy” During the

Period of the Year Books, 82 U. Pa. L. Rev. 602, 607 (1934);

Friedland, Double Jeopardy 9 (1969).

error was egregious, such as a mistaken direction by

the judge that the felony was not committed on the

day named in the indictment, or an erroneous de-

termination that the conduct alleged and proved did

not constitute a felony, the defendant could plead

authefois acquit to a second indictment.

Blackstone’s careful classification of the various

common law pleas in bar indicates that by the late

eighteenth century, the status of the double jeopardy

protection was well settled. The four pleas in bar,

according to Blackstone, were autrefoits acquit, autre-

foits convict, autrefoits attaint (former attaint,

founded on the reasoning that “a second prosecution

cannot be to any purpose, for the prisoner is dead

in law by the first attainder”), and pardon. In

terms that plainly anticipated the Fifth Amendment’s

language, Blackstone described it as a “universal

maxim of the common law of England, that no man

is to be brought into jeopardy of his life more than

once for the same offence.” 4 Black:tone, Commen-

taries of the Laws of England 335-36 (Sharswood

ed. 1873). As in the time of Coke, the protection

was afforded only if the defendant could legally have

been convicted on the first indictment. 4 Blackstone,

supra, 335 n.5 (Chitty).

In two critical respects, however, the law changed

between the seventeenth and eighteenth centuries. In

1660, the King’s Bench disapproved earlicr cases that

had permitted the crown to seek a new trial after an

acquittal. Rex v. Read, 1 Lev. 9, 83 Eng. Rep. 271

(K.B. 1660). Although the ruling was made over the

l0a

dissent of a well-respected judge, the court stuck to

its position with increasing confidence in later cases.

See, e.g., Rex v. Jackson, 1 Lev. 124, 83 Eng. Rep.

330 (K.B. 1661); Rex v. Fenwick & Holt, 1 Sid. 149,

153, 82 Eng. Rep. 1025, 1027 (1663). See also 21

Viner, A General Abridgement of Law and Equity

478-79 (1793).° By the time of Blackstone, it ap-

pears that although the king was theoretically per-

mitted to bring a writ of error when the error ap-

peared on the face of the record, Friedland, Double

Jeopary 287 (1969), the prosecution could not be

granted < new tria! unless the defendant had obtained

his acquittal by fraud or treachery. See 2 Hawkins,

Pleas of the Crown, ch. 35 48; ch. 47 $12; ch. 50

§$ 10 (6th ed, 1788); 1 Chitty, The Criminal Law 657,

*Sir Matthew Hale contributed to the confusion over

whether the king could have a new trial after an acquittal,

since in his influential treatise he assumed that it was possible.

For gross errors of law in the trial court, Hale commented

that the king could seek reversal by writ of error and then

indict the defendant de novo. He urged that in such a case,

the appellate court should not simply enter a conviction, but

should grant the defendant a new trial, “for possibly he hath

other matter for his defense.” 2 Hale, Pleas of the Crown 247

(Dougherty ed. 1800).

By 1691, however, the court of King’s Bench had apparently

forgotten both Hale’s prescription and its own earlier incon-

stancy, for in Rex v. Davis, 1 Shower 336, 89 Eng. Rep. 609

(K.B. 1691), the reporter wrote that “a new trial was denied,

for that the Court said, there could be no precedent shown for

it in case of acquittal.” By 1776, defense counsel could assert

confidently, “whenever, and by whatever means, there is an

acquittal in a criminal prosecution, the scene is closed and the

curtain drops.” Duchess of Kingston's Case, 20 Howell, State

Trials 355, 528 (1776).

lla

747 (Am. ed. 1836); 4 Stephen, New Commentaries

on the Laws of England 456 (1845 ed.). See also

United States v. Sanges, 144 U.S, 310, 312 (1892).’

During the same period, defendants gradually won

broader rights to appeal from a conviction. Through

the 1660's, the court of King’s Bench refused to grant

defendants the right to a new trial upon proof of

error in the first, Rex v. Lewin, 2 Keble, 396, 84 Eng.

Rep. 248 (K.B. 1663); Rex v. Marchant, 2 Keble

403, 84 Eng. Rep. 253 (K.B. 1663), but in the next

decade the court reversed its stance and decided that

a defendant could have a new trial in at least some

circumstances. Rex v. Latham & Collins, 3 Keble 143,

84 Eng. Rep. 642 (K.B. 1673); Rex v. Cornelius, 3

Keble 525, 84 Eng. Rep. 858 (K.B. 1675). Nonethe-

less, there were still strict limitations on defendants’

appeal rights. Even in the eighteenth century, in

capital cases the defendant’s writ of error could not

be taken without the king’s permission. See Rev v.

Wilkes, 4 Burr, 2527, 2551, 98 Eng. Rep. 327, 340

(K.B. 1770); The Ailsbury Case (Anonymous), 1

Salk, 264, 91 Eng. Rep, 232 (K.B. 1699). Cf. United

States v. Gilbert, 25 F. Cas, 1287 (No. 15,204) (C.

C.D. Mass. 1834 (Story, J.). Chitty noted that the

court could grant a new trial after defendant brought

a writ of error, “Not on the merits, but only for ir-

* Even the exception for fraud and treachery was somewhat

doubtful. The text writers regularly recited the exception as

the preferable rule, but Friedland reports that in only one

case was the exception actually applied to overturn an acquit-

tal. Friedland, Double Jeopardy 286 & n.4 (1969).

l2a

regularity in the proceedings.” 1 Chitty, supra, at

654, In misdemeanor cases the writ of error was dis-

cretionary with the court, but by the end of the eigh-

teenth century, as Stephen observed, a writ of error

could be brought “for notorious mistakes in the judg-

ment or other parts of the record.” He added that if

the defendant won a reversal, “he remains liable to

another prosecution for the same offense; for the first

being erroneous, he never was in jeopardy thereby.”

4 Stephen, New Commentaries on the Laws of Eng-

land 456-58 (1845 ed.).

Although the documentary history of the Double

Jeopardy clause is scanty, the available evidence sug-

gests that the draftsmen of the Bill of Rights intend-

ed to import into the Constitution the common law

protections much as they were described by Black-

stone. Madison’s first version of the clause, which he

introduced in the House of Representatives on June

8, 1789, read: “No person shall be subject, except in

cases of impeachment, to more than one punishment

or one trial for the same offense.” 1 Annals of Con-

gress 434 (1789).° In the course of the debate in the

House over the proposed amendments, Representative

Benson argued against Madison’s language on the

ground that its meaning appeared “rather doubtful.”

Benson presumed that the amendment “was intended

* This language, which rather clearly would have prevented

a government appeal that would require a new trial, may

have stemmed from Maryland’s proposal that in criminal cases

“there be no appeal from matter of fact, or second trial after

acquittal.” 2 B. Schwartz, The Bill of Rights: A Documentary

History 732 (1971).

——

13a

to convey what was formerly the law, that no man’s

life should be more than once put in jeopardy for the

same offense.” Yet it was well known, he insisted,

that a defendant was entitled to more than one trial,

upon reversal of his original conviction. Representa-

tive Sherman agreed, adding that the amendment

as it stood might appear to prevent a defendant from

suing out a writ of error in his own behalf. In de-

fense of Madison’s proposal, Representative Liver-

more stated that the clause was in fact declaratory

of law as it stood, and suggested that making any

changes would risk giving the impression that Con-

gress intended to change the law by implication. 1

Annals of Congress 753 (Aug. 17, 1789).

The Senate rejected Madison’s language in favor of

the more traditional common law expression, employ-

ing the term “jeopardy,” rather than specifying ‘more

than one punishment or one trial.” ° Although the re-

port of the Senate debates is unenlighteningly per-

functory, the Senate’s choice of language that closely

tracked the traditional characterization strongly sug-

gests that the Senate intended to ensure that the

® The Senate’s language may have derived largely from the

proposed amendment offered by the New York Ratifying Con-

vention, which read in part, “That no person ought to be put

twice in jeopardy of Life or Limb for one and the same

offence.” 2 B. Schwartz, supra, at 912.

The language also closely tracked the common law formulation

as it was understood at the time. In 1788, for example, a

Pennsylvania court recited, “by the law it is declared that no

man shall twice be put in jeopardy for the same offense.”

Respublica v. Shaffer, 1 Dall. 236, 237 (Phi!. Oyer & Term.

1788).

l4a

Double Jeopardy clause incorporated the protections

for defendants that the common law had come to pro-

vide—neither more nor less.’ The history may leave

it open to argue that the framers did not regard the

crown’s inability to appeal an acquittal after a trial

on the merits as part of the common law concept of

double jeopardy but rather as an independent princi-

ple, to be followed for a century but not incorporated

in the clause, although the general flavor of the de-

bate, especially the emphasis on the defendant’s right

to a retrial, is somewhat to the contrary. However,

any uncertainty as to the disposition of this case is

resolved, as far as we are concerned, by Supreme

Court decisions, to which we now turn.

ITI.

In its first century, the Double Jeopardy clause

posed relatively few difficulties for the Supreme

‘The case law in the thirteen original states at the time

the Bill of Rights was drafted gives some further insight into

the dimensions of the common law protection the drafters

thought they were building into the Fifth Amendment. The

few reported cases touching on the problem of appeals in

criminal cases generally stated or appeared to assume that the

prosecution could not appeal from an acquittal, even though

the defendant under the proper circumstances could appeal

from his conviction. See Hannaball v. Spalding, 1 Root &6

(Conn. 1789); Coit v. Geer, v Kirby 269 (Conn. 1787); Steel

v. Roach, 1 Bay’s R. 61 (S.C. 1788). Contra, State v. Hadock,

2 Haywood 162 (N.C. 1802), overruled in State v. Jones, 1

Murphy 257 (N.C. 1809). Later cases demonstrate that dur-

ing the nineteenth century, the rule became practically uni-

versal that the state could not appeal from an acquittal. See

United States vy. Sanges, 144 U.S. 310 (1892).

l5a

Court. The problems that did arise, such as reprose-

cution after a mistrial, United States v. Perez, 9

Wheat. (22 U.S.) 579 (1824), multiple punishment

on a single verdict, Ex parte Lange, 85 U.S. (18

Wall.) 163 (1873), and consecutive prosecutions by

different sovereigns for the same conduct, Moore vy.

Illinois, 55 U.S. (14 How.) 18 (1852), were familiar

to the English courts, and in applying the clause the

Supreme Court relied heavily on the common law

analysis.

The problem of government appeals did not reach

the Supreme Court until United States vy. Sanges,

144 U.S. 310 (1892). In that case, the Court care-

fully reviewed the common law authorities in Eng-

land and in many states and concluded that in the

absence of an express enabling statute, the Govern-

ment could not bring an appeal in a criminal case

from any adverse determination below, whether the

decision in the trial court was based on a question of

fact or of law. Although some of the state cases went

on grounds of double jeopardy, the Court neither

adopted nor rejected this ground of decision. Rather

it left open whether and under what circumstances a

federal statute authorizing appeal by the Government

from an acquittal would pass constitutional muster.

Kepner v. United States, 195 U.S. 100 (1905),

squarely presented the question whether a provision

against double jeopardy, there embodied in an act

for the government of the Philippines, 32 Stat. 691,

692 (1902), prevented an appeal by the Government

after an acquittal at trial. Kepner, a Philippine at-

l6a

torney, had been acquitted of the charge of embezzle-

ment after trial to the court. The Government ap-

pealed to the Supreme Court of the Philippines,

pursuant to local custom; that court reversed the

acquittal, found Kepner guilty, and sentenced him.

A sharply divided Supreme Court reversed the con-

viction and held that an acquittal in the trial court

absolutely barred government review by appeal, and

that under the Double Jeopardy clause this would be

true in the United States even if a statute purported

to grant the Governmental appeal rights. Mr. Jus-

tice Day, writing for five Justices, quoted at length

from United States v. Ball, 163 U.S. 662 (1896),

where the Court, refusing to follow Vauz’s Case,

supra, had held that the Government could not bring

a new prosecution after the defendant had been ac-

quitted of the same offense under a defective indict-

ment which he had not challenged. Although the

problem of appeal is obviously distinct from that of

a second prosecution, the Court relied, 195 U.S. at

129-30, on a dictum from Ball saying, 163 U.S. at

671 “The verdict of acquittal was final, and could

not be reviewed, on error or otherwise, without put-

ting [the defendant] twice in jeopardy, and thereby

violating the Constitution.” Mr. Justice Holmes,

joined by two other Justices,” filed a vigorous dis-

" The ninth Justice, also dissenting, apparently would have

agreed with the majority if the case had arisen in a federal

court within the United States but believed that the Act of

Congress was not intended to change the previous Philippine

practice whereby “the jeopardy did not terminate, if appeal

on tht tet a

17a

sent. Relying heavily on the defendant’s right to

secure a new trial on appeal from a conviction, he

argued that “logically and rationally a man cannot

be said to be more than once in jeopardy in the same

cause, however often he may be tried. The jeopardy

is one continuing jeopardy, from its beginning to the

end of the cause.” 195 U.S. at 134.

Two years later, as a result of unrelated develop-

ments, Congress passed the first Criminal Appeals

Act, 34 Stat. 1246 (1907). The new statute allowed

the United States to appeal from a district or circuit

court to the Supreme Court in three categories of

cases :

From a decision or judgment quashing, setting

aside, or sustaining a demurrer to, any indict-

ment, or any count thereof, where such decision

or judgment is based wpen the invalidity, or con-

struction of the statute “pon which the indict-

ment is founded.

From a decision arresting a judgment of con-

viction for insufficiency of the indictment, where

such decision is based upon the invalidity or con-

struction of the statute upon which the indict-

ment is founded,

From the decision or judgment sustaining a

special plea at bar, when the defendant has not

been put in jeopardy.

The first category clearly presented no constitutional

problem since it dealt with cases where a defendant

were taken to the audiencia or Supreme Court, until that body

had acted upon the case.” 195 U.S. at 137.

18a

had not yet been put in jeopardy,” as Mr. Justice

Holmes was quick to point out in United States v.

McDonald, 207 U.S. 120, 127 (1907). The third

category also created no difficulty since it was ex-

pressly limited to cases where “the defendant has not

been put in jeopardy,” see United States v. Sisson,

supra, 399 U.S, at 304-07. The second category did

not offend the principle that a defendant acquitted

by the trier of fact could not be prosecuted again;

it related only to a case where the defendant had been

convicted and the judge later ruled he should not have

been tried at all. The same analysis applies to the

Act of May 9, 1942, 56 Stat. 271, authorizing an

appeal to the courts of appeals from a decision or

judgment “quashing, setting aside, or sustaining a

demurrer or plea in abatement to any indictment or

information, or any count thereof,” or from a de-

cision arresting a judgment of conviction, except, in

either case, where a direct appeal could be taken to

the Supreme Court. Although the 1948 amendment,

62 Stat. 844, altered the wording somewhat, the

courts avoided any potential difficulties by construing

2 The general rule is that jeopardy attaches when the jury

is selected and sworn or, in a bench trial, when the judge

begins to hear evidence. Wade v. Hunter, 336 U.S. 684, 688

(1949); Green v. United States, 355 U.S. 184, 188 (1957);

United States v. Jorn, 400 U.S. 470, 479 (1971); McCarthy

v. Zerbst, 85 F.2d 640, 642 (10 Cir.), cert. denied, 299 U.S.

610 (1936). The conclusion that jeopardy attaches when the

trial commences, Justice Harlan pointed out in United States

v. John, supra, “expresses a judgment that the constitutional

policies underpinning the Fifth Amendment’s guarantee are

implicated at that point in the proceedings.” 400 U.S. at 480.

meters te ve —

19a

the Act, not according to what the revisers had writ-

ten, but according to the interpretation that had been

given the prior statutory language. See United States

v. DiStefano, 464 F.2d 845, 847-48 (2 Cir. 1972);

United States v. Apex Distributing Co., 270 F.2d 747

(9 Cir. 1958). Since the United States could not ap-

peal at all prior to the Criminal Appeals Act of 1907

and since that statute did not permit appeals after

acquittals on the merits, the dearth of federal au-

thority on the problem before us is not surprising.”

‘8 The states have adopted a wide variety of schemes con-

cerning appeals by the prosecution, a few permitting appeal

from an acquittal, some permitting appeal in certain classes

of cases or from certain trial court orders, and some per-

mitting no appeal whatsoever. See Miller, Appecls by the

State in Criminal Cases, 36 Yale L.J. 486 (1927); Mayers

& Yarbrough, Bis Vexari: New Trials and Successive Prose-

cutions, 74: Harv. L. Rev. 1 (1960). Connecticut, Vermont

and Wisconsin have all enacted statutes permitting the state

to appeal from acquittals, Conn. Gen. Stat. Ann. § 54-96

(Supp. 1973); Vt. Stat. Ann. tit. 13 § 7403 (1958); Wis. Stat.

Ann. § 974.05(1)(e) (1971), repealed, 1971 Laws, ch. 298

§ 25. In each case, however, tne state’s appeal has been strictly

limited to errors of law and further cabined by rigid pro-

cedural restrictions. As a result, the state has made sparing

use of its appeal rights in these three jurisdictions, and the

courts have experienced little difficulty in distinguishing find-

ings of fact, which are immune from review, and determina-

tions of law, which can be appealed. See, e.g., State V. Dennis,

150 Conn. 245, 188 A.2d 65 (1963) (erroneous instruction) ;

State v. Ballou, 127 Vt. 1, 238 A.2d 658 (1968) (erroneous

direction of acquittal); State v. Stang Tank Lines, 264 Wis.

570, 59 N.W.2d 800 (1953) (suspension of fine held outside

trial court’s discretion).

Although the Wisconsin constitution contains a double

jeopardy clause, the state supreme court upheld the govern-

ment appeal statute, expressly relying on Justice Holmes’ rea-

20a

The first Supreme Court decision after Kepner

that is of real relevance is Fong Foo v. United States,

389 U.S. 141 (1962). In what promised to be a long

criminal trial, three government witnesses had testi-

fied and a fourth was in the process of doing so when

the district judge directed the jury to return verdicts

of acquittal," and then entered a formal judgment of

acquittal as to all defendarts. The judge acted be-

cause of what he considered a lack of credibility in the

government’s initial witnesses and improper ecnduct

by the prosecutor. Considering the trial court’s ac-

tion to have been a usurpation of judicial power, the

court of appeals issued mandamus requiring that the

judgment of a.quittal be vacated. It held that since

the judge lacked power to direct the acquittal, the

judgment was void and would not support a plea of

autrefois acquit." The Supreme Court reversed in a

brief per curiam opinion, relying on the same dictum

soning in his dissent in Kepner. State v. Witte, 243 Wis. 423,

431, 10 N.W.2d 117, 120 (1943). The Wisconsin provision

was repealed two years ago in recognition of the Supreme

Court's decision in Benton v. Maryland, 395 U.S. 784 (1969),

which held the Double Jeopardy clause binding on the states.

‘The judge announced to the defendants, “You have been

acquitted by direction of the Court and by the Court. Your

bail is terminated. You are free.” In re United States, 286

F.2d 556, 560 (1 Cir. 1961).

‘* Judge Aldrich concurred on the basis that he was certain

that the judge had acted solely because of an erroneous view

of improper prosecutorial conduct; if the judge had directed

acquittal because of his belief, however erroneous, in the lack

of credibility of the government witnesses, Judge Aldrich

wrote, he would not have been guilty of a usurpation of power,

286 F.2d at 565.

£5 ahi ese

hE RS ec I tt CU US ae nS lta,

I kn a A

2la

from Ball that had formed the basis of Kepner. The

Court said, 369 U.S. 141, 143 (1962):

The petitioners were tried under a valid indict-

ment in a federal court which had jurisdiction

over them and over the subject matter. The trial

did not terminate prior to the entry of judg-

ment .... It terminated with the entry of a

final judgment of acquittal as to each petitioner.

The Court of Appeals thought, not without rea-

son, that the acquittal was based upon an egre-

giously erroneous foundation. Nevertheless,

“(t]he verdict of accuittal was final, and could

not be reviewed . . . without putting [the peti-

tioners] twice in jeopardy, and thereby violating

the Constitution.”

The only later Supreme Court decision directly

relevant to our problem is United States v. Sisson, 399

U.S. 267 (1970). Sisson, like Jenkins, had been

charged in a standard indictment with violating 50

U.S.C. App. § 464(a) by failing to obey an order to

submit to induction. After the judge had denied var-

ious motions to dismiss the indictment, the case went

to a rather confused trial. Although Sisson offered

some testimony that might be deemed relevant to a

claim of conscientious objection, 399 U.S, at 274-75,

the case was submitted to the jury on the issue

whether Sisson’s refusal to submit to induction was

wilful. The jury brought in a guilty verdict. The

defendant thereupon moved to arrest the judgment,

F.R.Cr.P. 34, on the ground that because of the al-

leged illegality of the Vietnam war, the court lacked

jurisdiction. Not passing on this claim, the court pur-

22a

ported to “arrest judgment” on the ground that Sis-

son had satisfied the court that he had genuine moral

objections to combat service in Vietnam and that to

compel him to render such service would violate the

Free Exercise provision of the First Amendment and

the Due Process Clause of the Fifth. The court ruled

also that § 6(j) of the Selective Service Act, 50 U.S.C.

App. § 456(j), violated the Establishment Clause.”

In an opinion by Mr. Justice Harlan, the Supreme

Court dismissed the Government’s appeal for want of

jurisdiction.

Much of Justice Harlan’s opinion was devoted to

demonstrating that, despite its language, the district

court’s order was not in fact one “arresting a judg-

ment of conviction for insufficiency of the indictment

or information where such decision is based upon the

invalidity or construction of the statute upon which

the indictment or information is founded,” the lan-

guage of § 3731 at that time. This conclusion rested

on two bases: (1) “that a judgment can be arrested

only on the basis of error appearing on the ‘face of

the record,’ and not on the basis of proof offered at

trial,” 399 U.S. at 281; and (2) that the court’s ad-

verse decision was not for insufficiency of the indict-

ment, 399 U.S. at 287-88. If the opinion had stopped

there, it would have little bearing on the instant case.

But it did not, and for an important reason—the

portion of the opinion up to that point had the assent

of only four members of the Court.

‘6 The district court’s views were later held to be erroneous,

Gillette v. United States, 401 U.S. 437 (1971).

—

23a

There followed slightly over two pages in which

alone Justice Harlan wrote for a majority, 399 U.S.

at 288-90. These began by saying:

The same reason underlying our conclusion

that this was not a decision arresting judgment

—i.e., that the disposition is bottomed on factual

conclusions not found in the indictment but in-

stead made on the basis of evidence adduced at

the trial—convinces us that the decision was in

fact an acquittal rendered by the trial court after

the jury’s verdict of guilty.

The Justice then propounded a hypothetical case simi-

lar to Sisson except that the trial judge instructed the

jury to acquit if they made the same factual findings

that the court in Sisson had reached in its post-trial

opinion. If the jury had then acquitted, Justice Har-

lan wrote, there could be “no doubt that its verdict

of acquittal could not be appealed under § 3731 no

matter how erroneous the constitutional theory under-

lying the instructions,” 399 U.S. at 289 (emphasis

in original). This was followed by a quotation from

the remarks of Senator Knox concerning the bill that

was to become the Criminal Appeals Act, 41 Cong.

Rec. 2752, saying, inter alia:

The Government takes the risks of all the mis-

takes of its prosecuting officers and of the trial

judge in the trial, and it is only proposed to give

it an appeal upon questions of law raised by the

defendant to defeat the trial and if it defeats the

trial. (Emphasis in original).

24a

It would still be arguable that all this was directed to

the issue of construction of the Criminal Appeals Act.

But the Justice then said:

Quite apart from the statute, it is, of course,

well settled that an acquittal can “not be re-

viewed, on error or otherwise, without putting

{the defendant] twice in jeopardy, and thereby

violating the Constitution, ... [I]n this country

a verdict of acquittal, although not followed by

any judgment, is a bar to a subsequent prosecu-

tion for the same offense,” United States v. Ball,

163 U.S. 662, 671 (1896).

In a footnote to that passage, Justice Harlan added:

“This principle would dictate that after this juris-

dictional dismissal, Sisson may not be retried.” Id.

at 289-90 & n. 18. The passage quoted from Ball

was the very one that Mr. Justice Day had cited in

Kepner for the proposition that the Double Jeopardy

clause prohibited an appeal by the Government after

acquittal in a criminal case and that the Court had

again relied on in Fong Foo.

The Justice then disposed of three differences be-

tween his hypothetical and the Sisson case. Two of

these are relevant here. It made no difference that

“in this case it was the judge—not the jury—who

made the factual determinations,” since “judges, like

juries, can acquit defendants,” 399 U.S. at 290. It

was likewise inconsequential that the judge had la-

beled his characterization an arrest of judgment rath-

er than 2 post-verdict acquittal ; what was important

was what the judge did, not what he said.

Oe ee a ee ae

25a

_ These pages of the Sisson opinion seem to us to be

dispositive of the instant case. In essence the judge’s

post-trial ruling in Sisson had made the jury trial

a nullity and had resulted in a trial to the judge

who had rendered a judgment of acquittal on the

merits. Even though this action was based on an er-

roneous legal ground, the Double Jeopardy clause

prevented a new trial.'’ Indeed, we have already in-

terpreted Fong Foo and Sisson to mean precisely this

United States v. Weinstein, 452 F.2d 704, 709 (2

Cir. 1971), cert. denied, 406 U.S, 917 (1972)."

Although the district judge here characterized his

action as a dismissal, it is clear from the analysis in

Sisson that for double jeopardy purposes he acquitted

"We see nothing in Justice Harlan’s treatm }

States v. Covington, 395 U.S. 57 (1969), in el pee

56 of his opinion, to alter this conclusion. The decisive dis-

tinction was that in Covington the district court had dis-

missed an indictment before trial for insufficiency, without

an evidentiary hearing or any need for one. The same was

true in United States v. Boston & Maine R.R., 380 U.S. 157

(1965), upon which the dissent relies. See also United States

> aca cy (3 Cir. Aug. 31, 1973), slip op. at

; Unite ates V. Martin Linen § vo. 72-2 i

Oct. 9, 1973), slip op. at 9. ee eee ee

= We are unable to understand what comfort the Govern-

ment derives from that decision, where we vacated an order

dismissing an indictment subsequent to a judgment of con-

viction as beyond the juage’s power. Distinguishing Fong Foo

we said, 452 F.2d at 711 n.10: j

There is no similar problem her.. Vacating the order

dismissing the indictment would simply leave the judg-

ment of conviction unimpaired, subject to whatever

remedies Grunberger may have with respect to it.

Jenkins has been acquitted, even if erroneously so.

26a

the defendant. His ruling was based on facts de-

veloped at trial, which were not apparent on the face

of the indictment, and which went to the general issue

o° the ease. The dissent here contends that the dis-

trict court’s findings of fact were largely undisputed

and not relevant to the pivotal legal issue in question.

However, the discussion section of the district court’s

opinion makes it clear that it was relying oi the

precise circumstances of Jenkins’ case to conclude

that the Supreme Court’s decision in Ehlert should

not be applied retroactively to him. The district court

was not construing the statute, which had been au-

thoritatively interpreted in Ehlert, and holding that

Jenkins did not come within it as a matter of law.

It was holding that the statute should not be applied

to him as a matter of fact.

Other courts of appeals have followed a similar

course of inquiry in determining whether a trial

court’s ruling should be deemed an acquittal. In

United States v. McFadden, 462 F.2d 484 (9 Cir.

1972), the court considered a limited conscientious ob-

jection claim very similar to the one at issue in Sisson.

Finding that the trial court had dismissed the indict-

ment on the basis of evidence introduced at the trial,

the Ninth Cireuit held that the court had acquitted

the defendant, and that he could not be retried. By

contrast, the Seventh Circuit recently rejected a claim

that an arrest of judgment constituted an acquittal.

United States v. Esposito, No. 71 CR 980 (7 Cir.

June 12, 1973), petition for cert. filed, 42 U.S.L.W.

3137 (Sept. 6, 1973). The trial court in Esposito

mci IAM LANCER Ss. oll WORT B Shi ns Das ad

27a

had held that the offense of illegal possession and dis-

tribution of cocaine was “not one which Congress

has power to prohibit in the manner attempted by

21 U.S.C. § 841.” On appeal, the court held that the

trial judge’s decision had not been based on facts

adduced at trial, but solely on his opinion that the

statute was unconstitutional. The court wrote, slip

opinion page 4, that

it is clear from the order that the court concluded

that the fatal defect in the prosecution lay in the

indictment’s failure to state and the statute’s

failure to require a nexus with interstate com-

merce which would justify federal regulation.

The fact that the prosecution failed to prove

such a connection though alluded to in the order,

was of no significance to the actual basis for

the decision.”

** We have no occasion to consider the correctness of deci-

sions that have extended this analysis to pre-trial rulings. In

United States v. Ponto, 454 F.2d 657 (7 Cir. 1971) (en banc),

a sharply divided court held that the Government could not

appeal from a pre-trial dismissal granted because the judge

felt that the circumstances of the case required that the de-

fendant’s selective service classification should have heen re-

opened. See also United States v. MceCreery, 473 F.2d 1381

(7 Cir. 1973); United States v. Southern Ry., No. 72-1794

(4 Cir. Oct. 15, 1973). Similarly, in United States v. Roth-

felder, 474 F.2d 606 (6 Cir.), cert. denied, 41 U.S.L.W. 3673

(U.S. June 25, 1973), the court held that the Government

could not appeal from a pre-trial order dismissing an indict-

ment when the trial court had made its ruling on the basis

of information in the defendant's selective service file rather

than simply on the basis of the sufficiency of the indictment.

See also United States v. Hill, 473 F.2d 759, 761 (9 Cir.

1972) (court’s pre-trial determination that materials were

28a

The Government argues that a reversal here would

not require Jenkins to undergo the burden of a second

trial, since the judge would simply be directed to

alter his erroneous conclusions of law with respect

to the non-retroactivity of Ehlert v. United States,

402 U.S, 99 (1971), in light of our decision in United

States v. Mercado, 478 F.2d 1108 (2 Cir. 1973), and

Jenkins’ only vexation would lie in being convicted

rather than acquitted. We are not certain the matter

is quite that simple since in Mercado we recognized

the possibility of a successful defense by “a regis-

trant who in fact reasonably relied in good faith

on the case law or upon the knowledge that local

boards in this circuit would consider a belated con-

scientious objection claim,” 478 F.2d at 1111. But

apart from that, the absence of need for a second

trial would not distinguish Sisson. As Mr. Justice

White pointed out in dissent, a reversal there on the

basis that the trial judge’s legal theory was incor-

rect would simply have meant that “the jury’s ver-

dict of guilty—with judgment no longer ‘arrested’—

simply remains in effect.” 399 U.S. at 329. Further-

more, although what we must decide is the case be-

fore us, the Government has sought a ruling limited

to bench trials where an acquittal plea can be traced

to a demonstrable error of law and no further evi-

dentiary hearing is needed. It asserts that the amend-

ed Criminal Appeals Act entitles it to appeal every

acquittal which can be demonstrated to be the result

not obscene amounts to a ruling that the defendants were not

guilty and thus barred appeal).

SAS DR ieetetilttin ib. aerlet a at ste BS

Win. Sse

29a

of an error of law by the judge. Boldly facing up to

its problems, the Government contends that the Double

Jeopardy clause should be read to permit a retrial

even on an erroneous instruction, a position Justice

Harlan rejected out-of-hand in Sisson, 399 U.S. at

289. We think that, so long as Kepner and Sisson

stand, the clause forbids a retrial] whenever the trier

of the facts has rendered a legal determination of

innocence “‘on the basis of facts adduced at the trial

relatin. tc the general issue of the case.” 399 U.S.

at 290 n.19.

The short of the matter is this: Kepner held that

an acquittal on the general issue barred an appellate

court from entering a judgment of conviction on ap-

peal. Since under Philippine practice no further pro-

ceedings were required below, the decision belies any

view that the Double Jeopardy clause protects only

against the vexation of a second trial. Fong Foo

held that a directed acquittal barred a retrial even

when it was plain that the acquittal was occasioned

by clear error of the judge. Sisson held that when

a guilty verdict had been nullified by a judge’s deci-

sion to acquit on the merits, the Double Jeopardy

clause prevented an appellate court from directing

the entry of a judgment of conviction. We cannot see

how in the circumstances here presented the Govern-

ment can thread a way through this thicket so long as

these decisions stand.”

20 Reexamination of the dictum in Ball that underlay Kep-

ner, Fong Foo and Sisson may well be desirable, particularly

now that the Double Jeopardy clause has "een extended to the

30a

We add a final word to make clear what we have

not decided. We are not dealing with appeals by the

Government before jeopardy has attached, see fn. 12,

as in United States v. Crutch, 461 F.2d 1200 (2 Cir.),

cert. denied, 409 U.S. 883 (1972); United States v.

Castellanos, 478 F.2d 749 (2d Cir. 1973) ; and United

States v. Goldstein, 479 F.2d 1061 (2 Cir. 1973).

We likewise are not dealing with cases where a trial

is aborted after jeopardy has attached but before a

conclusion of innocence or guilt, of which Jllinois v.

Somerville, 410 U.S. 458 (1973), is the latest in a

long line of Supreme Court decisions reaching back

to United States v. Perez, 9 Wheat. (22 U.S.) 519

(1824). Finally, we are not dealing with a case,

such as that cited in the Senate Report, supra, at

12, where the defense postponed until after the swear-

ing of a jury a motion to dismiss an indictment

which could as well have been made before, or with

the problem presented by the decisions cited in foot-

note 19. We hold that when a defendant has been

states. Benton v. Maryland, 395 U.S. 784 (1969). Mr. Justice

Cardozo, writing for an 8-man majority in Palio V. m4

necticut, 302 U.S. 319, 323 (1937), remarked “how —

was to be said” for the Kepner dissent. See also Mayers an

Yarbrough, Bis Vexari: New Trials and Successive a

tions, 74 Harv. L. Rev. 1, 8-15 (1960); Miller, Appeals by t “

State in Criminal Cases, 36 Yale L.J. 486 (1927). Any —

reexamination would also have to take account of the ae

of implied acquittal developed in Green V. teenage <8 35

U.S. 184 (1957), and United States ex rel. Hetenyt V. Wil a

348 F.2d 844 (2 Cir. 1965) (Marshall, J.), cert. denied, 3

U.S. 918 (1966). But this is far beyond our power as an

inferior court.

ae:

a6 $m it

8la

acquitted after trial on the merits, the Government

cannot appeal from the judgment, even for an al-

legedly demonstrable error of law by the judge, so

long as the Supreme Court adheres to the dictum in

Ball and the decisions in Kepner and Sisson.

The appeal is dismissed for lack of jurisdiction on

the ground that the Double Jeopardy clause prohibits

further prosecution.

LUMBARD, Circuit Judge (dissenting) :

After a trial before Judge Travia without a jury

in the Eastern District of New York, the indictment

charging Ronald Jenkins with violating 50 U.S.C.

App. § 462(a) for failure to comply with an order

to submit to induction into the armed forces was dis-

missed. In dismissing the indictment and discharg-

ing the defendant, Judge Travia concluded that the

law had not been violated-since Jenkins was not re-

quired to report for induction while his post-induc-

tion notice request for reclassification as a conscien-

tious objector was still pending. On appeal, the gov-

ernment argued that Judge Travia’s interpretation

of the controlling law was clearly erroneous. With-

out actually deciding this issue, the majority of this

panel now holds that the government has no right to

appeal, since to permit it to do so would be to put the

defendant in double jeopardy.

For two reasons, I am unable to join the majority

in concluding that the government’s appeal is barred

in the present case by the Double Jeopardy Clause.

32a

First, I believe that Judge Travia’s decision was pre-

cisely what he termed it, a dismissal of the indict-

ment, an order from which a government appeal is

not barred, when, as here, the dismissal is based on

a construction of the statute upon which the indict-

ment is founded. 18 U.S.C. § 3731.’ Second, it is

my firm belief that the majority’s inflexible applica-

tion of the Double Jeopardy Clause unnecessarily

frustrates the fair administration of criminal justice.

With regard to the first of these points, it is, of

course, true, that Judge Travia’s characterization of

his decision as a dismissal of an indictment does not

conclusively make it that for purposes of determining

the government’s right to appeal.’ If his decision

118 U.S.C. § 3731 provides that:

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or in-

formation as to any one or more counts, except that no

appeal shall lie where the double jeopardy clause of the

United States Constitution prohibits further prosecution.

The present version of § 3731, except for eliminating the

government's right to appeal directly to the Supreme Court

from the decision of a district court, in all other respects

leaves intact the right to appeal which the government had

under the former version of the statute. See p. 700 supra.

Under that former version the government could appeal from

a decision dismissing an indictment “where such decision

is based upon the invalidity or construction of the statute

upon which the indictment or information is founded.”

2 As United States v. Sisson, 399 U.S. 267, 280 (1970),

makes clear, the appellate court must look behind the label

used by the trial judge to determine the true nature of his

decision.

a. Kw

33a

should more accurately have been described as an

quittal, then the Double Jeopardy Clause would .

hibit this appeal. On the other hand, if Judge Tra.

via’s characterization is proper, then there is no ob.

stacle to further government prosecution of this case.’

: In determining the underlying identity of the trial

judge’s decision, we should first consider United

States v. Sisson, 399 U.S. 267 (1970). That case

also involved a refusal to submit to induction on the

basis of a claim for conscientious objector status

After a trial and a jury verdict of guilty District

Judge Wyzanski stated that the indictment against

Sisson failed to “charge an offense.” Based on the

evidence adduced at trial, and in particular, the de-

meanor of the defendant, the judge concluded that

Sisson was a “sincerely conscientious man” and that

because of his genuine interest in not killing, the

Free Exercise and Due Process Clauses prohibited

— of the 1967 draft act to him. Accordingly

oo the defendant’s motion for an arrest of

Appealing directly to the Supreme Court,‘ the gov-

ernment claimed that the Court had jurisdiction un-

a. a distinction in treatment of acquittals

issals of indictments arises from the f i

ie ) ts act that <z 5.

a — the invalidity or construction of the oo

thie e indictment was founded w j

have placed the defendant in j ae econ

lacec endant in jeopardy, since it was

determination on the merits of the case, M. Friedland. oe le

Jeopardy 63 & 63 n.1 (1969). arene

| ' eee 18 U.S.C. § 3731, under which the appeal in Sisson

was brought, permitted a direct appeal to the Supreme Court

34a

der the “arresting judgment” provision of the Crim-

inal Appeals Act, 18 U.S.C. § 3731. The Supreme

Court, however, refused to hear the appeal, main-

taining that the district judge’s decision, although

designated by him an “arrest of judgment,” was, in

fact, an acquittal, which was unappealable by the

government under § 3731. In addition the Court rea-

soned that being an acquittal, the appeal by the gov-

ernment was further barred by the Double Jeopardy

Clause.

In concluding that Judge Wyzanski’s decision had

not been an arrest of judgment, but rather an ac-

quittal, the Court emphasized that the disposition of

the case had been “bottomed on factual conclusions

not found in the indictment but instead made on the

basis of evidence adduced at the trial,” especially the

demeanor of the defendant. The Court made clear,

however, that had the district judge granted the mo-

tion instead “on the face of the record,” that is, on

the basis that the indictment failed to charge any

violation of the law, the ruling could have been re-

garded as an arrest of judgment and the government

by the government from a decision arresting a judgment of

conviction as well as one dismissing an indictment, “where

such decision is based upon the invalidity or construction of

the statute upon which the indictment or information is

founded.” The present version of § 3731, under which the

government seeks to appeal in Jenkins no longer permits

direct appeal to the Supreme Court from the district court’s

decision. However, as has been noted, in all other respects

it leaves intact the government right to appeal. See p. 700

supra.

o ewer ee

35a

would have been permitted to appeal. See, e.g., United

States v. Bramblett, 348 U.S. 503 (1955).

Just as a genuine arrest of judgment would have

permitted a government appeal in Sisson, under

§ 3731, so, too, that statute would have allowed an

appeal from a genuine dismissal of an indictment

But as Sisson makes clear, before an appellate enue

may exercise jurisdiction, it must inquire into the

real nature of the trial judge’s action to make cer-

tain that it is not an acquittal barring appeal. Thus

the crucial consideration in this inquiry is whether

the Judge's decision was on the merits, that is, did

it hinge on the facts adduced at trial or vather was

it made independently “on the face of the record.”

In Sisson, Judge Wyzanski clearly relied upon the

evidence at trial, and, in particular, on the demeanor

of the defendant. In granting an arrest of judg-

ment, he first made a finding on the factual issue of

Sisson’s sincerity as a conscientious objector.

Judge Travia’s dismissal of the indictment against

Jenkins, on the other hand, was essentially a legal

determination construing the statute on which the

indictment was based. 50 U.S.C. App. § 462(a).° In

P * Specifically, Judge Travia was of the view that 50 U.S.C

roe making <A. crime to fail to comply with on

order, was qualified by 32 25 rhi

er Pre ; C.F.R. § 1625.2, which

a local beard may reopen and consider anew the

classification of a registrant (a) upon the written re-

quest of the registrant, the government appeal agent any

person who claims to be a dependent of the registrant or

any person who has on file a written request for the eur-

36a

contrast to Judge Wyzanski, Judge Travia was not

required to resolve any factual issues in order to

reach his decision. It is true that the judge did make

nine findings of fact. But of these, six had no bear-

ing whatever on the pivotal legal issue, whether or

not the pertinent statute required an individual to

report for induction if his post-induction notice re-

rent deferment of the registrant in a case involving

occupational deferment, if such request is accompanied

by information presenting facts not considered when

the registrant was classified, which, if true, would justify

a change in the registrant’s classification; or (b) upon

its own motion if such action is based upon facts not

considered when the registrant was classified which, if

true, would justify a change in the registrant’s classifi-

cation; provided, in either event, the classification of a

registrant shall not be reopened after the local board has

mailed to such registrant an Order to Report for Induc-

tion (SSS Form No. 252) or an Order to Report for

Civilian Work and Statement of Employer (SSS Form

No. 153) unless the local board first specifically finds

there has been a change in the registrant’s status result-

ing from circumstances over which the registrant had

no control.

In Judge Travia’s view, this provision relieved an individual

who had received his notice from reporting for induction so

long as his request for reclassification was pending. This

view was in conflict with the law in the Second Circuit at the

time. United States v. Mercado, 478 F.2d 1108 (1973), the

weight of authority in the other circuits, e.g. Ehlert v. United

States, 422 F.2d 332 (9th Cir. 1970), Davis Vv. United States,

874 F.2d 1 (5th Cir. 1967), United States V. Al-Majied Mu-

hammed, 364 F.2d 223 (4th Cir. 1966), United States V.

Taylor, 351 F.2d 228 (6th Cir. 1965), and the position adopted

by the Supreme Court after the date Jenkins was to report for

induction, but before Judge Travia’s decision. United States V.

Ehlert, 402 U.S. 99 (1971).

37a

quest for conscientious objector status was still pend-

ing. Indeed, these six findings were undisputed. In

any event, as the Sisson Court noted in discussing

United States v. Halseth, 342 U.S. 277 (1952), even

where the parties go so far as to stipulate facts not

contained in the indictment for purposes of a motion

to dismiss, an appeal will lie so long as “the facts in

the stipulation were irrelevant to the legal issue.”

399 U.S. at 285.

The other three findings of fact simply established

that the defendant requested and returned the ap-

propriate form for claiming consicentious objector

status. While these findings bear some relation to

the trial judge’s ultimate conclusion of law—that

Jenkins need not have reported for induction during

the pendency of his request for reclassification—they

hardly represent the sort of foundation for the deci-

sion that the findings in Sisson did. At no time, for

example, was the court called upon to resolve a fac-

tual issue regarding whether the application for re-

classification by Jenkins had actually been filed. To

be sure, the government at the time of the return of

the indictment was fully aware of this request for

reclassification, having had access to his selective

service file. The government could easily have made

mention of that claim for conscientious objector status

in the indictment. Had that been done, there would

be no doubt but that Judge Travia’s decision would

have been “on the face of the record” and thus a

genuine dismissal of the indictment rather than an

acquittal on the merits.

38a

We do serious harm to the fair administration of

criminal justice when we belabor technical require-

ments to the point where inclusion or omission of

three innocuous, uncontested statements in the indict-

ment ultimately determine whether the government

may appeal from the trial judge’s decision in a crim-

inal case. We would also be penalizing the govern-

ment for following a well-established and until now

unquestioned rule that indictments need not state the

entire factual background of a case, but may simply

track the language of the statute allegedly violated

and, in addition, do little more than state time =

place in approximate terms. See F.R.Cr.P. 7c);

United States v. Fortunato, 402 F.2d 79, 82 (2d Cir.

1968), cert. denied, 394 U.S. 933 (1969).

The Supreme Court's decision in United States v.

Boston & Maine R.R. Co., 380 U.S. 1 (1965), of-

fers substantial support for these views. That case

involved an appeal by the government from a dis-

missal of one count of an indictment charging a vio-

lation of $10 of the Clayton Act, which prohibits

any commercial dealings by a common carrier In an

amount greater than $50,000 with another enterprise

in which officers of the carrier have “any substantial

interest.” Count I of the indictment had charged

that the Boston & Maine R.R. and three of its officers

had violated $10 by arranging a sale of railroad

equipment valued in excess of $50,000 to the Inter-

national Railway Equipment Corp., in which the

officers had a “substantial interest.”

39a

The trial judge recognized that the indictment it-

self was sufficient to withstand the defendants’ mo-

tion to dismiss. But based on information presented

in the bill of particulars, he granted the motion. The

bill of particulars had described the “substantial in-

terest” cited in the indictment as consisting of an

agreement among the defendants to use their efforts

to produce profits for International Railway and that

they would then get a share of these profits. On the

basis of this description, the court found no violation

of § 10 since “substantial interest” within the mean-

ing of the statute was “limited to one who has a then

present legal interest in the buying corporation .. .”

The government appealed directly to the Supreme

Court under § 3731 and the Court, without expressing

any reservations as to its jurisdiction, reviewed the

case, ultimately vacating the trial judge’s decision

and remanding for further consideration.

Just as in Boston & Maine R.R. the indictment here

charged a criminal offense; yet, on the basis of cer-

tain undisputed facts not contained in the indict-

ment, the trial judge construed the underlying statute

as not applicable to the particular case. In light of

this substantial similarity between the cases, Boston

& Maine R.R. offers strong support for permitting

an appeal in the present case.*

* It is, of course, true that in Boston & Maine R.R. the appeal

was brought under the former version of § 3731, while the

appeal in the present case has been raised under the amended

§ 3731. Nevertheless, as the majority opinion correctly sug-

gests, the amendments to § 3731 were in no way intended to

40a

But entirely apart from the question whether Judge

Travia’s decision was a dismissal of an indictment or

an acquittal, I believe there is still another reason for

permitting the government to appeal in this case.

Simply stated, it is my view that the Double Jeop-

ardy Clause is not an abstract rule, but one that

should be adapted and applied in light of the totality

of circumstances of each particular case. As Judge

Friendly’s thoroughgoing history of the Clause re-

veals, its evolution has been clouded with contradic-

tions, inconsistencies, and uncertainties. It would be

a serious mistake slavishly to adhere to a rigid ap-

plication of this fifth amendment protection. An un-

alterable rule that the Double Jeopardy Clause bars

all government appeals from acquittals, fails to

weigh against the individual’s very proper interest

in not experiencing the anxiety, expense, and harass-

ment that a second trial brings, the equally consider-

able interest of society in the fair, just, and sensible

administration of criminal justice.’ Only last term,

the Supreme Court in Jllinois v. Somerville, 410 U.S.

458 (1973), rejected the notion that technical errors

restrict the government's right to appeal. Thus, if an appeal

could have been brought under the prior § 3731, it may be

brought under the amended version of the statute. See p. 700

supra.

*For quite some time, legal commentators have urged a

more flexible analysis in determining whether the Double

Jeopardy Clause is applicable to the circumstances of a par-

ticular case. See generally Mayers & Yarbrough, Bix Vexari:

New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1

(1960); Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965).

4la

resulting in a mistrial should bar reprosecution. In

oom cases, the “ends of public justice” demand that

the purpose of law, to protect society from those

guilty of crimes [not] be frustrated by denying courts

oe put the defendant to trial again.” 410 U.S.

I believe that the “ends of public justice” will not

be served if we permit a defendant who is clearly

guilty to go free because of the trial judge’s erroneous

interpretation of the controlling law. That Jenkins

is guilty would appear to be indisputable in light of

our decision in United States v. Mercado, 478 F.2d

1108 (1973), in which we held without reservation

that even prior to United States v. Ehlert.* the law

of this circuit was that an individual had to report

for induction although his post-induction notice claim

for conscientious objector status was stil] pending.

Accordingly, I would vacate the order of the court

mg and remand for a proper application of the

* 402 US. 99 (1971). In Ehlert, the Supreme Court held

that an individual must comply with an induction notice even

though his post-induction notice request for reclassification

as a conscientious objector has not yet been decided. The

a ser haga had crystallized between notice and

ction, wou i i i i

pray ge entitled to a prompt in-service determina-

42a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 71-CR-1315

UNITED STATES OF AMERICA

-against-

RONALD S, JENKINS

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

October 24, 1972

APPEARANCES:

RopertT A. Morse, Esa.

United States Attorney

225 Cadman Plaza East

Brooklyn, New York 11201

PAUL WARBURGH, ESQ.

Assistant United States Attorney

225 Cadman Plaza East

Brooklyn, New York 11201

JAMES S. CARROLL, ESQ.

Attorney for Defendant

35 West 125th Street

New York, New York 10027

TRAVIA, D. J.

This action having come on to be heard before this

court on the 3rd day of October, 1972, and the de-

43a

fendant having, by duly executed stipulation approved

by this court, waived a trial by jury, {Court Exh.

+1], and the evidence of the parties having been ad-

duced, and the attorneys for the parties having sub-

mitted their pretrial and post trial memoranda and

upon al] the papers on file in this action, and after

due deliberation this court hereby makes the follow-

ing findings of fact and conclusions of law:

FINDINGS OF FACT

1. The defendant, RONALD S. JENKINS, is

charged in a one count indictment with violation of

50 U.S.C, App. ‘ 462(a), for failure to comply with

an induction order to report and submit to induction

into the Armed Forces.

2. Defendant registered with Local Board No. 50,

Brooklyn, New York, on September 23, 1°66.

3. On October 19, 1966, the defendant was placed

in Class 2-S by the Local Board and such classifica-

tion remained on an annual basis until November 18,

1970, when he was placed in Class 1-A by the said

Local Board No. 50.

4. On January 20, 1971, the defendant was given

a pre-induction physical at the Armed Forces Exam-

ination and Entrance Station, and was found to be

medically qualified for induction.

5. On February 4, 1971, the Local Board mailed

to defendant an SSS Form 252, an Order to Report

for Induction on February 24, 1971.

6. On February 17, 1971, after receiving his in-

duction notice, the defendant wrote to the Local Board

44a

and requested SSS Form 150 for a conscientious ob-

jector classification.

7. On February 23, 1971, the defendant went in

person to the Local Board and requested Form 150.

He was advised to write a short statement as to his

beliefs, which he did, and he was told to report for

induction on the next day because his request for a

postponement of his induction had been denied.

8. The defendant did not report for induction on

February 24, 1971.

9. The defendant’s SSS Form 150 was received by

the Local Board on March 30, 1971.

DISCUSSION

The essence of the defendant’s defense is that at

the time of his alleged commission of the crime, viz.,

his refusal to submit to induction, the law of the

Second Circuit was such that he was entitled to a

postponement of his induction to enable the Board to

pass on the merits of his claim for C.O, status.

Defendant contends that the failure of the Board to

grant such a postponement and hearing was clearly

a “lawless” act under the circumstances.’

1 32 C.F.R. § 1625.2 reads in pertinent part:

“The local board may reopen and consider anew the

classification of a registrant (a) upon the written re-

quest of the registrant... provided, . . . the classification

of a registrant shall not be reopened after the local board

has mailed to such registrant an Order to Report for

Induction . . . unless the local board frst specifically finds

there has been a change in the registrant’s status result-

ing from circumstances over which the registrant had no

control.”

45a

In the case at bar, the defendant went to the Lo-

cal Board and requested a Form 150 on February

23, 1971. At that time, he was asked to write a

short note which not only requested the Form 150

but which also set out the basis for his claim. This

court is of the opinion that this written note ful-

filled the requirement of 32 C.F.R. § 1625.2, so that

the “Board may reopen the classification.”

At the time the defendant JENKINS was to be in-

ducted into the Armed Forces, the opinion in the

case of United States v. Geary* had construed the

meaning of § 1625.2 for the court, The defendant in

that case had similarly requested conscientious ob-

jector status after he had received his order to re-

port for induction. He was convicted in the Federal

District Court after refusing to take the symbolic

step forward, but the United States Court of Appeals

Second Circuit, vacated the judgment of conviction

and remanded the case to the District Court for

further action.

In Geary, the court did not hesitate to squarely

face the issue of whether a person could be classified

as a conscientious objector by the board if his views

crystallized after he had received his induction no-

tice. The court concluded:

“The long history of exempting conscientious

objectors, coupled with the specific statutory right

of appeal, indicate to us a strong Congressional

policy to afford meticulous procedural protec.

tions to applicants who claim to be conscientious

*368 F.2d 144 (2d Cir. 1966).

46a

objectors, and indeed to grant deferments in ap-

propriate cases. Implementation of that policy

requires that any individual who raises his con-

scientious objector claim promptly after it ma-

tures—even if this occurs after an induction no-

tice is sent but before actual induction—be en-

titled to have his application considered by the

Local Board. In light of this, the Local Board

must first determine when an applicant's beliefs

matured. If the Board properly concludes that

the claim existed before the notice was sent, the

classification may not be reopened, If the Board

finds, however, that the applicant’s beliefs rip-

ened only after he received his notice, and that

his beliefs qualify him for classification as a con-

scientious objector then a change in status would

have occurred ‘resulting from circumstances over

which the registrant had no control,’ and he would

be entitled to be reclassified by the Local Board.” *

(Emphasis added. )

It is clear that in the instant case, the defendant

JENKINS raised his claim during the period when

Geary was controlling in this circuit... However, the

‘Id. at 150. Other circuits had reached an opposite con-

clusion. See e.g., Ehlert v. United States, 422 F.2d 332 (9th

Cir. 1970); United States v. AL-Majied Muhammad, 364 F.2d

293 (Ath Cir. 1966); Davis V. United States, 374 F.2d 1 (5th

Cir. 1967); United States v. Taylor, 351 F.2d 228 (6th Cir.

1965).

‘Geary was decided on October 21, 1966 and remained

in effect until the Supreme Court’s decision in the Ehlert

case, which decision was handed down April 21, 1971. The

facts in this case clearly indicate that Jenkins comes within

the “pre-Ehlert” period.

47a

local board did not consider Jenkins’ claim. as pro-

vided for under Geary, and he was denied a ha

ponement of his scheduled induction. The defendant

JENKINS did not report for induction on Februa

24, 1971, and it is for that reason that he is nied

this court under indictment.

The defendant urges that the “lawless” action of

the Board, in not considering his claim, should not be

a basis for penalizing him, for he had been “acting

consistently with applicable decisional law.” The Gov-

ernment, in their original memorandum, maintained

that the case of United States v. Ehlert, 402 U.S. 99

(1971), is retroactive, and “the local board need not

consider post-induction conscientious objector claims.”

More recently, the Government in an effort to sup-

plement their original argument of retroactivity, con-

tends that the ruling in Geary was clearly erroneous

and as such the local boards were not obligated to

follow its mandates, Such a ruling has not been made

in the Second Circuit.

This court is aware that from April 21, 1971, the

day Ehlert was decided, the Local Selective Service

Boards do not have to entertain claims allegedly aris-

ing within the period between the mailing of a notice

of induction and the scheduled induction date. The

Government, in an effort to support their contention

that the local board was not bound by Geary, refers

this court to the following cases: Capobianco vy.

48a

Melvin Laird;’ United States v. Nordlof, 454 F.2d

739 (7th Cir. 1971); United States v. Collins, 445

F.2d 653 (9th Cir. 1971); United States v. Hand,

443 F.2d 826 (9th Cir. 1971) ; United States v. Kilby,

446 F.2d 1002 (5th Cir. 1971); and United States

v. McKee, 446 F.2d 974 (4th Cir. 1971). Signifi-

cantly, only one of the above mentioned cases was

decided in our circuit and this court will, therefore,

rely primarily on that case.

In Capobianco, supra, the Second Circuit initially

applied the Geary rule and thereby reversed an order

of the district court which had denied an application

from a member of the Armed Forces for a writ of

habeas corpus. The applicant sought to have his con-

scientious objector claim considered by the Local

Board, even though he had raised it after he had

received his induction notice. The Court of Appeals

for the Second Circuit, in light of Geary, directed

the district court to issue the writ. Thereafter, in a

subsequent order, the same court reversed its earlier

order and affirmed the district court’s denial of a

writ of habeas corpus. The basis of this subsequent

order was the decision of the Supreme Court in the

Ehlert case. While it appears that this second order

lends support to the proposition that Ehlert is retro-

active, we must not overlook the fact that Capobianco

involved a soldier already in the Army who would

not be subject to criminal penalties by the retroac-

‘ Capobianco Vv. Melvin Laird, 424 F.2d 1304 (2d Cir. 1971),

was vacated by a subsequent order of the Second Circuit dated

July 1, 1971. (69-C-1039)

49a

tive application of Ehlert.’ In the

retroactive effect of Ehlert would be preety -

the conduct of Jenkins, when at the time he shove

this course it was incumbent upon the local board to

consider his claim prior to induction.

It is well settled, that where contrary rulin

have been made in other circuits, this court om

be permitted, in the absence of any decisional guid-

ance from our own circuit, to chart its own course

However, the Geary case was decided by our cireuit

and, therefore, this court is constrained to abide by

its teachings. Further, even accepting arguendo that

this court would follow the ruling of a foreign cir-

cuit, the Nordlof case, supra, would not be of an

aid to the Government in its contention that Ehlert

is retroactive. In that case, the settled law of the

circuit at the time when Nordlof refused induction

was that § 1625.2 did not allow post-induction no-

tice claims to be heard by the Board.’ Thus, the de-

fendant would not be prejudiced by a retroactive ap-

plication of Ehlert, for it would only serve to affirm

the settled law of the circuit. It cannot be over-

emphasized that the decisional law of this circuit,

when Jenkins refused induction, was that the Board

was obligated to entertain his claim and pass upon it

Similarly, the Collins, Hand, Kilby, and McKee ene,

*This court is of the opinion that th

; t e language in the

een —_ does rs in and of itself support the contention

e Supreme Court’s ruling is to i

ae pc g be applied retroactively

’ See Porter v. United States, 334 F.2d 792 (7th Cir. (1964).

50a

[supra], all involved instances where Ehlert was not

overturning the case law as it had previously existed

in those circuits." Accordingly, those defendants

would not be prejudiced, as the defendant JENKINS

would be, by a retroactive application of Ehlert; when

they refused induction they had not been apprised

of the fact, through the interpretation of § 1625.2

in that circuit, that they would have to be heard by

the Board on their claims,

This court’s own research has disclosed one sig-

nificant case which must be discussed, and that is

United States v. Johnson, 443 F.2d 189 (2d Cir.

1971). On October 9, 1969, defendant Johnson was

mailed his Order to Report for Induction, which was

fixed for November 9, 1969. Defendant appeared at

the Board on October 17, 1969, and requested an ap-

* Indeed, the law of the Fourth Circuit [United States Vv.

Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966) ] and the

Fifth Circuit [Davis v. United States, 374 F.2d 1 (5th Cir.

1967) ] had been consistent with the subsequent Ehlert de-

cision when the defendants refused induction in McKee and

Kilby. It had been unsettled in the Ninth Circuit when the

defendants refused induction in the Collins and Hand cases

mentioned, supra. The subsequent Supreme Court Ehlert

decision, which decided the issue adversely against the de-

fendant, came from the Ninth Circuit, however. See Ehlert v.

United States, 422 F.2d 332 (9th Cir. 1970).

In this area, consider also the recent cases of United States

v. Cotton, (71-CR-935, Aug. 4, 1972), and United States V.

Shomock, 462 F.2d 338 (3d Cir. 1972), which, however illum-

inating, are nonetheless distinguishable from the case at bar.

*This court does note that for some unexplained reason

this case was not cited by either of the parties. Such an over-

sight clearly cannot go unnoticed.

5la

plication for conscientious objector status, which was

given to him. At the same time, his induction date

was postponed, “pending C.O. review.” Some two

months later, on December 18, 1969, the Local Board

notified Johnson that it was cancelling his postpone-

ment of induction for failure to return his SSS Form

150 (for conscientious Objectors), and he was again

ordered to report for induction, which he refused

to do. He was later convicted for failure to report

for induction into the Armed Forces, as mandated

by 50 U.S.C. App. § 462(a), and his conviction was

affirmed.

While Geary was controlling at the time Johnson

refused induction, the Court of Appeals concluded

that the Local Board had not reopened Johnson’s file.

Specifically, the court stated that:

“. . . it appears that all that happened was

that the Board was considering whether to re-

open defendant’s classification, and chose not to.”

The circumstances described in the Johnson case,

supra, at first blush seem to be dispositive of the

case at bar. Yet, a careful reading will disclose that

the situation in Johnson differs from that in Jenkins

in that Johnson was given an opportunity to be heard

via the postponement. It was through his own delay

of two months in failing to return Form 150 that

subjected him again to induction after it had already

been once postponed. It cannot be over-emphasized

that the postponement granted Johnson was for the

obvious purpose of allowing him to pursue his claim

through the completion of Form 150. The defendant

52a

in this case, on the other hand, was denied postpone-

ment only one day prior to his induction date; he was

given no opportunity to be heard on his claim. Hence,

it was not a situation as in Johnson, where the late

filing of Form 150 would serve to “. . . indefinitely

. » » postpone his duty to report.” United States v.

Johnson, 443 F.2d 189, 192 (2d Cir. 1971).

In closing, this court must emphasize that its de-

cision with respect to the defendant must not be over-

read, In this case, Jenkins would be clearly preju-

diced by any attempt to apply, retroactively, the Su-

preme Court’s decision in Ehlert. This court cannot

permit the criminal prosecution of the defendant un-

der these circumstances without seriously eroding

fundamental and basic equitable principles of law.

This is not to say, however, that under other cir-

cumstances a retroactive reading of Ehlert would not

be warranted.

CONCLUSIONS OF LAW

1) The indictment in this case is dismissed and the

defendant is discharged.

2) The conclusion of this court is not to be con-

strued as relieving this defendant of his obligation

under the Uniform Military Training & Service Act.

Local Board No. 50 is directed to reopen the case

of this defendant to consider his application for C.O.

status in accordance with the regulations.

/s/ Anthony J. Travia

U. S. D. J.

53a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

eleventh day of December one thousand nine hundred

and seventy-three.

Present:

Hon. J. EDWARD LUMBARD

HoN. HENRY J. FRIENDLY

HON. WILFRED FEINBERG

Circuit Judges

73-1572

THE UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

RONALD S. JENKINS, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Eastern District of New York.

54a

This cause came on to be heard on the transcript

of record from the United States District Court for

the Eastern District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the appeal from

judgment of said District Court be and it hereby is

dismissed for lack of appellate jurisdiction in accord-

ance with the opinion of this court.

A. DANIEL FUSARO

Clerk

by /s/ Vincent A. Carlin

Chief Deputy Clerk

55a

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the SIXTH day of February, one thousand nine

hundred and seventy four.

Present:

Hon. J. EDWARD LUMBARD

HoN. HENRY J. FRIENDLY

HON. WILFRED FEINBERG

Circuit Judges

Docket No. 73-1572

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

vs.

RONALD S. JENKINS, DEFENDANT-APPELLEE

A petition for a rehearing having been filed herein

by counsel for the appellant.

Upon consideration thereof, it is

56a

Ordered that said petition be and it hereby is

denied.

A, DANIEL FUSARO

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.