# Petition for A Writ of Certiorari — United States v. Jenkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0382%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 358 ## Text INDEX ; Page Opinions below \_...._--____________.___. Pt es eo 1 Jurisdiction ___. RAEI ES Ses ae aie 2 Question pregented Bien EOE "cla SOAS CPD 2 Constitutional provisions and statute involved. 2 Statement : 3 Reasons for granting the writ 11 Conclusion EET A acer a 25 Appendix A APES WORE eae la I To ih ee _ 42a I a 58a Me oe 55a 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 US. F pn anc alien coerce gee ae 10, 16, 19 L Forman y. United States, 361 U.S. 416! 14 f Green v. United States, 355 U.S. 184... 15, 19 ; Illinois v. Somerville, 410 U.S. 458 19 B Kepner v. United States, 195 U.S. 100. 10, 15, E | 16, 17, 18 King v. United States, 426 F.2d 278 ___ 9 f Palko v. Connecticut, 302 U.S.-319 15 p Trono v. United States, 199 U.S. 521 __. 19 . é United Siates v. Bali, 163 U.S. 662 9, 16, 17, 20 i United States v. Jorn, 400 U.S. 470 __... 20 4 Il 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 yv. Russell, 411 U.S. 423___. 18 United States v. Seeger, 380 U.S. 163_. 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. Whiited, 454 F.2d 642_. 24 Constitution, statutes and rule: United States Constitution, Fifth Amend- NTS Gtr Na Se 2,19 Criminal Appeals Act, 18 U.S.C. 3731, as 4 amended by Title III of the Omnibus Crime. Control Act of 1970, 84 Stat. I 7 Sa te, 2, 7, 20 Conn. Gen. Stat. Ann. § 54-96 (Supp. 1973) i itieceenne New York C. P.L. §450.20 : 14, Vt. Stat. Ann., Title 13, § 7403 14 Rule 23(c), Fed. R. Crim. P. 18 Miscellaneous : y, r Comment, Statutory Implementation of | Dotible 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 4 & i* 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 CEn_-IORARI TO THE UNITED STATES COURT JF 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-41a) 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) ARANETA RTPI 2 | Sexy HN REACTS ER RUMEN I 2 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). A QUESTION PRESENTED Whether the Double Jeopardy Ciause 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 tiie 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: © v In a criminal case an appeal by the United States shall lie to a court of uppeals from a de- cision, judgment, or order of a district court dis- missing an indictment or information as to any one or more counts, except that no azpeal shall lie where the double jeopardy clause of the United States Constitution prohibits ‘further prosecution, x * * * * rs . SL ee Ey Me A OE MID BONNE Ke The provisions of this section shall be liberally i construed to effectuate its purposes. f STATEMENT e 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 t district court found that, as charged in the indict- ment, “the Local Board mailed t» defendant * * * an = : Es : * — RARE EL OD ; SS ROIS LR MR Byars tee eee cree ‘ 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 Qlass 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 requestéd. Form 150. He was advised tc 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. SRD RL $0 9 ACNE EES AANA APNE Hit Ns DS OER AA BORA Pe 3 5: 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). ae 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 local board’s action must be viewed in light of the law at the time. ~ 6 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 dismssed 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- liea 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” (7bid.). 7 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 aistrict 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 FJ PENA TEA ETE SEA d chee MSIE RES ETS et Bi Man ect) ee PT IRR PET SPRL POS AOE RIT SE PLN 24 unnec:ssary pretrial delay. The Court of Appeals for the Third Gircuit 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’’) withcut 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). 1” We are sending counsel for respondent copies of our petition for certiorari in Wilson and our memorandum in Serfass. us 25 CONCLUSION For the foregoing reasons, it is respectfully sub- mitted that the petition for a writ of certiorari should be granted. d ROBERT H. BORK, Solicitor General. HENRY E. PETEKSEN, Assistant Attorney General. EDWARD R. KORMAN, Assistant to the Solicitor General. ROBERT H. PLAXICO, Attorney. APRIL 1974. la > APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIPCUIT SEP’VEMBER TERM, 1973 No. 79 ~ (Argued September 12, 1973 Decided December 11, 1973) Docket No. 73-1572 Not tegangens a a | Ps * 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 ate Se NRMP DOE TPA SP RATE REN, (OES SRS wa os th a) we 2a U.S.C. App. § 462(a), on the ground that despite the subsequeft 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 ror 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.’ 1 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 herein cited show that the amendment has by no means solved all problems in this field. coe 3a 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. - Z 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- 2 The statute also directs: The appeal in all 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 rendered October 24, 1972, and the Government’s notice of appeal was filed on November 21, 1972, 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. Goldstein, 479 F.2d 161, 1064 n.4 (2 Cir. 1973), we admonished that, in appeals ‘under 18 U.S.C. § 3731, the Government’s brief should or‘ti- narily be filed within 30 days after the notice of appeal. winrar ie 4a 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- SAE ORI Sic LESLIE LLL EN LPM I PERE ORE = 5a 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 ovr 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 since, 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 “NETTIE ELD A ESE LE OES AIEEE LAI MOD GO a PT Te ey eee 6a 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.* Tne 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- 8 Justice Black characterized the “[fJear and abhorrence of governmental power to try people twice for the same con- duct” as “one of the oldest ideas in western civilization.” Bartkus v. 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 Cicerc said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all 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. ot TIE ORE Bs Ta 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 de- part quit against all, also as regards the king’s suit, because he thereby proves his 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 vice versa, although success on an appeal would still bar a second appeal, and success on an indictment would bar a second 8a 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 Vaua’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 Offei:se, 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 the 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). > 4 RA TARTRE RET: 9a 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 Blackstone, 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 earlier 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 2 AERTS OF z REI UST PE SE Te Re se - 5 3 es 3 & ® rd TRUER OMLE 10a dissent of a well-respected judge, the court stuck to its position with increasing confidence in later cases. See, e.9., Rex v. Jackson, 1 Lev. 124, 83 Eng. Rep. 330 (K.B. 1661) ; Rex v. Fenwick & Holt, 1 Sid. 149, 158, 82 Eng. Rep. 1025, 1627 (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 a new trial unless the defendant had obtained ss his acquittal by fraud or treachery. See 2 Hawkins, Pleas of the Crown, ch. 35 § 8; 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 efter an acquitial, 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 eighteench century, in capital cases the defendant’s writ of error could not be taken without the king’s permission. See Rex 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- 7. 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). 12a 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 histgry 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 17%, tor 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 Pall. 236, 237 (Phil. 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 toa 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 1° 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 86 (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 v. Illinois, 55 U.S. (14 How.) 18 (1852), were fariliar 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 v. 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- eee eee 7 —s 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 Holres, joined by two other Justices,” filed a vigorous dis- 11 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 Pee Oda 17a cent. Relying heavily on the defendant’s right to secure a new trial on appeal from a conviction, he argued that “logicaiiy 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 upon the invalidity, or con- struction of the statute upon 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 tae 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 frem 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 12 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. EAS URI eds eR a a es a 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.” * 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, Appeals 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, the 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. Bellou, 127 Vt. 1, 288 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- a ae ‘ ORL POO PDX RBA Pe cae 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 defendants. The judge acted be- cause of what he considered a lack of credibility in the government’s initial witnesses and improper conduct 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 acquittal 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). 8 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. 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 ree- son, that the acquittal was based upon an egre- giously erroneous foundation. Nevertheless, “(t]he verdict of acquittal 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 acfendant 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 pcvted to “arrest judgment” on the ground that Sis- sor 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 waut 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. 16 The district court’s views were later held to be erroneous, Gillette v. United States, 401 U.S. 487 (1971). SRE LER RSI LT AS ISIE TP? ROT SUL re nadie 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- j 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 f 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 i~ original). pzaR SSPE LOVEE Pe : ¥ sileai as es | EYEE PTY RINSE IRIE ICN INTO ISTE HERR 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 czn “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, altheugh 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 a post-verdict acquittal; what was important was what the judge did, not what he said. 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 17 We see nothing in Justice Harlan’s treatment of United States v. Covington, 395 U.S. 57 (1969), in footnotes 19 and 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 jn United States v. Boston & Maine R.R., 380 U.S. 157 (1965), upon which the dissent relies. See also United States v. Pecora, No. 72-2173 (3 Cir. Aug. 31, 1973), slip op. at 7; United States v. Martin Linen Supply, No. 72-2796 (5 Cir. Oct. 9, 1973), slip op. at 9. 18 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 judge’s power. Distinguishing Fong Foo, * we said, 452 F.2d at 711 n.10: There is no similar problem here. 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 weut to the general issue of the case. 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 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 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 Circuit 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 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 i 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.” 19 We have no occasion to consider the correctness of deci- sions that have extended this analysis to pre-trial rulings. In United States y. 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 been re- opened. See also United States v. McCreery, 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 loca! 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). ams A ey SE eae Ni iN NA i fo nl RENN De in eI te TR = 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, 2 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 tria! relating to the general issue of the case.” 399 US. at 290 n.19. 3 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