Opinion — United States v. Weller

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NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S. 321, 337

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. WELLER

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

No. 77. Argued December 10, 1970—Decided February 24, 1971

Appellee, who claimed conscientious objector status, was refused rep-

resentation by his attorney at the time of his personal appearance

before his draft board on the basis of a Selective Service regula-

tion prohibiting such representation. Subsequently indicted for

refusing to submit to induction, appellee filed a motion to dismiss,

contending that the denial of counsel had deprived him of due

process. The District Court granted appellee’s motion on the

ground that the regulation was not authorized by the Military

Selective Service Act of 1967. The United States filed a notice of

appeal to this Court, but, after reconsidering and concluding that

this Court lacked jurisdiction to entertain its direct appeal from

the District Court’s order, the United States moved for a remand

to the Court of Appeals. Appellee contends that the “construction

of the statute” dismissal provision or the “motion in bar” pro-

vision of the Criminal Appeals Act gives this Court jurisdiction

of the appeal. Held:

1. This Court has no jurisdiction of the appeal under the “con-

struction of the statute” provision since the interrelation of the

regulation and the statute fell short of that required for the dis-

missal to have been based upon the construction of the statute.

United States v. Mersky, 361 U. S. 431, distinguished. Pp. 4-5.

2. The “motion in bar” provision applies only when a defendant,

while not denying the commission of the offense, claims that an

extraneous factor forecloses prosecution. That provision is in-

applicable here since appellee contends that his refusal to submit

to induction was not a crime because of the denial of counsel by

his draft board. Pp. 5-7.

309 F. Supp. 50, remanded.

Stewart, J., delivered the opinion of the Court, in which

Burcer, C. J., and Biack, Haran, BRENNAN, WHITE, MARSHALL,

and BiackMuN, JJ., joined. Doveuas, J., filed a dissenting opinion.

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NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. Readers are re-

uested to note the Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 20543, of any typographical or other

formal errors, in order that corrections may be made before the pre-

y print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 77.—Octroser Ter, 1970

. On Appeal From the United

United States, Appellant, ably

™ ¥ a vias States District Court for

ae the Northern District of

Thomas William Weller. Californie.

[February 24, 1971]

Mr. Justice STewarT delivered the opinion of the

Court.

In this case we are called upon once again to construe

the elusive provisions of the Criminal Apppeals Act, 18

U. S. C. § 3731.1. Somewhat ironically, the argument

that we have no jurisdiction over this appeal is made by

1 The end of our problems with this Act is finally in sight. The

Omnibus Crime Control Act of 1970, § 14 (a), 84 Stat. 1890 (1971),

amended the Criminal Appeals Act to read in pertinent part as

follows:

“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 jeop-

ardy clause of the United States Constitution prohibits further

prosecution.”

This Court’s appellate jurisdiction of government appeals in fed-

eral criminal cases has thus been eliminated. Pending cases, how-

ever, are not affected, since subsection (b) of the amending section

provides:

“The amendments made by this section shall not apply with

respect to any criminal case begun in any district court before the

effective date of this section.”

The Omnibus Crime Control Act of 1970 took effect on January 2,

1971. The appellee in this case was indicted on January 15, 1969.

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2 UNITED STATES v. WELLER

the appellant, the United States. The appellee, on the

other hand, insists the case is properly here.

A grand jury in the United States District Court for

the Northern District of California indicted the appellee

for refusing to submit to induction into the Armed

Forces, a violation of 50 U. S. C. App. § 462 (a).* In

the Selective Service proceedings leading up to his induc-

tion notice, the appellee sought conscientious objector

status. He specifically requested that his lawyer be al-

lowed to accompany him at the time of his personal

appearance before the board, but the board, relying on

32 CFR § 1624.1 (b), denied the request and conducted

the personal appearance without the appellee’s counsel

present.’ Subsequently, the board declined to reopen the

appellee’s I-A classification, and the appellee unsuccess-

fully exhausted administrative review. His order to re-

port for induction, his refusal to submit, and this prosecu-

tion followed.

The appellee moved before trial to dismiss his indict-

ment on the ground, among others, that the denial of

counsel at the time of his personal appearance before

the board deprived him of due process of law under the

Fifth Amendment. The District Court did not squarely

decide this constitutional claim, but granted the motion

to dismiss on the ground that the regulation prohibiting

2 Military Selective Service Act of 1967, §12 (a), 50 U.S. C.

App. § 462 (a) (Supp. V, 1970), provides in pertinent part:

“any person...who... refuses... service in the armed

forces .. . or who in any manner shall knowingly fail or neglect

or refuse to perform any duty required of him under or in the

execution of this title . . . shall, upon conviction in any district

court of the United States of competent jurisdiction, be punished

by imprisonment for not more than five years or a fine of not more

than $10,000, or by both such fine and imprisonment .. . .”

332 CFR § 1624.1 (b) (1970) provides in pertinent part:

“(NJo registrant may be represented before the local board by

anyone acting as attorney or legal counsel.”

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UNITED STATES v. WELLER 3

representation by counsel at a registrant’s personal ap-

pearance was not authorized by the Military Selective

Service Act. 309 F. Supp. 50. The court relied pri-

marily upon Greene v. McElroy, 360 U. S. 474, in which

our opinion underscored “the Court’s concern that tradi-

tional forms of fair procedure not be restricted by

implication or without the most explicit action by the

Nation’s lawmakers, even in areas where it is possible

that the Constitution presents no inhibition.” 360 U. S.,

at 508. Viewing the personal appearance as “a critical

stage of an administrative process at which substantial

rights are adjudicated,” 309 F. Supp., at 51, the District

Court found the various provisions of the Selective Serv-

ice Act conferring rulemaking power on the Executive

insufficient to authorize a regulation denying counsel at

local board hearings.*

The United States filed a notice of appeal to this

Court. Subsequently, the Government reconsidered its

position and concluded that this Court lacked jurisdiction

over the appeal. Accordingly, the Solicitor General filed

a motion asking us to remand the case to the United

States Court of Appeals for the Ninth Circuit. We post-

poned further consideration of the question of jurisdic-

tion until the hearing of the case on the merits. 397

U. S. 985. We now conclude that this appeal is not

properly here and, pursuant to the provisions of the

Criminal Appeals Act, remand the case to the Court of

Appeals.®

*The District Court cited Military Selective Service Act

§ 10 (b) (3), 50 U. S. C. App. § 460 (b)(3) (Supp. V, 1970), and

§1(c) of the Act, 50 U.S. C. App. § 451 (c). See also Military

Selective Service Act §§5(a)(1), 10(b)(1), 50 U. S. C. App.

§§ 455 (a) (1) (Supp. V, 1970), 460 (b) (1) (1964).

5 See 18 U.S. C. § 3731 (1964):

“If an appeal shall be taken, pursuant to this section, to the

Supreme Court of the United States which, in the opinion of that

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4 UNITED STATES v. WELLER

The appellee urges that we have jurisdiction under

either of two sections of the Act, one relating to dis-

missal of an indictment based on the construction of the

statute on which the indictment is founded and the other

to motions in bar.’ Considering first the “construction

of the statute” provision, the controlling precedent is this

Court’s decision in United States v. Mersky, 361 U. S.

431. In that case, as in this one, there were in issue

both a statute and a regulation promulgated pursuant to

it. In finding jurisdiction in Mersky, however, the Court

noted that “neither the statute nor the regulations are

complete without the other, and only together do they

have any force. In effect, therefore, the construction of

one necessarily involves the construction of the other. . . .

When the statute and regulations are so inextricably

intertwined, the dismissal must be held to involve the

construction of the statute.” 361 U. S., at 438.’

The relation between the Selective Service Act and

the regulation forbidding representation by counsel be-

fore local boards is wholly different from the situation

in Mersky. The regulation is not at all “called for by

Court, should have been taken to a court of appeals, the Supreme

Court shall remand the case to the court of appeals, which shall

then have jurisdiction to hear and determine the same as if the

appeal had been taken to that court in the first instance.”

6 Ibid.:

“An appeal may be taken by and on behalf of the United States

from the district courts direct to the Supreme Court of the United

States in all criminal cases in the following instances:

“From a decision or judgment . . . dismissing any indictment .. .

where such decision or judgment is based upon the . . . construction

of the statute upon which the indictment .. . is founded.

“From the decision or judgment sustaining a motion in bar, when

the defendant has not been put in jeopardy.”

7 The dissenting opinions would have found gurisdiction wanting

in Mersky. 361 U.S., at 444, 453.

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UNITED STATES v. WELLER 5

the statute itself,’ 361 U. S., at 438. Indeed, so inde-

pendent are the statute and the regulation that it would

be entirely possible for a regulation covering the same

subject matter to provide exactly the reverse of what

the present regulation requires. It cannot be said here

that “the construction of one necessarily involves the

construction of the other.” Since this statute and this

regulation fall so far short of being “inextricably inter-

twined,” we conclude that the dismissal of the appellee’s

indictment was not “based upon the . . . construction

of the statute.” *

We turn, accordingly, to the “motion in bar” provision

of the Criminal Appeals Act. Two preliminary observa-

tions are necessary. First, a “motion in bar” must be

taken to mean whatever was meant by a “special plea in

bar” in the Act as originally passed in 1907. Second,

this Court has never settled on a definitive interpretation

of what constitutes a “motion in bar.’ *°

During its debates on the Criminal Appeals Act in i

1907, Congress paid relatively little attention to the

“special plea in bar” section of the Act. The clearest

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®It is suggested in dissent that we have jurisdiction because of 7

the language in 50 U.S. C. App. § 460 (b)(3) conferring upon local

boards the power “to hear and determine” claims for exemption and

deferment from military service. The reeord does not indicate that

this statutory language was mentioned by the appellee in the Dis-

trict Court, and the court did not rely upon the “hear and determine”

clause in dismissing the indictment. The theory of the dissent was

not urged before this Court, perhaps because the parties realized

that it can hardly be said that a dismissal of an indictment was

“based upon” a construction of a statutory provision that the Dis-

trict Court never even considered.

® United States v. Sisson, 399 U. 8S. 267, 292-293 n. 22; Note 4 of

Advisory Committee to Fed. Rule Crim. Proc. 54 (c), reprinted

following Fed. Rule Crim. Proc. 54, 18 U. 8. C. App. (1964).

10 United States v. Sisson, 399 U.S., at 300 and nn. 53-54.

PPE AAS

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6 UNITED STATES v. WELLER

statement of its meaning was given by one of the bill’s

co-sponsors, Senator Patterson:

“A special plea in bar is that which is set up as a

special defense notwithstanding the defendant may

be guilty of the offenses with which he is charged;

it is for some outside matter; yet it may have been

connected with the case.” *

The tenor of this definition accords with traditional usage,

for at common law the most usual special plea in bar

took the form of confession and avoidance. 1 J. Chitty,

Treatise on Pleading and Parties to Actions *551-—552

(16th Am. ed. 1883). In criminal cases the most com-

mon special pleas in bar presented claims of double

jeopardy or pardon, 2 J. Bishop, New Criminal Pro-

cedure § 742 (2d ed. 1913), and sometimes the statute of

limitations, id., § 799 (5).

A characteristic common to all these definitions is that

a special plea in bar did not deny that a defendant had

committed the acts alleged and that the acts were a crime.

Rather, it claimed that nevertheless he could not be

prosecuted for his crime because of some extraneous

factor. A situation in which the defendant claims that

his act was simply not a crime would be beyond the scope

of this test.

Our decisions are consistent with this reading of the

“motion in bar” provision. In early cases under the sec-

tion, the most familiar plea in bar interposed the statute

of limitations. E. g., United States v. Goldman, 277 U.S.

229, 236-237; United States v. Rabinowich, 238 U. S. 78,

83-84. In other cases defendants have claimed immunity

because of prior self-incriminatory testimony or a statu-

tory grant of immunity. United States v. Blue, 384 U.S.

251; United States v. Hoffman, 335 U.S. 77, 78; United

States v. Monia, 317 U. S. 424. See also United States

1141 Cong. Rec. 2753.

UNITED STATES v. WELLER 7

v. Ewell, 383 U. S. 116 (speedy trial); United States v.

Hark, 320 U. S. 531 (governing regulation revoked after

violation but before indictment); United States v.

Thompson, 251 U. S. 407 (first grand jury refused to

indict; charges submitted to second grand jury without

court approval); United States v. Celestine, 215 U. S.

278 (challenge to federal jurisdiction).

Testing the appellee’s motion to dismiss by this stand-

ard, we think it plain that it cannot qualify as a “motion

in bar.” The appellee did not deny that he refused to

submit to induction, but he claimed that his conduct was

not a crime because of the prior denial of counsel. He

has not confessed to a crime and claimed immunity from

prosecution; he argues that he has committed no crime.

We conclude, therefore, that we have no jurisdiction

over this appeal under either the “construction of the

statute” or “motion in bar” provisions of the Criminal

Appeals Act. Accordingly, this case is remanded to the .

United States Court of Appeals for the Ninth Circuit for

further proceedings in that court. ;

It is so ordered.

OPER OE PTET

Only two cases appear difficult to reconcile with the test

adopted in text, and these are of dubious parentage. In United 7

States v. Covington, 395 U. S. 57, and United States v. Murdock,

284 U. S. 141, defendants were being prosecuted for refusals to

answer which they justified on grounds of Fifth Amendment priv-

ilege. Murdock itself, however, said that the plea was not appro-

priately presented as one in bar. 284 U.S., at 151. In Covington,

we cited Murdock in assuming jurisdiction. 395 U. S., at 59 n. 2.

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SUPREME COURT OF THE UNITED STATES

No. 77.—Ocroser Term, 1970

. On Appeal From the United

United States, Appellant, eae"

ss " sina States District Court for

bs the Northern District of

Thomas William Weller. Citation

{February 24, 1971]

Mr. Justice DovG.as, dissenting.

I believe that the appeal is properly here and I

believe that United States v. Mersky, 361 U. S. 431, is

a precedent that sustains my view and may not properly

be distinguished as the Court undertakes to do.

In Mersky a statute governing the labeling of imported

articles was involved. The Act made it mandatory to

label articles of foreign origin with “the English name

of the country of origin.” It also said that the Secre-

tary of the Treasury “may” determine the “words and

phrases or abbreviations” which were acceptable “as

indicating the country of origin.” 19 U.S.C. § 1304 (a).

We held that the Act and the regulation were “so

inextricably intertwined” that dismissal of the informa-

tion “must be held to involve the construction of the

statute.” 361 U. S., at 438.

In the present case the Court concludes that the

provision of the Selective Service Act in issue and the

regulations are “far short” of being “inextricably inter-

twined.” But with all respect the only section of the

Act quoted is the penal provision defining the crime of

refusing to be inducted.’ The more relevant section is

1 As we noted only last Term in dealing with this same statute,

“fajs a matter of sound construction, however, ‘statute upon which

the indictment . . . is founded’ should be read to include the entire

statute, and not simply the penalty provisions.” United States v.

Sisson, 399 U.S. 267, 280 n. 9.

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2 UNITED STATES v. WELLER

$10 (b)(3), 50 U. S. C. § 460 (b)(3), which reads in

relevant part:

“Such local boards, or separate panels thereof

each consisting of three or more members, shall,

under the rules and regulations prescribed by the

President [§ 10 (B)(1)], have power within the re-

spective jurisdictions of such local boards to hear

and determine, subject to the right of appeal... ,

all questions or claims with respect to inclusion for,

or exemption or deferment from, training and service

under this title. . . .” (Emphasis added.)

The question turns on the meaning of “to hear and

determine.” President Truman, pursuant to his rule-

making power granted by § 10 (b)(1), promulgated on

August 20, 1948, a regulation, 32 CFR § 1624.1, which

described the kind of “hearing” to which a registrant is

entitled.*. More precisely does the power “to hear and

2 32 CFR § 1624.1, as promulgated by President Truman, provided

in relevant part:

“(a) Every registrant, after his classification is determined by

the local board (except a classification which is itself determined

upon an appearance before the local board under the provisions of

this part), shall have an opportunity to appear in person before

the member or members of the local board designated for the

purpose if he files a written request therefor within 10 days after

the local board has mailed a Notice of Classification (SSS Form

No. 110) to him. Such 10-day period may not be extended, except

when the local board finds that the registrant was unable to file

such request within such period because of circumstances over

which he had no control.

“(b) No person other than a registrant shall have the right to

appear in person before the local board, but the local board may,

in its discretion, permit any person to appear before it with or

on behalf of a registrant: Provided, That if the registrant does not

speak English adequately he may appear with a person to act as

interpreter for him: And provided further, That no registrant may

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UNITED STATES v. WELLER 3

determine” include the right of a registrant personally

to appear? Does it include the right of a registrant to

appear through an attorney or with an attorney? Is

the question to be resolved “under the rules and regula-

tions prescribed by the President” or is the Act to be

read as including constitutional requirements of counsel?

In my view the power “to hear and determine,” granted

by the Act, may indeed be more intertwined with the

regulations than was the Act in the Mersky case. For

in the latter, the Act, as noted, made it mandatory to

label articles of foreign origin with “the English name

of the country of origin.” The power of the Secretary

of the Treasury to promulgate regulations was therefore

a power merely to fill in details. In contrast, the present

Act leaves to “rules and regulations prescribed by the

President” the scope and nature of the power of a local

board “to hear and determine” the claims of a registrant.

Is that constitutionally permissible?

This case, rather than Mersky, is more nearly the one

where the Act and the regulations are “so inextricably

intertwined” that dismissal of the present indictment

“must be held to involve the construction of the statute.”

The District Court construed “hear and determine”

claims of registrants “under rules and regulations pre-

scribed by the President,” as those words are used in § 10

(b)(3) of the Act, not to authorize “the constitutionally

suspect action of removing the right to be represented by

counsel.” 309 F. Supp., at 52. The District Court in

granting the motion to dismiss accordingly concluded

that it was “loathe to hold that the administrative denial

of such a right is either authorized by Congress or is

be represented before the local board by anyone acting as attorney

or legal counsel.”

Section 1624.1 (a) was amended by President Johnson by Execu-

tive Order No. 11350 on May 3, 1967, in respects not material here.

32 F. R. 6961.

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4 UNITED STATES v. WELLER

constitutional.” Jd., at 56. We therefore cannot say

that the dismissal of the indictment was not based on a

construction of the statute that the District Court never

considered.

I would not remit the case to the Court of Appeals

but decide here and now whether in the circumstances

here presented the registrant was entitled to the aid of

counsel at the hearing before the Board.

—