Petition for Writ of Certiorari — United States v. Rothfelder

Page

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I ics cers acarassnte ics hasd nities tate 2

Constitutional and statutory provisions involved__ 2

Late eacnib alas tencatde adimsbdindnda aiden a teleiice aed 3

‘Reasons for granting the writ_-__-------------- 7

io clas csacancameaeerteibeik aeabandldrbiak nace Naan 18

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REPEAT PE A me ens oer ate ek 23

SSL? Ae ROE MEE ROSS PASE SLED AON Te 24

CITATIONS

»; Downum v. United States, 372 U.S. 734------ 13

»: Fong Foo v. United States, 369 U.S. 141__---- 13, 16

Green v. United States, 335 U.S. 184________- 13

Illinois v. Somerville, No. 71-692, decided

ERR ee aera 13

McLain v. Selective Service Local Board No. 47,

| a ee 6

Nestor v. Hershey, 425 F.2d 504.___-__------ 5

, Robinson v. Hershey, C.A. 7, No. 17, 679, de-

oe 6 cel July 14, 1008__ ___-.-............. 6

_.. Schwegmann Brothers v. Calvert Distillers, 341

3 TEE a a ee ee 10

- Singer v. United States, 380 U.S. 24______--- at

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

| Bs AR ee ee ann een 8-9

» United States v. Blue, 384 U.S. 251__-------- 14

» United States v. Brewster, 408 U.S. 501 _--_--- 9,15

=: United States v. Celestine, 215 U.S. 278_____- 14

501-573—-73——-1 -

a

II

.. Cases—Continued

United: States v. Covington, 395 U.S. 57_. ae kueace 15, 0

United States v. DiStefano, 464 F.2d 845__._9, 17,18

United States v. Findley, 439 F.2d 970_______ 9

- United States v. Halseth, 342 U.S. 277_______ 14

United States v. Hoctor, C.A. 9, No. 71-2773,

decided Mareh 1, 1973... .......-....... 18

United States v. Jorn, 400 U.S. 470__________ 13, 16

United States v. King, C.A. 4, No. 72-2213,

decided March 21, 1973____-.----_______ 17, 18

United States v. McCreery, C.A. 7, No. 72-1457,

decided February 2, 1973___.._.______- 7, 8, 13,17

United States v. Murdock, 284 U.S. 141______ 14

United States v. Ponto, 454 F.2d 657_________ 7,9

United States v. Real, 446 F.2d 40__..______- 16

United States v. Sisson, 399 U.S. 267 ___15, 16, 17, 18

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

certiorari denied sub nom, Grunberger v.

United States, 406 U.S. 917_.-..---__-___- 16

United States v. Whitted, 454 F.2d 642_______ 9, 16

United States v. Zisblatt, 172 F.2d 740, appeal

dismissed, 336 U.S. 934_...-_-------__._- 16

Constitution, statutes, regulations and rules:

United States Constitution, Fifth Amend-

ELE lla ie Wa 2, 6, 7, 8, 11, 12, 13, 16

Criminal Appeals Act:

62 Stat. 844, 18 U.S.C. 3731 (1964)____ 8, 9,14

84 Stat. 1890, 18 U.S.C. 3731 (1970) ___- 2,

4, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18

oP UG. Ba: GO)... owe oe 3

Gl a Non Seino eacasucussc. 4,5

ee ee ee 5

Federal Rules of Criminal Procedure:

ee

| —

Ill

Miscellaneous: a

H. Conf. Rep., No. 91-1768 91st Cong., 2d

ORI DA peter gest Pea OBR RE ants we PRA 9

S. Rep. No. 91-1296 91st Cong., 2d sess. (Oc-

i I en sicoic eaies caaceamperionconeniaen 9, 10, 11, 12

Gu the Supreme Gourt of the Gnited States

OcToBER TERM, 1972

No.

UniTEeD STATES OF AMERICA, PETITIONER

v.

EDMUND HERMAN ROTHFELDER

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

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

pp. 19-22) is not yet reported. The opinion of the dis-

trict court (App. C, infra, pp. 24-29) is not reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 23) was entered on February 28, 1973. By order

of March 29, 1973, Mr. Justice Stewart extended

the time for filing a petition for a writ of certiorari

(1)

canny

to and including April 30, 1973. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether under the Criminal Appeals Act (18

U.S.C. 3731), which provides that the United States

may appeal to the court of appeals from a decision

of a district court dismissing an indictment ‘‘except

* * * where the double jeopardy clause of the United

States Constitution prohibits further prosecution,” an

appeal by the United States is barred by prior jeop-

ardy when the district court grants a pre-trial motion

to dismiss, relying on facts outside the indictment, but

no jury has been impanelled, and no trial without a

jury has started, so that the defendant has never been

in jeopardy.

CONSTITUTIONAL AND STATUTORY PROVISIONS 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; * * *

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

amended, 84 Stat. 1890, provides:

In a criminal case an appeal by the United

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

cision, judgment, or order of a district court

dismissing 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.

—

An appeal by the United States shall lie to a

court of appeals from a decision or order of a

district courts suppressing or excluding evi-

dence or requiring the return of seized prop-

erty in a criminal proceeding, not made after

the defenaant has been put in jeopardy and be-

fore the verdict or finding on an indictment or

information, if the United States attorney certi-

fies to the district court that the appeal is not

taken for purpose of delay and that the evidence

is a substantial proof of a fact material in the

proceeding.

The appeal in all such cases shall be taken

within thirty days after the decision, judgment

or order has been rendered and shall be dili-

gently prosecuted.

Pending the prosecution and determination

of the appeal in the foregoing instances, the de-

fendant shall be released in accordance with

chapter 207 of this title.

The provisions of this section shall be liber-

ally construed to effectuate its purposes.

3

STATEMENT

On September 2, 1971, a grand jury in the United

States District Court for the Western District of

Michigan returned an indictment charging respondent

Edmund Herman Rothfelder with willfully failing to

report for induction into the Armed Forces, in viola-

tion of 50 U.S.C. App. 462(a). Prior to trial, -Roth-

felder moved to dismiss the indictment on the ground

that the local board’s termination of his student defer-

ment classification (I-S(C)) was improper, and that

the order to report for induction was therefore invalid.

The district court granted the motion (App. C, infra,

4

pp. 24-29), and the United States appealed to the court

of appeals under the Criminal Appeals Act, 18 U.S.C,

3731, as amended by the Omnibus Crime Control Act

of 1970, 84 Stat. 1890. The court of appeals dismissed

the appeal on the ground that it lacked jurisdiction.

(App. A, tnfra, pp. 19-22).

1. The material facts are not in dispute. Respondent

was ordered to report for induction in September,

1969. Because he was a full-time college student at

that time, he requested and was granted a I-S(C) de

ferment which allowed him to complete “his academic

year” (32 C.F.R. 1622.15(b)). In granting this classi- _

fication, the local board originally indicated in its —

minutes that the I-S(C) classification would expire

in October 1970 (App. C, infra, pp. 24-25).

Later, the Michigan State Selective Service Head-

quarters requested respondent’s file for review, and

after reviewing the file, notified the local board that

normally the I-S(C) classification expires at the end

of the registrant’s academic year. Accordingly, it in-

structed the local board to review respondent’s case in

June 1970, and if he was not in summer school, the clas-

sification was to be reopened and considered anew (App.

C, infra, pp. 25-26).

The local board complied with this directive. After

reviewing respondent’s file in June 1970, and finding

that he was not enrolled in summer school, it reclassi-

fied him I-A on June 17, 1970. Following an unsuc-

cessful appeal to the State Appeals Board, respondent

was ordered to report for induction on February 8,

1971. The present indictment followed his failure to

report as ordered (App. ©, infra, p. 26).

—

5

9, Prior to trial, without the impanelling of a jury

or the commencement of a trial without a jury, the

ndent moved to dismiss the indictment pursuant

tp Rule 12(b) (1), Fed. R. Crim. P., on the ground

that his I-S(C) classification was unlawfully termi-

nated prematurely. Respondent claimed that under

99 C.F.R. 1622.15(b), then in effect, he was entitled

to retain his I-S(C) classification for twelve months

without regard to whether he actually completed the

academic year for which the classification was issued.

The district court held as a matter of law that “aca-

demic year’’ as used in 32 C.F-.R. 1622.15(b) meant

twelve months.’ Based on this ruling, the court held

10n the merits of this issue, the government has contended

that the district court erred in holding that “academic year” for

LS classifications meant twelve months. The district court re-

lied on the definition of “academic year” prescribed in 32 C.F.R.

1622.25(b), which deals with the entirely different matter of

determining a registrant’s “eligibility” for a II-S classification

under the regulations. The II-S deferment is designed to pro-

vide deferment from military service during the entire course of

college studies, typically four years, and thus it is renewable

annually upon certification of full-time enrollment, even though

the student does not attend school during the summer. “Unlike

the II-S, designed to permit education in the national interest,

the I-S classification is intended to avoid the hardship and

waste of an interrupted academic year. In permitting its student

recipient to complete the academic year in which he received an

induction order, the I-S classification saves him from the loss of

academic credit and tuition which would otherwise result from

the interruption of his school year.” Nestor v. Hershey, 425

F. 2d 504, 513 (C.A.D.C.). In light of the completely different

function served by the II-S deferment, there was no basis for read-

ing its special definition of “academic year”—twelve months—

into the I-S regulation to give the undefined term “academic year”

in that regulation anything other than its natural meaning (the

conventional school year from September to June). See McLain v.

501-573—73——2

—

6

that the local board improperly terminated respond.

ent’s I-S(C) classification before the expiration of

twelve months and that the order to report for induc.

tion was unlawful (App. C, infra, p. 28). Accordingly,

the district court granted respondent’s motion to dismiss

the indictment.

3. The United States filed a notice of appeal to the

court of appeals, pursuant to 18 U.S.C. 3731, seeking

review of the district court’s construction of the term

“academic year” in the applicable Selective Service

regulation. The court of appeals, however, held that

Section 3731, which authorizes an appeal to the court

of appeals, from ‘‘a decision, judgment, or order of a

district court dismissing an indictment * * * except

* * * where the double jeopardy clause of the United

States Constitution prohibits further prosecution,”

did not authorize an appeal from the pretrial dismis-

sal of the indictment here. The court of appeals held

that Section 3731 does not confer jurisdiction to hear

an appeal from a pretrial dismissal of an indictment

“that rests, not upon the sufficiency of the indictment

alone, but upon extraneous facts. If the indictment

is dismissed as a result of a stipulated fact or the

showing of evidentiary facts outside the indictment,

which facts would constitute a defense on the merits

at trial, no appeal is available” (App. A, infra, p. 21).

In reaching this result the court of appeals re-

jected the argument that the appeal was not barred

by the Double Jeopardy Clause because the trial had

Selective Service Local Board No. 47, 439 F. 2d 737 (C.A. 8);

Robinson v. Hershey, No. 17,697, decided July 14, 1969 (C.A. 7)

(unreported opinion).

_ a

not commenced and jeopardy had not attached. The

court of appeals apparently adopted the view taken

by the Court of Appeals for the Seventh Circuit,

that the order of the district court was an “ acquit-

tal”, and that an appeal was therefore barred by the

Double Jeopardy Clause (App. A, fra, p. 21). See

United States v. Ponto, 454 F. 2d 657 (C.A. 7, en

banc); United States v. McCreery, No. 72-1457, de-

cided February 2, 1973 (C.A. 7).

REASONS FOR GRANTING THE WRIT

7

This case raises issues of statutory construction and

contitutional law that are important in the administra-

tion of federal criminal justice. The recently

amended Criminal Appeals Act, 18 U.S.C. 3731, is the

principal jurisdictional statute governing appeals by

the government in criminal eases. The construction

placed on the Act by the court of appeals deprives

the government of the right to appeal from a wide

variety of pretrial orders dismissing indictments

which do not turn on “the sufficiency of the indict-

ment alone,” but involve the application of legal prin-

ciples to generally undisputed or stipulated facts. The

limitation engrafted by the court of appeals on the

broad language of Section 3731 will not only have

a substantial impact on the right of the government

to appeal from pretrial dismissals, but it wholly ig-

nores the expressed intent of Congress in amending

Section 3731 to permit appeals in cases such as this.

In addition, the decision of the court of appeals

raises an important issue about the reach of the

Double Jeopardy Clause. The holding of the Sixth

8

Cireuit here, like the holding by the Seventh Cir

euit in United States v. McCreery, supra, that an

appeal is barred by the Double Jeopardy Clause, even

though the order of dismissal was entered before a

trial had. begun, involves a broad expansion of that

clause. "These considerations, along with a develop-

ing conflict among the courts of appeals as to the

effect of the 1971 amendments to the Criminal Ap-

peals Act, warrant the granting of the petition for

certiorari here. __.. |

1. The court of appeals erroneously construed the

Criminal Appeals Act’ in a manner contrary to the

clear language of the Act and the intent of Congress

in amending Section 3731. In reaching its result, the

court of appeals relied on cases construing the old

Criminal Appeals Act (18 U.S.C. 3731 (1964 ed.)),

which Corigress expressly intended to overrule. Prior

to the 1971 amendments, Section 3731 authorized an

appeal to the court of appeals from “‘a decision or

judgment setting aside, or dismissing any indictment

* * * except where a direct appeal to the Supreme

Court of the United States is provided by ‘this see-

tion.” This ‘provision was generally construed as au-

thorizing appeals to the court of appeals only from

orders dismissing indictments which rested on a defect

‘in’ thé’ indictment or: institution of the prosecution.

The ‘legislative history of former Section 3731, which

‘was SAid t6' reflect ‘a policy consideration against per-

‘tolittiitg ‘appeals in criminal cases by the United States,

“was! ¢ited’ as’ a justification for ignoring’ what’ was ac-

‘Knowledged to bé the plain language’ of the ‘old Crim-

‘ial’ Appeals -Act. See, e.g:, United “States v. Apex

Distributing Co., 270 F. 2d 747 (C.A. 9); United

>>

9

States v. DiStefano, 464 F. 2d 845, 847 (C.A. 2).

Accordingly, it was held that an appeal did not lie to the

court of appeals from pretrial orders dismissing indict-

ments where the district court determined on the

basis of stipulated or undisputed facts that there was a

yalid defense to the indictment, and also where the dis-

missal was for failure to proséctite or was predicated

on the failure of the United States to comply with a

discovery order. United States 'v. Apex Distributing

Co. supra, 270 F, 2d at 751; United States v. Di-

Stefano, supra, 464 F, 2d at 848 ; United States v. Ponto,

454 F. 2d 647 (C.A. 7 en banc) ; United States v. Findley,

439 F. 24 970 (C.A.1) ; contra, United ermrres Whitted,

454 F. 2d 642 (C.A: 8). ;

Since many of these orders ead net be appealed di-

rectly to the Supreme Court under the provisions of

former Section 3731 (cf. United States v. Brewster, 408

U.S. 501, 504-507), and since often where such an

appeal was possible, the issue was not of sufficient im-

portance to justify review by this Court, Congress

determined to amend Section 3731 to “assure that the

United States may appeal [to the court of appeals]

from the dismissal of a criminal prosecution by a

district court in all cases where the Constitution per-

nits.” S. Rep. No. 91-1296, “Amendments to the Crimi-

nal Appeals Act” (October 8, 1970) 91st Cong., 2d Sess.,

pp. 2-3.”

?The amendments to the Criminal Appeals Act, which were

enacted as part of Omnibus Crime Control Act of 1970, 84

Stat. 1890, were drafted by the Senate Judiciary Committee.

They were adopted without change by the Senate, and were

modified only by a clarifying amendment added in the con-

ference committee (H. Conf. Rep. No. 91-1768, 91st Cong., 2d Sess.,

p. 21). The “well considered and carefully prepared” Senate Judi-

_ an

Congress took particular notice of the manner in

which the old Criminal Appeals Act had been con-

strued (Sen. Rep. supra, p. 5):

Although the literal language of the present

statute appears to authorize an appeal to a

court of appeals whenever an indictment or in-

formation is dismissed, ‘‘* * * except where a

direct appeal to the Supreme Court * * * is

provided * * *,” the statute has not been so

interpre #ee

* * * [T]he Criminal Appeals Act, as inter-

preted today, does not provide for an ap-

peal by the United States to any court in a

large variety of cases where the dismissal is

based on grounds having nothing to do with

any defect in the indictment, or the construc-

tion or invalidity of the underlying statute. For

example, if a court issues an order for discov-

ery, believed to be unauthorized, a court will

dismiss the indictment if the prosecutor re-

fuses to comply. There is at present no way the

prosecution can test the validity of that dis-

missal and the underlying order. If a court dis-

misses an indictment for lack of timely pros-

ecution under the Federal Rules, without find-

ing a denial of the constitutional right to a

speedy trial, the Government has no right to

appeal. * * * Also, the statute, passed at a time

when the range of Federal prosecutions was

considerably narrower, fails to take into ae-

count the current necessity of reviewing ad-

ministrative records in connection with a crimi-

ciary Committee Report is, therefore, particularly relevant in con-

struing Section 3731, Schwegmann Brothers vy. Calvert Listil-

lers, 341 U.S. 384, 395-396 (Jackson, J., concurring).

=

11

nal prosecution—an outgrowth of the tremen-

dous expansion of administrative agencies, par-

ticularly the establishment of the Selective

Service System, since 1907. This has given rise

to situations which do not readily fit into cate-

gories of pleadings recognized at the time the

act was first passed.

Congress therefore amended Section 3731 to ‘afford

the Government the right of appeal from the dis-

nissal of a criminal prosecution in all cases where

the decision rendered by the district judge does not

result in an acquittal after jeopardy. As a result, re-

riew of a lower court dismissal will be precluded only

where the double jeopardy clause of the Constitution

mandates it’? (Sen. Rep., supra, p. 18).

Moreover, Congress indicated specifically its desire

to provide for appeal in cases such as this (Sen. Rep.,

supra, p. 14) :

The problems of appealability have recently

become especially serious in selective service

cases where judges have reviewed defendants’

selective service files before trials and dismissed

the indictments after finding that there have

been errors by the draft boards. These are ts-

sues to be determined by a judge, not a jury,

and there is no reason why they should not be

subject to appellate review. The question of

whether actions such as those resulting in selec-

tive service case dismissals are appealable to

courts of appeals, if appealable at all, is cur-

rently being litigated. If it should be decided

that such appeals lie only to the Supreme

Court, this will make it difficult for the Gov-

ernment to take appeals in a large number of

selective service cases which ought to be re-

12

viewed, because such decisions often turn on

special, narrow facts and thus are not suff-

ciently important to warrant an appeal to the Su-

preme Court. [Emphasis added. i}

‘The Criminal Appeals Act,. ‘as “amended, plainly

carries out the expressed intention. -of Congress. See-

tion 3731 provides in pertinent part:

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 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 fur-

ther prosecution.

The Act contains no exception for appeals from

dismissals which “rests, not upon the sufficiency of the

indictment alone, but upon extraneous facts” (App. A,

infra, p. 21). In order to avoid just such a narrow read-

ing of the new Act, similar to the interpretation that had

been imposed upon the old Act by judicial gloss,

Congress specifically directed in the new statute that

“Tt]he provisions of this section shall be liberally

construed to effectuate its purpose.’’*

In sum, we respectfully submit that, unless an

appeal is barred by the Double Jeopardy Clause, the

interpretation placed on Section 3731 by the court

.* The “explicit expression of this intent” was added “in view

of the restrictive judicial interpretations of congressional in-

tent which have resulted from the histories of the earlier

versions of section 3731 despite strong indications in the debate

on the 1907 act that it should be broadly interpreted” (Sen.

Rep., supra, p. 18).

—

13

below is so plainly wrong that er reversal

would be warranted.. !

2. The court of appeals here, in seinen with

the holding of the Seventh Circuit in United States v.

McCreery, supra, viewed the district court’s order as

a “judgment of acquittal,’’ and concluded that. an

appeal in a context like this one is barred by the

Double Jeopardy Clause. That approach, we submit,

is erroneous. The law is clear that jeopardy attaches

so as to bar further prosecution only ‘‘when a jury

has been selected and sworn.” Illinois v. Somerville,

No. 71-692, decided February 27, 1973, slip. op., p. 8;

United States v. Jorn, 400 U.S. 470, 479-480; Downum

v. United States, 372 U.S. 734; Green v. United States,

355 U.S. 184. Since the motion to dismiss in this case

was made prior to the commencement of trial and

before a jury had heen selected, jeopardy had not

attached and further prosecution was not barred by

the Double Jeopardy Clause.

The effect of these decisions cannot be aw

simply by attaching the label of an “acquittal” to the.

pretrial dismissal of the indictment (App. infra., p. 21;

United States v. McCreery, supra, slip op., p. 2). The

Double Jeopardy Clause protects a defendant from’

being “twice put in jeopardy” for the same offense.

An “acquittal” for the purpose of barring further pros-

ecution under the Double Jeopardy Clause can only be a

determination of the merits made by the trier of facts

after jeopardy has attached. Cf. Fong Foo v. United

States, 369 U.S. 141, 143. Here the district court dis-

missed the indictment before trial and before jeopardy -

attached. Under these circumstances the Double Jeop-

501-573—73——_3

rT,

14

ardy Clause does not bar an appeal even though it was

based on facts de hors the indictment. The mere fact that

a judge in deciding a pretrial motion under Rule 12(b)

reaches out to consider or pass upon facts that could also

be considered during a trial on the merits does not con-

vert the hearing and determination of a pretrial motion

into a trial subjecting the defendant to jeopardy. This

conclusion is especially evident where, as in the present

ease, neither the defendant nor the government waived

the right to a trial of the merits before a jury. See

Rule 23(a), Fed. R. Crim. P.; Singer v. United

States, 380 U.S. 24.

Particularly apposite here are the cases decided

under provisions of the Criminal Appeals Act, prior

to the 1971 amendments. Section 3731, as it then read,

authorized a direct appeal to this Court from a district

court “decision or judgment sustaining a motion in

bar, when the defendant had not been put in jeopardy”

(18 U.S.C. 3731 (1964 ed.), emphasis added). The cases

consistently held that appeals from pretrial orders

dismissing indictments, which otherwise came within

the technical definition of a motion in bar, were not

barred by the “jeopardy”’’ exception to Seetion 3731.

See, ¢.g., United States v. Celestine, 215 U.S. 278, 283,

holding that “[t]he defendant in this case had not been

put upon trial, therefore he had not been put

in jeopardy”; United States v. Blue, 384 U.S. 251,

258, holding that since the defendant “had not yet been

brought to trial and put in jeopardy when dismissal

oceurred * * * our jurisdiction under the statute is

secure * * *.” Accord: United States v. Murdock, 284

U.S..141; United States v. Halseth, 342 U.S. 277;

_

15

United States v. Covington, 395 U.S. 57, 59, n. 2. Cf.

United States v. Brewster, 408 U.S. 501, 506.

The orders dismissing the indictments in those cases,

as in the instant “case, were entered before trial and

did not rest “upon the sufficiency of the indictment

alone, but upon extraneous facts” (App. A, infra, p. 21).

In each of these cases it was held that the defendant

had not been put in jeopardy and that the government

could constitutionally appeal the pretrial dismissal of

the indictment. These holdings are plainly controlling

here on the constitutional issue.

The decision in United States v. Sisson, 399 US.

967, upon which the court of appeals relied, does not

require a contrary result. There the district court en-

tered a post-trial order, which it denominated as an

order “in arrest of judgment,’’ terminating the prose-

cution in favor of the defendant. The determination in

Sisson that the government could not appeal from this

order, because it was “in fact an acquittal,” was predi-

cated on the fact that the order of the district court

was “bottomed on factual conclusions not found in the

indictment but instead made on the basis of evidence

adduced at trial’? (399 U.S. at 288). Accordingly it

was held that the action could not be distinguished

from a directed judgment of acquittal entered notwith-

standing a jury verdict of guilty under Rule 29(b) of

the Federal Rules of Criminal Procedure (399 U.S.

at 290). Since Congress had not sought to provide for

appeals from such orders under the old Criminal Ap-

peals Act, the appeal by the government was dismissed.

‘The present case is quite distinguishable from

Sisson, Here the criminal prosecution was aborted

prior to trial and before jeopardy attached. More

16

significantly, the holding in: Sisson, despite some dicta

in the opinion (399 U.S. at 289-290), did not rest on the

Double Jeopardy Clause.‘ That decision was based on

a determination of “this Court’s jurisdiction over the

appeal under 18 U.S.C. 3731 [1964 ed.].” See United

States v. Jorn, 400 U.S. 470, 478, n. 7: Moreover, even:

under the definition of an acquittal in Stsson—‘“a legal

determination on the basis of facts adduced at the

trial relating to the general issue of the case * * *”

(399 U.S. at 290, n. 16)—the district court order here

was not an acquittal. The dismissal was not a legal

determination on “the basis of facts adduced at the

trial,” nor did it relate to the “general issue in the

case,” i.e., whether the respondent Rothfelder had

knowingly and willfully failed to report for induction.

On the contrary, the motion to dismiss was made

pursuant to Rule 12(b) (1) which states:

Any defense or objection which is capable of

determination without the trial of the general

issue may be raised before trial by motion.

“A defense is thus ‘capable of determination’ if trial.

of the facts surrounding the commission of the alleged

‘The lower courts have since held that where the only relief

the United States seeks on appeal is to compel the entry of a

judgment of conviction in accordance with the verdict of the

jury, as was the case in Sisson, the Double Jeopardy Clause

does not bar appellate review. See, e.g., United States v. Wein-

stein, 452 F. 2d 704, 711, n. 10 (C.A. 2), certiorari denied, sud

nom. Grunberger v. United States, 406 U.S. 917; United States

v. Zisblatt, 172 F. 2d 740, 743 (C.A. 2), appeal dismissed, 336

U.S. 934. See also, United States v. Whitted, 454 F. 2d 642 (C.A.

8); United States vy. Real, 446 F. 2d 40 (C.A. 9). The Double

Jeopardy Clause bars an appeal only where the relief sought

requires “that the petitioners be tried again for the same offense”

of which they were acquitted. Fong Foo v. United States, 369 US. °

141, 148. | .

——

17

offense would be of no assistance in determining the

validity of the defense.” United States v. Covington,

395 U.S. 57, 60. Here the district court had jurisdic-

tio to determine a “defense’’ based on a claim of

improper classification precisely because it was ‘‘capa-

ble of determination’ without consideration of “‘the

facts surrounding the commission of the alleged of-

fense.” Of. United States v. Sisson, supra, 399 U.S. at

301.

In sum, the dismissal of the indictment here was not

an acquittal after jeopardy. The court of appeals

erred in concluding otherwise.

8 There is a conflict among the courts of appeals re-

garding the construction and effect to be given the

1971 amendments to the Criminal Appeals Act. The

Court of Appeals for the Fourth Circuit, and the court

below, appear to take the position that the 1971

amendments to the Criminal Appeals Act did not

mark any change from prior law. See United States v.

King, No. 72-2213, decided March 21, 1973 (C.A. 4),

petition for writ of certiorari being filed herewith; cf.

United States v. McCreery, supra, reaching the same

result on constitutional grounds. 'The Court of Appeals

for the Second Circuit has held, however, that the 1971

amendments made substantial changes in the Criminal

Appeals Act (United States v. DiStefano, 464 F. 2d 845,

‘There the Second Circuit held that, while the old Criminal

Appeals Act did not permit an appeal to the court of appeals

from a pre-trial order dismissing an indictment for failure to

prosecute—since the basis of dismissal did not turn on a defect

in the indictment, “[i]t is beyond question that if appealability

were governed by the statute now in effect, 18 U.S.C. § 3731, as

amended by §14(a) of the Omnibus Crime Control Act, 84

TY

18

847 (C.A. 2).° And the Court of Appeals for the Ninth

Circuit has accepted jurisdiction, though without discus-

sion, of an appeal from a pretrial dismissal of an indict-

ment based on the district court’s determination (on

facts de hors the indictment) that the defendant could

not, as a matter of law, have committed the offense al-

leged. United States v. Hoctor, No. 71-2773, decided

March 1, 1973 (C.A. 9). An authoritative construction

of the Criminal Appeals Act by this Court is therefore

essential. “Otherwise the courts and the parties must

[continue to] expend energy, not on the merits of dispute

settlement, but on simply deciding whether a court has

the power to hear a case.’’ United States v. Sisson,

399 U.S. 267, 307.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

Erwin N. Griswo1p,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

EpwakpD R. KorMan,

Assistant to the Solicitor General.

Ropert L. Kevcu,

THaAppEus B. Hopepon,

Attorneys.

Aprit 1973.

Stat. 1890 (1970), the order dismissing the indictment would

be appealable” (464 F. 2d at 846-847). This holding, which is con-

sistent with the language and legislative history of the 1971

amendments, rejects the reasoning upon which the court of ap-

peals here, and the Fourth Circuit in Aéng, supra, relied.

APPENDIX A

United States Court of Appeals for the Sixth Circuit

No. 72-1617

Unrrep STaTes OF AMERICA, PLAINTIFF-APPELLANT

v.

Epmunp HERMAN ROTHFELDER, DEFENDANT-APPELLEE

Appeal From United States District Court for the

Western District of Michigan.

Decided and Filed February 28, 1973

Before Puuuies, Chief Judge, Weick and MILLER,

Cireuit Judges.

Weick, Circuit Judge. The Government has ap-

pealed under authority of 18 U.S.C. § 3731, as amend-

ed January 2, 1971, from the judgment of the Dis-

triet Court granting the defendant’s pretrial motion

to dismiss the indictment which charged him with

willfully failing to comply with an order of his Local

Board to report for induction, in violation of 50

U.S.C. App. § 462. In passing upon the motion to

dismiss, the Court considered the evidence in the

Selective Service file, which disclosed the following

facts:

On October 15, 1969, when the Local Board had

received notice that Rothfelder was a full-time student

at Lansing Community College, it reclassified him

I-S(C). The minutes of the Local Board indicated a

termination date of October, 1970. The Michigan State

(19)

ry

20

Selective Service Headquarters requested the file for

review, then it wrote to the Local Board stating that

normally a I-S(C) classification is made to expire at

the end of the registrant’s academic year, and sug.

gesting that the case be reviewed in June, “and if the

registrant is not in summer school, his classification

should be reopened and considered anew.” The Board

followed the suggestion of the State Headquarters and

classified Rothfelder in I-A. At that time Rothfelder

was not enrolled in any school. The Appeals Board

classified him in I-A and he was ordered to report

for induction. Rothfelder was indicted when he failed

to report.

The District Court, construing the applicable regula-

tions (32 C.F.R. §§ 1622.15 and 1622.25(b)), held that

“academic year” meant a full twelve-month year, and

it made no difference whether registrant was enrolled

in the summer. The Court held that the change of

classification from I-S(C) to I-A was illegal as a

matter of law. It was influenced by the provisions of

32 C.F.R. § 1622.25(b), which includes a twelve-month

period following the beginning of registrant’s course

of study, but this regulation seems to apply to a II-S

classification rather than a I-S(C) classification. The

Court relied on Walsh v. Local Board No. 10, 305 F.

Supp. 1274 (S.D.N.Y., 1969), and United States v.

Wood, 329 F. Supp. 68 (D.N.H., 1971), and declined

to follow contrary decisions in Peller v. Selective Serv-

ice Local Board No. 65, 313 F. Supp. 100 (N.D. Ind.,

1970), and McLain v. Selective Service Local Board

No. 47, 439 F.2d 737 (8th Cir. 1971). To the same

effect is the unreported opinion of the Seventh Cir-

cuit in Robinson v. Hershey, No. 17,697, decided July

14, 1969.

In his brief Rothfelder challenges our jurisdiction

to entertain this appeal.

21

‘he 1971 Amendment to § 3731 reads:

“In a criminal case an appeal by the United

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

cision, judgment, or order of a district court

dismissing 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.” (18 U.S.C. $3731 (Supp. 1972))

In United States v. Sisson, 399 U.S. 267 (1970), it

was held that an appeal does not lie from a decision

that rests, not upon the sufficiency of the indictment

alone, but upon extraneous facts. If the indictment is

dismissed as a result of a stipulated fact or the show-

ing of evidentiary facts outside the indictment, which

facts would constitute a defense on the merits at trial,

no appeal is available.

This rule was recognized in United States v. Brew-

ster, 408 U.S. 501, 506 (1972), but the Supreme Court

found that the District Court did not rely on factual

matter other than facts alleged in the indictment. In

the present ease, the District Court clearly did rely on

facts not alleged in the indictment and based its de-

cision on facts contained in the registrant’s Selective

Service file. Its judgment operated as an acquittal.

United States v. Findley, 439 F. 2d 970 (1st Cir. 1971) ;

United States v. Ponto, 454 F.2d 647 (7th Cir. 1971),

ofirmed en banc, 454 F.2d 657. Cf., United States v.

Weller, 466 F.2d 1279 (9th Cir. 1972); United States

v. Apex Distrib. Co., 270 F. 2d 747 (9th Cir. 1959).

While these cases involve Section 3731 as it was prior

to the 1971 Amendment, it is clear that under the

Amendment no appeal is available from a judgment

of acquittal.

The Government relies on language of the Supreme

Court in United States v. Jorn, 400 U.S. 470 (1971),

22

to the effect that there can be no double jeopardy

until the defendant is put to trial before the trier of

the facts. In that case, however, the Court found

double jeopardy because the trial court abused its dis.

cretion by aborting the trial and declaring a mistrial

without the consent of the defendant.

The appeal is dismissed.

APPENDIX B

UnitTep States Court oF APPEALS FOR THE

SrxtH Circuit

No. 72-1617

UnitTED STATES OF AMERICA, PLAINTIFF-APPELLANT,

vs.

EpMUND HERMAN ROTHFELDER, DEFENDANT-APPELLEE.

Before: PHitiies, Chief Judge, WEICK, and MILLER,

Circuit Judges

JUDGMENT

APPEAL from the United States District Court

for the Western District of Michigan.

THIS CAUSE came on to be heard on the record

from the United States District Court for the West-

ern District of Michigan and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered that the appeal be dismissed.

No costs taxed.

Entered by order of the Court.

JAMES A. HIGGINS,

Clerk.

A True Copy.

Attest:

JaMEs A. Hiaarns, Clerk.

(23)

APPENDIX C

United States of America, in the District Court of

the United States for the Western District of

Michigan, Southern Division

G-143-71 Cr.

UNITED STATES OF AMERICA, PLAINTIFF,

v.

EpMUND HERMAN ROTHFELDER, DEFENDANT

OPINION AND ORDER

The defendant is charged with willful failure to

report for induction into the Armed Forces of the

United States in violation of 50 USC App. § 462(a).

Defendant moves to dismiss on the grounds that his

induction was illegal as a matter of law.

The facts of the case are undisputed. Between

December 1968 and September 1969 defendant Roth-

felder dropped out of college and thus lost his II-S

deferment. In September 1969 he returned to college

and so informed his local board. While at school he

received an order to report for induction. Upon his

notification, the local board promptly postponed his

induction.

On October 2, 1969 defendant submitted to his local

board Michigan form No. 7 (Selective Serviee Report

on Student. Status) reaffirming his full-time student

status. On October 15, 1969 Rothfelder was reclassi-

fied I-S(C). The board minutes, SSS form 99, note

a termination date of October 1970. These facts were

(24)

25

properly communicated to defendant by his local

board.

Between October 1969 and February 1970 the State

Selective Service Headquarters reviewed defendant’s

file, and on February 18, 1970 sent the following mes-

sage to the local board:

‘Tt is noted that the Local Board has placed

the registrant in Class I-S(C) until October,

1970. Normally a I-S(C) classification is made

to expire at the end of the registrant’s academic

ear.

. “Therefore, it is believed that this regis-

trant’s case should be reviewed in June and

if the registrant is not in summer school, his

classification should be reopened and considered

anew.”’

Following the suggestion of the State Selective

Service Headquarters, the local board reclassified de-

fendant I-A on June 17, 1970. Upon receiving notice

of his reclassification, defendant promptly wrote the

local board expressing his reliance on the October

date: Defendant properly appealed his classifica-

tion and was ordered to report for induction on Octo-

ber 30, 1970.

1 Defendant's letter reads as follows:

“Last month I received a notice of classification changing

my status from 1S(c) to 1A. My former classification received

in October 1969 was supposed to run to October 1970 accord-

ing to the old notice. I am still in school at Michigan State

University as I was Spring term. I am taking no classes this

summer as I am trying to save some money for the coming

year and as we have moved to a student apartment on campus

(address below). This fall I will again carry a full load as

well as continuing my job at Oldsmobile.

“If there has been some misunderstanding between me and

Michigan State University leading to or creating a lack of

information please let me know. You sent no explanation for

this reclassification so this must be the problem as far as I

501-573—73——4

26

The single question of law presented on these facts

is whether Rothfelder’s I-S(C) classification was il-

legally terminated. The regulations relevant to decid-

ing this issue are as follows:

32 C.F-R. § 1622.15

‘In Class I-S shall be placed any registrant

who while satisfactorily pursuing a full-time

course of instruction at a college, university or

similar institution of learning and during his

academic year at such institution is ordered to

report for induction, except that no registrant

shall be placed in Class I-S under the provi-

sions of this paragraph (1) who has previously

been placed in Class I-S thereunder or: (2)

who has been deferred as a student in Class IT-

S and has received his baccalaureate degree;

A registrant who is placed in Class I-S under

the provision of this paragraph shall be re-

tained in Class I-S; (1) until the end of his

academic year or; (2) until he ceases satisfac-

torily to pursue such course of instruction,

whichever is the earlier.

The date of the classification in Class I-S

and the date of its termination shall be entered

in the ““Remarks” e>slumn of the Classification

Record (SSS Forrs 102) and be identified on

—_ as class I-S(C).” (Emphasis

can see. Could you check this matter and see if this can be

straightened out. I would feel better having things settled this

week if possible as I may get a chance to leave town for a two-

week period or more because of change-over beginning next

week.

Sincerely yours,

(signed) Epmunp H. RorHreiper

SS. No. 20-262-45-1404

1625 D Spartan Village, MSU.

East Lansing, MI 48823”

~~

27

32 C.F.R. § 1622.25(b)

“Jn determining eligibility for deferment in

Class II-S, a student’s “academic year”’ shall

include the 12-month period following the be-

ginning of his course of study.”

Because defendant was a full-time college student

at the time of his order to induction in 1969 he was

clearly entitled to the I-S(C) classification under 32

C.F.R. § 1622.15(b). The regulations required that

defendant be retained in Class I-S(C), “until the end

of his academic year.” The issue presented by this

ease boils down to the narrow question, what is meant

by “academic year” under 32 C.F.R. § 1622.15(b) ?

39 C.F.R. § 1622.25(b), quoted above, defines “aca-

demic year’”’ for class II-S purposes as the 12-month

period following the beginning of the student’s course

of study. There is no dispute that for purposes of the

II-S classification this means that an “academic

year” for a student beginning classes in September lasts

12 months until the following September. Defendant

argues that the same definition of “academic year”

was intended and should likewise apply to the I-S(C)

classification.

At least four cases have been decided on this pre-

cise issue. Two cases, Peller v. Selective Service Lo-

cal Board No. 65, 313 F.Supp. 100 (N.D. Ind. 1970),

and MeLain v. Selective Service Local Board No. 47,

439 F.2d 737 (8th Cir. 1971), hold that ‘academic

year” does not mean 12 months from the beginning

of élasses. Two other eases, Walsh v. Local Board No.

10, 305 F.Supp. 1274 (S.D.N.Y. 1969), and U.S. v.

Wood, 329 F.Supp. 68 (D. N.Hamp. 1971), come to

the diametrically opposite result and hold that ‘‘aca-

demic year” as defined in 32 C.F.R. § 1622.25 (b)-

applies to I-S(C) classifications, i.e., “academic year”

means 12 months from the beginning of classes.

—

28

This court is persuaded by the reasoning of the

later two cases. As stated in the Walsh case, “neither

the statute nor the regulations contain the slightest

suggestion that ‘academic year’ is to be defined dif.

ferently for a I-S(C) classification than for a II-§

classification.” 305 F.Supp. at 1279. Judge Bownes,

while examining the language just quoted, reasoned:

“The phrase ‘academic year’ usually means

from September to June, a nine month period.

Despite the number of months actually involved,

it means the period of time necessary to com-

plete one year’s study. The summer vacation

pertod is a hiatus in the academic year, not the

end of tt. To say that a year usually connotes

twelve months is to labor the obvious.” (En-

phasis supplied.) 329 F.Supp. at 71.

Modern colleges and universities no longer operate

on academic years of two semesters or three terms, but

rather function year round on three semesters or four

terms. Many students need the summer term to com-

plete one year’s study. Thus, 32 C.F.R. § 1622.25(h)

gives recognition to the reality of the twelve-month

“academic year.”

On the facts before the court in this case, the local

board originally interpreted “academic year” as twelve

months and informed the defendant that his I-S(C)

classification would be good until October of 1970. At

the direction of the State Headquarters the local board

unexpectedly terminated defendant’s I-S(C) classi-

fication without explanation. Having properly notified

his local board of his student status, defendant had

the right to rely on its official representation to him

that the I-S(C) classification would terminate in

October of 1970.

The fact that this particular defendant did not re-

quire the summer term to complete his year’s work

does not alter the fact of the University’s twelve-month

29

academic year. In view of the fact that the regulations

offer no alternative definition for I-S(C) purposes,

that the local board originally interpreted the regu-

ation as requiring twelve months in class I-S(C),

and in view of the twelve-month academic year actual-

ly eonducted by today’s colleges and universities, this

wurt holds that “academic year” as used in 32 C.F.R.

§1622.15(b) means twelve months from the start of

classes.

Because the local board terminated defendant’s

[-8(C) classification before the expiration of twelve

months, his reclassification I-A and his later induc-

tion were unlawful. For this reason defendant’s mo-

tion to dismiss is hereby granted.

IT IS SO ORDERED.

Dated: February 25, 1972.

?

Chief District Judge.

U.S. GOVERNMENT PRIATING OFFICE: 19/5